Slow Supreme Court ruling could make timeline for abortion ballot initiative ‘virtually impossible’

 

Backers of a constitutional abortion rights amendment face looming June deadline for signature gathering.

Proponents and opponents are keenly anticipating a Montana Supreme Court ruling about whether a proposed constitutional amendment to protect abortion access in Montana passes legal muster to appear on the 2024 ballot. But after nearly two months of litigation, backers of the initiative say they’re running out of time to clear myriad other hurdles required to put the proposal before voters, including collecting upwards of 60,000 signatures across dozens of state House districts.

In a Thursday court filing, Montanans Securing Reproductive Rights, the initiative-backing campaign spearheaded by Planned Parenthood Advocates of Montana, asked the court to decide the case as soon as possible. 

“Given the strict statutory requirements governing the qualification process, unless a decision issues imminently it will be virtually impossible for MSRR to obtain the requisite signatures prior to the June 21, 2024 deadline,” the brief said. The June date is when sponsors of constitutional ballot proposals must submit signatures to county election administrators. 

Martha Fuller, president of Planned Parenthood Advocates of Montana, declined in a Thursday phone call to say what the group considers its latest possible deadline for receiving a Supreme Court ruling and still advancing the campaign. But she said the shortening timeline could run the proposal off the rails.“It’s really difficult to see such an important initiative potentially about to die by process when voters haven’t had a chance to have their say on it,” Fuller said.

If the Supreme Court rules that the initiative is legally sufficient — over-turning Attorney General Austin Knudsen’s determination in January — the initiative does not immediately proceed to the signature-gathering phase. Knudsen’s office could also determine that the initiative’s proposed ballot statement “clearly does not comply with legal requirements,” according to the Montana secretary of state’s description of the initiative process, and decide to re-write the statement language. In that case, Fuller said, the group would likely go to court again to challenge the attorney general’s re-write.

“The continued back and forth in this process is going to be the thing that could potentially make this impossible,” Fuller said.

Anticipating future challenges from the attorney general’s office, Montanans Securing Reproductive Rights has asked the Supreme Court to preemptively find that the proposed ballot statements are not “clearly” out of compliance with legal requirements. Knudsen, in turn, has said the question of compliance is not squarely before the court and should not be considered at this time.

“Should this Court overrule the AG’s determination, the statutory procedure requires remand to the AG for review of Petitioners’ proposed ballot statements,” the state argued in a Feb. 5 briefing. “Petitioners cannot sidestep this process simply by seeking declaratory relief, and their request to do so fails as a matter of law.”

Even if the court allows the proposal and the ballot statements to proceed, recent changes to state law require interim legislative committees to review initiatives before signature collecting can begin. While interim committees cannot block or reject a proposal, the review process could delay signature gathering by several days or weeks.

Other Montanans who have shepherded ballot proposals and constitutional amendments through the regulatory gauntlet in recent years cast Montanans Securing Reproductive Rights’ current position as challenging.

Matthew Monforton, a Bozeman attorney and the sponsor of two recent property tax cap measures that did not pass the thresholds necessary for placement on the ballot, criticized the constitutional initiative process in a Thursday phone call, even as he said he opposed the abortion measure. 

“Between the judiciary and the attorney general’s office, Montana’s initiative process is riddled with politics. And it is destroying the rights of citizens to have a voice in crafting legislation,” he said, later calling the review by a legislative interim committee “blatantly unconstitutional.”“You can’t have a frickin’ legislative interim committee being the gatekeeper for citizens’ initiatives. The whole reason we have citizen initiatives is to allow citizens to bypass incompetent legislators,” Monforton said.

From a purely logistical standpoint, Monforton and others said, collecting enough verified signatures during the limited time frame will be an uphill climb. While the minimum threshold required for constitutional initiatives is just over 60,000 signatures gathered across 40 House districts, initiative campaigns typically aim for closer to 100,000 to account for unverifiable signatures that will be disallowed. 

“By the middle of March, if you’re not out collecting signatures, you better have a truckload of money and you better be able to start collecting signatures soon if you’re going to get your initiative across the finish line,” Monforton said.

“Yes, I would be sweating. Like full-blown panic,” said Ronda Wiggers, a consultant and lobbyist who has worked on several mining-related ballot initiatives over the last decade, about the timeline for collecting signatures. 

But, she added, an established group with strong grassroots support can expect to mobilize rapidly. And, she said, getting people to care enough to add their name to a petition is easier with high-profile issues.