Judge orders Jacobsen to accept ‘inactive voter’ signatures for election and abortion ballot issues

A state district court judge in Helena on Tuesday approved a temporary order to remedy a snafu between election officials and ballot issue committees over whether inactive voters should be able to sign initiative petitions.

Speaking from the bench during a three-and-a-half-hour hearing, District Court Judge Mike Menahan expressed concern that Secretary of State Christi Jacobsen’s recent decision to block those voters from state voting software infringed on Montanans’ constitutional right to bring ballot initiatives and participate in government. 

But, citing tight timelines and intricate processes for verifying signatures at the county level, Menahan directed the lawyers for Jacobsen and the sponsors of Constitutional Initiatives 126, 127 and 128 to confer Tuesday afternoon and negotiate a proposed ruling on the plaintiffs’ motion for a temporary restraining order that all parties can agree to.

“I think I’m required to grant an injunction here just to preserve the status quo. But I don’t want to do anything that would interfere with the county election administrators who are doing this process or the secretary of state,” Menahan said during the hearing. 

Several hours later, Menahan electronically signed the proposed temporary restraining order crafted by attorneys for the state and plaintiffs. The ruling directs the secretary of state to “restore the state software system to allow the verification of inactive voters’ signatures” over the weekend. Beginning Monday, July 22, the order instructs counties to review and resubmit eligible signatures that were previously blocked from the state system.

The deadline for counties to complete that review is Wednesday, July 24 at 12 p.m., though the order said that date is subject to review at the court’s discretion if given “clear and convincing evidence that a county is unable to meet this deadline.”   

“​​The Secretary shall, through 12:00 PM on July 24, 2024, accept from counties and count the signatures of any previously rejected inactive voters identified above, who have been verified by a county and submitted to the Secretary,” the order states.

The initiatives in question, which propose changes to elections and abortion rights, have navigated several legal hurdles in recent months. The first two initiatives, CI-126 and 127, would put a pair of proposals on the November ballot that move Montana toward an open primary system where the top four vote-earners advance to the general election, regardless of party. The latter, CI-128, proposes enshrining the right to abortion in the Montana Constitution. Together, the primary political action committees registered to advance the three initiatives have raised $7.3 million in contributions, according to June campaign finance reports.

Word of Jacobsen’s stance on inactive voter signatures began to circulate among local election officials last month, at which point most counties were already well into their signature verification efforts. On July 2, the statewide software system used by counties for the verifications began to automatically reject signatures from inactive voters — the byproduct of an update implemented by Jacobsen’s office, and a reversal of longstanding practice in Montana’s ballot petition process.

Raph Graybill, an attorney for CI-128 backer Montanans Securing Reproductive Rights and current Democratic candidate for lieutenant governor, said in court Tuesday the group received an “anonymous tip” about the change and proceeded to file a public records request for communications between the state and county officials to understand what happened. The group also notified Montanans for Election Reform, which is sponsoring CI-127 and CI-128, and the two groups joined a lawsuit against the state last week.

Addressing Menahan, Graybill said the decision by Jacobsen’s staff blindsided initiative groups, registered voters who might have no idea they’re considered “inactive” and county election administrators who had four weeks to verify whether each initiative meets the required threshold. 

“They make this change and do so furtively,” Graybill said. “There is no public announcement. Had it not been for MSRR making this public and initiating this case, the public may not have known that thousands of people would be categorically excluded from participation when the law clearly puts them in … They created the emergency that brings us here today.”

Clay Leland, an attorney from Jacobsen’s office, testified Tuesday that he and other staff members first considered the issue in June after receiving questions from county election officials. 

By consulting various parts of state and federal law, Leland said, the office concluded that inactive voters are not qualified to vote unless they are moved to the “active” list. One of the statutes Leland cited directs local election officials to move inactive voters to a county’s active list if they meet certain requirements, including submitting an application to vote absentee, notifying election officials in writing of their current address or completing a reactivation form.

“I read her email, I spotted the issue, I researched the law, and I applied the law to the facts,” Leland said. “… Bottom line, I knew the answer to the question.” 

Leland said that the office proceeded to block inactive voter signatures from being submitted to the ElectMT computer system, but when pressed by attorneys for the plaintiffs, he did not directly detail his part in that decision.

“I am aware that the system was previously programmed incorrectly at some time, likely before I ever was appointed by Secretary Jacobson,” Leland said. He said he then raised the issue to legal staff and others in the secretary’s office. “They were able to make the system in compliance with Montana law to the extent that it was not, if it was not, and a more efficient and automated process came about.”

Thane Johnson, the lead attorney defending the secretary of state, sought to convince the judge that the case was not about the state’s negligence, but about a genuine disagreement about how to read the state law defining “qualified electors.”

“I think this is one of those unique areas where you have to look at the entire of an election law,” Johnson said. “There’s a lot of statutes involved.”

Menahan did not comment on the substance of those arguments but said that the secretary’s abrupt finding risked infringing on Montanans’ constitutional right to participate in the initiative process.

“I think the troubling component here is the process was underway and the secretary of state, in the middle of this process by which the signatures on the petitions were being considered by the county, that the secretary of state then changed their program to do something entirely different [from the process of] what sounds to be, like, three decades,” Menahan said.

The Secretary of State’s Office did not immediately respond to an email from Montana Free Press on Monday requesting updated totals for the number of signatures rejected so far from inactive voters on CI-126, CI-127 and CI-128. 

According to numbers from a report shared with MTFP by the Gallatin County elections office, the statewide totals for inactive voter rejections as of Monday were as follows: for CI-126, 3,666 signatures rejected; for CI-127, 3,842 signatures rejected; and for CI-128, 5,054 signatures rejected. Sponsor groups reported gathering more than 100,000 signatures for each initiative, well over the required threshold of 60,359.

During his opening statement on Tuesday, Graybill argued that inactive voter lists are largely an administrative classification designed to help local election officials keep details of their voter rolls up to date “without disenfranchising people.” One of the ways people end up on that list is by not voting in two consecutive federal elections, but, as Graybill noted, their name would still appear on the state’s list of registered voters, and Montana offers several pathways for those individuals to update their registration status prior to and on Election Day in order to vote.

“Placement on the inactive voter list has no effect on someone’s substantive rights to vote,” Graybill said. “Voters on the active list and inactive list, by state law and federal law, are both registered voters. Both groups can vote.”

Leland and others from the state disagreed.

“An inactive voter is not a legally registered elector,” Leland said in response to questions from the plaintiff’s attorneys. “In order to determine whether an inactive elector is a qualified elector, you have to look at different statutes requiring different activation from an inactive to an active elector,” Leland said.

Martha Sheehy, the attorney for Montanans Securing Election Reform, argued that the court should ultimately order the secretary of state to return to the status quo for how it handles inactive voters signatures, in part to avoid “absurd” results. 

For example, Sheehy said, by determining that all inactive voters who signed the petitions are not eligible to vote, the state has made those people potentially liable for improperly representing their registration status when they signed the petition. 

“The state has, after the fact, subjected them to possible fines and jail time,” Sheehy said. 

As Tuesday’s courtroom debate swung toward the question of how to rectify the situation, Graybill urged the court to help clarify how the Secretary of State’s Office would handle the verification process going forward.

“Every step of the way the government has obstructed and tried to prevent these three initiatives from getting on the ballot,” Graybill argued, referencing prior lawsuits over CI-128 this spring. “There’s no reason to believe it will be any different [moving forward] because they will not tell us in court today what they’re going to do at the next step.”

“When you’re talking about the rights of people to participate in government, that’s a fundamental right. I think as a judge, my duty is to uphold that right and give life to it and preserve it. So I don’t want to do anything that would cause harm to this process.”

District Court Judge Mike Menahan 

Menahan acknowledged the time pressures at play. However, in questioning what such an order might look like, attorneys for both sides told Menahan that ordering another change to the state’s computer system to process inactive voter signatures could cause additional delays for county election administrators in the lead-up to the July 19 deadline. 

Ultimately, Menahan said several times that his primary concern was not to disrupt or harm a process enshrined in the state Constitution.

“When you’re talking about the rights of people to participate in government, that’s a fundamental right,” Menahan said in an exchange with attorney Johnson. “I think as a judge, my duty is to uphold that right and give life to it and preserve it. So I don’t want to do anything that would cause harm to this process.”

The order signed late Tuesday afternoon affirms that plaintiffs had established that they are likely to suffer ongoing constitutional harm and are entitled to immediate relief. Menahan has scheduled a separate hearing on July 26 to discuss the plaintiffs’ request for a preliminary injunction blocking the secretary of state’s change until the litigation is resolved.

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