By Asha Glover

Law360 (May 1, 2020, 7:16 PM EDT ) A Montana court rejected online signature gathering for two proposed state ballot measures to legalize and tax recreational marijuana, denying a request from proposal supporters who cited public safety measures aimed at limiting the spread of the novel coronavirus.

In an order issued Thursday, the Montana First Judicial District Court of Lewis and Clark County denied New Approach Montana's request for injunctive relief allowing the campaign to collect signatures online because it failed to show that not doing so infringes on the campaign's constitutional rights.

"The state's compelling interest in maintaining the integrity and security of its election process outweighs any burden on plaintiffs' constitutional rights," the court said.

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 as well as the U.S. Constitution's First and 14th Amendments. The lawsuit was filed April 6 in the district court.

The campaign 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 enforce only the Aug. 3 deadline to file petitions with Stapleton's office. 

Democratic Gov. Steve Bullock is better suited to make that decision because he has already issued orders and directives addressing the coming election and is in a better position than the court to ascertain the county clerks' ability to implement any of the requested relief considering the virus' effect on courthouses, the court said. It added that none of Bullock's directions prohibit the campaign from continuing to gather signatures.

The court rejected the campaign's request for a 30-day extension to file signatures because the processes that individual county clerks employ to examine signature veracity would likely be disrupted or frustrated.

The court also raised concerns about using DocuSign, an online electronic signature and agreement cloud, to gather signatures because there is no proof that DocuSign meets the requirements of the state's Uniform Electronic Transactions Act,  which recognizes certain digital signatures for legal purposes. The court noted that there are no other known cases in which DocuSign was used to gather voter signatures for state or local initiatives.

The two ballot measures would work in tandem to legalize, regulate and tax recreational marijuana in Montana. One measure, a  constitutional amendment, 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 legislative 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, New Approach Montana's political director, told Law360 that the campaign is obviously disappointed in the court's decision. 

"We are considering an appeal and are assessing all of our options on how to move forward," Petersen said.

Representatives of Stapleton and Bullock did not immediately respond to a request for comment.

The campaign is not alone in seeking online or electronic signatures for ballot initiatives in light of COVID-19, the respiratory ailment caused by the coronavirus.

A group of political action committees supporting ballot measures in Arizona has asked the 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 the group to obtain digital signatures. 

New Approach Montana is represented by James P. Molloy of Gallik Bremer & Molloy PC.

Montana is represented by Secretary of State Corey Stapleton, state Attorney General Tim Fox and Raphael Graybill of the governor's office. 

The case is New Approach Montana et al. v. Montana and Corey Stapleton, case number XBDV-2020-444, in the Montana First Judicial District Court of Lewis and Clark County.

--Additional reporting by Paul Williams. Editing by Neil Cohen.

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