State Supreme Court Trumps Federal on Voting Law

Guest opinion: James C. Nelson is a retired Montana Supreme Court Justice

In its 2013 decision in Shelby County v. Holder and in its July 1, 2021 decision in Brnovich v. Democratic National Committee, the United States Supreme Court made clear that it will not interfere with States which adopt laws to suppress voting rights and which make it harder for minority people to vote.

Sadly, it appears that our Country’s highest Court is oblivious to, or worse, tacitly in support of, the very tactics that authoritarians and fascists use to prevent people from voting — tactics such as: gerrymandering voting districts; adopting laws that make it more difficult, more complicated, and more inconvenient to vote; laws which effectively rig election processes so that only the majority parties’ candidates have a chance to win.

The High Court’s decisions have rendered the 1965 federal Voting Rights Act a nullity for all practical purposes. (Ironically this is same Act that Congress voted (almost unanimously) to reauthorize in 2006).Shamefully, the 2021 Session of Montana’s Legislature joined the red-state stampede and adopted — and the Governor signed into law — bills which impair the right to vote. Some are presently being litigated.All of that said, however, it is a well-settled rule of constitutional law that a state Constitution can provide more protection of a civil right than the federal Constitution.

Thus, under the two above-mentioned Supreme Court decisions, it is Montana law, not federal law that controls when it comes to voter suppression laws. In other words, while such laws may not offend the federal constitution, those same laws may offend a state’s constitution if that constitution provides greater protection of the franchise.

To that point, Montana’s Constitution at Article II, Section 13 protects our fundamental right to vote with the following language: “Right of suffrage. 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 framers of our Constitution used this extremely clear and explicit language to, at one and the same time, recognize the importance of our franchise and protect that fundamental right from being impaired by, among others, government actors.

In no uncertain terms, our Constitution requires that all, not just some, but every election (1) must be free and open — that is, exempt from external authority, interference or restriction; (2) and no power, civil — including members of the Legislature, the Executive, and the Judicial branches — or military; (3) shall at any time — that is, before, during or after an election; never (4) interfere to prevent — that is to hinder or stop by law or other direct or indirect means, or meddling; (5) the free exercise — that is, each person’s personal right and liberty interest; (6) of the right of suffrage — our right to vote.It’s simple. Laws which impair or interfere with Montanans’ right to vote violate Article II, Section 13 of our Constitution.

No matter what the U. S. Supreme Court says, Montana’s Constitution provides greater protections for our right to vote. And no public official, no bureaucrat, no civil power can prevent we the people from exercising that right.The right to vote is fundamental to democracy.

Our Constitution at Article II, Section 1 provides that “all political power is vested in and derived from the people . . .and is founded on their will only.” And Section 2 provides that it is “the people” “who have the exclusive right of governing themselves.

”If you can’t vote, you have no political power and no ability to participate in self- government.

You have, instead, despotism.

James C. Nelson is a retired Montana Supreme Court Justice. He lives in Helena.

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