Voters wait to register to vote at the MetraPark Expo Center in Billings, Montana on Nov. 5, 2024 (Photo by Darrell Ehrlick of the Daily Montanan).
The Montana Secretary of State’s Office and the Commissioner of Political Practices have come to an agreement with two groups which successfully challenged a 2023 law that would have made it crime for residents to be registered to vote in two places simultaneously, even if it didn’t result in double voting.
As federal court judge Brian M. Morris made clear in the stipulated agreement signed late last week, double voting in Montana is already a crime. However, House Bill 892 made it a crime to be registered in one place and voting in another, something that evidence and testimony says happens all the time for a variety of reasons.
The agreement will technically leave Montana Code 13-35-210(5) on the books, but make it unenforceable, with both the Secretary of State and COPP agreeing that they’ll not enforce it because its likely a violation of the U.S. Constitution. The lawsuit was brought by the Montana Public Interest Research Group and the Montana Federation of Public Employees. They were represented by Raph Graybill of the Graybill Law Firm and notable voting rights legal team, the Elias Law Group in Washington, D.C.
In litigation that has already had the U.S. Ninth Circuit Court of Appeals weigh in on it after state attorneys challenged an injunction ordered by Morris, federal courts had determined that HB 892 likely impedes residents efforts to vote, or threatens them in a way so that they will not vote.
The courts also found that while double voting — or voting in the same election in two different places — happens, it’s exceptionally rare and current state law already makes it a crime. Instead, HB 892 would make it a crime to be registered in two different places and could have required residents to prove they had transferred their registration before being allowed to vote. The testimony and court documents said updating voter rolls or transferring voting eligibility is usually something done by election officials, not residents.
The court case also pointed out different scenarios where a resident may be eligible to vote in several locations, for example in the case of college students or retired residents who split their time between two different places. The law allows for such a scenario so long as residents cast only one ballot per election cycle.
Morris, in April 2024, had issued a temporary injunction against the law because of its effect on the right to vote and the First Amendment implications, which encompass the idea that speaking about candidates and voting is political speech and should be the most protected from government interference.
That meant that the State of Montana had to prove that HB 892 was narrowly crafted and easily understood so that it couldn’t be seen as an obstacle to voting.
“Because First Amendment freedoms need breathing space to survive, the government may regulate in the area only with narrow specificity,” Morris said.
However, Morris said the vague language of the law leaves too much room for speculation. For example, does the law just apply to new voters in Montana? What about those who previously registered in a different Montana county?
“The court remains concerned that voters lack notice as to what Montana requires of them when registering to vote,” Morris said.
He said that the concerns are even more heightened because HB 892 subjected citizens to criminal penalties.
The court was also concerned that the law conflated double voting — or casting ballots during the same election in two different places — with being registered in two different places, something that other federal courts have upheld as legal.
“The Seventh Circuit rejected Indiana’s reliance on the criminalization of double voting to support its argument that registering to vote in a new jurisdiction implied that the voter no longer wanted to registered in their old jurisdiction. Indiana equated double registration with double voting,” the judge said. “The Seventh Circuit acknowledged the fundamental distinction between the two circumstances: ‘While double voting is surely illegal, having two open voter registrations is a different issue entirely. In the overwhelming majority of states, it is not illegal to be registered to vote in two places.”
The court also raised concerns it was treating different classes of voters differently because “college students, young people and voters who temporarily relocated for job reasons” may all have reasons to have multiple voter registrations.
HB 892 imposed criminal penalties of as many as 18 months in prison and as much as a $5,000 fine.
“The only thing that HB 892 accomplished was making it harder and more intimidating for Montanans to register to vote,” said Aria Branch, a partner with the Elias Law Group. “This victory reinforces that our elections laws should make voting easier, not create unnecessary traps that expose lawful voters to criminal liability.”