HELENA — A state district judge in Helena says, for now, he’s siding with two groups who challenged the Montana Secretary of State’s Office over how they’re counting signatures to qualify proposed ballot initiatives for the November election.
On Tuesday, Judge Mike Menahan said he would issue a temporary restraining order, telling the Secretary of State's office that they should allow signatures from voters on the state’s “inactive list” to count. However, he said the plaintiffs and the state should work together on how to structure the order, to minimize extra strain on election officials currently certifying signatures.
Montana law says, to sign a petition for a ballot measure, you must be a “qualified voter.” The current case hinges on how to define that phrase.
The office of Secretary of State Christi Jacobsen, a Republican, recently told county officials that inactive voters — who haven’t voted in recent elections or responded to correspondence from election offices — aren’t “qualified voters,” 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.
Raph Graybill, an attorney representing the plaintiffs and the current Democratic candidate for lieutenant governor, said the Secretary of State’s Office has accepted signatures from voters who were registered but inactive for years. He said counties and signature gatherers had all been operating under the assumption that those voters would be able to sign petitions this year, and it was unreasonable to change course at this point.
Graybill held up a petition form for CI-128, noting that it had a warning not to sign if you’re not a “legally registered Montana voter.”
“Nothing on here about ‘Better check to make sure you’re active, better check to make sure you’re inactive,’” he said. “This is their form, approved by the Montana Supreme Court, that we used.”
The plaintiffs argued that, because the Montana Constitution says any citizen 18 or older “who meets the registration and residence requirements provided by law is a qualified elector” unless they’re in prison for a felony, inactive voters should also count. They said the section of law Jacobsen’s office had cited wasn’t intended to relate to the initiative process.
Attorneys for Jacobsen’s office said Tuesday that they took a closer look at the law on “qualified electors” in response to a question from a county election official, and they concluded the previous interpretation had been wrong. They said, considering the statute as a whole, they remain convinced inactive voters shouldn’t be included.
“We have the oath to support the Montana state law and the Montana Constitution, that’s what we’re doing,” said Clay Leland.
The office changed the state’s election software to automatically reject signatures from inactive voters – a step that attorneys said was intended to make things easier for the county officials trying to certify signatures before a July 19 deadline.
It takes at least 60,359 signatures to qualify a constitutional amendment for the ballot. MSRR reported collecting 117,000 for CI-128, while MER said they got more than 200,000 between CI-126 and CI-127.
Attorneys for the state argued their data showed only a few thousand signatures were from inactive voters, and that that wouldn’t be enough to affect whether the measures qualified or not.
The plaintiffs said their research indicated several thousand signatures from inactive voters had already been accepted before Jacobsen’s office updated their software, and many more were likely to be rejected afterwards.
Thane Johnson, an assistant attorney general defending Jacobsen’s office, said if the signatures in question didn’t affect the fates of the three measures, there wasn’t an immediate harm that justified a temporary restraining order. Menahan responded that he saw the issue differently.
“My focus is not on MSRR or Montanans for Election Reform,” he said. “What you’re talking about here is the fundamental right to vote, the fundamental right to participate in the initiative process. And that’s not a right for these entities, it’s a right for Montana citizens.”
Menahan said he felt a restraining order was justified to maintain the status quo – counting inactive voters’ signatures as before the SOS office’s change – but that he didn’t want to make an order requiring the office to make a change that would interfere with the current signature-certification process. Both sides agreed to meet after the hearing, to work on what form the order could take.
The parties are set to be back in Menahan’s courtroom on July 26, a week from Friday, for a hearing on whether to put in a longer-term injunction.
