Montana Democratic Party v. Jacobsen

Does the Montana Constitution Protect the Right to Vote More Than the U.S. Constitution? Montana Democratic Party v. Jacobsen, 2024 MT 66

Boland Aarab PLLP

Yes. In Montana Democratic Party v. Jacobsen, 2024 MT 66, the Montana Supreme Court held that the Montana Constitution protects the right to vote more strongly than the U.S. Constitution. It declined to adopt the federal Anderson-Burdick balancing test and instead adopted its own framework, which it used to strike down four 2021 election laws. Boland Aarab PLLP was not counsel for any party; Caitlin Boland Aarab filed a friend-of-the-court (amicus) brief as local counsel for a group of scholars of state constitutions and election law.

Key Takeaways

• The Montana Constitution “affords greater protection of the right to vote than the United States Constitution” (Jacobsen ¶ 17; Mont. Const. art. II, § 13).
• The Court declined to adopt the federal Anderson-Burdick test, which it said “now provides less protection” than Montana’s Constitution intends (¶ 32).
• The framework: a law that impermissibly interferes with the right to vote gets strict scrutiny; a law that minimally burdens it gets middle-tier analysis, where the State must show the law is reasonable and that its interest outweighs the burden (¶ 46).
• Rational basis review is “inconsistent with” the Montana Constitution when a law implicates the right to vote (¶ 39).

In this case sheet: At a glance · What the Court held · What our brief argued · What changed · Statutes · When it applies · How difficult · Later decisions · FAQ

The lawyers behind this brief are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in Montana Democratic Party v. Jacobsen?

The 2021 Legislature passed four laws that were challenged by political, tribal, Native voting-rights and youth groups (¶¶ 1, 3):

• HB 506: no absentee ballot for a registered voter who would turn 18 by election day until the voter actually turned 18 (¶ 5).
• HB 176: ended election-day registration, moving the deadline to noon the day before the election (¶ 6).
• HB 530, § 2: directed a rule banning payment for collecting or delivering other voters’ ballots, with a $100 civil fine per ballot (¶ 7).
• SB 169: moved student IDs from the list of stand-alone voter IDs to a secondary list that requires an additional document (¶ 8).

After a nine-day trial, the district court held all four unconstitutional (¶¶ 4, 9–10). The Supreme Court affirmed (¶ 120).

The framework. The Court first held that Montana’s Constitution protects the right to vote more strongly than the federal Constitution (¶ 17), relying on the text of Article II, Section 13, unchanged since 1884, and on the 1972 Constitutional Convention (¶¶ 19–27). It declined to adopt Anderson-Burdick (¶ 32). It then set out its own test (¶ 46):

1. If a law impermissibly interferes with the right to vote, strict scrutiny applies: the State must show the law is the least onerous path to a compelling interest.
2. If a law only minimally burdens the right, middle-tier analysis applies: the State must show the law is reasonable and that its interest is more important than the burden.

Applying it.

• HB 506 minimally burdened the right, and it failed the first step of middle-tier analysis because the distinction it drew was arbitrary (¶¶ 48, 58–59, 61).
• HB 176 impermissibly interfered with the right to vote, given the more than 70,000 Montanans who had used election-day registration. It failed strict scrutiny (¶¶ 63, 70, 84).
• HB 530, § 2 impermissibly interfered with the right to vote, especially for Native American voters who rely on ballot collection. It was not narrowly tailored, and the Secretary offered no evidence of ballot-collection fraud in Montana (¶¶ 96–97, 102–103, 106).
• SB 169 minimally burdened student voters and failed middle-tier analysis because the Secretary did not show the change was reasonable (¶¶ 111–112, 118–119).

The separate opinions.

• Justice Gustafson, joined by Justice McKinnon, would have applied strict scrutiny to HB 506 as well (¶¶ 121–123).
• Justice Baker would have upheld HB 506 as a “modest time, place, and manner regulation” (¶¶ 124–126).
• Justice Sandefur, joined by Justice Rice, agreed HB 506 was unconstitutional but would have upheld the other three laws. He would have applied the federal intermediate-scrutiny standard and called the majority’s reasoning an “unprecedented exercise of unrestrained judicial power” (¶¶ 128–129, 171).

What did our amicus brief argue?

Boland Aarab PLLP did not represent any party. On July 7, 2023, Caitlin Boland Aarab filed the Amici Curiae Brief of Scholars of State Constitutions and Election Law in Support of Appellees, signing it as local counsel for the amici. The amici were ten law professors who study state constitutions and election law, listed in the brief’s Appendix A with affiliations “for identification purposes only.”

The brief urged the Court to affirm the district court on all four laws. Its main arguments were:

1. Montana’s Constitution requires exacting judicial scrutiny of laws that impair the fundamental right to vote. The brief argued that the Constitution’s text and structure “zealously” protect the free exercise of suffrage, that heightened scrutiny reflects how the Constitution divides authority between the Legislature and the people, and that the federal Anderson-Burdick standard “is a poor fit for Montana.”
2. Courts in other states commonly apply close scrutiny to laws that burden voting. An appendix surveyed how state courts review state constitutional right-to-vote challenges.

The Court reached the same conclusions on the points the brief addressed: it held that Montana’s Constitution gives greater protection, rejected Anderson-Burdick, and affirmed on all four laws (¶¶ 17, 32, 120). The opinion does not cite the brief by name.

What did Jacobsen change in Montana law?

1. A Montana-specific test for voting laws. Before Jacobsen, the Court had not decided what level of scrutiny applies when a law burdens, but does not impermissibly interfere with, the right to vote (¶ 38). It now applies middle-tier analysis (¶¶ 38, 46).
2. No imagined justifications. Under middle-tier analysis the State bears the burden, and the Court will not imagine reasons for a law that burdens voting (¶ 40).
3. Legislative power has limits. The Legislature’s authority over elections under Article IV, Section 3 does not permit laws that interfere with the right of suffrage (¶ 30).
4. Independent state grounds. The Court decided the case only under the Montana Constitution, citing federal cases only as aids (¶ 70 n.12).

Montana courts and at least one other state high court have since cited Jacobsen. See Later decisions citing this case below.

Which Montana laws and rules apply?

• Mont. Const. art. II, § 13: right of suffrage
• Mont. Const. art. IV, § 3: the Legislature’s authority over registration, absentee voting and election administration
• Mont. Const. art. IV, § 2: qualified electors
• § 13-2-205, MCA (HB 506), § 13-2-304, MCA (HB 176) and § 13-13-114, MCA (SB 169). See the notes below on their current text.
• HB 530, § 2 (2021 Mont. Laws ch. 534, § 2), which was never codified (¶ 87 n.19)
• Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992): the federal test the Court declined to adopt

When might Jacobsen apply to you?

• You register on election day. The Court held that eliminating election-day registration violated the Montana Constitution (¶ 84).
• You vote with a Montana college ID. The Court held that demoting student IDs to a secondary form was unconstitutional (¶ 119).
• You rely on someone else to deliver your ballot. Organized, paid ballot assistance, which many rural and reservation voters use, could not be banned the way HB 530 tried to (¶¶ 97, 106).
• You claim a right under the Montana Constitution. Jacobsen is a strong statement that Montana courts read the state Constitution independently of federal law (¶¶ 16, 32).

How difficult is it to challenge an election law in Montana?

• Statutes are presumed constitutional. The challenger has the burden of proving a statute unconstitutional or showing that it infringes a fundamental right (¶ 11).
• Facial challenges are demanding. A facial challenge must show the law is unconstitutional in all its applications (¶ 11). The dissent argued this standard was not met for three of the laws (¶ 129).
• The record matters. Challengers must first show the burden or interference with evidence (¶ 34; ¶ 40 n.8). Here, a nine-day trial produced “voluminous record evidence,” and the Court reviews the trial court’s findings only for clear error (¶¶ 12, 70).
• Then the burden shifts. Once interference is shown, the presumption of constitutionality falls away and the State must justify the law (¶ 11).

Related law and later decisions

Statutes and rules

• Mont. Const. art. II, § 13: right of suffrage. The same words have appeared in every Montana constitution since 1884 (¶ 19).
• Mont. Const. art. IV, § 3: elections.
• § 13-2-205, MCA: the online Code still prints subsection (2), the HB 506 language held unconstitutional.
• § 13-2-304, MCA: the online Code still prints the “noon the day before the election” deadline held unconstitutional. The section was amended again in 2025.
• § 13-13-114, MCA: amended in 2025. The current text lists a student photo ID issued by the Montana university system (or a school in the national association of intercollegiate athletics) as a primary form of voter ID.

Later decisions citing this case

• Cottonwood Environmental Law Center v. State, 2024 MT 313 (cites ¶ 11 on reviewing constitutional questions)
• Held v. State, 2024 MT 312 (cites ¶ 11)
• Montana Environmental Information Center v. Montana DEQ, 2025 MT 3 (cites ¶ 111 n.30)
• Vet Voice Foundation v. Hobbs (Wash. 2025) (Washington Supreme Court; cites ¶¶ 14–15)
• Planned Parenthood of Montana v. State, 2025 MT 120 (cites ¶ 18 on constitutional interpretation)
• M.A.I.D. v. State, 2026 MT 53 (cites ¶ 7)

The Boland Aarab Way

Boland Aarab PLLP filed a friend-of-the-court brief in this case as local counsel for the amici, and was not counsel for any party. We appear in the Montana Supreme Court when a question about the Montana Constitution matters to the people we serve, and we do the same close work with the record in our serious trucking and injury cases and catastrophic injury cases. When you hire Boland Aarab, you work with the attorneys whose names are on opinions like this one.

Frequently Asked Questions

Does Montana use the federal Anderson-Burdick test for voting laws? No. The Montana Supreme Court declined to adopt it for claims under the Montana Constitution (Jacobsen ¶ 32).

What test applies to a Montana law that burdens the right to vote? If the law impermissibly interferes with the right, strict scrutiny applies. If it minimally burdens the right, the State must show that the law is reasonable and that its interest is more important than the burden (Jacobsen ¶ 46).

Is election-day registration protected in Montana? The Court held that HB 176’s elimination of election-day registration was unconstitutional because it impermissibly interfered with the right to vote and failed strict scrutiny (Jacobsen ¶¶ 63, 84). The Court also said election-day registration is not “forevermore baked into our Constitution” (¶ 68).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Montana Democratic Party v. Jacobsen, 2024 MT 66 (official opinion)
• Amici Curiae Brief of Scholars of State Constitutions and Election Law (July 7, 2023)
• Mont. Const. art. II, § 13
• Mont. Const. art. IV, § 2
• Mont. Const. art. IV, § 3
• § 13-2-205, MCA
• § 13-2-304, MCA
• § 13-13-114, MCA
• Anderson v. Celebrezze, 460 U.S. 780 (1983)
• Burdick v. Takushi, 504 U.S. 428 (1992)

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.