Blair Miller

(Daily Montanan) Montanans Securing Reproductive Rights, the group behind the petition to get an amendment enshrining abortion access in the state constitution, accused the state Secretary of State’s Office on Tuesday of inappropriately discarding signatures from registered, but inactive, voters and is threatening legal action.

But the Montana Secretary of State’s Office said the group is misreading the law and that a legal challenge would be misguided and slow down the validation process for county election administrators, who have just 10 days to finish doing so for Constitutional Initiative 128.

At issue is whether inactive, but registered, voters in Montana are considered to be “qualified electors” who are allowed to sign ballot petitions and when the Secretary of State’s “guidance” about inactive voters changed between administrations.

In Montana, a voter can be moved to being “inactive” by an election administrator if they failed to vote in the previous federal general election and failed to return a notice sent to them confirming their current address.

The Secretary of State’s Office said it is following the law and had to clarify to election administrators that previous guidance about counting inactive voters toward ballot petitions was incorrect.

The Secretary of State’s Office said that state law says an inactive voter cannot be a “qualified elector” until they become an active voter again beforehand by, for example, showing up to a polling place and becoming active again in order to vote.

“It was imperative that the incorrect guidance provided by previous administrations be corrected to accurately reflect Montana law,” a spokesperson for the Secretary of State’s Office said in an email late Tuesday morning.

Montanans Securing Reproductive Rights has gone to the Montana Supreme Court several times during the past seven months in fights with Secretary of State Christi Jacobsen and Attorney General Austin Knudsen, both Republicans, over CI-128’s language and to get it certified so the group could start gathering signatures in the first place.

Now, 10 days before the window closes for county election administrators to finish tallying valid signatures, the group claims the Secretary of State’s Office’s stance on inactive voters could cost them thousands of signatures. The group submitted 117,000 and needs a little more than 60,000 to make the ballot in November.

“Since last November, Montanans Securing Reproductive Rights has fought to ensure a fair, transparent, and lawful ballot initiative process. Unfortunately, at every turn, extremists have attempted to block this initiative, mislead voters by rewriting the language, disrupt the signature collection through intimidation, and interfere with the right of registered Montanans to sign the petition,” the group said in a statement Tuesday afternoon.

MSRR claims Sec. of State changed ‘guidance’ on inactive voters

Montanans Securing Reproductive Rights attorney Raph Graybill, also the Democratic lieutenant governor candidate in November, obtained through a public records request last week emails that show the Glacier County election administrator asking Jacobsen’s office on June 27 if it “came to a decision” on whether administrators should be counting signatures only from active registered voters or from inactive registered voters as well.

On June 28, Clay Leland, an attorney for the Secretary of State’s Office, wrote back that he had told administrators on June 25 the office did not believe an inactive, but still registered, voter could have their signature count toward a petition.

“The signature of an ‘inactive elector’ that is in ‘inactive status’ does not appear to fit within the category of a ‘qualified elector,’ and thus, would not meet the requirements of Section 13-27-102(1), MCA. (‘A petition may be signed only by a qualified elector of the state of Montana.’) (emphasis added),” Leland wrote.

He further cited an Oregon Supreme Court decision from 2021 that found that inactive voters in Oregon were not “qualified voters” and said that case law would also apply in Montana.

The Glacier County election administrator then shared that guidance with other administrators, the emails show.

“I emailed to confirm with SOS that we can accept signatures of inactive voters who sign a petition, at first, I was given the OK to accept those signatures of an inactive voter. I than (sic) got a second response from Clay, who quoted MCA’s stating that we cannot accept signatures of inactive voters. Later that day, Stuart called to advise me to stop entering petitions as they were discussing this matte(r) at state level,” the administrator wrote.

“…Hope this isn’t a bomb shell, and that I was the only confused. I just wanted to share this in case some other counties are accepting those signatures of inactive voters.”

On July 2, the state elections website underwent maintenance to update software to automatically reject signatures from inactive voters, according to an email provided by Montanans Securing Reproductive Rights.

Graybill last Friday sent Jacobsen’s chief legal counsel, Austin James, a letter telling the office to reverse the change by 10 a.m. Tuesday and restore any signatures that were tossed out from inactive voters or face legal action.

The letter said that for years, the written guidance from the office to election administrators has been to accept inactive voter signatures since they are legally registered and meet the definition of a “qualified elector.” Graybill said inactive voters can vote if they show up to a polling place and cast a ballot in-person.

“Qualified electors have a constitutional right to participate in the initiative process in Montana by having their signatures counted; the new guidance unlawfully denies Montanans this right,” Graybill wrote in his letter to James.

He further said that issuing the new guidance in the middle of the four-week window in which administrators must verify the submitted signatures introduced “constitutional problems” because petition sheets verified before the guidance was issued could result in different counts than on days after the guidance was issued.

“This is unacceptable; constitutional rights may not be defeated on such arbitrary characteristics,” Graybill wrote.

Graybill also told James that the group would seek a temporary restraining order if Jacobsen did not restore the signatures from inactive voters.

Sec. of State’s Office says group’s legal interpretation incorrect

In response, however, James told Graybill in a letter Tuesday the Secretary of State issued no guidance to election administrators, but “directly answered an email inquiry with the answer that corresponds with Montana law.”

James says that Montana Code Annotated 13-19-313 is the statute that says that inactive voters are not qualified electors and says the letter of the law should lead to “obvious logic” that becoming an active voter makes a person a qualified elector.

That statute says that if a voter is placed on the inactive list, they will remain so “until the elector becomes a qualified elector.”

James also said that Graybill’s understanding of how inactive voters can vote was incorrect; rather, he said, those voters must first activate their registration at a polling place before they cast a ballot.

James did acknowledge that an archived PowerPoint from the office suggested counties count inactive voter signatures and said it was “not the burden of the SOS or election administrators to prevent non-registered electors from signing a petition.”

“I think we both agree that county and state election officials have a duty to ensure only qualified elector signers are certified, even if we (at least at this point) disagree as to whether an inactivated registrant is a qualified elector,” James wrote.

He said the documents Graybill cited were previously “heavily criticized” by the Montana Supreme Court “due to deviating from the plain language of the law.”

The letter said Graybill’s threat to seek a temporary restraining order “doesn’t add up under the facts” because the Secretary of State has certified every petition in the same manner during this election cycle. And it said the group’s decision to hand in 117,000 signatures on the final day of signature gathering “has caused numerous challenges for election officials.”

James also warned litigation would only  further hamper signature verification.

“Unnecessary litigation will brew confusion in the process and slow down the processing of petitions during the final days of statutory period given to counties to certify petitions to the state,” James wrote. “I heed warning that litigation on this topic is premised on incorrect facts, wrong on the law, and will likely frustrate the pace of processing your clients petitions within the statutory period allotted to counties to do so.”

The Secretary of State’s Office did not respond to further questions asking for clarification on when the “incorrect guidance provided by previous administrations” had been “corrected.”

Montanans Securing Reproductive Rights said Tuesday afternoon litigation is still on the table.

“The Secretary of State’s response to our concerns does nothing to correct their unlawful actions and attempts to silence Montana voters by discounting citizens’ qualified petition signatures,” the group said in a written statement. “…Every registered Montana voter who added their name to a petition should have their signature count.”