Three Constitutional Initiatives’ Long Legal Road to the Ballot  

Montana voters will decide in November whether to protect abortion rights and overhaul the state’s election system after Secretary of State Christi Jacobsen this week approved three constitutional initiatives for this fall’s general election ballot. 

The proposals are Constitutional Initiatives 126 and 127, sponsored by Montanans for Election Reform, and Constitutional Initiative 128, backed by Montanans Securing Reproductive Rights. The first two would act in concert to change the shape of primary elections, with CI-126 consolidating Montana’s separate party primaries onto a single ballot with the top four winners advancing to the general election, and CI-127 requiring a candidate to secure more than 50% of the vote in order to win an election. CI-128 would amend the Montana Constitution to include the right to abortion, and generally prohibit the government from denying that right and from penalizing patients, health care providers and others who assist a person in obtaining an abortion.

Any one of the initiatives would bring about some of the most significant changes to the Montana Constitution since its creation and ratification in 1972. 

Jacobsen’s certification of CI-128 on Tuesday and of CI-126 and CI-127 on Thursday evening, hours ahead of the deadline to certify ballot issues, did not come about without conflict. All three proposals have been snarled in months of litigation involving Jacobsen and Attorney General Austin Knudsen, both Republicans. 

Initiative sponsor groups have for months accused officials and grassroots opponents of deploying political delay tactics to slow multiple phases of the process, ultimately to no effect. 

In the final months of 2023 and early 2024, Knudsen found two of the initiatives “legally insufficient” during a routine legal review and later proposed an alternative ballot statement for CI-128 that backers sued over. In July, Jacobsen’s office decided not to accept signatures from “inactive” voters after both ballot issue groups had finished gathering and submitting petitions, prompting another flurry of legal action by initiative sponsors. 

“This is a direct result of your unwavering dedication and hard work,” Montanans Securing Reproductive Rights said in a Wednesday email to volunteers and supporters. “Despite facing harassment from the opposition and countless obstacles from the Secretary of State, your perseverance has brought us to this moment.”

In public comments, Knudsen and Jacobsen have each defended their interactions with the ballot initiatives as a plain execution of their jobs, not the politically motivated tactics described by the sponsor groups.

During a March segment on KGVO’s Talk Back show, Knudsen responded to a call-in question about whether he would intentionally “slow walk” CI-128.

“You give me far too much credit,” Knudsen told the caller. “I determined it was legally insufficient. Our state Supreme Court disagreed with me … However, I’m going to comply with the Supreme Court. By law, I have five days to turn in that [ballot] language to the secretary of state. We’ve done that. I don’t get to hold the ball.”

In an August email to MTFP, Richie Melby, a spokesperson for Jacobsen’s office, sidestepped a request for direct comment on accusations that the secretary of state was engaging in political delay tactics. 

“If our office focused on the assertions and falsehoods from every outside politically motivated group, there wouldn’t be enough time to complete the excellent work that’s performed in this office every day,” Melby said. “We’ll continue focusing on the latter.”

LONG ROAD OF LAWSUITS

Taken together, CI-126, CI-127 and CI-128 have sparked seven lawsuits and appeals since the fall of 2023, most of which were filed in response to actions by Knudsen’s and Jacobsen’s offices. 

The ensuing legal battles unfolded at key stages in the ballot initiative process, involving 14 attorneys all told and resulting in a total of 19 orders and opinions from multiple state courts. One of the lawsuits is still active, setting up extended legal debates about how future ballot proposals will operate.

The abortion ballot initiative, CI-128, had the most circuitous route to signature-gathering, featuring a total of four lawsuits in about 11 months. But even the trajectory of the less embattled election initiatives paints a picture of the myriad challenges and disputes the process has raised since last fall. 

Take, for example, CI-126, the proposal to do away with separate party primaries. Montanans for Election Reform first filed the required paperwork for a constitutional initiative in August 2023, but quickly encountered its first snag in October when Knudsen’s office deemed the proposal “legally insufficient,” determining that the sponsor group was “logrolling” unrelated constitutional amendments into a single ballot measure. 

The Montana Supreme Court overturned that finding in November, directing Jacobsen to approve the petition for signature gathering and preempting potential similar disputes over CI-127, the complementary majority-winner initiative.

In December, a legislative committee logged its disapproval of CI-126 advancing to the fall ballot. That action did not impact the sponsor group’s ability to begin gathering signatures but will be noted in information presented to voters about CI-126 this fall. 

Several months later, county election officials were in the process of verifying the roughly 109,000 signatures submitted for CI-126 when Jacobsen’s office changed a longstanding protocol. The secretary of state determined that inactive voter signatures were not eligible for ballot petitions and updated state software to automatically reject such signatures. 

That policy change prompted another round of litigation in Lewis and Clark County that ultimately resulted in a court-ordered injunction clearing inactive voter signatures for approval. All told, 70,956 signatures for CI-126 were validated by county officials.

CI-126 and CI-127 also survived a June legal challenge in Lake County filed by a group of conservatives including Montana House Speaker Matt Regier and the political committee Republicans for Freedom. That lawsuit argued that the passage of both initiatives would confuse voters and eventually weaken the Republican Party. Montanans for Election Reform was unaware of the lawsuit for several days as the Republican plaintiffs specifically named Jacobsen as a defendant, but not the groups running the initiatives’ campaign. That litigation ended in August when the presiding judge reaffirmed the injunction issued in Lewis and Clark County and dismissed the case.

When Jacobsen eventually certified the election initiatives in late August, Montanans for Election Reform signaled the group’s readiness to move on to the next phase of the election.

“We’re grateful to make it through the final step of the certification process and see the will of over 100,000 Montanans who want to see these initiatives on the ballot honored,” said Frank Garner, former Republican lawmaker and board member of Montanans for Election Reform. “Our citizens’ initiative process is critical for us to uphold Montana values and hold our politicians accountable. We’re excited to spend the next few months talking with voters across the state about how CI-126 and CI-127 will give voters better choices and allow us to vote for the person, not the party.”

GRASSROOTS CAMPAIGNS GEAR UP

Opposition and support for the three initiatives have been percolating throughout the signature-gathering campaigns and legal episodes. 

The two campaigns behind the ballot issues have raised millions in contributions and paid out millions for signature-gathering firms, consultants, lawyers, polling and advertising. As of late June, Montanans for Election Reform had spent more than $750,000 to reserve digital media advertisement space.

By comparison, spending against each initiative has so far been minimal. Groups pushing the “Decline to Sign” effort for CI-128 have largely been driven by unpaid volunteers, local fundraisers and staff members from existing groups such as the conservative Christian policy nonprofit Montana Family Foundation. Records filed with Montana’s Commissioner of Political Practices show that the Montana Life Defense Fund, a political committee registered to oppose CI-128, has disclosed roughly $10,000 in in-kind contributions from the Montana Family Foundation this year related to opposing CI-128. In July, the Montana Life Defense Fund unsuccessfully attempted to intervene as a defendant in the Lewis and Clark County District Court lawsuit filed by Montanans Securing Reproductive Rights and Montanans for Election Reform.

Susan B. Anthony Pro-Life America, the national anti-abortion powerhouse, has listed Montana as one of its targeted states and pledged to roll out robust field campaigns against CI-128 and U.S. Democratic Sen. Jon Tester’s reelection. But while the group has reported donating to Tester’s Republican challenger, Tim Sheehy, it has yet to file state campaign finance reports detailing spending against the abortion initiative.

Montana’s largest political parties have had mixed interactions with the three initiatives. The state GOP has spoken out against CI-126, dismissing it as a ranked-choice voting “scheme” in an April press release, but has yet to report any specific spending against the initiative.

Third-party conservative groups including Republicans for Freedom and the Montana Freedom Caucus have also publicly opposed the initiatives.

The Montana Democratic Party has not publicly endorsed or opposed CI-126 and CI-127. A spokesperson, Gaby Krevats, did not answer questions about the party’s stance on the measures. 

In an emailed statement Wednesday, Montana Democratic Party Executive Director Sheila Hogan said the party supports CI-128.

“We strongly support the rights of all Montanans to make their voices heard at the ballot box this November, and Montana Democrats will continue to fight tooth and nail to strengthen our democracy and keep politicians out of Montanans’ personal health care decisions,” Hogan said.

The party has not financially contributed to Montanans Securing Reproductive Rights as of late June. CI-128’s primary supporters come from national political action groups and high-dollar out-of-state donors, including the Sixteen Thirty Fund, Think Big America-MT, and The Fairness Project.

The state GOP has not issued press releases or other high-profile statements about CI-128, but a party spokesperson confirmed on Thursday that the GOP opposes the abortion measure in its entirety.

“Obviously we’re the GOP and we’re the party of life,” spokesperson Madison Atkinson said in a Thursday phone call. She did not say whether the party plans to spend any money in opposition to CI-128 before November.

Nationwide, Republican candidates and parties have struggled to message on abortion since the issue became a rallying point for Democrats after the U.S. Supreme Court’s overturning of Roe v. Wade in 2022. According to the national ad-tracking firm AdImpact, Democratic advertisers aired 1,278% more abortion-oriented ads on television in the four months between the court’s decision and Election Day 2022 than Republican advertisers.

In the last two years, the group reports that $145 million in advertising has been spent in several states considering abortion-related ballot initiatives, including $137,000 in Montana for and against LR-131, the Born Alive Infant Protection Act. 

As of this June, AdImpact said $95 million in advertising has been reserved across 11 states related to abortion ballot issues in 2024.

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.