A state court in Helena continued its block on Secretary of State Jacobsen’s efforts to disqualify signatures on three ballot petitions
By Alex Sakariassen MONTANA FREE PRESS
A state judge in Helena Friday extended a legal freeze on Montana Secretary of State Christi Jacobsen’s rejection of thousands of petition signatures on a trio of constitutional initiatives seeking inclusion on the November ballot.
After a brief morning hearing, Lewis and Clark County District Court Judge Mike Menahan signed a preliminary injunction ordering that signatures from inactive voters be included in the certification process for CI-126, CI-127 and CI-128. The injunction also barred Jacobsen from preventing the verification or counting of those signatures, a prohibition already in place under the terms of a temporary restraining order granted by Menahan last week.
The injunction will remain in effect until litigation over the issue is resolved and only applies to inactive voter signatures submitted on the three petitions up for the ballot this year. In signing it, Menahan acknowledged that the plaintiffs are likely to succeed on the merits of the case and to suffer “ongoing constitutional injury” absent relief from the court.
The legal dispute began earlier this month after Jacobsen’s office implemented a software system change that automatically rejected inactive voter signatures entered by county election officials, who were already well into the process of verifying stacks of signed petitions. Her office claimed, in an email to one local election administrator, that inactive voters did not meet the definition of a “qualified elector” applied to individuals signing petitions, reversing a longstanding Montana practice of accepting those signatures.
The committees behind those petitions — Montanans for Election Reform, which is advancing CI-126 and CI-127 to reshape the state’s primary elections, and Montanans Securing Reproductive Rights, which is advancing CI-128 to enshrine the right to abortion in the state Constitution — promptly sued to have the signatures reinstated. In doing so, they argued that voters placed on inactive voter lists are still legally registered and therefore eligible to sign petitions.
Attorneys on both sides of the case worked together this week to negotiate the terms of the preliminary injunction, which they presented to Menahan in court Friday.
During that hearing, Raph Graybill, an attorney for Montanans Securing Reproductive Rights and current Democratic candidate for lieutenant governor, also informed Menahan of the plaintiffs’ efforts to compel two witnesses called by the state at a July 16 hearing to appear for Friday’s proceedings. Plaintiffs have alleged that the witnesses — Austin James, the secretary of state’s chief legal counsel and elections director, and fellow secretary of state attorney Clay Leland — failed to disclose in their testimony the existence of a separate lawsuit in Lake County District Court that had resulted in a negotiated restraining order one day prior. The case was filed by a group of Montana Republicans including House Speaker Matt Regier, who accused Jacobsen of not preventing the counting of inactive voter signatures and sought to bar her from certifying CI-126 and CI-127 for the ballot. The restraining order in that case was vacated after Menahan issued his.
Graybill told Menahan Friday that Jacobsen’s office informed the plaintiffs that the witnesses would only appear under subpoena. He further argued that, when plaintiffs attempted to serve the subpoenas, the Secretary of State’s Office declined to accept them, a process server was unable to locate the witnesses, and the witnesses had hired private legal counsel.
“It is that context in which the state has called us and said they would like to discuss consenting to preliminary relief,” Graybill said, referencing the preliminary injunction.
Michael Russell, an attorney representing Jacobsen and her office, countered that Friday’s hearing “shouldn’t address these collateral issues” and instead focus solely on the injunction.
“I have authority to agree that for purposes of this preliminary injunction only and as applicable to these ballot issues in dispute only, that the secretary will not reject the consideration and tabulation of any signature for the sole reason of the signer being an inactive voter or elector,” Russell said. “I think that resolves the dispute here.”
Menahan acknowledged Friday the “failure” of Jacobsen’s attorneys to inform Graybill and Montanans for Election Reform attorney Martha Sheehy of the stipulation they’d agreed to in Lake County. He added the situation put the plaintiffs’ legal team in a “tenuous position” before both his court and the Montana Supreme Court, where Jacobsen unsuccessfully sought to appeal the case last week.
Jacobsen’s office did not immediately respond to an email Friday seeking comment on the injunction and Graybill’s account of the attempt to subpoena that state’s witnesses.
In separate press releases, both initiative groups expressed pleasure with Friday’s preliminary injunction from the district court. However, Montanans Securing Reproductive Rights spokesperson and ACLU of Montana Executive Director Akilah Deernose said CI-128 supporters “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.” Plaintiff Frank Garner, board member for Montanans for Election Reform, accused Jacobsen’s office of trying to “dodge accountability” by refusing to appear in court and cast its actions as proof that CI-126 and CI-127 are needed to “hold politicians accountable.”
According to Montanans for Election Reform, county election officials this week processed more than 16,000 inactive voter signatures under an extended deadline granted in Menahan’s restraining order. As of noon Wednesday, the number of signatures accepted by county elections officials statewide was as follows: 70,956 for CI-126, 69,172 for CI-127, and 81,163 for CI-128. The committees noted that all three initiatives exceeded the required signature count in enough state house districts to qualify for the November ballot.
