Josh Douglas: “The Montana Supreme Court Correctly Recognizes a Robust Right to Vote Under the State Constitution”

The following is a guest post from Joshua A. Douglas:

The Montana Supreme Court just issued a decision that represents a model for how state courts should consider the protections for the right to vote within state constitutions.

The case, Montana Democratic Party v. Jacobson, involves four laws passed in 2021 that, a lower court found after a nine-day trial, will make it harder for some people to register or cast a ballot. (The court provided a useful two-page summary of the 125-page decision here).

First, the legislature prohibited a voter who is not yet eighteen-years-old, but will be eighteen by Election Day, from receiving and returning an absentee ballot.

Second, the legislature eliminated same-day voter registration, instead closing the registration books at noon on the day before Election Day. Same-day registration is extremely popular in Montana, with 70,000 voters using it since 2006, and the state’s electorate rejected a measure to repeal it in a 2014 referendum. But the legislature eliminated it in 2021 anyway. 

Third, the legislature passed a law to restrict ballot collection, requiring the Secretary of State to enact rules that would preclude the paid collection and submission of absentee ballots by individuals or groups. The plaintiffs showed at the lower court that many voters, especially those from Native American communities and people with disabilities, rely on organizations to deliver their completed ballots.

Finally, the legislature eliminated the use of student IDs as proper voter IDs, requiring a voter who shows a student ID to provide an additional form of documentation. But the legislature could not point to any evidence that the use of student IDs would lead to any kind of voter fraud.

Four of the court’s seven justices ruled to affirm the lower court and strike down all four laws, while the three dissenting justices agreed with the majority on some but not all of the provisions (while questioning the majority’s approach to the state constitution). The majority found that each of the laws would interfere with the state constitutional right to vote.

But the holdings, while important for Montanans’ voting rights, are only part of the story. As someone who has written extensively on the power of state constitutions to robustly safeguard the right to vote, I was most interested in the constitutional test the court applied to the  Montana Constitution’s conferral of the right to vote.  

The court began its analysis by noting that “[t]he right to vote is a clear and unequivocal fundamental right under the Montana Constitution,” citing Montana Constitution’s article II, Section 13: “All elections shall be free and open, and no power, civil or military, shall at

any time interfere to prevent the free exercise of the right of suffrage.” As against the state constitution’s delegation of authority to the legislature to regulate elections, the court noted, “Montana’s Constitution is a prohibition on legislative power rather than a broad grant of power.” It is therefore subordinate to the fundamental right to vote. “[A]lthough the Legislature is given power regarding elections, it may not exercise that authority in a way that violates the freedom and openness of our elections or interferes with the free exercise of the right of suffrage.” The state constitutional right to vote is paramount.

The court put real teeth into this state constitutional protection for voters. The court rejected the AndersonBurdick balancing test that federal courts use to analyze the right to vote under the Equal Protection Clause of the Fourteenth Amendment, finding that “after four decades of federal precedent, the AndersonBurdick balancing test now often gives undue deference to state legislatures.” (Full disclosure: the court cited my article, among other authorities, to support this proposition.) The court refused to follow federal precedent, noting that “[t]his Court can diverge from the minimal protections offered by the United States Constitution when the Montana Constitution clearly affords greater protection—or even where the provision is nearly identical.” The court found that AndersonBurdick provides less protection than the text or history of the Montana Constitution contemplates for the right to vote.

The Montana Constitution, the court explained, more broadly protects the right to vote through multiple provisions. “[B]oth the plain meaning of the right, unchanged since 1884, and history show that this right is broad and strong,” while “the United States Constitution contains no explicit protection of the right to vote.” That is a particularly bold statement on the power of the state constitution to protect voters, especially as compared to the weaker federal court jurisprudence under the U.S. Constitution. In refusing to follow U.S. Supreme Court precedent, the Montana court explained that the “United States Constitution’s implicit right to vote was viewed much stronger in the 1800s through the 1970s than it is today” (which is the topic of my book that comes out this May, titled The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights).

Instead of AndersonBurdick, the court adopted a state-specific framework: it will apply strict scrutiny when a law infringes upon a fundamental right, such as the right to vote. But when a law “minimally burdens” the right to vote but does not “impermissibly interfere” with it, the court applies a “middle-tier analysis,” which balances the state’s interest with the right infringed. Ironically, that may test may have been what Justice Stevens intended when he authored the Anderson decision in 1983, but the Court in later years watered down the test to give undue deference to state legislatures. The court here adopted a stronger form of that balancing inquiry that still elevates voters’ ability to participate even if a law only minimally burdens voting rights, and it explicitly rejected the most deferential rational basis test for the state constitutional right to vote. Thus, judicial scrutiny in Montana for voting rights is elevated—strict scrutiny if the law interferes with the right to vote and a still-robust “middle-tier analysis” for even minimal burdens on the right to vote. That strong judicial inquiry is much different from how the U.S. Supreme Court and lower federal courts now construe the implied right to vote under the U.S. Constitution.

The court then employed the test to each of the four challenged laws, finding them all unconstitutional even under the lower “middle-tier analysis” for some of them. In doing so, the court carefully questioned the state’s asserted interests in the various laws, finding they often lacked support. Instead of undue deference to state legislatures, the court made the legislature justify its voting rules with actual evidence.

State courts have various tools within state constitutions to robustly protect voters. The Montana Supreme Court’s decision offers a solid roadmap for how to use state constitutional language on the right to vote. Other state supreme courts should follow the Montana Supreme Court’s lead.

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