U.S. Supreme Court declines to review two Montana voting laws
By Darrell Ehrlick for the Daily Montanan
The United States Supreme Court has declined to take up a petition filed by Montana Secretary of State Christi Jacobsen challenging a state Supreme Court decision to strike down two voting rights laws passed by a Republican-controlled Legislature and backed by her office.
Without comment, the U.S. Supreme Court denied the motion to hear the case, leaving in place the Montana Supreme Court’s decision to limit the restrictions the state could impose on voters in the name of election security.
Attorneys from the Montana Attorney General’s Office had argued that the case was an opportunity to elaborate on the scope of a recent controversial case in which North Carolina tested the limits of how far its own state Legislature could go to set voting standards in a case, Moore vs. Harper.
That case was the first real test of a fringe-turned-mainstream legal concept called “independent legislature theory,” which holds that the U.S. Constitution gives nearly unilateral authority to state legislatures to set their own election qualifications for federal elections.
The Montana Democratic Party successfully challenged the two bills that the Montana Supreme Court struck down in a 5-to-2 split decision. Those were House Bill 176, which eliminated same-day voter registration, and House Bill 530, which prohibited paid absentee ballot collection.
“To invalidate these modest laws, the Montana Supreme Court distorted clear provisions in the Montana Constitution and leaned on ambiguous ones,” attorneys for Jacobsen argued unsuccessfully to the nation’s highest court.
Attorneys for Jacobsen also argued that precedent, including decades where Montana did not have same-day voter registration, had created a “one-way ratchet” where laws could be changed, but only in one direction.
The State of Montana also argued that by taking the case, the U.S. Supreme Court had the opportunity to review the boundaries of state supreme courts and a state legislature’s power to make election law.
“This case provides an ideal opportunity to address the questions presented in time to prevent a litany of petitions seeking clarity on how to apply Moore, which is especially important given the increased focus (on) nationwide election integrity laws,” the appeal from Jacobsen’s attorneys said.
An appeal to the United States Supreme Court isn’t mandatory, and parties must apply for and receive a “writ of certiorari” in order to be heard in front of the court. The court is not obligated to respond, and as in this case, merely denied the petition, effectively foreclosing any further appeals on these two measures, without commenting on the merits for either Jacobsen or the Montana Democratic Party, which successfully challenged the laws.
Surprisingly, a win for democracy.