Sec. Jacobsen asks SCOTUS to consider appeal of voting laws found unconstitutional

Montana Secretary of State Christi Jacobsen wants the U.S. Supreme Court to consider whether the Montana Supreme Court wrongfully struck down two voting laws passed by the 2021 Legislature, saying its request gives the court a chance to weigh in on whether state courts have authority to declare unconstitutional any law passed by a state legislature regarding voting and elections.

The filing makes clear Jacobsen is pursuing a version of the “independent state legislature” theory that the high court mostly already dismissed in June 2023. In that case, it rejected claims from North Carolina Republicans who argued the state’s Supreme Court wrongfully struck down the Republicans’ congressional redistricting map, which the North Carolina Supreme Court found to be an unconstitutional partisan gerrymander.

“State courts cannot ‘read state law in such a manner as to circumvent federal constitutional provisions,’ and ‘arrogate to themselves the power vested in state legislatures to regulate federal elections,’” Jacobsen’s filing with the court says. “But that’s what happened here.”

A majority opinion in the North Carolina case, Moore vs. Harper, written by Chief Justice John Roberts, found the U.S. Constitution’s Elections Clause “does not insulate state legislatures from the ordinary exercise of state judicial review.”

But citing heavily to the dissents in that case – written by Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito – as well as parts of the opinions from Bush vs. Gore in 2000 and the dissents in the Montana case from two Supreme Court justices, Jacobsen and her attorneys believe the North Carolina case did not fully make clear when judges like those at the Montana Supreme Court may interpret elections-related laws written by the state’s legislature.

“The Court 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.

Jacobsen, represented by the Montana Attorney General’s Office and private Virginia-based law firm Consovoy McCarthy, filed a petition for a writ of certiorari – a request for the Supreme Court to consider the case – on Aug. 26 after receiving an extension from the court earlier this year to file her petition. The initial application for an extension of time to file a writ request contained similar arguments as the petition filed in late August. One of the Virginia firm’s specialties involves litigating election-day voting challenges, according to its website.

A clause in the U.S. Constitution says that “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”

The independent state legislature theory holds that the clause should be taken literally to mean that no court should be able to override the will of the legislature when it comes to setting rules and laws for elections even if state constitutions provide further direction or rights surrounding elections; it contends Congress is the only body that has a higher authority than state legislatures to change election law or regulations.

In March, the Montana Supreme Court permanently struck down four voting laws passed by the 2021 legislature in Montana, held by Republicans, saying they interfered with Montanans’ right to vote. In a 5-2 opinion, the majority found the Montana Constitution granted greater protections for voting rights than the U.S. Constitution and said the state had shown no compelling state interest in restricting voting access.

Two justices – Dirk Sandefur and Jim Rice – wrote a dissent criticizing the majority for saying Montana’s Constitution offered more protections and said that election law powers were solely granted to the legislature under the Elections Clause.

That included finding unconstitutional two bills – House Bill 176, which eliminated Election Day voter registration, and House Bill 530, which banned the use of paid ballot collectors – that Jacobsen is now appealing to the U.S. Supreme Court. She did not appeal the court’s decisions on House Bill 506 and Senate Bill 169, which concerned voters who would turn 18 by Election Day and the use of university-issued identification at polling places, respectively.

Montana’s Constitution says the legislature “may” provide for a system of poll booth registration, which Jacobsen and her attorneys say doesn’t “require” the state to allow for Election-Day registration. She also contends that HB530 should not have been struck down because she and her office had not promulgated any rules, as the bill required, to prohibit paid signature gathering for ballot petitions.

Jacobsen’s filing cites heavily to Sandefur and Rice’s dissent to make her argument, particularly their contention that the court’s majority had overstepped their boundaries and acted as a “super-legislature.”

“Here, ‘in an unprecedented exercise of unrestrained judicial power’ the majority struck down ‘public policy determinations made by the Legislature in the exercise of its constitutional discretion … on the most dubiously transparent of constitutional grounds,’” Jacobsen’s attorneys wrote, citing the dissent in the Montana Supreme Court decision.

They said the state’s petition “presents an ideal vehicle” to develop a test in which the U.S. Supreme Court can measure whether state courts are overstepping their perceived boundaries when deciding whether state-enacted elections laws are constitutional.

The petition asks the court to take the case so it can decide when state courts “impermissibly distort” an election law beyond a fair reading, citing language written by Chief Justice William Rehnquist in the Bush v. Gore decision over the 2000 presidential election, and to find whether the Montana Supreme Court “intruded” into the Elections Clause. Jacobsen’s brief cites an 1883 court decision that says a court must “give effect, if possible, to every clause and word of statute.”

Jacobsen’s filing argues the Montana Supreme Court’s decision regarding the two bills falls outside the ordinary bounds of judicial review because it invalidated “these modest legislative judgments” based on “ambiguous” parts of the state Constitution and discussion among Montana’s constitutional framers of whether to include Election-Day registration in the Constitution.

It also argues that for four reasons, the petition would present a solid case for the U.S. Supreme Court to consider such arguments: That there is an upcoming election; that the arguments in Jacobsen’s petition include questions that did not exist in the North Carolina case; that Rice and Sandefur wrote dissents in the Montana Supreme Court decision disagreeing with the majority; and that there is an “increased focus” regarding election security that lawmakers will continue to pass laws about and see them challenged in court, which the U.S. Supreme Court could resolve with a decision in this case.

“That means both that disputes over issues like these are ‘almost certain to keep arising until the Court definitively resolves’ them,” Jacobsen’s attorneys wrote, citing Justice Brett Kavanaugh’s concurrence in denying an application for stay in the North Carolina Case, “and that clarifying them now could forestall future requests for this Court’s intervention in less ideal time constraints.”

Jacobsen’s spokesperson has not responded to multiple requests for comment on the U.S. Supreme Court appeal or the filing during the past week.

Plaintiffs in the original lawsuit challenging the four laws from 2021 include the Montana Democratic Party, multiple Native American tribes and voting groups, and several other voter-rights and voter-registration advocacy groups from Montana.

Attorneys for the groups, when the Montana Supreme Court handed down its opinion in March, said the court had affirmed Montanans’ freedom to vote and participate in democracy without interference.

Now that Jacobsen has filed her petition, the court will consider whether to grant it, and if so, would set a schedule for briefings and possibly oral arguments in the case.