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

Montanans Securing Reproductive Rights this week alleged that the secretary of state’s office illegally directed county officials to reject thousands of signatures on a petition to secure a constitutional right to abortion. As activists work to get the abortion rights initiative on the November ballot, opposition groups are mounting a multi-pronged fight.  

By Denali Sagner
Counter protestors at an abortion rights march in downtown Kalispell on May 14, 2022. The event coincided with many protests around the country for abortion rights over the weekend after a leaked majority draft opinion from the U.S. Supreme Court revealed a vote to overturn Roe V. Wade. Hunter D’Antuono | Flathead Beacon

An initiative seeking to place a right to abortion in the Montana Constitution continues to face roadblocks after organizers this week accused the Montana secretary of state of illegally rejecting thousands of potentially valid signatures.

Montanans Securing Reproductive Rights (MSRR), the group behind the initiative, on Tuesday alleged that Secretary of State Christi Jacobsen’s office has been illegally tossing petition signatures of inactive voters, or individuals 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 election officials, which were made public through a records request by MSRR, state attorneys instructed county election workers not to count petition signatures from inactive voters, citing state code that says petitions may only be signed by a “qualified elector.” 

In an email to a Glacier County election official, Clay Leland, attorney for the secretary of state’s office, wrote that “a petition signer must be eligible and qualified to vote at the time they sign the petition to have their signature counted.”

Leland also cited a 2021 Oregon Supreme Court case in which the court ruled that the state may not count the signatures of inactive voters on initiative petitions. Leland wrote that the Oregon court is “the highest court in our sister state and which, to my understanding, has previously been referred to as our sister court.” 

According to the Montana Constitution, a qualified elector is any adult who “meets the registration and residence requirements provided by law” and is not serving a felony sentence or of “unsound mind,” as determined by a court. 

MSRR also alleged that the state covertly updated voting software to auto reject any inactive voters. A second public records request showed unscheduled maintenance to the state’s election software that took place on July 2 and auto rejected individuals with inactive voter status.  

“Last week, we discovered that the Secretary of State changed state voting software to unlawfully reject valid signatures of registered Montana voters who may not have voted in recent elections,” Akilah Deernose, spokesperson for MSRR and executive director of the ACLU of Montana, said in a press release. “These registered voters are clearly qualified electors, and they deserve to have their voices heard and their signatures counted. We demand the SOS reverse the software change immediately and correct the associated unlawful guidance issued to county election administrators. Clear, legal guidance should be provided by the Montana Secretary of State to county election staff as soon as possible to ensure that the voice of every registered voter can be included 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 electors remain inactivated until the same becomes a qualified elector, but while inactivated, they remain unqualified.” James also wrote that the Oregon Supreme Court decision has been cited by the Montana Supreme Court multiple times and that no court in the United States has accepted the argument that inactive voters can legally sign petitions.

Graybill is the Democratic nominee for lieutenant governor.

Jacobsen on Wednesday morning doubled down on her office’s directives to election staff on X, the platform formerly known as Twitter, writing, “This isn’t difficult. Montana law is clear and we will continue to uphold the laws put in place by the Legislature.”

Constitutional Initiative 128 would amend the state Constitution to explicitly provide a right to make and carry out decisions about one’s own pregnancy, including a right to abortion. It would prohibit the state from denying or burdening the right to abortion before fetal viability, which occurs around 24 weeks of pregnancy, and would bar the state from denying abortion access if a medical provider deems it necessary to protect the life of a pregnant patient. 

MSRR last month reported that CI 128 received over 117,000 signatures from voters during a recent signature gathering push, nearly double the 60,359 required to get the initiative on the ballot in November. Each signature must now be reviewed and verified by county election officials, who ensure signers are registered to vote in the county where they signed the petition and that their signature matches the one on file with the election department. 

Flathead County received around 1,300 pages of signatures. Lake County received 633 pages. Lincoln County received 121 pages. 

Opponents to CI 128 have expanded efforts to block the initiative in recent months, filming signature gatherers and challenging the signature verification process. Signature gatherers last month reported intimidation and harassment after anti-abortion observers followed and filmed them. Anti-abortion groups have, without evidence, said the initiative will open the door for increased sex trafficking and allow taxpayer-funded elective abortions up to the moment of birth. Only 1% of abortions occur after fetal viability, according to the Center for Disease Control’s Abortion Surveillance Data

Flathead County election officials received around 200 requests for withdrawal of a petition signature, a form through which individuals who have signed a petition can rescind their signature. County election officials reported that the withdrawal petitions have come largely from individuals who did not sign the petition but allege someone may have signed it on their behalf, implicating signature fraud. Pro-life groups in social media posts have encouraged individuals to fill out withdrawal petitions. The Flathead County Election Department has found no evidence of signature fraud. 

Four states –– California, Michigan, Ohio and Vermont –– passed measures amending their state constitution to explicitly protect a right to abortion following the reversal of Roe v. Wade in 2022. Voters in two other states –– Kentucky and Kansas –– rejected ballot measures seeking to curtail abortion access. 

While Montana’s electorate has taken a rightward turn 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 female voters in the wake of high profile elections down the ballot, including Democratic U.S. Sen. Jon Tester’s competitive bid for reelection in Montana. 

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