Montana Secretary of State Christi Jacobsen and Attorney General Austin Knudsen are asking the state Supreme Court to throw out a district court’s order that restored the way signatures are counted for three Constitutional ballot initiatives that will like be before voters in 2024.
One initiative would ask voters to make abortion a Constitutionally protected right, and the other two would change the way elections are won.
The state is arguing a Lewis and Clark County District Court judge made numerous mistakes, the situation is an emergency, and the state Supreme Court should “immediately” take the reins “and allow the orderly counting of petition signatures to proceed according to Montana law.”
A couple of groups supporting the initiatives, Montanans Securing Reproductive Rights and Montanans for Election Reform, argued Tuesday the Secretary of State unlawfully changed the rules — midstream and without public notice — to no longer count “inactive” voters toward the minimum number of signatures needed to place initiatives on the ballot.
They asked Lewis and Clark County District Court Judge Mike Menahan to order the Secretary of State to return to the status quo, in place for 27 years, and confirm that an “inactive” voter is still a qualified elector who can legally sign a petition.
People listed as “inactive” are legally registered to vote but are identified as having had an address change or not having voted in a couple of years. One way they can become “active” is by voting.
In court the same day, Menahan agreed with proponents of the ballot measures. He said he wanted to be “minimally involved,” but had the duty to preserve the right of Montanans to participate in their government by signing petitions.
The Secretary of State argued the change took place in response to a question posed to the agency, and the new interpretation, based partly on a new law and readings of numerous statutes together, supported the change. Menahan disagreed.
“The troubling component here is that the process was underway,” Menahan said.
Menahan asked the lawyers from supporters of the initiatives and the Secretary of State’s Office to draft an order that ironed out the details to ensure signatures from “inactive” voters would be counted, whether they had been rejected by counties or screened out by the Secretary of State’s reprogrammed database.
In its petition filed Thursday, the Secretary of State made note of the judge’s request the parties draft the proposed temporary restraining order.
“The District Court informed the parties it intended to enter a (temporary restraining order), but did not know how to draft the TRO, and therefore required the parties to confer to create a proposed order, despite Defendants’ strong opposition to the motion,” the petition said. “The District Court issued the TRO by the end of the day.”
But in the request the Montana Supreme Court take over the case, the Secretary of State, represented by Knudsen, said Menahan erred numerous ways in issuing that restraining order — the return to the status quo.
“The Court’s TRO contains a number of serious mistakes of law that improperly interfere with election processes and the statutes governing those processes,” argued the state.
Jacobsen, a Republican, argued the judge improperly found “inactive” voters can sign petitions; meddled with statutory deadlines despite no formal request from proponents of the measures; wrongly involved counties when they aren’t parties to the lawsuit; and rather than simply halt an action, required specific conduct from the Secretary of State, far outside the bounds of a restraining order.
“Urgency and emergency factors exist because the statutory deadlines for the review and certification of petition signatures must be followed and are quickly approaching,” the petition said.
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