Voting Standards: State v. Federal

Anthony Sanders · September 22, 2022

We talk a lot at the Center for Judicial Engagement about how state courts are by no means obligated to apply standards the federal courts apply to the federal constitution when interpreting their own state constitutions. That’s true when it comes to actual constitutional text—such as whether a “search” means the same thing in a state constitution as the U.S. Supreme Court says it does under the Fourth Amendment—but it’s also true when it comes to tools of constitutional interpretation, perhaps most importantly standards of review. For example, just because the Supreme Court applies its rational basis test in certain areas, such as economic liberty or property rights, doesn’t mean that state courts need to apply the same test when those areas come up in state law.

This issue came up this week in Montana in a ruling from the state supreme court. Coincidentally, last week our Short Circuit podcast discussed the same case, but in a different procedural posture. The case is a voting rights challenge made to recent changes enacted by the state legislature and challenged as violating the Montana Constitution. The challenge on the merits (which we discussed on the podcast) is still pending in state trial court, but the plaintiffs in the case had earlier received a preliminary injunction on two of the changes, a tightening of ID requirements and an elimination of polling-day registration. That preliminary injunction was appealed by the Montana Secretary of State.

In its ruling in Montana Democratic Party, et al. v. Jacobsen, the court essentially confronted the conjunction of two sets of constitutional text. One is various guarantees of the right to vote in the state Declaration of Rights. Unlike the federal constitution, which essentially guarantees the right to vote but mostly through outlawing restrictions based on impermissible classifications such as race, sex, or age, Montana’s constitution (like most state constitutions) is forthright, stating, for example, that “All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

The other set of constitution text is an outright grant of power to the legislature to regulate that right. Most importantly, in Article IV, Section 3 the constitution states “The legislature shall provide by law the requirements for residence, registration, absentee voting, and administration of elections. It may provide for a system of poll booth registration, and shall insure the purity of elections and guard against abuses of the electoral process.”

On the one hand there’s a right to vote. And since it’s in the Declaration of Rights that means, according to caselaw I’ve written about, it’s a fundamental right and subject to strict scrutiny. But on the other hand, the legislature has clear power to regulate that right, and even seems to have the authority—“may” not “shall” in the above language—to provide or not provide for polling-day registration. The state did have polling-day registration before last year, but only since 2005, decades after that language was put in the state constitution.

What does all this have to do with federal standards of review? The Secretary of State argued to the court that it should apply what the U.S. Supreme Court has come up with in challenging restrictions on the right to vote, what’s called the Anderson-Burdick doctrine. Under that rubric, if a regulation severely limits the right to vote then it is subject to strict scrutiny. But if it’s something less it essentially is held to a sliding scale of intermediate scrutiny. The less the restriction the more permissive the court is to the government.

The Montana Supreme Court rejected this invitation—at least for now. It said it has not applied this invention of the federal courts to its constitution before, and did not want to do so now, especially on a preliminary appeal before a full record was created. Underlying this seemed to be the strong emphasis in the Declaration of Rights on suffrage, making Anderson-Burdick a bit of an interloper on Montana’s constitutional scheme.

It should be noted that the Montana high court has applied federal standards of review in the past, even when the text of its constitution diverged with the U.S. version. And the dissent by Justice Jim Rice pointed out that the majority failed to deal with the language of Article IV, Section 3. The opinion claimed that the constitutional convention that adopted the “may” vs. “shall” language just didn’t want to have polling-day registration right away, but Justice Rice wasn’t convinced. Indeed, it may be that that language doesn’t council for Anderson-Burdick but even so perhaps something else than what the majority applied.

This case could be up again in a hurry as the trial court’s ruling on the merits is pending and an appeal would likely immediately go to the Montana Supremes before November’s general election. We’ll keep a close eye on this at State Con Law Case of the Week headquarters.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.

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