Credit: Photo courtesy of Corey Stapleton

Montana’s secretary of state and attorney general oppose electronic collection of signatures for citizens’ initiatives attempting to qualify for the November ballot, according to an April 21 joint response by the offices to a lawsuit filed by a group trying to put legalization of adult-use marijuana before voters.

New Approach Montana filed the suit earlier this month, claiming that self-isolation policies ordered by Gov. Steve Bullock to stem the spread of the coronavirus make it difficult and dangerous to collect signatures in-person. The group is asking the court to allow electronically gathered signatures in lieu of signatures gathered in-person, which are currently required by state law, and to extend the deadline to submit signatures.

New Approach sued Secretary of State Corey Stapleton, the state’s top election official, and the state of Montana, represented by Attorney General Tim Fox. Both men are Republicans. Stapleton is running for Montana’s U.S. House seat. Fox is running for governor.

The state asks the court to throw out the lawsuit, and claims the circumstance New Approach describes is the result not of unfair election laws, but rather of “a health emergency and a resulting order by the Governor.” The April 21 response says the plaintiffs are asking the court to pass legislation in violation of separation-of-powers principles in order to “ indiscriminately modify the State’s election laws.”

Furthermore, the state says New Approach waited seven months to begin the initiative process, and is now trying to make up for lost time.

“Plaintiffs’ ‘emergency’ is the result of their own strategy and a public health emergency as declared by the Governor and has nothing to do with election statutes,” the state’s response reads.

New Approach political director Pepper Petersen disagrees. 

“Most of their argument doesn’t say anything except for ‘this is the wrong place to ask this question.’ And that’s what you put forward when you have no argument,” Petersen said.

According to Petersen, the initiative proposal process is long, and the proposed legislation complicated, requiring a lot of back-and-forth with the state to create a law presentable to voters. 

“You can’t start writing a law that’s based on law written during the previous legislative session until October. You can’t even start because they haven’t codified those laws yet,” he said. Petersen was referencing a rival proposal to legalize adult-use marijuana sent by the group MontanaCan to the secretary of state’s office last June, which could not be comprehensively reviewed by the state because laws passed by the 2019 Legislature had yet to be codified.

Petersen also noted that the state’s response does not address the lawsuit’s second request: is to delay the deadline to submit signatures from June 19 to Aug. 3.

“They completely just ignored it. I’d like to know if they conceded that.”

The response also claims electronic signatures are unverifiable and could enable voter fraud, an assertion commonly raised by Stapleton and other Republicans opposed to voter access measures like mail-in elections and electronic signature gathering for citizens’ initiatives.

Petersen said electronic signatures are verifiable and used in Montana for everything from mortgages to court evidence.

At a 2017 GOP caucus, Stapleton spoke out against the use all-mail ballots, saying it leads to legalized adult-use marijuana.

“If you look at the three states that have done it, you can see that populism and direct democracy at its best, all three states — Oregon, Washington and Colorado — they do all-mail-in ballots and they’re all marijuana-all-the-time states too,” Stapleton said. “Is that what you want? Because that’s what you’re going to get.”

Stapleton’s office did not immediately respond to a request for comment on the lawsuit and his position on marijuana legalization.

Democrats at the time accused Stapleton and other Republicans of voter suppression for that and similar statements impugning mail-in elections. Montana has moved this year’s June 2 primary to an all-mail ballot.

Montana Republicans have over the past two decades made it more difficult to place citizen initiatives on the ballot through legislation and court cases leading to signature-gathering requirements.

On April 22 Bullock announced a phased reopening of the state. Petersen said lack of clarity over how and when that happens means New Approach’s lawsuit remains relevant. 

“Are social-distancing measures still going to be necessary? We don’t know. And in that uncertainty, that’s where the courts come in,” he said.

The case is set for an initial hearing in Missoula on April 28.

Hunter Pauli is a Seattle-born, Missoula-based freelance investigative reporter and a graduate of the University of Montana School of Journalism.You can follow Hunter on Twitter.