HELENA, Mont. — A Montana judge said Tuesday that the secretary of state’s office erred by changing the rules determining whose signatures count on petitions for three constitutional initiatives — including one to protect abortion rights — after officials tried to omit the signatures of inactive voters.
U.S. District Judge Mike Menahan said he would give county election offices another week to count the signatures of inactive voters who were rejected, saying they should count. All of the initiatives are expected to be eligible for the November ballot.
Two organizations have filed a lawsuit Republican Secretary of State Christi Jacobsen said after a question from a county election official that the signatures of voters deemed “inactive” should not be counted toward the number of signatures needed to get initiatives on the ballot.
The change was implemented after the signatures were submitted to the provinces and after a number of signatures were verified.
Thane Johnson, an attorney representing Jacobsen’s office, argued that a ruling was not urgently needed. Johnson noted that supporters of the abortion initiative, another to hold open primaries and a third to require candidates to win a general election had already turned in more than enough signatures to qualify, even without the signatures of inactive voters. Johnson also argued that voters were not disenfranchised by having their signatures rejected on a petition.
According to Menahan, the Montana Constitution provides a robust provision that allows citizens to pass initiatives and constitutional amendments.
“When you’re talking about the rights of people to participate in government, that’s a fundamental right and I think it’s my duty as a judge to uphold that right, to breathe life into that right and to preserve it,” Menahan said in indicating he would issue a temporary restraining order.
He said he did not want to issue an order that would create more problems for counties that must turn in signatures by Friday’s deadline, or for the secretary of state’s office, which must certify ballots by Aug. 22. But he did want the signatures of inactive voters to be included.
He left it up to the lawyers to agree on the details and said he would sign the order. The lawyers met Tuesday afternoon.
A hearing on a permanent injunction will be held on July 26.
The lawsuit alleged that for nearly three decades the state had accepted petition signatures from “inactive voters,” defined as those who do not vote in a general election and who have not responded to attempts to confirm their mailing address. They can be reinstated to active voter status by confirming their address, going to the polls to vote or requesting a mail-in ballot.
A week after the deadline to turn in petitions to counties, Jacobsen’s office told an election clerk that she could not accept signatures from inactive voters. The clerk emailed the response to other clerks.
On July 2, Jacobsen’s office altered the statewide voter database to prevent counties from verifying the signatures of inactive voters.
Montanans Securing Reproductive Rights and Montanans for Election Reform filed the lawsuit last week.
The Montana Republican Party opposes efforts to protect abortion rights and hold open primaries.
Republican Attorney General Austin Knudsen released an op-ed arguing that the proposed ballot language for nonpartisan primaries and abortion protections was insufficient.
Knudsen rewrote the abortion language, saying the proposed amendment would, in part, “allow abortions after viability up to birth,” “eliminate the state’s compelling interest in preserving prenatal life” and “could increase the number of taxpayer-funded abortions.”
Advocates appealed his opinion to the Montana Supreme Court, and the petition text was approved. The justices ultimately wrote the petition text for the abortion initiative themselves.
“Every step of the way, both initiatives had to go to the Supreme Court multiple times to get on the ballot,” said Graybill, the Democratic candidate for lieutenant governor, who represents Montanans Securing Reproductive Rights. “We couldn’t even get our petition form until we sued them to get the petition form.”
