By Paul Williams

Law360 (April 16, 2020, 6:00 PM EDT ) Supporters of two proposed Montana ballot measures that would legalize and tax recreational marijuana have asked a state court to let them gather online signatures amid the public safety measures aimed at controlling the spread of the novel coronavirus.

The complaint, lodged against Montana Secretary of State Corey Stapleton, claims that barring organizers from collecting digital signatures during the pandemic violates their constitutional rights to enact laws by initiative and the U.S. Constitution's First and 14th amendments. The lawsuit was filed April 6 in Montana's First Judicial District Court of Lewis and Clark County, but the New Approach Montana campaign began publicly circulating the filing Wednesday.

In the complaint, Ted Dick, the campaign's manager, and Dave Lewis, a former state legislator who serves as the campaign's senior policy adviser, asked the court to extend the state's Uniform Electronic Transactions Act , which recognizes certain digital signatures for legal purposes, to the initiatives.

Dick and Lewis also asked the court to suspend statutes that establish some administrative deadlines for initiative petitions, such as a June 19 deadline to file petitions with county election offices for signature verification, and only enforce the Aug. 3 deadline to file petitions with Stapleton's office.

"Based on the situation relating to the coronavirus pandemic, certain statutory provisions governing the signature gathering process for initiatives nullify the ability of plaintiffs to gather sufficient signatures to qualify [the measures] for the 2020 ballot," Dick and Lewis said. They asked the court to direct Stapleton to work with local elected officials to establish revised signature verification procedures.

Given the state's current stay-at-home order that was put in place to curb the spread of COVID-19, the respiratory illness caused by the coronavirus, it would be "neither ethical nor permitted" for the campaign to collect in-person signatures for the petitions, the complaint said.

The two measures would work in tandem to legalize, regulate and tax recreational marijuana in Montana. One is a constitutional amendment that would allow for a law legalizing recreational marijuana. The other, the Montana Marijuana Regulation and Taxation Act, would legalize marijuana use for people 21 and older and establish a 20% tax on the retail price of marijuana sales.

To qualify for the Nov. 3 ballot, the constitutional amendment would need to gather 50,936 signatures, and the act would need 25,468 signatures, according to guidelines from Stapleton's office.

If the petitions are approved, recreational marijuana sales are estimated to raise about $48 million in tax revenue annually by 2025, according to the campaign. Medical marijuana is currently legal in the state under a ballot measure voters approved in 2004, and is subject to a 4% tax rate.

Pepper Petersen, the political director for the campaign, told Law360 on Thursday that the campaign believes that the Uniform Electronic Transactions Act should suffice as authority for the campaign to collect signatures online. 

Petersen said the court has set an April 28 hearing date for the case. Ultimately, he said he anticipates the issue will culminate with a decision from the state Supreme Court. Petersen said he's optimistic about the campaign's chances, in part because the chief justice of the Montana's highest court, Mike McGrath, is a former Democratic state attorney general.

A representative for Stapleton did not immediately respond to a request for comment Thursday.

The campaign is not alone in seeking online or electronic signatures for ballot initiatives in light of COVID-19.

A group of political action committees supporting ballot measures in Arizona has asked that state's Supreme Court to allow them access to an online signature gathering platform reserved for political candidates. In Michigan, a campaign backing a graduated income tax ballot measure suspended its signature gathering efforts last month after state lawmakers didn't respond to a request to allow them to obtain digital signatures.

New Approach Montana, Dick and Lewis are represented by James P. Molloy of Gallik Bremer & Molloy PC.

Counsel information for Stapleton was not immediately available.

The case is New Approach Montana et al. v. State of Montana and Corey Stapleton, Secretary of State, in the Montana First Judicial District Court of Lewis and Clark County. The case number was not immediately available.

--Additional reporting by Asha Glover. Editing by Neil Cohen.

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