Montana reproductive rights group sues Secretary of State

Posters for Montanans Securing Reproductive Rights, the group behind CI-128 in 2024. (Photo by Blair Miller, Daily Montanan)

Several groups fighting to get a constitutional ballot amendment that would permanently enshrine reproductive rights, specifically abortion, in the Montana Constitution have followed through on a threat to sue the Montana Secretary of State for rejecting signatures without cause.

The groups, including a coalition called Montanans Securing Reproductive Rights as well as the leaders of an initiative that would widen primary elections in the state, have sued in Lewis and Clark County District Court. They are asking for an injunction that would prohibit the Secretary of State’s Office from rejecting signatures on ballot initiatives simply because a voter is listed as “inactive” according to the state’s database.

The groups say that thousands of legitimate signatures and names have likely been removed because of an administrative decision by Montana Secretary of State Christi Jacobsen, a Republican. Attorneys for the group, which includes Raph Graybill, currently a Democratic candidate for lieutenant governor, say that there’s no provision in Montana law that would disqualify a resident from signing a petition if they are listed as “inactive” in a state database. Furthermore, the groups claim that after the signatures were turned into the Secretary of State’s Office, staff there made the decision that had the potential to invalidate thousands of signatures.

When contacted on Wednesday afternoon, the Secretary of State’s Office said that it was not aware of the lawsuit and had not seen it. However, spokesman Richie Melby told the Daily Montanan that the office was “following the laws and Constitution.”

The trio of measures would implement a top-four open primary regardless of party, making sure all candidates win with at least a 50% margin, and protecting access to reproductive care have been opposed officially by the Montana Republican Party.

The lawsuit, which has been assigned to Judge Kathy Seeley, details emails and documents obtained through public data requests that show Jacobsen updated advice to county election offices, which have a part in the process by verifying names and signatures. It also shows that the Secretary of State’s Office made changes to its databases and information management system that the groups say wiped out thousands of voters from appearing on the state’s active voter registration system around July 2. Inactive voters are those who have not voted in at least two previous federal elections or have moved. They can be reactivated by a number of different steps, including simply showing up to a polling place and requesting a ballot.

Still, attorneys for the groups argue that an inactive voter is still a qualified voter by state law, and therefore should still be allowed to have a signature count on a ballot measure. They also claim that numerous Secretaries of State have followed the same procedure, never changing direction of accepting all registered voters.

“The Secretary abruptly reversed course and is effectively forcing election administrators to reject signatures from qualified electors on the ‘inactive’ voters list. The Secretary then unilaterally reprogrammed the state’s software program used by county election administrators to process petitions to reject signatures from these voters automatically, effectively preventing counties from verifying such signatures — even as county election officials expressed their misgivings about the lawfulness of the Secretary’s abrupt change,” the lawsuit said.

The attorneys also contend that an “inactive voter” is a term used by the office to denote a person who has not recently voted or who has moved, but it’s not a part of the criteria needed to sign a ballot initiative.

“Whether a voter appears on the administrative ‘active’ or ‘inactive’ registered voters list has nothing to do with whether they are a ‘qualified elector’ as defined by state law: Voters on both lists are qualified and eligible to vote simply by showing up at their polling place to cast a ballot,” the suit said.

Instead, the attorneys said that the state gives the counties a mandate to focus on the authenticity of the voters, “to determine if the submitted signatures ‘appear to be genuine.”

Different standards on different days for different people

The attorneys also raised concerns that the Secretary of State was applying different standards on different days to different groups of people, based on the timing of verification.

For example, they point out that on June 28, as the four-week window for verification was underway for the three constitutional initiatives, Jacobsen changed her position, and “instructed county officials via email that a voter ‘in inactive’ status does not appear to be a ‘qualified elector.’” However, the attorneys for the group say a qualified elector is defined by the Montana Constitution, and those requirements are that a person is 18, meets the residency and registration requirement, and is not serving a sentence for a felony in a prison, or who has been adjudicated “of an unsound mind.”

“(The Montana Constitution) makes no reference to whether an elector appears on an ‘active’ or ‘inactive’ list of registered voters,’” the lawsuit states. “As a result of the Secretary’s actions, qualified electors on the inactive voter list reviewed after July 2, will be automatically rejected. Identically situated voters reviewed before that date that will have their signatures verified.”

Furthermore, they contend that Jacobsen’s decision didn’t allow the groups a chance to respond or correct any of the signatures because of the policy and practice the Secretary of Office had used for years.

“The Secretary’s decision to change her position on the validity of inactive registered voters’ signatures after they had already been submitted, after the deadline for gathering and submitted signatures had passed, and in the middle of counties’ review constitutes a further constitutional harm to plaintiffs,” the attorneys said. “The Secretary’s abrupt change of position, after the plaintiffs has already submitted signatures, prevent Plaintiffs from adjusting their petition circulation strategy to account for the Secretary’s novel position.”

The attorneys are asking Seeley to rule that “inactive” voter directions from Jacobsen’s office are unconstitutional and against Montana code. They are also asking Seeley to declare that inactive registered voters are “qualified electors,” according to the Constitution, and order that the Secretary of State cannot reject the signatures just because they’re inactive. They’re also asking the Secretary of State to restore any signatures that have been rejected because of the change.

“Since last November, Montanans Securing Reproductive Rights has fought to ensure a fair, transparent and lawful ballot initiative process. Unfortunately, at every turn, extremists have attempted to block this initiative, mislead voters by rewriting the language, disrupt signature collection through intimidation, and interfere with the rights of registered Montana voters to sign the petition. The Secretary of State has chosen to disregard the basic precepts of democracy and silence Montanans, all in service to her personal, political agenda. These registered Montana voters are clearly qualified electors and deserve to have their signatures counted,” said Kiersten Iwai, spokesperson for MSRR and executive director of Forward Montana.

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