HELENA – The Montana Supreme Court on Wednesday ruled that a legislative referendum to end Election Day voter registration can appear on the November ballot.
However, the court ordered Attorney General Tim Fox to rewrite the ballot statement for the referendum to clarify that the proposed change is not required by the National Voter Registration Act. The original statement in the referendum incorrectly said the change was intended to ensure compliance with the federal law.
In its 5-1 decision, the court denied a petition by labor unions and other groups to remove Legislative Referendum 126 from the November ballot.
If passed, the referendum would end voter registration at 5 p.m. on the Friday before Election Day, which is on a Tuesday.
Since the 2006 elections, Montanans have been able to register to vote on Election Day and then cast their ballots until 8 p.m. on that day. A total of 28,329 Montanans have done so in elections since then, according to Secretary of State Linda McCulloch.
Writing for the majority, Chief Justice Mike McGrath said although the language of the title of LR-126 may not have been the best conceivable statement, “we are reluctant to take the extraordinary step of nullifying its placement on the ballot.”
Citing state Supreme Court precedents, McGrath said, “these principles counsel in favor of allowing the measure to proceed to a vote.”
McGrath said the court majority agrees with those challenging LR-126 that the reference to compliance with the federal law, alongside the elimination of Election Day voter registration, “may lead to confusion in the voting booth.”
As a result, the court directed Fox to revise the LR-126 statement so it complies with the order.
In his dissent, Justice Mike Wheat said he would have granted the motion to remove LR-126 from the ballot.
“It is undeniable that same-day voter registration has absolutely nothing to do with compliance with the NVRA (National Voter Registration Act),” Wheat said. “Thus, the statement in the title of LR-126 to the contrary is a fatal defect that cannot be cured.”
In response to the decision, AG spokesman John Barnes said, “Attorney General Fox appreciates that the state Supreme Court has honored Montana voters’ constitutional right to engage in direct democracy through the referendum process by allowing LR-126 to remain on the ballot.”
MEA-MFT President Eric Feaver said the referendum “is still voter suppression.” If passed, Feaver said LR-126 will make it harder for certain people to vote, specifically those who have moved, students, military personnel and Native Americans.
The teachers’ union leader said the groups would closely monitor the revised statement the Attorney General’s Office writes and would challenge it if necessary.
“You effectively had a fraudulent statement in there that would have led some voters to believe they were complying with the National Voter Registration Act by ending same-day voter registration,” Feaver said.
LR-126 and LR-127, which seeks to change Montana’s primary elections, were among the most contentious issues before the 2013 Legislature.
The bills were introduced shortly before the deadline for the Senate to act on them and assigned to a committee that normally doesn’t consider election bills.
During the floor debate, Democratic senators pounded their desks in protest and used a parliamentary stalling tactic in an attempt to prevent the Republican majority from voting on them that day and thus miss a key deadline.
The move failed as Senate Republicans rammed the bills through over Democrats’ protests.
Other groups that joined the MEA-MFT in the challenge were the Montana AFL-CIO, Montana Public Employees Association, Montana Human Rights Network, American Federation of State, County and Municipal Employees, Montana Women Vote and Western Native Voice.
The MEA-MFT and some groups also have challenged LR-127, which would change Montana’s primary election system to a “top-two” primary system. Under the proposal, all candidates from all parties for an office would appear on a single primary ballot. The top two vote-getters for each office, regardless of party, would advance to the general election.
The Supreme Court hasn’t issued an opinion on the LR-127 challenge yet.