Ninth Circuit upholds block on Montana double-voting bill

(CN) — A three-judge panel of the Ninth Circuit Court of Appeals agreed Tuesday with two voting rights organizations that a Montana law aimed to prevent double-voting by imposing criminal penalties for those who don’t cancel their voter registration in other areas before registering in the state was overbroad.

Upholding a lower court’s ruling blocking the Montana law, the panel said in its memorandum released Tuesday that “the ‘ability of Montana voters to register to vote without fear of felony criminal penalties’ implicates the public’s interest in ‘exercising the fundamental political right to vote.’”

The law, House Bill 892, imposes criminal penalties — including up to 18 months in prison and up to $5,000 in fines — to people who “purposefully remain registered to vote in more than one place in this state or another state any time” or don’t provide previous registration information on their Montana voter registration application.

Montana Governor Greg Gianforte signed it into law in May 2023, prompting the challenge in September of that year by the Montana Public Interest Group and the Montana Federation of Public Employees. Montana Secretary of State Christi Jacobsen, Attorney General Austin Knudsen and commissioner of political practices Chris Gallus were named as defendants.

U.S. Chief District Judge Brian Morris in Montana granted a preliminary injunction against the law in April, finding that the plaintiffs were likely to succeed on the merits.

In his April ruling, that the state defendants now contest, Morris wrote that the bill might confuse Montana voters about the requirements needed when registering to vote and would “substantially chill” voter registration.

The state appealed the decision in May. Bill Clinton appointee U.S. Circuit Judge Susan P. Graber, George W. Bush appointee U.S. Circuit Judge Consuelo M. Callahan and President Joe Biden appointee U.S. Circuit Judge Lucy H. Koh heard oral arguments for the case in August.

The Ninth Circuit panel found Tuesday that the lower court correctly determined the law had two separate but related effects: to prohibit people from intentionally remaining registered to vote in multiple places and to require people registering to vote in Montana to provide prior voting registration information.

The law’s legitimate sweep, the court determined, was the prevention of double voting.

“This conclusion was not erroneous: double voting has long been illegal in Montana,” the panel wrote.

The panel, however, found the lower court also correctly determined the bill “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.”

The voting rights organizations argued the bill could discourage thousands of their members from registering to vote in the state, particularly if they are uncertain about where they will live during future elections. Montana provided evidence showing there were just 14 instances of suspected double voting in the state during the 2020 general election.

“Given these facts, we discern no abuse of discretion in the district court’s determination that HB 892 criminalizes a substantial amount of non-fanciful protected speech relative to its limited legitimate sweep,” the panel wrote in the memorandum.

In the August hearing, the state defendants argued that voter registration is not protected speech and that the bill only affects conduct not protected by the First Amendment. The panel disagreed, declining to consider the argument since the state defendants hadn’t raised it until the appeal.

The state also argued the preliminary injunction undermines the state’s interest in protecting the integrity of its elections and law enforcement. The circuit judges pointed out that the bill doesn’t alter Montana’s voter registration practices.

“Rather, it relies on criminal penalties and deterrence for its enforcement. And double voting already is a crime,” the panel wrote.

The Ninth Circuit panel pointed to evidence from the voter’s rights organizations that showed how the bill would require them to divert resources in order to help residents comply with the law.

The decision comes two months before the Nov. 5 general election.