Montana judge: Signatures of inactive voters count for initiatives, including 1 to protect abortion

HELENA, Mont. — A Montana judge said Tuesday that the Secretary of State’s Office erred in changing the rules governing whose signatures should count on petitions for three constitutional initiatives — including one to protect abortion rights — after officials tried to omit the signatures of inactive voters.

District Judge Mike Menahan said he would give county election offices another week to tally signatures of inactive voters that had been rejected, saying they should count. All of the initiatives are expected to qualify for the November ballot.

Two organizations sued Republican Secretary of State Christi Jacobsen after her office, in response to a question from a county election officer, said the signatures of voters who were considered “inactive” should not count toward the number of signatures needed to place initiatives on the ballot.

The change was made after the signatures had been turned in to counties and after some of the signatures had been verified.

Thane Johnson, an attorney representing Jacobsen’s office, argued that a ruling wasn’t urgently needed. Johnson noted that supporters of the abortion initiative, another to hold open primaries and a third to require candidates to obtain a majority vote to win a general election had already turned in more than enough signatures to qualify, even without signatures from inactive voters. Johnson also argued that voters weren’t being disenfranchised by their signature being rejected from a petition.

Menahan said Montana’s constitution offers a robust provision for 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 that I think, as a judge, my duty is to uphold that right and give life to it and preserve it,” Menahan said in saying he would grant a temporary restraining order.

He said he did not want to issue an order that would cause more difficulties for the counties that must turn in signature counts by Friday’s deadline, or for the Secretary of State’s Office that must certify the ballots by Aug. 22, but he wanted the inactive voters’ signatures to be included.

He left it up to attorneys for both sides to reach an agreement on the details and said he would sign the order. The attorneys were meeting Tuesday afternoon.

A hearing on a permanent injunction is set for July 26.

The lawsuit alleged that the state had, for nearly three decades, accepted the petition signatures of “inactive voters,” defined as those who fail to vote in a general election and who haven’t responded to efforts to confirm their mailing address. They can be restored to active voter status by confirming their address, showing up at the polls to vote or by requesting an absentee ballot.

A week after the deadline to turn in petitions to counties, Jacobsen’s office told an election clerk that she should not accept the signatures of inactive voters. The clerk emailed the response to other clerks.

On July 2, Jacobsen’s office changed 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 the efforts to protect abortion rights and hold open primaries.

Republican Attorney General Austin Knudsen had issued opinions stating the proposed ballot language for the nonpartisan primary and abortion protection were insufficient.

Knudsen re-wrote the abortion language to say the proposed amendment, in part, would “allow post-viability abortions up to birth,” “eliminates the State’s compelling interest in preserving prenatal life,” and “may increase the number of taxpayer-funded abortions.”

Supporters appealed his opinions to the Montana Supreme Court and petition language was approved. The justices ended up writing the petition language for the abortion initiative themselves.

“Every step of the way, both initiatives, have had to go to the Supreme Court multiple times to get on the ballot,” said Graybill, the Democratic candidate for lieutenant governor, who is representing Montanans Securing Reproductive Rights. “We couldn’t even get our petition form until we sued them to get the petition form.”