Montana Secretary of State Christi Jacobsen (R) has petitioned the U.S. Supreme Court to review and potentially overturn a recent ruling from the Montana Supreme Court that invalidated key provisions of voter suppression laws enacted in 2021. The Montana Supreme Court’s decision earlier this year declared that the four laws, which impose significant restrictions on voting practices, were unconstitutional under the state’s legal framework.
The contested laws include measures that eliminated same-day voter registration, prohibited paid ballot collection services, restricted alternative methods of returning ballots, and barred the mailing of ballots to new voters who are eligible by Election Day but have not yet reached the age of 18. Additionally, the laws made it more challenging for voters to use student IDs for identification purposes. Jacobsen’s petition specifically targets the provisions related to Election Day registration and the ban on paid ballot collection.
The legal battle began shortly after the laws were enacted when the Montana Democratic Party challenged them, claiming they infringed upon the state’s constitutional protections for voters. A trial court issued a preliminary injunction against the laws, which was later upheld by the Montana Supreme Court. The court’s March 2024 ruling emphasized that Montana’s constitution provides more robust voting rights protections than those guaranteed by the U.S. Constitution. It found that the laws disproportionately impacted young voters, Native American voters, and individuals with disabilities.
In June, following the Montana Supreme Court’s decision, Jacobsen sought an extension from the U.S. Supreme Court to file a petition for writ of certiorari. On August 24, Jacobsen and Montana Attorney General Austin Knudsen (R) filed their petition, urging the high court to consider the radical Independent State Legislature (ISL) theory. This theory posits that only state legislatures, not state courts or other entities, have the authority to regulate federal elections under the Elections Clause of the U.S. Constitution.
The ISL theory, if adopted, could fundamentally alter the landscape of U.S. elections by eliminating many of the traditional checks and balances on state legislative power. This would include the ability of governors to veto legislation, the role of state courts in reviewing laws, and the influence of citizen-led initiatives.
This theory was previously considered by the Supreme Court in the case of Moore v. Harper, where the court rejected the ISL theory, affirming that the Elections Clause does not grant exclusive authority to state legislatures over federal elections and does not shield them from state judicial review.
Jacobsen’s recent filing reflects an effort to reintroduce the ISL theory into the Supreme Court’s deliberations. Her petition argues that the Montana Supreme Court’s decision was a significant misinterpretation of the law and that the Supreme Court should provide clarity on how state courts should be limited in their review of state legislative actions concerning federal elections.
The implications of the Supreme Court adopting the ISL theory would be profound, potentially undermining state courts’ ability to address and rectify unfair or restrictive voting practices. This could particularly affect states with Republican-controlled legislatures, which have been criticized for efforts to limit voting access.
In addition to Montana’s appeal, another case advocating for the ISL theory, brought by Pennsylvania legislators, is also pending before the Supreme Court. A decision on whether the court will hear this case is expected after September 30, 2024.
Montana’s push for the ISL theory highlights ongoing debates over the balance of power in election administration and the broader implications for voting rights across the United States.