The James Browning U.S. Court of Appeals Building in San Francisco (Photo by Wikimedia Commons | CC-BY-SA 4.0).
A three-judge federal appeals panel said that a law passed by Republicans in the Legislature to eliminate double-voting, something already illegal, violates the U.S. Constitution, siding with a federal judge in Montana who stopped the law.
House Bill 892 mandated that voters who remain registered in a different place show proof that they’ve removed themselves from their previous location or face criminal penalties. However, federal Montana District Court Judge Brian M. Morris said found the law was overly vague, could chill constitutionally protected activities like exercising the right to vote, and finally, was already on the books as illegal in Montana.
Since 1995, Montana has had a provision that outlaws double voting. Republicans who rallied around HB 892 said it was an additional necessary step to ensure the integrity of voting in Montana. They pointed out that there were a suspected 14 cases of double voting in Montana during the 2020 general election, according to court documents.
However, Morris said that HB 892 was overly broad and vague, leading to residents not being able to understand the law clearly, and risking criminal penalties if they didn’t comply.
The groups which challenged the law included Montana Public Interest Research Group and the Montana Federation of Public Employees, both which have activities centering on getting residents registered to vote.
A host of groups had appealed Morris’ decision to the Ninth Circuit. Those included Montana Secretary of State Christi Jacobsen, Montana Attorney General Austin Knudsen, Commissioner of Political Practices Chris Gallus, the Republican National Committee and the Montana Republican Party.
A spokesperson for Secretary of State said the law was a logical approach to protect voting security.
“Montanans know this was a bipartisan bill that protected against a bipartisan concern. Halting it was the wrong decision. As we stated before, it’s ridiculous that activists cry foul when the state makes existing practice a law,” the spokesperson said. “It’s not surprising that the appeals court in San Francisco would ultimately side with arguments stemming from lawsuits from coastal lawyers seeking partisan gain.”
The three-judge panel affirmed Morris’ ruling, and criticized attorneys for the state and Republicans for raising arguments that were never considered by Morris. For example, the defendants tried to argue during the hearing before the Ninth Circuit that the First Amendment of the U.S. Constitution, which protects most political activity, did not cover the right to register to double vote.
“We decline to consider this argument,” the panel said. “Defendants failed to raise it in the court below and have therefore forfeited the issue.”
House Bill 892 would have proposed criminal penalties on anyone found guilty of double voting, including as many as 18 months in prison and $5,000 in fines.
During the hearing before Morris, attorneys for MontPIRG and MFPE had said some college students or other transient populations may not know where they were registered, or have moved multiple times.
“Because HB 892 would discourage individuals from registering to vote in Montana by threatening criminal penalties for doing so, HB 892 carries the risk of irreparable harm to plaintiffs,” the ruling said. “However, as stated, HB 892 does not change Montana’s voter registration practices. Rather, it relies on criminal penalties and deterrence for its enforcement. And double voting is already a crime. These facts undermine defendants’ argument that enjoying the statute will compromise the integrity of elections.”