The Montana Supreme Court won’t take over a lawsuit that affects signature counting for three Constitutional ballot initiatives — one to protect abortion and two to change the way candidates win elections.
In an order Tuesday, justices unanimously said Secretary of State Christi Jacobsen hadn’t made the case that District Court Judge Mike Menahan erred when he told her office to count the signatures of “inactive” voters toward the minimum threshold for placing initiatives on the ballot — as has been practice.
“(Montana code) provides that the Secretary bears the responsibility to obtain and maintain uniformity in the application, operation and interpretation of election laws,” the order said. “Jacobsen’s decision to change the Secretary’s longstanding practice to count the signatures of inactive voters — and to do so without notice to county election administrators after they had commenced petition processing — failed to maintain uniformity in the application, operation and interpretation of the election laws in this instance.”
As of Friday, all three measures received enough signatures to qualify for the ballot, Constitutional Initiatives 126, 127 and 128, proponents announced earlier.
However, as petition signatures were being counted this summer, Montanans Securing Reproductive Rights learned from an anonymous tipster that the Secretary of State had quietly changed an interpretation of laws to decide the signatures of “inactive voters” wouldn’t count anymore.
That group and Montanans for Election Reform sued and asked the Lewis and Clark County District Court to issue a temporary restraining order to ensure those signatures were counted, not tossed out.
In court last Tuesday, Judge Menahan agreed with the groups and asked both parties to draft a proposed order that sorted out the details. The order he signed, agreed upon by both sides, included a demand the Secretary of State restore a software program the agency had reprogrammed to deny “inactive” voters.
“Inactive” voters are ones who have moved or not voted in recent elections; the groups that filed the lawsuit argued the distinction between “active” and “inactive” is simply administrative, to help clerks make sure addresses are current.
After Menahan signed the order, the Secretary of State filed a petition alleging it dealt a “gross injustice” by forcing the count of those signatures, and she asked the Montana Supreme Court to take control of the case.
On Monday, attorneys for the petition groups filed their response to the state’s request the Montana Supreme Court take over the case, and the state asked the court for a chance to reply. Less than 24 hours later, the court dismissed the state’s request in an order signed by all seven justices.
The order from the Supreme Court said the district court has yet to fully consider all of the legal issues in the case, the Secretary of State can appeal and also helped draft the order, and the problem started with the agency in the first place.
“We further disagree with Jacobsen that the TRO is causing a gross injustice, as Jacobsen’s actions in reprogramming the petition-processing software after county election administrators had commenced processing petitions created the circumstances that gave rise to this litigation,” said the order.
The groups that sued the Secretary of State said the district court didn’t make a mistake, but they said the Supreme Court should nonetheless accept the petition and resolve the constitutional issues “of statewide importance.”
But the Supreme Court said the groups chose to litigate in district court, and it would not interfere with the lower court’s authority to hear the case. The order also said the state had wanted to reply to the argument the groups had made, but justices wanted to move quickly.
“We do not find that the interest of justice would be served by further delay of disposition as justice will be most expediently served by allowing the district court to proceed in making its ruling unimpeded by any delay,” the order said.
A hearing in district court on a preliminary injunction is scheduled for 9 a.m. Friday, July 26.
Reporter Blair Miller contributed to this story.
Statements from Petitioners
Representatives of the groups proposing the Constitutional ballot initiatives released statements Tuesday following the order from the Montana Supreme Court. The Secretary of State’s Office could not immediately be reached for comment late Monday.
Martha Fuller, executive director of Planned Parenthood Advocates of Montana and spokesperson for Montanans Securing Reproductive Rights:
“Since we filed CI-128 last year, politicians in Montana have tried every trick in the book to delay, obstruct, mislead, and ultimately block this amendment and silence the voices of Montana voters. Unfortunately, Secretary of State Jacobsen made it clear at every turn that she has chosen to put her political agenda first and Montana voters’ rights last.
“We are pleased that the Montana Supreme Court rejected the Secretary of State’s request and returned this matter to the district court. We will continue to fight for Montanans’ constitutional rights in court this week before the District Court in Helena. And, we will continue to fight back against any attempt to silence Montanans and restrict our access to the ballot initiative process moving forward.”
Frank Garner, Montanans for Election Reform board member and plaintiff:
“We are grateful that the Supreme Court is allowing the lawsuit against Secretary of State Jacobsen to proceed as we fight to ensure the petition signature of every registered Montana voter counts. Our legal system continues to affirm the rights of all Montana voters, and we look forward to standing up for these rights this Friday and beyond.”
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