Democratic Party v. Stapleton

09/23/2020

DA 20-0396
Case Number: DA 20-0396

IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 244

MONTANA DEMOCRATIC PARTY and TAYLOR BLOSSOM,
RYAN FILZ, MADELINE NEUMEYER, and REBECCA WEED,
individual electors,

Plaintiffs and Appellees,

v.

STATE OF MONTANA, by and through its
SECRETARY OF STATE COREY STAPLETON,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDV 2020-856
Honorable James P. Reynolds, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Matthew T. Meade, Smith Oblander & Meade, PC, Great Falls, Montana

Austin James, Chief Legal Counsel, Secretary of State’s Office, Helena,
Montana

For Appellees:

Peter Michael Meloy, Meloy Law Firm, Helena, Montana

Matthew Gordon, Perkins Coie LLP, Seattle, Washington

For Amicus Curiae Montana Republican Party:

Anita Y. Milanovich, Milanovich Law, PLLC, Butte, Montana

Emily Jones, Talia G. Damrow, Jones Law Firm, PLLC, Billings, Montana
 For Amici Curiae Lorrie Campbell and Jill Loven:

Chris J. Gallus, Gallus Law, Helena, Montana

Edward D. Greim, Graves Garrett, LLC, Kansas City, Missouri

Submitted on Briefs: August 19, 2020

Decided: September 23, 2020

Filed:

Vir-6A.-if
__________________________________________
Clerk

2
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 The State of Montana, by and through its Secretary of State Corey Stapleton (the

“Secretary”) appeals the Findings of Fact, Conclusions of Law, and Order of the

First Judicial District Court, Lewis and Clark County. The District Court concluded the

petition seeking to qualify the Montana Green Party to hold a primary election to select its

nominees for office and to obtain ballot access for those nominees for the November 2020

general election failed to meet the requirements of § 13-10-601(2), MCA, and enjoined the

Secretary and all persons acting under his authority from giving any effect to the petition.

In accordance with our August 19, 2020 Order, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 In late January 2020, over twenty petition circulators began to collect signatures for

a petition seeking to qualify the Montana Green Party to hold a primary election to select

its nominees for office and obtain ballot access for those nominees in the 2020 general

election. In mid-February, Montana Green Party leadership disclaimed the petition, and

publicly stated the Montana Green Party was not involved in the petition effort. It was

unclear at that time who was organizing and funding the signature gathering. In response,

the Montana Democratic Party organized a countereffort, reaching out to petition signers

and encouraging them to withdraw their signatures from the petition because an unknown

group was organizing and funding the effort. On or before March 6, around 150 petition

signers, including plaintiffs Taylor Blossom and Rebecca Weed, asked for their names to

be removed from the petition. On March 6, the Secretary completed the tabulation of

submitted signatures and announced the Montana Green Party had been qualified for the

3
primary election through the petition process. Shortly before the primary election,

Montana Green Party leadership publicly disclaimed the candidates running under its

banner in the primary.

¶3 On March 24, news reports widely broadcast that the petition had been sponsored

and organized by the Montana Republican Party. The Montana Republican Party Central

Committee had contracted with the petition gathering firm Advanced Micro Targeting to

gather the signatures for the petition. The expenditure was credited as an in-kind

contribution to “Montanans for Conservation” on financial disclosures. Montanans for

Conservation filed as an independent committee with the Commission on Political Practice

in January 2020, rather than as a minor party qualification committee pursuant to

§ 13-37-602, MCA. Its status was not changed to a minor party qualification committee

until March 23. The Montana Republican Party is the sole contributor to Montanans for

Conservation.

¶4 After these news reports, the Montana Democratic Party redoubled its efforts to

contact petition signers to educate them as to the who funded the petition effort, the

Montana Green Party’s disavowal of the petition and the candidates purported to be

running under its party designation, and encourage them to withdraw their signatures based

on this information. Following these efforts, hundreds of petition signers requested to

withdraw their signatures from the petition between March 6 and June 2—the day of the

primary election. Many of the withdrawal requests were submitted with an electronic

signature. The Secretary declined to honor requests submitted after March 6—the day the

Secretary’s office completed statewide tabulation of the petition signatures.

4
¶5 The Montana Democratic Party and four petitioner signers who asked to have their

signatures removed from the petition sued the Secretary, seeking an injunction to prevent

the Secretary and his office from giving effect to the petition. The Complaint alleges, in

relevant part, that “the Montana Green Party had absolutely nothing to do with the Petition”

and sought declaratory relief that the petition failed to meet the requirements of

§ 13-10-601, MCA.

STANDARD OF REVIEW

¶6 We review a district court’s conclusions and applications of law for correctness.

Larson v. Stapleton ex rel. State, 2019 MT 28, ¶ 16, 394 Mont. 167, 434 P.3d 241. We

review its findings of fact for clear error. Larson, ¶ 16. We review the grant of injunctive

relief for a manifest abuse of discretion. Larson, ¶ 16. “We will affirm the district court

when it reaches the right result, even if it reaches the right result for the wrong reason.”

Talbot v. WMK-Davis, LLC, 2016 MT 247, ¶ 6, 385 Mont. 109, 380 P.3d 823

(internal quotations omitted).

DISCUSSION

¶7 The plaintiffs raised various grounds to challenge the validity of the petition before

the District Court, including challenges to the Secretary’s refusal to honor withdrawal

requests submitted after March 6 and refusal to accept withdrawal requests signed

electronically. The District Court thoroughly considered all issues raised and issued a

detailed order. The court agreed with the plaintiffs that the petition did not meet the

requirements of § 13-10-601(2), MCA, and enjoined the Secretary and those acting under

his authority from giving it any effect. The Secretary challenges various conclusions of

5
the District Court on appeal. We decline to address the contentions of the Secretary,

however, because the findings of fact of the District Court unchallenged on appeal are

dispositive.

¶8 Section 13-10-601(2)(a), MCA, provides: “A political party that does not qualify

to hold a primary election under subsection (1) may qualify to nominate its candidates by

primary election by presenting a petition, in a form prescribed by the secretary of state,

requesting the primary election.” (Emphasis added.) This section is clear who must

present the petition: the political party seeking to nominate its candidates by primary

election. The petition at issue in this case does not meet the most basic requirement of

§ 13-10-601(2), MCA: the political party seeking qualification through a petition must

present the petition requesting the primary election.

¶9 The District Court found the Montana Republican Party sponsored and organized

the petition and the evidence before the court demonstrated “the Montana Green Party

disavowed the signature gathering process and has also disavowed the persons filing under

the Green Party banner as not being true Green Party members or adherents.”1 These

1
Tellingly, the Montana Green Party has not participated at any stage of the litigation related
to this petition in state court to keep itself on the 2020 general election ballot. On
August 27, 2020—a week after the statutory deadline for the Secretary to certify the ballot for the
general election—it appears the Montana Green Party moved to intervene in Davis v. Stapleton,
No. 20-35734 (9th Cir. filed Aug. 20, 2020)—an appeal from a federal district court case brought
by Green Party primary candidates and voters related to the subject petition—and the
Ninth Circuit granted the motion on September 8, 2020, see Davis v. Stapleton, No. 20-35734,
2020 U.S. App. LEXIS 28430 (9th Cir. Sept. 8, 2020). It does not appear the Montana Green Party
was a party to or sought to participate as a party in that matter before the federal district court.
See Davis v. Stapleton, No. CV-20-62-H-DLC, 2020 U.S. Dist. LEXIS 150267 (D. Mont.
Aug. 19, 2020). During this same time period, however, the Montana Green Party has been
actively litigating a federal lawsuit challenging the constitutionality of the process governing
minor party ballot access in Montana under § 13-10-601, MCA, see Mont. Green Party v.
6
findings—undisputed before the District Court and unchallenged on appeal—are sufficient

to support the District Court’s conclusion the petition fails to satisfy the requirements of

§ 13-10-601(2), MCA, and the injunction enjoining the Secretary and all persons acting

under his authority from implementing or giving any effect to the petition. Under the facts

of this case as presented to the District Court and unchallenged on appeal, it is clear the

Montana Green Party did not present the petition requesting a primary election to nominate

its candidates for the general election. The Secretary was without statutory authority to

accept the petition at issue in this case, which was not presented, endorsed, or sponsored

by the Montana Green Party at the time of the signature gathering and the submission of

the petition to the election administrators of the counties where the signatures were

gathered.2 See § 13-10-601(2)(a), (c), MCA.

¶10 Given the facts of this case as presented to the District Court, Montanans for

Conservation could not present the petition to election administrators to qualify the

Montana Green Party under § 13-10-601(2), MCA. Under § 13-10-601, MCA, a political

party may qualify to nominate its candidates for the general election through a

state-sponsored primary in one of two ways: under subsection (1) by having a candidate

Stapleton, No. CV-18-87-H-BMM-JTJ, 2020 U.S. Dist. LEXIS 48859 (D. Mont. Mar. 20, 2020),
and briefing is ongoing in its appeal from that case, see Mont. Green Party v. Stapleton,
No. 20-35340 (9th Cir. filed Apr. 15, 2020).
2
If the statute allowed petitions to be presented to election administrators and then accepted by
the Secretary of State without the subject minor party’s participation or endorsement of the petition
seeking to nominate that party’s candidates through the primary process, serious concerns would
be raised about violations of the associational rights of minor parties. See Cal. Democratic Party
v. Jones, 530 U.S. 567, 120 S. Ct. 2402 (2000); Maslow v. Bd. of Elections in City of New York,
658 F.3d 291 (2d Cir. 2011).

7
for statewide office in either of the last two general elections receive a total vote equal to

five percent or more of the total votes cast for the most recent successful candidate for

governor; or under subsection (2) by presenting a petition requesting a primary election

that is signed by a sufficient number of registered voters. “[A] political party that does not

qualify to hold a primary election under [§] 13-10-601(1)[, MCA]” is a “minor political

party.” See § 13-37-601(4), MCA. A “minor party qualification committee” is

“a combination of two of more individuals or a person other than an individual organized

in furtherance of an effort to qualify a minor political party for primary elections using a

minor party petition.” See § 13-37-601(6), MCA (emphasis added). Montanans for

Conservation originally registered as an independent committee pursuant to

§ 13-1-101(24), MCA, but was later recharacterized as a minor party qualification

committee under § 13-37-601(6), MCA. Nothing in the language of § 13-1-101(24), MCA,

§ 13-37-601(6), MCA, or § 13-10-601(2), MCA, however, authorizes an independent

committee or a minor party qualification committee to present a petition to election

administrators to qualify a minor political party to nominate its candidates for the general

election through a state-sponsored primary election. Although a minor political party

committee may expend funds and time in furtherance of an effort to qualify a minor

political party for primary elections using a minor party petition, that petition must be

presented by the political party seeking to nominate its candidates through a primary

election pursuant to § 13-10-601(2)(a), MCA. The record before the District Court

established the Montana Green Party did not authorize Montanans for Conservation to

present the petition to election administrators on its behalf.

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¶11 Because the petition fails to satisfy this statutory requirement, we need not address

any other grounds raised by the parties and decided by the District Court. Regardless of

the District Court’s reasons for its decision, we will not reverse the decision if it reaches

the right result. See Talbot, ¶ 6.

¶12 The Dissent, at its essence, argues for strict application of election laws—“The

election laws set forth with considerable particularity the requirements for petitions to

place . . . a candidate on the ballot,” Dissent, ¶ 23—but then asserts we should ignore the

most fundamental requirement of those election laws—that the political party seeking to

place its candidates on the ballot present the petition. Here, we are not dealing with an

unpreserved claim. At its core, Appellees’ suit challenged the validity of the petition under

§ 13-10-601, MCA, and we, in strict application of our election law, determined the petition

to be invalid under that very statute. At times, we have identified and decided cases on

dispositive issues intertwined with an appeal that the parties have not fully addressed.

See State v. Ber Lee Yang, 2019 MT 266, 397 Mont. 486, 452 P.3d 897 (deciding case on

issue, which the Court identified and on which it ordered supplemental briefing);

Leichtfuss v. Dabney, 2005 MT 271, ¶ 37 n.8, 329 Mont. 129, 122 P.3d 1220 (“[I]f the

boundaries of our opinions were circumscribed by the inadequacies of the briefs submitted

on appeal, then in many cases we would be issuing opinions that set bad precedent and

confuse, rather than clarify, the law.”); Craig v. Schell, 1999 MT 40, ¶ 28, 293 Mont. 323,

975 P.2d 820 (overruling prior case law although neither party raised the issue and

explaining the Court “cannot ignore the validity of the case upon which both parties and

the District Court rely and its fundamental application to the facts presented”);

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Kudrna v. Comet Corp., 175 Mont. 29, 51, 572 P.2d 183, 195 (1977) (“If the court were

limited to the arguments and reasoning of counsel in its decisions of cases, to the exclusions

of its own observations, many cases would lead us far from what we understand to be the

true object of the court.” (quotation omitted)); see also U.S. Nat’l Bank of Or. v. Indep. Ins.

Agents of Am., Inc., 508 U.S. 439, 447, 113 S. Ct. 2173, 2178 (1993) (“[A] court may

consider an issue antecedent to and ultimately dispositive of the dispute before it, even an

issue the parties fail to identify and brief.” (internal quotations omitted)); U.S. Nat’l Bank

of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. at 446, 113 S. Ct. at 2178 (“[T]he court

is not limited to the particular legal theories advanced by the parties, but rather retains the

independent power to identify and apply the proper construction of governing law.”

(internal quotation omitted)). It is abundantly clear from the record and the parties’ and

Amici’s briefing the Montana Green Party was not in any way associated with gathering

signatures or presenting the petition to election administrators. Quite simply an

unauthorized political party or entity cannot present a petition to require a different political

party to put the different political party’s candidates on the ballot.

CONCLUSION

¶13 For the forgoing reasons, the District Court’s order enjoining the Secretary of State

and all persons acting under his authority from implementing or giving effect to the petition

to qualify the Montana Green Party as a minor party eligible for the 2020 election ballot is

affirmed.

/S/ INGRID GUSTAFSON

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We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR

Justice Beth Baker, dissenting.

¶14 By the terms of their June 1, 2020 Complaint, “Plaintiffs initiate[d] this action to

ensure that the Secretary respects the right of petition signers to withdraw their names from

a petition, and to enjoin the Secretary from giving any effect to a petition that fails to meet

the required minimum number of valid signatures required by Montana law.” The

Complaint sought a declaration that: (1) the signature withdrawal requests rejected by the

Secretary were valid; (2) the petition “thus fail[ed] to meet the thresholds required by the

Political Party Qualification statute and is, accordingly, invalid”; and (3) “for the same

reasons,” the Secretary’s certification of the Montana Green Party as a political party that

could obtain ballot access in the November 2020 general election is similarly invalid. The

theory of the Plaintiffs’ case was that, because “Montanans for Conservation” was a shell

group of the Montana Republican Party that failed to properly disclose its

petition-gathering activities until well after the petition was submitted to the

Secretary of State, individuals who signed the petition believing it to have been sponsored

by the Montana Green Party were misled and had the right to withdraw.

¶15 The issues joined in the litigation were whether the signature-withdrawal requests

were too late, whether the signatures had been induced by fraud, and whether the Secretary

was obligated to accept the electronic signatures by which voters sought to withdraw their

11
petition signatures. The two-day show-cause hearing focused on the validity of the

withdrawals, and the District Court’s findings and conclusions addressed those issues. On

appeal, the Secretary raises three issues:

1. When does the “Final Act” of § 13-10-601(2) occur which presented the
deadline for all withdrawals from the Petition to be submitted?

2. Did the Plaintiffs demonstrate, clearly and convincingly, that material facts
regarding the Petitions [sic] itself were misrepresented or fraudulent?

3. Do electronic signatures[,] i.e. DocuSign[,] satisfy the formality
requirements required to withdraw a signature from a Petition under state
law?

The Plaintiffs argue in response that petition signers validly could and did withdraw their

signatures after learning that the Montana Green Party did not organize or sponsor the

petition. They contend the District Court properly concluded that the withdrawal forms

with electronic signatures were timely submitted, that those forms should have been

accepted and counted, and that because the petition lacks sufficient signatures without

those withdrawn, it therefore does not qualify.

¶16 The Court, however, does not address either the questions presented on appeal, the

Plaintiffs’ response to the Secretary’s arguments, or the District Court’s findings and

conclusions, concluding instead that the petition effort was void from the get-go because

the Montana Green Party was not behind it.

¶17 The Court relies on the established principle that this Court may affirm a trial court

if it reached the “right result” for the “wrong reason.” Opinion, ¶ 6. That principle does

not, however, displace the equally established principle that we will not decide an issue

neither raised before the trial court nor briefed on appeal. See Pilgeram v.

12
GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 20, 373 Mont. 1, 313 P.3d 839 (noting

that we “do not consider new arguments or legal theories for the first time on appeal”);

Becker v. Rosebud Operating Servs., 2008 MT 285, ¶ 17, 345 Mont. 368, 191 P.3d 435

(reiterating that “this Court will not address either an issue raised for the first time on appeal

or a party’s change in legal theory”); State v. Allum, 2005 MT 150, ¶ 20, 327 Mont. 363,

114 P.3d 233 (declining to address an issue not raised in either the trial court or on appeal).

The Court finds it unnecessary to address the issues the Secretary raises on appeal or the

claims the Plaintiffs brought in their complaint, supplanting those claims with one of its

own and deciding the case on that basis.

¶18 There is good reason for our settled jurisprudential policy of considering only those

issues the parties have raised before the District Court and briefed on appeal.

“This restraint is ‘rooted in fundamental fairness to the parties[.]’” Pilgeram, ¶ 21 (quoting

Gary & Leo’s Fresh Foods, Inc. v. State, 2012 MT 219, ¶ 16, 366 Mont. 313, 286 P.3d

1218). For one, a party is in charge of its own case and may decide the issues and

arguments it presents; we take the case as we find it. More importantly, limiting our

consideration to the issues and arguments raised gives both parties notice and an

opportunity to be heard on the decisive questions, which affords due process and

presumably helps the Court reach sound decisions. Litigants should be able to expect the

Court to follow the same practices it demands from them: that the theory of a case will not

be changed on appeal. “New issues should only be reviewed on appeal if extenuating

circumstances justify the party’s failure to assert [its] legal theory at trial, such as the

emergence of new precedent on the issue.” Pilgeram, ¶ 21 (citations omitted).

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¶19 The Court of course retains discretion to “review the merits of an unpreserved claim

for plain error when ‘the issue is directly constitutional.’” Ber Lee Yang, ¶ 33 (quoting

State v. Barrows, 2018 MT 204, ¶ 11, 392 Mont. 358, 424 P.3d 612). But “to obtain plain

error review, ‘we still require the assertion of plain error to be raised and argued on

appeal.’” In re B.H., 2018 MT 282, ¶ 15, 393 Mont. 352, 430 P.3d 1006 (quoting In re

B.O.T., 2015 MT 40, ¶ 22, 378 Mont. 198, 342 P.3d 981). The rare exception, when the

Court takes up an issue on its own accord—sua sponte—is a question like subject matter

jurisdiction, which “involves the fundamental power and authority of a court to hear and

decide an issue,” Pinnow v. Montana State Fund, 2007 MT 332, ¶¶ 16-17, 340 Mont. 217,

172 P.3d 1273, or a party’s standing to bring the claim, which is a “threshold requirement

of every case,” Armstrong v. State, 1999 MT 261, ¶ 4, 296 Mont. 361, 989 P.2d 364

(quoting Vainio v. Vainio (In re Vainio), 284 Mont. 229, 235, 943 P.2d 1282, 1286 (1997)).

¶20 As the parties present it and as the Court decides it, this case has none of the

hallmarks for the rare sua sponte consideration of unpreserved issues that neither party

raises on appeal. Seizing on the Complaint’s introductory remark that “the Montana Green

Party had absolutely nothing to do with the Petition,” the Court hopscotches the

Complaint’s pleaded claims to its prayer for relief seeking a declaration that “the [P]etition

failed to meet the requirements of § 13-10-601, MCA.” The Complaint, though, alleges

this: “[T]he Petition fails to meet the requirements of Section 13-10-601(2), MCA,

because it does not contain the requisite number of valid signatures from at least 34

House Districts.” (Emphasis added.) The basis on which the Court invalidates the petition

simply was not presented to the District Court, and the parties have had no opportunity to

14
express their views or to offer their analysis on the point. It is wrong to decide the case on

that basis.1

¶21 Because I would decide the case on the issues and arguments presented, I address

them briefly. First, the District Court properly relied on State ex rel. Lang v. Furnish,

48 Mont. 28, 36, 134 P. 297, 300 (1913), and Ford v. Mitchell, 103 Mont. 99, 61 P. 2d 815,

822 (1936), to conclude that “signers of a petition have an absolute right to withdraw

therefrom at any time before final action thereon.” But it incorrectly ruled that

“final action” did not occur until ballots cast at the June 2020 primary election nominated

individual Montana Green Party candidates for the general election ballot. The purpose of

a minor political party petition is to qualify the minor party’s candidates to participate in

the election by having their names appear on the ballot with the party designation. The

petition’s purpose is not to nominate candidates for office—that is the function of the

primary election itself. A minor political party’s candidates may be certified to appear on

the primary election ballot only if the petition is sufficient. The Secretary’s “final action”

on the petition thus occurs when, upon determining that the requisite number and

1
The Court reaches to find case law in support of the ostensible proposition that we may go beyond
the issues the parties present if there is a good reason to do so. Opinion, ¶ 12. For one, as the
Court acknowledges, we directed supplemental briefing on the issue in Ber Lee Yang. The court
of appeals did likewise in United States Nat’l Bank, 508 U.S. at 444, 113 S. Ct. at 2177. More,
the cited quotes do not stand for such a broad proposition. We recognized in Leichtfuss, for
example, that “ou[r] job is to address the issues presented by the parties on appeal” and—quoting
United States Nat’l Bank—that the court is not limited to the parties’ articulated legal theories
“when an issue or claim is properly before the court.” Leichtfuss, ¶ 37 n.8 (quoting United States
Nat’l Bank, 508 U.S. at 447, 113 S. Ct. at 2178). And, in Kudrna, we emphasized that we were
“not repudiating the sound rules of practice which require timely, specific objections to
instructions and the full presentation of issues for review on appeal.” Kudrna, 175 Mont. at 51,
572 P.2d at 195. In my view, it is unwise to perpetuate a theory that courts should take up an issue
without affording the parties due process by giving them a chance to be heard on it.
15
distribution of signatures has been submitted, he certifies the party candidates’ names for

the primary election ballot. Under § 13-10-208(1), MCA, the Secretary is required to

certify to local election administrator the “names and designations of candidates who have

filed” for office ten days after the close of candidate filing for a primary election. In 2020,

the Secretary’s certification deadline was March 19, 2020. https://perma.cc/X52F-DTDN.

The District Court thus should have held that signatures submitted prior to March 19 met

the standards of Lang and Ford.

¶22 Next, the District Court also gave proper adherence to our precedent when it held

that, despite the “final action” deadline, a voter may withdraw his or her signature upon

clear and convincing proof that the voter was induced to sign by fraudulent

misrepresentations. State ex rel. Peck v. Anderson, 92 Mont. 298, 306, 13 P.2d 231, 234

(1932). Without getting in to the parties’ dispute whether the Plaintiffs established the type

of fraud needed to meet the Peck standard—or the Amici’s assertions that the District Court

improperly refused to permit their intervention to counter the point—I would assume for

purposes of this appeal that the Plaintiffs met their burden to show fraudulent

misrepresentation.2

¶23 But that does not end the analysis. The crux of the dispute briefed on appeal, in my

view, is whether the District Court correctly required the Secretary to accept voter

signatures electronically submitted using the electronic document signature platform

2
Were we to consider the fraud argument on the merits, it also would be necessary to consider the
Amicus Montana Republican Party’s contention that the District Court’s process improperly failed
to allow presentation of evidence they argued would rebut the Plaintiffs’ claims.
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DocuSign. Under Article IV, section 3 of the Montana Constitution, the Legislature

“shall provide by law the requirements for . . . administration of elections.” Subject to

constitutional protections, the election process is purely statutory. In accordance with its

authority, the Legislature has set forth specific procedures and requirements for citizen

petitions on various ballot matters, including the process for nomination of candidates to

office and—as relevant here—the qualification of minor political party candidates to

appear on the ballot. The election laws set forth with considerable particularity the

requirements for petitions to place an issue or a candidate on the ballot. The District Court

rightly observed that the statutes do not expressly provide a process by which an individual

may withdraw his or her signature from a minor political party qualification petition.

Relying on Montana’s Uniform Electronic Transactions Act (UETA or Act), the

District Court held that the Secretary was obligated to accept the DocuSign signatures as

valid because his failure to promulgate or announce in advance the deadline for, and form

of, withdrawals he would accept demonstrated his consent to receiving withdrawals

through electronic means. (Citing §§ 30-18-105 and -106, MCA.)

¶24 In applying the UETA, the District Court erred in two key respects. First, it stated

without analysis that an elector’s withdrawal of a petition signature is not a “transaction”

because it is the voter’s “unilateral act.” The Act defines “transaction” as “an action or set

of actions occurring between two or more persons relating to the conduct of business,

commercial, or governmental affairs.” Section 30-18-102(18), MCA. A voter who already

has signed an official petition submitted to county and state election officials must rely on

the actions of those same officials in seeking to withdraw his or her support from the same

17
petition. The voter’s petition signature will count unless election officials “un-count” it.

Plainly, the voter cannot take that official action alone. The District Court’s unsupported

conclusion to the contrary was illogical, and I would reject it.

¶25 Second, the District Court got backwards the standards UETA prescribes for

government agencies. It held that the Secretary was obliged to promulgate a rule or policy

expressly banning the submission of electronic signatures in order to reject the DocuSign

withdrawals. UETA says the opposite. Under a provision that the District Court did not

cite, the Act “does not require a governmental agency of this state to use or permit the use

of electronic records or electronic signatures.” Section 30-18-117(3), MCA. Instead,

“each governmental agency shall determine whether, and the extent to which, it will send

and accept electronic records and electronic signatures to and from other persons and

otherwise create, generate, communicate, store, process, use, and rely upon electronic

records and electronic signatures.” Section 30-18-117(1), MCA. The only exception is

that the government is required to accept electronic records when the law requires that a

record be retained. See §§ 30-18-117(3), 30-18-111(1), (6), MCA. “To the extent that” an

agency does allow electronic signatures, the statute permits the Secretary to specify the

particulars, including among others “control processes and procedures as appropriate to

ensure adequate preservation, disposition, integrity, security, confidentiality, and

auditability of electronic records[.]” Section 30-18-117(2)(c), MCA.

¶26 As allowed by UETA, the Secretary of State has, for example, implemented a

process for individuals to file their declarations of candidacy for office online.

https://perma.cc/7DBD-G8Q9. And the office has adopted a rule allowing electronic

18
transmission of voting materials to electors with disabilities. Section 44.3.116, ARM. The

Secretary also has adopted rules governing records retained on digital media.

Section 44.4.101, et seq., ARM. That the Secretary has not adopted a rule or policy that

he will accept electronic records and electronic signatures for other types of election

records means, under UETA, that he will not. “Whether an electronic record or electronic

signature has legal consequences is determined by [UETA] and other applicable law.”

Section 30-18-104(5), MCA. Reading § 30-18-117, MCA, together with “applicable

[election] law,” which does not authorize electronic voter signatures in any context, it is

plain that no law requires the Secretary to accept the electronic signatures at issue in this

case.3

¶27 Finally, I would reject the parties’ and Amici’s respective assertions of

constitutional infirmities. Because the Plaintiffs’ claims are resolved by the application of

plain statutory provisions, whether the Secretary followed a constitutionally sound public

process in setting a deadline or manner for withdrawals is not material to resolution of the

dispositive issues. And the Amici’s assertions of constitutional error fail as well. In a

3
In an April 30, 2020 ruling, another judge in the First Judicial District Court denied declaratory
and injunctive relief to a group of ballot issue organizers who sought to require the Secretary to
accept electronic DocuSign signatures for initiative petitions following the Governor’s executive
orders issued in response to the COVID-19 pandemic. New Approach Montana, et al. v. State,
Lewis and Clark County Cause No. XBDV-2020-444 (1st Jud. Dist. Ct. Or. Apr. 30, 2020). Noting
that UETA does not require state agencies to accept electronic signatures, the court in that case
found no evidence that the Secretary of State or county clerks “have been consulted or consented
to any use of electronic signatures[,]” that there was “no showing that DocuSign in the election
initiative context meets the requirements of the UETA[,]” and “that there are no other known cases
w[h]ere DocuSign was used in the context of seeking voter signatures for state or local initiatives.”
The court declined to “force the widespread application of the service across the fifty-six (56)
county clerks offices or the Secretary of State.” New Approach, pp. 8-9.
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parallel action two Montana Green Party candidates and two voters filed in federal court,

that court declined to enjoin the Secretary from complying with the Montana District

Court’s removal of the candidates from the ballot, concluding that the plaintiffs were

unlikely to succeed on their claim that a failure to place Montana Green Party candidates

on the November 2020 general election ballot would be “fundamentally unfair” or would

result in a “significant disenfranchisement” of Montana electors. Davis, et al., 2020 U.S.

Dist. LEXIS 150267. The Ninth Circuit U.S. Court of Appeals denied emergency

injunctive relief pending appeal of that order. Davis, 2020 U.S. App. LEXIS 28430.4

Following Judge Christensen’s reasoning, I would conclude that the Amici’s constitutional

arguments lack merit.

¶28 For these reasons, I would reverse the District Court on the issues the parties

presented in their pleadings before that court and in their briefs on appeal here. I dissent

from the Court’s decision to affirm the District Court on independent grounds.

/S/ BETH BAKER

Justice Jim Rice joins in the Dissent of Justice Baker.

/S/ JIM RICE

4
U.S. Supreme Court Justice Kagan also has denied a request to stay this Court’s August 19 Order
affirming the District Court, Stapleton v. Montana Democratic Party, S. Ct. No. 20A33
(application denied Aug. 25, 2020), and an application for emergency injunctive relief pending the
Ninth Circuit’s full review of Judge Christensen’s order, Davis v. Stapleton, S. Ct. No. 20A41
(application denied Sept. 14, 2020).
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