Judge tells SOS not to change rules midstream for counting signatures
Keila Szpaller
(Daily Montanan) The Montana Secretary of State can’t automatically reject signatures of “inactive” voters who signed petitions to place Constitutional initiatives on the ballot, a Lewis and Clark County District Court judge ruled Tuesday, as he granted a temporary restraining order.
One initiative would make it a constitutional right in Montana to make one’s own decisions about pregnancy, including abortion, and two others would change the way elections are won in the state.
At a hearing Tuesday, lawyer Martha Sheehy said the Secretary of State’s decision to change which signatures count on a petition was “particularly galling” for Montanans for Election Reform, a group proposing to “increase meaningful voter access and participation.”
But a lawyer for the Secretary of State argued the situation wasn’t an emergency for that group or for Montanans Securing Reproductive Rights. Lawyer Thane Johnson said the number of “inactive” signatures was minimal, and the initiatives were headed for the ballot anyway.
“Inactive” voters are people who are legally registered to vote but have had an address change or didn’t vote in two election years.
Judge Mike Menahan, however, said his focus wasn’t on whether the initiatives from those two groups would qualify for the ballot. Rather, he said, Montanans have a fundamental right to participate in their government, and that includes signing a petition for a Constitutional initiative.
“As a judge, my duty is to uphold that right and give life to it and preserve it,” Menahan said.
He said he believed the groups had made the case Secretary of State Christi Jacobsen shouldn’t toss “inactive” signatures in the middle of counting based on a new interpretation. He said doing so changed a standard that had been in place nearly three decades — and without notice.
“The troubling component here is that the process was underway,” Menahan said.
Although Menahan requested a temporary return to the status quo, he also said he didn’t want to harm the process and would be “as minimally involved as possible.” He requested lawyers representing proponents for the initiatives and the state draft an order that ironed out the details; they did, and he electronically signed it Tuesday.
In a complaint last week, lawyers for the proponents asked the court to stop the Secretary of State from rejecting “inactive” signatures. They also asked the court to demand the Secretary of State restore the ones it had rejected.
The attorneys filed suit after they learned the Secretary of State had issued new instructions for which signatures counted and also reprogrammed a state database to automatically reject “inactive” signatures.
Lawyer Raph Graybill, representing Montanans Securing Reproductive Rights, said an anonymous tipster told a member of their group the Secretary of State had made the change. He said they hadn’t received any notice about it beforehand, and they filed a request for public information under the Montana Constitution’s “right to know” as a result.
Graybill also is running as the Democratic nominee for lieutenant governor.
Arguments on Tuesday focused in part on whether “inactive” voters are “qualified electors.” Graybill said a registered voter is a registered voter, and whether a person is on an “active” or “inactive” list is simply an administrative function that helps counties manage addresses.
Both “active” and “inactive” voters can both show up at the polls and vote, and both are qualified electors, as plainly defined in statute, he said. He said an “inactive” voter doesn’t need to do anything besides show up to vote to become “active.”
Plus, Graybill said the Secretary of State was still advising counties in a presentation on its own website to accept signatures of inactive electors because they are legally registered.
“If you go on the Secretary of State’s website right now, today, at this hearing, you will find this slide,” Graybill said.
Additionally, he said, signers of the petitions need to swear they’re registered voters or face stiff penalties, but nowhere do they need to confirm whether they’re “active” or “inactive” in a database.
On behalf of the Secretary of State, however, Johnson argued a comprehensive look at the statutes in question showed the new interpretation — that “inactive” voters aren’t “qualified electors” — to be correct. Plus, he said, initiative proponents were going to succeed in clearing signatures thresholds anyway based on the plaintiffs’ own calculations.
Johnson said the groups failed in at least one criteria for a temporary restraining order: “Your honor, that isn’t even close to having an irreparable harm.”
Johnson called a couple of attorneys who work in the Secretary of State’s office to testify, and one, Austin James, addressed a question from the judge. He agreed the state’s software program could probably be programmed to help sort out some of the “inactive” voters it rejected, but he said time was running short.
“I really hope that the guys back at the office aren’t gonna kill me,” James said.
Clay Leland, the other lawyer called on behalf of the state, said the reason he issued the new interpretation was he was asked about it for the first time in June, following the passage of Senate Bill 498, regarding absentee ballots, in 2023.
Leland said a look at that law, other statutes, and a case in Oregon helped him conclude “inactive” voters aren’t “qualified electors.” He also said the Secretary of State’s software was “previously programmed incorrectly.”
Under questioning from Graybill about the significance of the “inactive” designation, however, Leland admitted he couldn’t point to the reason he believes an “inactive” voter needs to take extra steps to vote — and get on the “active” list — beyond simply showing up to vote.
Graybill asked for the basis of his understanding that extra steps are necessary to vote if a person is “inactive.”
“The basis for that understanding? The basis to come to the conclusion that more information is needed is through a thorough analysis of that provision as well as other provisions throughout Montana code,” Leland said.
Graybill asked if another statute in state law set additional steps for inactive voters, and Leland said he wasn’t aware of any “off the top of my head,” but he knew ones existed. Graybill had been looking at the “reactivation” statute, MCA 13-2-222, which says one way an inactive voter can get on the active list is to show up to vote.
“So there are other steps to take, but they’re not in the statute, and you can’t tell me what they are,” Graybill said.
Said Leland: “I would have to review the Montana code.”
At one point while questioning Leland, Graybill asked to huddle with the judge and lawyers for the defendants: “I am getting statutes recited to me. I am not getting answers,” Graybill said.
Judge Menahan said he appreciated the nod to changes the legislature made in 2023, but he said they didn’t specifically indicate who would be a qualified elector for purposes of signing a ballot initiative.
He also said case law in Oregon, described by Leland as a “sister state,” wasn’t any more important to Montana than case law in other states. Plus, he said, Montana has robust provisions when it comes to public participation.
“I think Montana looks to itself in determining its own constitution,” Menahan said.
A hearing on the request for a preliminary injunction will take place next Friday.