Abortion Group Accuses Secretary of State of Throwing Out Petition Signatures as Opposition to Constitutional Initiative Grows
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Abortion Group Accuses Secretary of State of Throwing Out Petition Signatures as Opposition to Constitutional Initiative Grows

An initiative to add abortion rights to the Montana Constitution continues to face obstacles after organizers this week accused Montana’s secretary of state of illegally rejecting thousands of potentially valid signatures.

Montanans Securing Reproductive Rights (MSRR), the group behind the initiative, alleged Tuesday that Secretary of State Christi Jacobsen’s office is illegally throwing out petition signatures from inactive voters, or people who are registered to vote but have not voted in the past two years.

According to emails between the Secretary of State’s office and county elections officials that were made public through an open-records request from MSRR, state attorneys instructed county elections officials not to count petition signatures from inactive voters, citing state law that states petitions can only be signed by a “qualified voter.”

In an email to Glacier County elections officials, Clay Leland, an attorney for the Secretary of State’s office, wrote that “the petition signer must be eligible and qualified to vote at the time of signing the petition in order for their signature to be counted.”

Leland also cited a 2021 Oregon Supreme Court ruling in which the court ruled the state could not count signatures from inactive voters on initiative petitions. Leland wrote that the Oregon court is “the highest court in our sister state and which I understand was previously referred to as our sister court.”

Under the Montana Constitution, an eligible voter is any adult who “meets the registration and residency requirements of law” and is not serving a felony conviction or being “mentally ill,” as determined by a court.

MSRR also alleged that the state secretly updated voting software to automatically reject inactive voters. A second public records request showed an unscheduled maintenance of the state’s election software that occurred on July 2 that automatically rejected people with inactive voter status.

“Last week, we discovered that the Secretary of State changed the state’s voting software to unlawfully reject valid signatures from registered Montana voters who may not have voted in the last election,” Akilah Deernose, MSRR spokesperson and executive director of the ACLU of Montana, said in a press release. “These registered voters are clearly qualified voters and deserve to have their voices heard and their signatures counted. We demand that the SOS immediately reverse the software change and correct the related unlawful guidance issued to county election administrators. The Montana Secretary of State should provide county elections staff with clear, legal guidance as soon as possible to ensure that every registered voter’s voice is counted in our democratic process.”

Austin James, chief legal counsel for the Secretary of State’s office, wrote in a letter to MSRR attorney Raph Graybill: “Montana law is clear, inactive voters remain inactive until that same person is elected.” becomes qualified voter, but when inactive, he remains ineligible.” James also wrote that the Oregon Supreme Court’s ruling had been cited repeatedly by the Montana Supreme Court and that no court in the United States has accepted the argument that inactive voters can legally sign petitions.

Graybill is the Democratic candidate for lieutenant governor.

Jacobsen doubled down on her office’s guidance to election staff on X, the platform formerly known as Twitter, on Wednesday morning, writing, “This is not hard. Montana law is clear and we will continue to follow the laws set forth by the Legislature.”

Initiative 128 would amend the state constitution to expressly provide for the right to make and exercise decisions about one’s own pregnancy, including the right to an abortion. It would prohibit the state from denying or burdening the right to an abortion before the fetus is viable, which occurs at about 24 weeks of gestation, and would prevent the state from denying access to abortion if a health care provider deems it necessary to protect the life of a pregnant patient.

MSRR reported last month that CI 128 received more than 117,000 signatures from voters during its recent signature drive, nearly double the 60,359 required to place the initiative on the November ballot. Each signature must now be reviewed and verified by county elections officials, who make sure signatories are registered to vote in the county where they signed the petition and that their signature matches the one on file with the elections department.

Flathead County received about 1,300 pages of signatures. Lake County received 633 pages. Lincoln County received 121 pages, or 24,656 signatures.

CI 128 opponents have stepped up efforts to block the initiative in recent months, filming people collecting signatures and challenging the signature verification process. People collecting signatures last month reported intimidation and harassment after anti-abortion watchdogs followed and filmed them. Anti-abortion groups, without evidence, have said the initiative would open the door to increased human trafficking and enable taxpayer-funded elective abortions up to the moment of birth. Only 1% of abortions occur after the fetus is viable, according to the Abortion Surveillance Data Center for Disease Control.

Flathead County election officials have received about 200 applications to withdraw their signature petitions, a form that allows people who have signed a petition to withdraw their signature. County election officials said the withdrawal petitions are mostly from people who did not sign the petition but claim someone else may have signed it on their behalf, suggesting signature fraud. Pro-life groups have encouraged people to fill out the withdrawal petitions in social media posts. The Flathead County Elections Department has found no evidence of signature fraud.

Four states – California, Michigan, Ohio and Vermont – have passed measures amending their state constitutions to explicitly protect abortion rights after the repeal Roe v. Wade in 2022. Voters in two other states – Kentucky and Kansas – rejected legislative initiatives aimed at restricting access to abortion.

As Montana’s electorate has lurched to the right in recent years, abortion rights activists hope the state’s purple history and emphasis on individual privacy will carry CI 128 across the finish line in November. Democrats also see abortion as a way to boost turnout among liberal and women voters ahead of important elections, including the competitive re-election of Democratic U.S. Sen. Jon Tester in Montana.

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