Jacobsen sends group ballot petition to start collecting signatures for abortion initiative

The Secretary of State’s office in the Montana State Capitol in Helena on Wednesday, April 26, 2023. (Photo by Mike Clark for the Daily Montanan)

Following a week of court challenges and back-and-forth arguments about court procedure and orders, Montana Secretary of State Christi Jacobsen sent the group behind a proposed abortion access constitutional amendment its ballot petition ahead of Friday’s court-imposed deadline so the group can start collecting signatures.

Jacobsen provided the Supreme Court notice that her office had sent the group the sample petition at 12:52 p.m., just ahead of the 1 p.m. deadline that she had lest she have to tell the court on Monday why she should not be held in contempt.

“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,” Jacobsen’s spokesperson, Richie Melby, said in a written statement. “With that and upon somewhat receiving the clarification we’ve sought all along, the Secretary of State has successfully complied with and fulfilled the Court’s Order and Legislative subpoena.”

A spokesperson for Montanans Securing Reproductive Rights, the group behind Ballot Initiative 14, said Friday afternoon the group was reviewing the petition. But they are pleased to be on the verge of collecting signatures.

“With the petition review taking place, the next phase of signature collection is close. This process has been unnecessarily complicated, and rife with bad actors constructing ridiculous obstacles,” the group said. “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.”

According to the ballot petition, the measure will be referred to as Constitutional Initiative 128, or CI-128.

Following the U.S. Supreme Court’s 2022 decision putting the question of the legality of abortion back into the hands of states, and Montana’s Republican supermajority Legislature passing several abortion restriction bills last year that are largely blocked by courts currently, the group is trying to be sure abortion access is ensured in the state Constitution. Members of the group have said for weeks that time is running out to collect more than 60,000 signatures they’ll need by mid-June to be on November’s ballot.

Both Melby and Senate Republicans spokesperson Kyle Schmauch confirmed Jacobsen had also submitted copies of materials related to the ballot measure in response to a legislative subpoena on Friday morning ahead of Senate President Jason Ellsworth’s imposed deadline of noon.

The Supreme Court ruled on Friday morning that its order from Thursday telling Jacobsen she had until 1 p.m. Friday to give Montanans Securing Reproductive Freedom its ballot petition was valid and still in effect after Jacobsen and the attorney general were served  with the writ of mandamus request — a request for an order to comply — and the order on Thursday afternoon. Attorneys for the state had argued the order Thursday was not valid because the attorney general had not been served with the original motion.

The court also reaffirmed its opinion from earlier this week that the ballot measure is not subject to a legislative committee review and that the group can start collecting signatures as soon as it has the petition. The order said that any committee vote on the measure will not be reflected on the ballot petition.

“Because interim committee review was not authorized pursuant to the express language of § 13-27-228(1), MCA, the finalized sample petition shall omit the language regarding interim committee review,” the justices wrote in Thursday’s order.

But nonetheless, Republican lawmakers are moving forward with having a hearing anyway, scheduling the measure to be heard before the Law and Justice Interim Committee on Thursday, April 18 at 9 a.m.

“The Montana Supreme Court can say what it wants to say, but the Legislature is proceeding with our normal public process on the initiative,” said Committee Chairwoman Rep. Amy Regier, R-Kalispell. “We are treating this proposed ballot initiative exactly the same as all other initiatives, which is the only fair and just thing to do.”

Ellsworth in a statement said the Supreme Court was “determined to cut the Legislature and public comment out of the process and give this initiative special treatment.”

But the court said in Thursday’s order that there was no other way to interpret the statute the Legislature wrote other than saying that the only way the initiative review process by the Legislature is triggered is if the attorney general finds a proposal legally sufficient.

In this case, Attorney General Austin Knudsen did not because the court overturned his original insufficiency finding and wrote the ballot statement since neither Knudsen’s nor the group’s was sufficient, according to the court.

“We are bound by the plain meaning of the words used in statute,” the justices wrote in Thursday’s order. “Our role is ‘simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.”

A copy of the petition provided by Montanans Securing Reproductive Rights tells voters of the court’s decision that there will not be a committee review process for the particular initiative as there is for others.

Montana’s Democratic legislative leaders, House Minority Leader Kim Abbott of Helena and Senate Minority leader Pat Flowers of Belgrade, said in a statement the court had already said the legislative committee’s up-or-down vote will not go on the petition and the meeting is meaningless.

“The statutory language is clear, and the court order is clear: this committee meeting is unnecessary. If Republicans want to discuss Montana’s access to abortion care, they can do that at any regularly scheduled meeting,” the two said.

Jacobsen and Knudsen will still have to respond by noon on Monday to the group’s filing from Wednesday asking the court to determine the Legislature had no further role in the process for this particular initiative and asking the court to take jurisdiction over the ballot initiative until signature gathering is complete.

Montanans Securing Reproductive Rights has for weeks said Knudsen and then Jacobsen have been delaying their ability to start the signature gathering process for the initiative, which would enshrine abortion access in Montana’s Constitution. The group went to court to challenge Knudsen’s original insufficiency finding and won, then had to challenge the ballot statement he wrote for the proposal. The court also overturned that language and wrote its own.

And this week, after the court on Monday ordered Jacobsen to provide the group with its ballot petition immediately, she sought clarification on whether that portion of the order was binding because it was included in a footnote. Her spokesperson, Melby, told the Daily Montanan earlier this week she intended to comply both with the court order and the subpoena.

Ellsworth subpoenaed the initiative records from her the same day he announced he was forming a select legislative committee to investigate what Senate Republicans call “judicial overreach” with this case and several other decisions made by the Supreme Court and other courts over the past several months.

But the court’s Thursday order saying Jacobsen needed to send the petition by Friday afternoon, and its upholding of that order on Friday morning, made clear what needed to happen if Jacobsen did not want to face a possible contempt of court charge, which includes potential jail time and a fine upon conviction.

Now that the petition has been sent to the group, it will have until June 21 to collect 60,359 valid signatures, including from 10% of voters in 40 different state House Districts, in order to make the ballot in November. It is the seventh issue qualified to gather signatures so far. None have officially qualified for the ballot as of Friday, and there are two still going through the initial initiative process, including one submitted in February.

Montanans Securing Reproductive Rights’ effort in Montana goes along with other efforts in other states to try to get constitutional amendments on abortion access onto this year’s ballot in the wake of the U.S. Supreme Court decision that handed control over abortion back to the states. Those include Arizona, Nevada, Florida, Maryland, New York, South Dakota, Missouri, Nevada and Nebraska, according to the Associated Press.

Montanans Securing Reproductive Rights is a group comprised of Planned Parenthood Advocates of Montana, the ACLU of Montana, and Forward Montana. Its attorney is Raph Graybill, the Democratic lieutenant governor candidate this year running alongside Ryan Busse.

Petition form for Ballot Issue14

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