Thousands of signatures for constitutional initiatives are in legal limbo after Montana’s top election official last week abruptly changed the standard for determining which voters are eligible to sign a ballot petition.
The move to not permit signatures from voters listed as “inactive” comes as county election administrators around Montana are vetting stacks of signed petitions submitted by the sponsors of three distinct proposals that could appear on the November ballot: CI-126 and CI-127, which deal with statewide election reform, and CI-128, which would enshrine abortion rights in the Montana Constitution.
The groups behind those proposals, Montanans for Election Reform and Montanans Securing Reproductive Rights (MSRR), challenged the change Wednesday in a lawsuit against Secretary of State Christi Jacobsen filed in a state district court in Helena.
“To exercise their right to propose a constitutional amendment, plaintiffs are required to submit 60,359 verified signatures. But by effectively forcing county election administrators to reject signatures from voters marked ‘inactive,’ the Secretary has impeded Plaintiffs’ ability to reach that threshold, threatening their right to place CI-126, CI-127, and CI-128 on the ballot in November, causing injury and harm,” attorneys for the plaintiff groups wrote in the filing. “For these reasons, the inactive voter guidance violates Montanans’ right to propose constitutional amendments by initiative.”
In their complaint, the groups asked the court to bar Jacobsen from enforcing the new interpretation and direct her office to immediately restore the signatures already rejected from inactive voters.
Asked for comment on the lawsuit, spokesperson Richie Melby told Montana Free Press Wednesday that the Secretary of State’s Office had not received a complaint and “is still following the provisions of Montana law and the Constitution.”
According to emails from late June and early July obtained by MSRR through a public records request filed in Missoula County, staffers from Jacobsen’s office said local officials should not accept signatures from “inactive” voters — Montanans who are still legally registered but have not voted in a recent federal general election or have not responded to mailings from their county to update their registration information. In order to vote, individuals on the inactive list must update their registration status with their county’s elections office.
The recent interpretation reversed the state’s longstanding policy of counting inactive voters as “qualified electors” who are allowed to sign statewide ballot petitions.
“It looks like we are unable to accept signatures from inactive voters,” said Glacier County Election Administrator Crystal Cole in an email on June 28 to other local administrators, noting that officials “were told we could” count the signatures of all registered voters during an October meeting about the petition process. “Hope this isn’t a bombshell.”
The change has taken some county administrators by surprise, upending the preexisting practice of accepting signatures from inactive voters during the verification process.
“Historically, we have accepted inactive voters in the past,” said Gallatin County Clerk and Recorder Eric Semerad in an interview on Tuesday with MTFP.
The reversal also comes just weeks ahead of a July 19 deadline by which local election officials must verify all the signatures submitted within their counties. Lewis and Clark County Election Division Supervisor Connor Fitzpatrick said his office is hopeful litigation over the issue will be resolved quickly to avoid impacting preparations for the November ballot.
“I just hope that a ruling is made clearly and quickly so that when we go to start doing elections prep here towards the middle to the end of August, we know what’s going to be on the ballot,” Fitzpatrick said, adding that the printing and proofing of ballots and distribution of voter information pamphlets are scheduled to begin well ahead of the election.
Jacobsen’s office enacted the change by updating the state’s ElectMT system on July 2. The system now automatically rejects submitted signatures from voters flagged as inactive.
Semerad characterized the impact of the change on signature counts as “significant,” with 2,732 signatures on CI-126 having been rejected statewide as inactive as of Tuesday afternoon and 1,190 rejected on CI-127. Semerad added that the number of rejections is likely to increase as counties continue verifying signatures. Multiple county election officials noted that their offices only recently started processing signatures on CI-128.
In an unsigned statement in response to an emailed list of questions from MTFP on Tuesday, Jacobsen’s office reiterated its position that ballot petitions can only be signed by a “qualified elector” — a definition the office argued does not extend to inactive voters.
“Montana law explicitly states that a petition may be signed only by a qualified elector of the State of Montana. The signature of an ‘inactive elector’ that is in ‘inactive status’ would not satisfy these requirements,” the statement said. “It was imperative that the incorrect guidance provided by previous administrations be corrected to accurately reflect Montana law.”
Jacobsen doubled down on the state’s stance in a Wednesday post on the social media platform X, saying that initiative sponsor groups were making “ludicrous demands” to break state law by allowing signatures to count.
“This isn’t difficult. Montana law is clear and we will continue to uphold the laws put in place by the Legislature,” Jacobsen wrote.
In a letter sent on July 9 from SOS Chief Legal Counsel Austin James to Raph Graybill, an attorney for MSRR and the running mate to the Democratic candidate for governor, Ryan Busse, James partly attributed the office’s legal stance to a 2021 decision by the Oregon Supreme Court that rendered inactive voters unqualified to sign ballot petitions. James further claimed the office had not issued any widespread formal guidance to counties, though he acknowledged that past information on the secretary of state’s website said counties could process signatures from inactive voters.
“Raph, we were born and raised here,” James wrote. “We’ve both heard responsible signature gatherers approach citizens with ‘Are you currently a registered voter in X County?’ For good reason, ‘Did you used to be a registered voter?’ is not a follow-up I’ve heard or would expect to hear.”
Jacobsen’s office did not directly address MTFP’s question about how its new interpretation will impact signatures from inactive voters that were verified by counties prior to July 2. Jacobsen’s office is scheduled to conduct its own verification of petitions after the forms are submitted by the counties.
Jacobsen faces a Democratic challenger, Jesse Mullen, in the 2024 race for secretary of state. In an emailed press release Tuesday, Mullen said he was “appalled” by his opponent’s handling of the issue.
“Invalidating legitimate Montana signatures for purely political reasons is an absolute abuse of her office and the trust Montanans place in our elected officials,” Mullen wrote. “I fear her efforts may further damage the public trust and result in purging more legal Montana voters in the lead-up to our general election.”
Missoula County Elections Administrator Bradley Seaman also told MTFP it’s unclear whether the state’s legal position will extend to signatures on county-level ballot petitions, such as the local regulations on single-use plastic proposed for ballots in Missoula and Bozeman this year. Seaman said he sought clarity from the secretary of state on whether he should mirror its practice for those petitions but, as of Tuesday, had not received a response.
“There’s so many unknowns,” Seaman said. “My question is, we have a local petition and will it impact them? It’s not become an issue yet, but their signatures are due by the 18th of August, so it’s coming.”
Seaman added that his office also experienced delays in the verification process early on due to the slow speed at which the state’s voter database was displaying signatures — an issue that impacted similar procedures in several counties during last month’s primary election. Semerad noted Gallatin County ran into the same issue, though he and Seaman said the Secretary of State’s Office has since addressed the problem.
LATEST STORIES
Accessibility improvements in the works for Montana’s new executive residence, state says
The Gianfortes pledged to donate the Hauser mansion to the state of Montana so the building can serve as the official governor’s residence for future elected officials. That donation is now complete, making the building a public asset. But the state’s acquisition of the historic, multi-floor residence raised a specific question for a recent Montana Free Press reader: Does the building comply with the landmark Americans with Disabilities Act that requires public buildings to be physically accessible?
High diesel prices squeeze Montana farmers
Near-record diesel prices are putting pressure on Montana farmers who depend on fuel to run combines, tractors and other equipment, and also increasing the cost of transporting goods once they leave the farm.
Reconnecting Greater Yellowstone, one fenceline at a time
More than 16,000 miles of barbed-wire fence fragment Greater Yellowstone. That fencing keeps elk from jumping over and pronghorn from scooting under, disrupting what can be millennia-old migrations.
