Montana aiming for SCOTUS appeal of decisions that struck down voting laws

The Montana State Capitol photographed on Feb. 11, 2023. (Photo by Nicole Girten/Daily Montanan)

The State of Montana wants the U.S. Supreme Court to hear an appeal of the Montana Supreme Court’s March decision striking down four voting laws passed by the 2021 Legislature, and a filing last week shows the state plans to advance portions of the controversial “independent state legislature theory” that has mostly already been rejected by the nation’s high court.

Last week, an attorney with the Montana Department of Justice wrote to the Supreme Court that utilizing the four election laws in another challenge would be “an ideal vehicle” for the court to address what the administration believes are holes in the U.S. Supreme Court’s decision from last summer that could allow for the mostly right-wing theory to take hold in the U.S. court system.

“Because the Montana Supreme Court has assumed a de facto new role as the final arbiter of all election legislation in Montana, this court’s review is urgently needed,” Montana Department of Justice Counsel of Record Peter Tortensen wrote in the filing.

The independent state legislature theory contends that since a clause of the U.S. Constitution says legislatures shall set the “time, place and manner” of elections for U.S. House of Representatives and Senate, that state courts cannot infringe on election laws for those races written into law by a state legislature.

The Montana Department of Justice, led by Attorney General Austin Knudsen, filed a request for an extension of time last Wednesday with the U.S. Supreme Court asking the court to give the office until Aug. 26 to file its petition with the court calling on it to take up the appeal, referred to a petition for writ of certiorari. The Attorney General’s Office is representing Secretary of State Christi Jacobsen in the request.

The document was obtained and posted online by the election law news outlet Democracy Docket, which also first reported on the filing. A spokesperson for the Secretary of State’s Office did not respond to an email requesting a copy of the filing and any others in the case on Monday.

But the filing shows the Gianforte administration hopes the justices agree to take up the case to review the Montana Supreme Court’s March decisions striking down the four bills passed in 2021 . The filing says the administration believes the Montana Supreme Court’s decisions in those cases were “egregiously wrong” and highlight “the need for this court’s guidance on how to determine whether a state court has impermissibly interfered with a state legislature’s authority.”

The Montana Supreme Court unanimously found that a law prohibiting giving voters absentee ballots before they were 18, even if they would be 18 by Election Day, was unconstitutional. But the court was split 5-2, with Justices Dirk Sandefur and Jim Rice dissenting, that three other laws were unconstitutional. A district court judge had previously struck down all four laws.

One sought to eliminate Election Day registration; another banned the use of ballot collectors who receive a “pecuniary benefit;” and the third sought to eliminate university identifications being a legal document to register to vote.

The majority found the state had failed to show a compelling state interest in restricting Montanans’ ballot access and right to vote with those three bills, though Sandefur and Rice disagreed in their dissent, saying they believed the laws should have held up under scrutiny because the court majority was stepping on the toes of the Legislature and the laws it writes with its decision.

In last week’s filing, Tortensen asked the court to give the state until Aug. 26, instead of the current June 25 deadline, for an extension to ask the court to hear the case, based in part from Sandefur and Rice’s dissent.

The request also cites dissenting opinions from three conservative justices that were part of a North Carolina gerrymandering case in which the majority found state courts can review federal election laws passed by state legislatures.

In that case, Moore v. Harper , a 6-3 majority found state courts can apply constitutional restraints to elections laws passed by legislatures.

Chief Justice John Roberts wrote the majority opinion that mostly rejected the theory. The majority found the “Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections … (and) does not insulate state legislatures from the ordinary exercise of state judicial review.”

But the court also found that state courts have to act within “ordinary bounds of judicial review” when reviewing federal elections laws made by state legislatures. Justice Brett Kavanaugh wrote in a concurring opinion that the Supreme Court “should and presumably will distill that general principle into a more specific standard.”

The state’s filing last Wednesday says that begs the question of its appeal: “What showing is required to show that a state court has so far exceeded the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the U.S. Constitution?”

Last week’s filing says the U.S. Supreme Court partially resolved some of the issues surrounding the theory in its decision last year regarding the bounds of judicial review, but the state believes there is more to be tested.

“It left open the question of how to determine whether a state court has transgressed that boundary and impermissibly interfered with a state legislature’s authority,” the filing says.

The state argues the level of scrutiny the Montana Supreme Court applied to the four voting laws to overturn them violated the authority given to the legislature by the state constitution to regulate elections and overstepped the limits laid out in the Moore case.

The filing also cites Sandefur’s dissent in the March opinion , in which he said the court was exercising “unrestrained judicial power” and struck down the three laws “on the most dubiously transparent of constitutional grounds.”

Tortensen goes on to say that questions about the independent legislature theory will continue to arise until the Supreme Court fully addresses them, citing “increased focus” on election integrity around the country.

Other states have tried to use the independent legislature theory to block courts from reviewing redistricting maps, but the Supreme Court has also mostly rejected their arguments, according to the Brennan Center for Justice . Former President Donald Trump also utilized it in claiming state legislatures were the ultimate arbiters of Electoral College votes and could overturn election results, but that claim also failed to be approved by the majority.

Lawmakers from Pennsylvania are also asking the court to take up a case centered on the independent state legislature theory involving a voting rights executive order from President Joe Biden, though the court has yet to agree to hear the case.

The request from Jacobsen and the Attorney General’s Office is an initial step in asking the court to hear the appeal. The court may grant or deny the extension request; if it is denied, the state would have just more than a week to prepare its application for an appeal. Even if the extension is granted, the court could still decline to hear the case.

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