A Lewis and Clark County District Court judge granted a preliminary injunction Friday morning that says inactive voters’ signatures must count as valid signatures for three proposed ballot issues that are poised to be on November’s ballot once signature totals are certified by the Secretary of State’s Office.
However, during the hearing, not all the matters surrounding the case or the signature counting could be conducted because attorneys for the Secretary of State could not be found and served with subpoenas compelling their testimony, as the plaintiffs’ attorneys had planned for in the hearing.
Two lawyers for the Montana Attorney General’s Office, which are representing Secretary of State Christi Jacobsen in the case, consented to the injunction which would allow inactive voters’ signatures with attorneys for Montanans Securing Reproductive Rights and Montanans for Election Reform ahead of Friday morning’s hearing in Helena, both sides told Judge Mike Menahan.
“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 ACLU of Montana Executive Director Akilah Deernose, a spokesperson for Montanans Securing Reproductive Rights. “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.”
Menahan last week granted a temporary restraining order saying Jacobsen and her office could not automatically reject signatures from voters who are registered, but inactive because they had not voted in recent elections or returned mail to verify their address.
He also ordered that county clerks be given 2 1/2 more days to re-add the signatures from inactive voters that had been rejected under Jacobsen’s office’s orders, with a deadline of noon this previous Wednesday to finish and send the signatures to Jacobsen’s office.
The two petition groups sued Jacobsen earlier this month after they found out that attorneys for the Secretary of State had changed longstanding guidance to county election officials halfway through the verification process and told the officials inactive, but registered, voters’ signatures should not be counted.
The petition groups argued the new guidance was not legally correct and was violating the constitutional rights of both the groups and the registered voters who signed their petitions as they tried to meet the legally-required thresholds to make the ballot in November. Both groups have said in the week since that state elections software shows all three initiatives – Constitutional Initiatives 126, 127 and 128, which concern abortion protections and changes to Montana’s elections – have met the necessary thresholds both with and without inactive voters counting.
Jacobsen last Thursday asked the Montana Supreme Court to take supervisory control of the case, arguing Menahan’s order was a “gross injustice” and the court needed to take over and toss out the order.
Meanwhile, attorneys for the two ballot groups responded and told the court that a group of Republican lawmakers and legislative candidates, including House Speaker Matt Regier, R-Kalispell, had filed suit against Jacobsen in Lake County District Court, and her office had agreed that CI-126 and CI-127 could only qualify with active voter signatures. According to court documents filed with the Montana Supreme Court, attorneys from the Secretary of State’s Office appeared to have brokered a deal with the lawmakers that it would not count inactive voters. That Lake County case happened just a day before Menahan, in Helena, issued the first preliminary injunction.
The particular Lake County case was not known at the time to the Helena court or the lawyers of the case from the Attorney General’s Office, they said in court Friday. And the two ballot initiative groups did not learn about that agreement until after the Lewis and Clark County hearing, their attorneys wrote in court filings.
When the judge in Lake County learned about Menahan’s order, she vacated the stipulated restraining order there, and the two petition groups filed a motion to intervene in that case, stay any prior decisions, and have the case moved to Lewis and Clark County District Court, the attorneys said. The Lake County judge also vacated a July 24 hearing date pending the Friday hearing in Lewis and Clark County.
The Supreme Court unanimously rejected Jacobsen’s request to take over the case on Tuesday, saying she had not shown where Menahan erred in granting the temporary restraining order.
The justices said Jacobsen’s attorneys in the Menahan case had written the temporary restraining order alongside the two groups’ attorneys and they would “not disturb a remedy that arose from a conference between the litigants.”
At the hearing Friday morning, Raph Graybill, the attorney representing Montanans Securing Reproductive Rights, told Menahan he had tried to get two Secretary of State’s Office attorneys – Clay Leland and Austin James – who testified as witnesses at last week’s district court hearing, to testify at Friday’s hearing.
Graybill told the court that they would only agree to appear if he and his co-counsel representing Montanans for Election Reform, Martha Sheehy, issued subpoenas compelling them to appear.
But when process servers went to deliver the subpoenas on Wednesday, Graybill said, the two attorneys could not be found, and the Secretary of State’s Office did not accept the subpoenas on their behalf. He said the two attorneys declined to appear on their own and had hired separate, individual counsel for themselves.
“It is that context in which the state has called us and said they would like to discuss consenting to preliminary relief,” Graybill told the court.
Assistant Attorney General Michael Russell confirmed that the two Attorney General’s Office lawyers had been granted authority to concede to the preliminary injunction without waiving further claims or defenses in the case if there is any further dispute.
Menahan told both sides he had learned about the case in Lake County and noted that he felt it was “very clear” that neither Russell nor Assistant Attorney General Thane Johnson – who were in court Friday – were apprised of that stipulation.
“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,” Menahan told the two attorneys. “But clearly, in reading the documents that were filed in this case that indicated that you were both not aware of that litigation, and I just want you to know that was something that I noted.”
“I appreciate that greatly,” Johnson responded.
The Secretary of State’s Office did not respond by a provided deadline Friday afternoon to a request for comment on the injunction and questions about the Lake County stipulation and why process servers could not find its two attorneys.
Graybill told Menahan that despite having an agreed-upon injunction ready for Menahan to sign, he wanted to discuss the matter more in open court. He said the two groups are unclear what other challenges the Secretary of State might find for the ballot issues, whether outside groups would challenge individual signatures before the date that Jacobsen must certify the ballot in August, and if the attorneys for the Secretary of State’s Office would have to testify further.
The two sides agreed the Attorney General’s Office’s attorneys could not provide that information in court Friday morning, so the case remains open while the injunction is in place.
The court went into recess for about 15 minutes while attorneys for both sides finalized the language of the preliminary injunction, which Menahan accepted and signed after adjourning the hearing. Records show he also denied a motion to intervene in the case from the Montana Life Defense Fund, which had planned to challenge signatures of inactive voters during the challenge period.
Jacobsen has an Aug. 22 deadline to certify statewide ballot issues qualified for November for election administrators.
“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, a plaintiff in the lawsuit and Montanans for Election Reform 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.”
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