HELENA — In the latest court battle over proposed ballot measures, Montana leaders have agreed not to exclude signatures from “inactive voters” when counting petitions – but that may not be the end of the legal wrangling.
On Friday, attorneys for the state and for groups sponsoring three ballot measures were supposed to meet in state district court for a hearing on whether to issue a preliminary injunction in the case. But once the hearing began, the state announced they were ready to agree to the injunction.
“I have authority to agree that – for purposes of this preliminary injunction only and as applicable to these ballot issues in dispute only – that the Secretary will not reject the consideration and tabulation of any signature for the sole reason of the signer being an inactive voter or elector,” said Michael Russell, an assistant attorney general. “I think that resolves the dispute here.”
The agreement essentially extends a temporary restraining order District Judge Mike Menahan issued last week.
“We disagree with the Court’s position, but of course we will continue to follow the law as we have done all along,” Richie Melby, a spokesperson for the Montana Secretary of State’s Office, said in a statement to MTN. “We are working around the clock under a narrow timeline to see which ballot issue(s) may qualify for the 2024 general election.”
Montana law says, to sign a petition to get an initiative onto the ballot, you must be a “qualified elector.” This case hinges on how to define that phrase.
The office of Secretary of State Christi Jacobsen, a Republican, recently told officials they had determined inactive voters – who haven’t voted in recent elections or responded to correspondence from election offices – aren’t “qualified electors,” so their signatures should be rejected. They pointed to a section in state law saying an inactive voter remains on the list “until the elector becomes a qualified elector,” and that they must follow a reactivation procedure “in order to become a qualified voter.”
Two committees sponsoring proposed ballot initiatives – Montanans Securing Reproductive Rights, backers of CI-128, which would specifically add abortion rights to Montana’s constitution, and Montanans for Election Reform, backers of CI-126 and CI-127, which would overhaul the state’s election system – sued Jacobsen, saying her office was misinterpreting the law.
Menahan ruled last week a restraining order was justified to require Jacobsen’s office to return to the status quo – counting inactive voters’ signatures as they previously had.
The state went to the Montana Supreme Court, asking them to take over the case and arguing Menahan’s decision had been based on mistakes of law and would cause “gross injustice.” The Supreme Court unanimously rejected that request, saying Jacobsen’s office “created the circumstances that gave rise to this litigation” and had “failed to maintain uniformity in the application, operation, and interpretation of the election laws” by changing their practice on inactive voters. Justices said it made the most sense to allow the district court to continue hearing the case.
While the plaintiffs in the case said they didn’t believe Menahan’s decision was mistaken, they also filed a document encouraging the Supreme Court to take over the case. They cited a second lawsuit, filed in district court in Lake County by a group of plaintiffs including several Republican legislative candidates and House Speaker Rep. Matt Regier. That suit, filed two days after this case, claimed that officials were improperly accepting too many signatures for CI-126 and CI-127, including the ones from inactive voters. MSRR and MER said it made no sense for two district courts to decide the same issues about petition signatures.
During Friday’s hearing, Raph Graybill, an attorney representing MSRR, said Jacobsen’s office had accepted a stipulated agreement in the Lake County case, promising the opposite of what Menahan had ordered in this case, but that agreement has since been vacated. Graybill said they had planned to ask two attorneys from Jacobsen’s office to testify at this hearing and attempted to subpoena them, but they declined to appear.
“It is that context in which the state has called us and said they would like to discuss consenting to preliminary relief,” he said.
Menahan said Friday that he believed the Montana Department of Justice attorneys representing the state in this case had not been aware of the Lake County case when they made their last appearance in his court.
“The two of you were not apprised of that stipulation, which is very clear,” he said. “I think the Secretary of State's attorneys’ failure to inform you of that put you in a tenuous position – not only with this court, but also with the Supreme Court.”
Melby said the office disagreed with Menahan’s sentiment but declined to comment further on that issue.
It takes at least 60,359 certified voter signatures to qualify a constitutional amendment for the ballot, and at least 604 in 40 state legislative districts. This week, MER reported state data appeared to show 70,956 accepted signatures for CI-126 and 69,172 for CI-127, while MSRR said the data showed CI-128 had received 81,163 accepted signatures. The parties have said several thousand of those are likely from voters on the inactive list.
Graybill said, even if the proposed measures have enough certified signatures from active voters to clear the minimum requirement, this case is still relevant because there could be additional legal actions seeking to challenge those signatures.
“I think the state has said, ‘As long as you're going to qualify, you're going to be certified, you're fine, there's no injury and this case shouldn't continue,” he said. “Our position is having this large swath of signatures matters, and it matters until such time as we know for certain that these initiatives will appear on the ballot.”
The plaintiffs issued statements celebrating the result of the hearing but continuing to criticize Jacobsen’s office.
“Today, we saw the Secretary of State’s office dodge accountability when they hid from a subpoena and refused to show up in court,” said Frank Garner, an MER board member. “The Secretary of State’s actions this week prove we need CI-126 and CI-127 so that voters can hold politicians accountable. We look forward to Secretary of State Jacobsen swiftly certifying these initiatives for the November ballot so that Montana voters can choose more voice and more choice in our elections.”
“While we are pleased that the Secretary of State has agreed to follow the law regarding this issue, we fully anticipate that they will continue to play political games with the petition process in their attempt to block this initiative and silence Montana voters,” said Akilah Deernose, executive director of the ACLU of Montana and spokesperson for MSRR. “Montanans can be sure that we will remain vigilant and continue to fight for the rights of Montanans to participate in their democracy and make their voices heard.”
State law says the final deadline for certifying what will be on the ballot is Aug. 22.
