Montana strikes down voting restrictions

Unlike the U.S. Constitution, nearly every state’s constitution explicitly grants an affirmative right to vote, which raises important questions about whether and how state constitutions may provide additional protections for voting rights. Last month, the Montana Supreme Court spoke to these issues in a major ruling that struck down a number of restrictive voting laws under its state constitution. It was a significant articulation of state constitutional voting rights at a moment when several other state supreme courts are also considering such questions and federal courts have cut back protections under federal law.

At issue in Montana Democratic Party v. Jacobsen was a series of state laws passed in 2021 that created new hurdles for voting: the elimination of Election Day voter registration, a ban on paid absentee ballot collection (a practice widely utilized on hard-to-access Native American reservations), a provision barring student IDs as primary forms of voter identification, and a provision barring 17-year-olds who would be eligible to vote on Election Day from accessing absentee ballots. A nine-day trial found that these laws had a disproportionate impact on young people and Native Americans in the state. The trial court struck down the laws.

On appeal, the Montana Supreme Court affirmed the trial court’s ruling while addressing the breadth and strength of Montana’s right to vote. Pointing to Article II, Section 13, of the state constitution, which provides that all elections “shall be free and open” and that “no power . . . shall at any time interfere to prevent the free exercise of the right of suffrage,” the court stated definitively that “the Montana Constitution affords greater protection of the right to vote than the United States Constitution.”

What does this “greater protection” mean in practice? In civil rights litigation, the standard of review applied by courts — how closely they’ll scrutinize government action — is often the decisive factor in whether a law is upheld. For most challenges to voting restrictions under the U.S. Constitution, courts apply what’s called the Anderson-Burdick test (named after two Supreme Court cases, Anderson v. Celebrezze and Burdick v. Takushi). This test requires “strict scrutiny,” the most rigorous level of review, when a law “severely burdens” the right to vote. When the burden is less severe, the test requires courts to balance the state’s interest and the burden imposed.

Over time, however, Anderson-Burdick has increasingly been applied by courts to defer to the government’s purported interests in most instances. This has meant that as interpreted under this rule, the U.S. Constitution has often been only weak tea for addressing legislative efforts at voter suppression.

The Montana Supreme Court didn’t hold back in criticizing Anderson-Burdick. “After four decades of federal precedent,” the court observed, “the Anderson-Burdick balancing test now often gives undue deference to state legislatures.” Among other things, the court argued, Anderson-Burdick sets too high a bar for a burdensome voting law to trigger strict scrutiny and offers an “amorphous” standard that often fails to protect voters when a widely applicable law primarily burdens only a subset of voters.

For these reasons, the court declined to adopt Anderson-Burdick as the framework for interpreting its constitution, concluding that it “provides less protection than that clearly intended by the plain language and history of the Montana Constitution’s right to vote.” Instead, the court applied its own version of a balancing test. If a law “impermissibly interferes” with the right to vote — meaning that it interferes with all electors’ right to vote, or with the right to vote for specific populations — then strict scrutiny applies. By contrast, if a law minimally interferes with the right to vote, “middle-tier analysis” applies, which balances “the rights infringed and the government interest served by the infringement.”

Applying this standard, the court concluded that strict scrutiny applied to both the elimination of Election Day registration and the ban on paid ballot collection — the first because of its wide use by Montanans and the latter based on evidence that many Native Americans living on reservations in the state rely on paid ballot collection. It applied middle-tier analysis to the remaining provisions. Across the board, the court looked at the evidence put forward by the state to justify its purported interest in the restrictions and found it wanting. As a result, the court concluded all four provisions were unconstitutional.

There’s far too much to say about the ruling to cover in a single essay. I was struck by the court’s focus on evidence of the practical impact of the challenged laws — “mere recitations” of a state interest weren’t enough to pass muster. And as several state high courts evaluate similar questions, it’s worth considering other alternative frameworks to Anderson-Burdick in addition to the approach Montana has adopted.

With laws restricting access to voting apparently here to stay, questions about the scope of state constitutional protections — and the appropriate test to apply in evaluating claims — are likely to be a major issue.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

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