NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONTANA PUBLIC INTEREST 

RESEARCH GROUP; MONTANA 

FEDERATION OF PUBLIC 

EMPLOYEES,

Plaintiffs - Appellees,

v.

CHRISTI JACOBSEN, in her official 

capacity as Montana Secretary of 

State; AUSTIN KNUDSEN, in his official 

capacity as Montana Attorney 

General; CHRIS GALLUS, in his official 

capacity as Montana Commissioner of 

Political Practices,

Defendants - Appellants,

REPUBLICAN NATIONAL 

COMMITTEE; MONTANA 

REPUBLICAN PARTY,

Intervenor-Defendants –

Appellants.

No. 24-2811

D.C. No.

6:23-cv-00070-BMM

MEMORANDUM*

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 3 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Appeal from the United States District Court

for the District of Montana

Brian M. Morris, Chief District Judge, Presiding

Argued and Submitted August 14, 2024

San Francisco, California

Before: GRABER, CALLAHAN, and KOH, Circuit Judges.

Plaintiffs Montana Public Interest Research Group and Montana Federation 

of Public Employees (collectively, “Plaintiffs”) are organizations in Montana that 

conduct voter registration activities focused on college students and union 

members. Plaintiffs challenged Montana House Bill 892 (“HB 892”), which 

amended Montana Code Annotated section 13-35-210, raising constitutional 

overbreadth and vagueness claims and moving for preliminary relief. The district 

court granted Plaintiffs’ motion for a preliminary injunction on the ground that HB 

892 is unconstitutionally overbroad. Defendants Christi Jacobsen, Austin 

Knudsen, and Chris Gallus in their capacities as Montana officials (collectively, 

“Defendants”) timely appealed. We have jurisdiction under 28 U.S.C. § 1291. We 

review the grant of a preliminary injunction for abuse of discretion, Sierra Forest 

Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009), and affirm.1

1. A plaintiff seeking a preliminary injunction must demonstrate that (1) she 

1 Plaintiffs argue on appeal that we may affirm the district court’s grant of the 

preliminary injunction on the alternative ground that HB 892 is vague. Because 

we affirm on the ground that HB 892 is overbroad, we do not reach this issue.
3

is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the 

absence of preliminary relief, (3) the balance of the equities tips in her favor, and 

(4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 

U.S. 7, 20 (2008). Defendants argue that the district court misapplied the Winter

factors by adopting a relaxed standard for the merits analysis as articulated in

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011), without 

adopting a more stringent standard for its analysis of the equities. See id. at 1134–

35. Defendants are mistaken. The district court stated repeatedly that it was 

analyzing likelihood of success on the merits. It also repeatedly explained that it 

evaluated the motion for a preliminary injunction under the Winter standard. 

2. The district court did not abuse its discretion when it determined that

Plaintiffs were likely to succeed on the merits of their overbreadth claim. Plaintiffs 

argued that provisions of HB 892 that imposed criminal penalties of up to eighteen

months in prison and $5,000 in fines for those who “purposefully remain registered 

to vote in more than one place in this state or another state any time” or who fail to 

“provide . . . previous registration information on the Montana voter registration 

application” were unconstitutionally overbroad.

To prevail on an overbreadth challenge in the First Amendment context, a 

party must demonstrate that “a substantial number of the law’s applications are 

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” 
4

Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2397 (2024) (brackets omitted) 

(quoting Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021)). To 

judge whether a statute is overbroad, a court must first “construe the challenged 

statute; it is impossible to determine whether a statute reaches too far without first 

knowing what the statute covers.” United States v. Williams, 553 U.S. 285, 293

(2008). Second, a court assesses whether the statute “criminalizes a substantial 

amount of protected expressive activity,” id. at 297, that is “realistic, not fanciful,” 

United States v. Hansen, 599 U.S. 762, 770 (2023). 

The district court followed those steps here. It first construed the statute, 

correctly determining that the law “has two separate but related effects: 1) 

prohibits a person from purposefully remaining registered to vote in multiple 

jurisdictions . . . ; and 2) requires a person registering to vote using the Montana 

voter registration application to provide prior voting registration information.” The 

court then determined that HB 892’s legitimate sweep was the prevention of the 

crime of double voting. This conclusion was not erroneous: double voting has 

long been illegal in Montana, See Mont. Code Ann. § 13-35-210(1) (1995) (“No 

person may vote more than once at an election.”), and “[s]peech intended to bring 

about a particular unlawful act has no social value; therefore, it is unprotected.” 

Hansen, 599 U.S. at 783.

Second, the court determined that HB 892 prohibits a substantial amount of 
5

protected speech relative to its plainly legitimate sweep. The record supports this 

conclusion. Plaintiffs submitted declarations by their respective organizations’ 

executives explaining that HB 892 could discourage some of their thousands of

members from registering to vote in Montana, especially if those individuals do not 

know where they plan to vote due to uncertainty about where they will reside 

during future elections. On the other hand, Defendants submitted evidence that 

there were only fourteen instances of suspected double voting in Montana in the 

2020 general election. Given these facts, we discern no abuse of discretion in the 

district court’s determination that HB 892 criminalizes a substantial amount of 

non-fanciful protected speech relative to its limited legitimate sweep.

2

3. On appeal, Defendants assert that voter registration is not protected 

speech and that there is no First Amendment right to maintain multiple voter 

registrations. Therefore, they contend, HB 892 reaches only conduct unprotected 

by the First Amendment. We decline to consider this argument. Defendants failed 

2 At oral argument, Defendants appeared to argue that Moody v. NetChoice, 

LLC, 144 S. Ct. 2383 (2024), reformulated the overbreadth analysis such that “the 

comparator is all Montana voters.” This new argument, raised for the first time at 

oral argument, was not presented in the briefs. Moreover, it misreads NetChoice: 

that case did not overrule decades of precedent stating that overbreadth analysis 

compares a law’s “unconstitutional applications” to its “constitutional ones.” 144 

S. Ct. at 2394. The new argument also conflicts with Defendants’ assertion that 

HB 892 applies only to those Montana voters who “purposefully” remain 

registered to vote in more than one place. Thus, the appropriate comparator is not 

all Montana voters, as Defendants stated at oral argument.
6

to raise it in the court below and have therefore forfeited the issue. “Ordinarily, an 

appellate court will not hear an issue raised for the first time on appeal.” Kaass L. 

v. Wells Fargo Bank, N.A., 799 F.3d 1290, 1293 (9th Cir. 2015) (quoting 

Cornhusker Cas. Ins. Co. v. Kachman, 553 F.3d 1187, 1191 (9th Cir. 2009)). 

Indeed, the parties did not dispute below that voter registration is protected speech. 

We therefore decline to consider Defendants’ new First Amendment argument in 

this appeal.

4. The district court’s determination that the other preliminary injunction 

factors tipped in favor of Plaintiffs was not an abuse of discretion. The district 

court considered testimony from Regina Plettenberg, a county clerk, election 

administrator, and chair of the Montana Association of Clerk and Recorder’s 

legislative committee, that HB 892 would not change election administrators’ 

practices. Defendants contend that this shows that there is no irreparable harm. 

However, because HB 892 would discourage individuals from registering to vote 

in Montana by threatening criminal penalties for doing so, HB 892 carries the risk 

of irreparable harm to Plaintiffs. See Elrod v. Burns, 427 U.S. 347, 373 (1976)

(plurality opinion) (“The loss of First Amendment freedoms, for even minimal 

periods of time, unquestionably constitutes irreparable injury.”).

As to the balance of the equities, Defendants argue that the preliminary 

injunction undermines Montana’s interest in ensuring the integrity of its elections 
7

and enforcing its laws. However, as stated, HB 892 does not change Montana’s 

voter registration practices. Rather, it relies on criminal penalties and deterrence 

for its enforcement. And double voting already is a crime. These facts undermine 

Defendants’ argument that enjoining the statute will compromise the integrity of 

Montana’s elections. On the other hand, Plaintiffs have presented evidence that 

HB 892 would require them to divert resources in order to assist the public to 

comply with the law and that individuals may be chilled from registering to vote in 

Montana. Thus, the district court did not err when it concluded that this factor tips 

in Plaintiffs’ favor.

Defendants do not contest that the preliminary injunction was issued in the 

public interest. The district court reasoned, and we agree, that the “ability of 

Montana voters to register to vote without fear of felony criminal penalties” 

implicates the public’s interest in “exercising the fundamental political right to 

vote” (quoting Obama for Am. v. Husted, 697 F.3d 423, 436–37 (6th Cir. 2012)).

AFFIRMED.