9th Circuit Court: MT's 'double-voting law' redundant, could hamper voting

A federal appeals court this week found the Montana Legislature's law leveraging new criminal penalties for double voting was redundant and could potentially chill voter registrations.

The three-judge panel in the 9th Circuit Court of Appeals upheld an April ruling by a federal district court judge in Montana to set aside the criminal provisions in House Bill 892 while the rest of the case played out.

In May, the Montana Attorney General's Office appealed that decision from U.S. Chief District Court Judge in Montana Brian Morris, asking the higher court to reinstate the felony-level penalties because it claimed Morris had reached the wrong conclusion.

"This conclusion was not erroneous: double voting has long been illegal in Montana," the three-judge panel on the 9th Circuit Court of Appeals wrote in their decision on Tuesday.

The decision from circuit court Judges Susan Graber, Consuelo Callahan and Lucy Koh affirmed a lower court judge's decision to stall parts of the law because the plaintiffs were likely to prevail at the case's conclusion. The plaintiffs include Montana Public Interest Research Group (MontPIRG), which conducts voter registration activities on college campuses, and the Montana Federation of Public Employees, which likewise takes on voter registration activities for its union members.

The state defendants — Secretary of State Christi Jacobsen, Attorney General Austin Knudsen and Commissioner of Political Practices Chris Gallus — argued on the appeal that Morris had not applied the correct standard in determining the plaintiff's likelihood of success on the merits of their case.

"Defendants are mistaken," the 9th Circuit panel wrote in their decision Tuesday. "The district court stated repeatedly that it was analyzing the likelihood of success on the merits."

At the heart of the case is the plaintiffs' arguments that the law, which levies prison time and thousands of dollars in fines for people who are registered to vote in more than one place, was so broad that people could unknowingly run afoul of the law. That argument was especially pointed for young voters who move to a new city or state in the fall for college, MontPIRG argued.

Attorneys for the state officials contended the new law and beefed up penalties provided a strong signal to voters that the state was taking election integrity seriously, and that could prevent another riot like Jan. 6.

However, the 9th Circuit panel wrote in its decision, because HB 892's provisions would discourage people from registering to vote by threatening criminal penalties for doing so, the plaintiffs had likely proven it could chill a person's right to vote.

Additionally, the judges wrote, double voting is already a crime, which undercuts the state's argument that voiding the new law would compromise election integrity in Montana.

The passage of HB 892 has been campaign-season fodder for Republicans. At an event last week in Great Falls to reassure voters that elections would be safe this year, Jacobsen mentioned the double-voting law, among other bills, her office helped shepherd through the Legislature in recent years.

Several bills promoted by Jacobsen and GOP officials have instead fallen on court challenges alleging they would limit voting rights in Montana. Earlier this year, the Montana Supreme Court struck down four election-related bills from the 2021 session. Those would have ended Election Day voter registration, added new voter identification restrictions, limited paid third-party ballot collection and prevented 17 year olds from voting even if they were 18 by Election Day. Each of those bills, the plaintiffs argued, would have chipped away at protected voting activity.

The case against HB 892 now returns to the U.S. District Court in Montana for further proceedings. As of Wednesday, no further hearings had been scheduled.