Montana's New Law Against Double-Voting: Unclear, Unnecessary, and Unconstitutional?

Politicians in Montana (among other states) have had a history of writing in voting laws that have violated the Montana Constitution. Several laws have been struck down by courts in the past for this reason. This May, Montana enacted a voter law that brought severe penalties for double-voting, among other changes. Now, it is the source of a new lawsuit.

Voting Laws Are Hot-Button Issues

Voting law is always a politically divisive issue, and the COVID-19 pandemic made it even more complicated. In order to protect voters and election workers from the virus, states made a variety of changes to how people could cast their ballots. Such changes included expanding absentee voting and adding ballot drop boxes. Many states made it easier for people to vote by mail by eliminating or relaxing excuse requirements to vote absentee, and some even mailed absentee ballot applications to all registered voters. In addition, some states added ballot drop boxes so that people could return their completed absentee ballots without having to go to a polling place. These changes had a major impact on how people voted in the 2020 election.

A record number of people voted by mail, and early voting turnout also increased. Since then, some states have made some of these changes permanent, reasoning that it is easier for people to vote this way. Other states took the opposite approach and made it more difficult to vote. For example, some states have shortened early voting periods and imposed stricter voter ID requirements. These changes have been disproportionately likely to affect voters of color and low-income voters. For specifics on state voting laws, you can visit our voting law section.

Montana's History of Disparate Voting Laws

In Montana during this time, the state had recently passed a law known as the Montana Ballot Interference Prevention Act (BIPA). The law imposed strict restrictions on ballot collection efforts, which are crucial for Native American voters (particularly those on rural reservations), as these efforts often represent their only access to voting. Native American voters are more likely to live in poverty and in rural areas, which can make it difficult to get to the polls. They are also more likely to lack access to reliable transportation and internet service. As a result, Native Americans are more likely to rely on ballot collection efforts to vote.

BIPA limited the number of ballots that an individual could collect to four and restricted the categories of individuals who were permitted to collect ballots. This disparately targeted Native Americans living on rural reservations without easy access to polling places or transportation to and from polling places.

Native American tribes and voting rights advocates challenged BIPA in court, arguing that it would disproportionately disenfranchise Native American voters. They argued that the law was discriminatory, as it targeted Native Americans. They also argued that the law was unnecessary, as there was no evidence of widespread voter fraud in Montana.

In September 2020, a Montana court permanently struck down BIPA, ruling that the law violated the Montana Constitution's Equal Protection Clause. The court found that BIPA placed an undue burden on Native American voters and that the state had failed to justify the law's restrictions. The court reasoned that BIPA, while passed under the guise of preventing voter fraud, did little to address the issue of voter fraud and was more likely to disenfranchise minority voters and other groups who are more likely to vote by mail.

Montana thus already has a shaky history with voting law. More recently, the state passed a law known as House Bill 892 (the "Prohibit Double Voting Act"). The law went into effect immediately in late May.

HB 892: Montana's New Double-Voting Law

HB 892 prohibits a person from voting in more than one election for the same office or measure on the same day. It also prohibits a person from voting in an election in Montana and another state on the same day. Specifically, HB892 says that a person can't intentionally stay registered to vote in more than one location in Montana or another state unless it relates to special district elections. The new law also requires that anyone previously registered to vote in another county or state must provide that prior registration information on the Montana voter registration application.

Last Friday, attorneys from various firms, including Raph Graybill (who lost the 2020 election for Montana attorney general), filed suit on behalf of the Montana Public Interest Research Group and the Montana Federation of Public Employees, against the Montana Secretary of State, Montana Attorney General, and the state's Commissioner of Political Practices.

As the plaintiffs bringing suit point out, the new law is unclear. What it means to "intentionally stay registered" isn't defined or explained. Further, it's not clear whether voters need to actively cancel their existing registrations and confirm those cancellations to avoid potential punishment. For those previously registered to vote elsewhere, the new law does not specify what "prior registration information" is needed, nor what mindset is required for violations. The law makes it a crime to maintain multiple voter registrations and to fail to include previous registration information on applications, even if voters have no intention of voting in more than one location and even if they never actually do. The complaint states, "the stake for honest mistakes are high."

Supporters of the law have argued that it is necessary to prevent voter fraud and ensure the integrity of elections. They claim that double voting is a real problem, even though there is little evidence to support this claim.

Opponents of the law have argued that it is unnecessary, for a few reasons. Firstly, because it targets double voting, which they claim is not a widespread problem. They also point that Montana already has laws in place to prevent voter fraud. Opponents further argue that the law will disproportionately disenfranchise minority voters, who are more likely to vote by mail and to rely on ballot collection efforts. Voting rights advocates have criticized the law, saying that it is likely to have a chilling effect on voter turnout.

Plaintiffs bringing the complaint point out that voting more than once in Montana is already illegal. They argue that while HB 892 claims to merely reinforce existing laws against double-voting, it actually introduces new (and unclear) voter registration requirements and severe criminal penalties.

What Next for Montanans?

Plaintiffs are asking a judge to find that the new law violates the U.S. Constitution for being too vague (under the Fourteenth Amendment) and for being overbroad and unduly burdensome on citizens' right to vote (under the First and Fourteenth Amendments). They are asking the court to strike down the law bar the state enforcing it. Since HB 892 has so recently passed, it is likely too early to saw what effect it will have on voting in Montana. In the meantime, there may be a preliminary injunction from the judge that temporarily settles the question of how the law does or doesn't affect people in the short run, until the constitutional questions can be finally decided.

Related Resources

• Voting Laws: All You Need to Know (Findlaw's Voting Rights)
• Can Courts Intervene in Elections Cases? SCOTUS Says 'Yes' (Findlaw's Federal Courts)
• Will SCOTUS Remove State Courts from the Redistricting Process? (Findlaw's Federal Courts)