Montana abortion measure a step closer to signature gathering after legal back-and-forth

Montana Justice Building
Posted at 6:42 PM, Apr 05, 2024

HELENA — For weeks, a proposed ballot measure that would specifically add abortion rights to Montana’s constitution has been caught up in court actions and legal disputes – and that hasn’t stopped over the past few days. Now, after a series of legal back-and-forths, there’s still some uncertainty, but supporters of the measure believe they’re close to starting their signature-gathering efforts.

The measure has been informally known as “Ballot Issue 14,” but Montana Secretary of State Christi Jacobsen’s office has now given it an official title of Constitutional Amendment 128. It’s sponsored by the committee Montanans Securing Reproductive Rights, and backed by groups like Planned Parenthood Advocates of Montana.

CI-128 would add language to the state constitution, establishing “a right to make and carry out decisions about one’s own pregnancy, including the right to abortion.”

On Monday, the Montana Supreme Court finalized a ballot statement for CI-128 – language that will go on petition forms that voters sign, and on the ballot itself if it qualifies.

Ordinarily, after the ballot statement is approved, a proposed initiative then goes to a state legislative interim committee, which reviews it and votes on whether to support or oppose it before it goes out for signature gathering. The vote doesn’t determine whether a measure goes forward, but the results do appear on petition forms.

However, in a footnote in their decision Monday, Supreme Court Justice Ingrid Gustafson said state law says a legislative review happens only after the attorney general rules a proposed initiative is legally sufficient. In this case, Attorney General Austin Knudsen said CI-128 wasn’t sufficient, but the Supreme Court overruled him.

Backers of CI-128 took that to mean they should be able to begin gathering signatures for the measure immediately, instead of going through the review process. They went back to the court to demand that Jacobsen provide them with a petition form they could use for collecting signatures.

On Thursday, five out of seven Supreme Court justices signed on to an order, reiterating that the language in state law didn’t allow for a legislative review in this case and directing Jacobsen to give the plaintiffs a petition form by Friday afternoon or show cause by Monday why she didn’t.

Jacobsen and Knudsen quickly protested, saying they hadn’t been served properly and that they should have had a further chance to respond. On Friday morning, the court issued another order, saying the officials had since been served, so any issues there were resolved, and that state law allowed the process they were using. They again repeated the order to provide a petition form or show cause.

Meanwhile, state legislative Republicans have been consistently arguing that the Legislature still needs to have a say on CI-128. On Tuesday, Senate President Sen. Jason Ellsworth, R-Hamilton, sent Jacobsen a legislative subpoena, demanding records on the measure so a committee could review it.

On Friday afternoon, the Secretary of State’s Office told MTN they had complied with both the Supreme Court’s order and the subpoena.

“Despite having to navigate the many complexities—including the rewritten rules, circumvention of branches, and lack of due process—surrounding what’s typically an ordinary procedure, as we’ve stated from the beginning, the Secretary of State’s Office is committed to complying with Montana law,” said Richie Melby, a spokesperson for the office, in a statement.

MSRR confirmed they had received a petition form for CI-128. It included a note from the Secretary of State’s Office, stating that it hadn’t gone through the standard process.

“Voters are advised that unlike the other 2024 ballot issues, the Montana Supreme Court ordered that the ordinary process which authorizes the Legislature to have either an interim committee or an administrative committee of the legislature review the content of this initiative prior to circulation does not apply to this petition,” it said. “Pursuant to that Montana Supreme Court Order, the finalized sample petition is approved for signature collection.”

Legislative GOP leadership announced in a statement that they had scheduled a review of CI-128 in the Law and Justice Interim Committee, on April 18 at 9 a.m., over Zoom.

“I thank Secretary Jacobsen for complying with her subpoena and for consistently recognizing the Legislature’s role in the ballot initiative process,” said Ellsworth. “The Montana Supreme Court seems determined to cut the Legislature and public comment out of the process and give this initiative special treatment over all other initiatives that have been proposed in the past three years. Having two tiers of justice in this state, where the Supreme Court’s favored parties and political outcomes get preferential treatment, is shameful.”

Legislative Democrats released their own statement Friday, saying the law was clear and that meeting was unnecessary.

MSRR told MTN Friday that they were continuing to review the petition.

“With a petition review taking place, the next phase of signature collection is close,” the committee said in a statement. “This process has been unnecessarily complicated, and rife with bad actors constructing ridiculous obstacles. Despite all of that, we are elated to be one step closer to signature collection. Montana voters deserve to make their voices heard on this critical issue, and today marks an important step in moving forward.”

The committee has previously accused state officials of delaying the initiative’s progress to interfere with their signature gathering efforts.

The Attorney General’s Office told MTN they still maintained that the Supreme Court had made its order without jurisdiction.

“The Montana Supreme Court’s directives have cast even more serious doubts on the validity of this initiative and created unnecessary conflict and uncertainty regarding the constitutional separation of powers in an apparent effort to get the desired outcome for their campaign donors,” a spokesperson said in a statement.

In December, a legislative committee did review Constitutional Initiative 126, which would create a top-four primary election. That measure was also rejected as legally insufficient by Knudsen’s office, but allowed to move forward by the Supreme Court.

In order to qualify for the November ballot, sponsors of CI-128 will have to collect more than 60,000 signatures from registered voters across Montana – including a minimum amount in 40 of the state’s 100 legislative districts. They will have to have the signatures turned into county election administrators by June 21.