Montana Supreme Court Tries To Move The State Left

Authored by Rob Natelson via The Epoch Times (emphasis ours),

Commentary

The Epoch Times reported on March 28 that the Montana Supreme Court struck down four state “election integrity” laws.

The court’s decision appears to be part of a wider judicial effort to reverse conservative electoral trends in Montana.

Manipulating elections might not seem like a proper role for a court. And it’s not. But as I detailed in an Epoch Times column on Dec. 4, 2023, the Montana Supreme Court has a record of extreme overreach. I described how the justices have made themselves almost unreviewable by exercising an absolute veto over the state constitutional amendment process.

The Montana Supreme Court may be the most bizarre appeals bench in the United States. Along with extreme activism, it frequently exhibits leftward bias and legal incompetence. And, as explained below, perhaps a touch of corruption.

The Court’s Record

I have followed the Montana Supreme Court for many years. In 1990, I wrote my first scholarly article on its case law. I produced major studies in 2012 and 2018 and again in 2024. Although my initial impression (reflected in the 1990 study) was favorable, experience gradually changed my views.

Over time, I learned that the justices’ treatment of legal issues, and particularly constitutional issues, often was sub-par.

I also learned about the court’s leftward political bias. The easiest way to see this bias is to examine how the court treats contested ballot issues. In the years since 1982, it has upheld liberal ballot issues without exception, but almost without exception has struck down conservative ones.

Montana lawyers have told me the court works in tandem with groups that promote left-wing causes and contribute to the justices’ reelection campaigns.

More recently we have seen traces of actual corruption surface. In 2021, it came to light that for decades, the court’s administrator allegedly had been involved in illegal lobbying at taxpayer expense. An ensuing legislative subpoena produced a mass of emails supporting this conclusion. Then the justices shut down further discovery. In response to the administrator’s request, they quashed the legislative subpoena on a Sunday, without—as due process requires—giving the Legislature an opportunity to be heard.

Why Does This Go On?

As the subpoenaed emails show, the court’s improper behavior has persisted for decades. One reason it continues is that the court enjoys an unusually powerful position in the state political and legal system. It can retaliate against critics.

Additionally, the liberal political establishment that has dominated the state for many years usually has supported the justices.

The state’s media are also complicit. When self-serving judicial behavior occurred on the Colorado Supreme Court, the scandal was vetted in the Colorado press and a former chief justice was disciplined. In Montana, though, most of the media are uninterested in uncovering inappropriate judicial behavior—and some actively protect the court.

Political Change and the Court’s Response

At long last, however, Montanans are beginning to respond. Some have noticed that in recent years, the U.S. Supreme Court has reversed several high-profile Montana decisions. Moreover, the state is becoming more conservative, and therefore less tolerant of liberal political activism. Republicans now control all executive branch offices and strong majorities in the Legislature.

Perhaps the biggest factor triggering the public response, however, consists of the court’s extraordinary attacks on the conservative Legislature and on some of the Republican executive branch officials.

The state Legislature has found its agenda largely stymied, as the court and the trial judges who follow its lead have voided or suspended dozens of new laws. After the attorney general dared criticize the justices, the court’s disciplinary arm began proceedings against him. For a Montana lawyer, in other words, the potential penalty for critiquing the court is to lose your law license.

The justices have even attacked the Legislature’s internal procedures. This defies a 400-year-old Anglo-American constitutional tradition, which holds that a legislature’s internal rules are off-limits from interference by other branches of government.

How the Court’s Attack on Election Integrity Fits In

The Montana Supreme Court’s overruling of election integrity laws is part of a wider pattern. The pattern shows an apparent effort to alter state election rules to disadvantage the state’s conservative majority.

Last year, the court largely gutted its own constitutional amendment standards to uphold a “jungle primary” amendment designed to squeeze out conservative candidates. Last month, the justices similarly manipulated the rules to sustain a pro-abortion ballot measure fashioned to heighten liberal turnout in the 2024 elections. The court further aided the pro-abortion measure by personally writing its ballot language instead of (as is usual) assigning that task to the attorney general.

The Election Integrity Case

The election integrity case began when the Montana Democratic Party and other left-leaning groups challenged laws curbing questionable electoral practices.

Four laws were challenged. One moved the voter registration deadline from Election Day to the day before. People could still register up to the day before the election, but not on Election Day itself.

A second law prevented 17-year-olds from sending in ballots before they turn 18.

The third was a ban on paid ballot harvesting—the risky practice of paying people to collect other people’s ballots.

The fourth required voters relying on student identification cards to produce additional evidence of identity.

By any historical measure, all these laws were reasonable and moderate. Traditionally, voting deadlines have been at least 30 days before the election, not one day before. The Montana Constitution provides explicitly that the Legislature—not the courts—chooses whether to adopt Election Day registration. And the Legislature did not choose to do so until 2005.

Traditionally, also, people have not been allowed to cast ballots before the age of majority. Ballot harvesting—not just paid ballot harvesting—usually has been illegal because of the risk of corruption and the threat to ballot secrecy.

Requiring identification other than a university ID is necessary because a person should vote at the place of his permanent residence, and student IDs generally don’t disclose one’s permanent residence.

To strike down measures so eminently reasonable and constitutional required some judicial contortions, but the Montana Supreme Court was up to the job.

In mandating Election Day registration, it applied a one-way ratchet—essentially saying (amid some fudge) that a legislature can choose to adopt it but can’t choose to repeal it.

The court held that the measure preventing 17-year-olds from depositing ballots was unconstitutional because their votes were not counted until after their 18th birthday. Of course, this is absurd: The fundamental purpose of the minimum age is to prevent minors from making adult decisions. The time of decision is when the ballot is deposited, not when it is counted.

The part of the court’s opinion voiding the requirement for corroborating a student identification card ignored the fact that student IDs don’t depict the holder’s permanent residence.

The section of the opinion voiding the ban on paid ballot harvesting focused on the rights of a small minority on Indian reservations. But it disregarded the risks to ballot secrecy. It overlooked the fact that the law allowed ballot harvesting to continue if no money changed hands. And most importantly, it ignored the fact that most ballot harvesting has nothing to do with Indian reservations. It’s a largely urban phenomenon employed by political activists to win an edge over their rivals.

Throughout the court’s opinion, the justices demonstrated—as frequently in the past—a strong bias in favor of liberal constituencies at the expense of conservative ones.

Other Mistakes

The foregoing may be enough for the general reader. But here’s some red meat for constitutional wonks. In treating the state constitution, the court made two fundamental mistakes that competent jurists would not make.

First, it relied heavily on the transcript of the convention that drafted the state constitution. But that convention merely made a proposal; it did not convert that proposal into law. The people purportedly did that when they voted on June 6, 1972. (The results of the election were disputed.)

When Montanans voted, the convention transcript was still unpublished and unavailable. So the court should have focused on what the voters were told—which was somewhat different from what went on in the convention.

The bench also erred in applying the wrong constitutional tests. It claimed that under the state constitution, voting is a “fundamental right,” and it applied rules applied to other fundamental rights, such as free speech.

But voting is not like free speech. Unlike restrictions on speech, voting rules traditionally play a central role in promoting good governance. They do so by limiting the franchise to mature people who usually vote in person and know and have a stake in their communities.

By contrast, practices such as Election Day registration and ballot harvesting impede good governance. They outweigh votes from conscientious people with ballots from uninformed transients who have little or no stake in the community.

Another reason voting is not like free speech is that while restrictions on speech usually impair rights, voting rules promote rights. Ensuring that an election is fair does not merely protect the public interest. It also protects the voting rights of everyone.

Even if a rule against paid ballot harvesting burdens a few people, it protects the value of the vote for everyone else.

In the election integrity cases—as in many others—the Montana Supreme Court showed great concern for certain favored liberal constituencies. But it showed no interest in protecting the votes of the overwhelming majority of Montanans.

Robert G. Natelson, a former University of Montana constitutional law professor who is a senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). The Frontier Institute has just published his paper, “The Montana Supreme Court: An Institution in Need of Reform” (2024).

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times or ZeroHedge.