Montana Supreme Court vacates decision to put Butte data center issue to voters

The Montana Supreme Court on Thursday vacated an earlier ruling that the Butte-Silver Bow elections office print a citizen’s initiative question on the ballots after learning the department had already mailed ballots to voters. 

Thursday’s ruling overturned a Tuesday order that required an initiative seeking to regulate data center construction by requiring voter approval to appear on the November ballots. 

But less than 48 hours later, the court reversed its ruling, stating it was unaware that voters had already received — and in some cases returned — absentee and mail ballots, according to the county. Sherman told the court that “absentee/mail ballots had been issued” but the Secretary of State’s Office maintains an Oct 9 timeline for general election ballots to be sent, with the exception for overseas ballots which go out Sept. 18.

The initiative was engaged in a legal battle after the organizers — Denise Kelly and citizens’ group 406 People First — submitted signatures to qualify for the ballot in early August. While Cynthia Sherman, the county’s clerk and recorder overseeing elections, initially accepted and certified the signatures — more than the 3,652 required — it later told the organizers that a new Montana law had bumped the deadline for turning in signatures by more than a week, invalidating the measure. 

The proponents of the measure took the issue to district court to prevent the elections office from using the new statutory deadline, and after the district court ruled against them, appealed directly to the Montana Supreme Court. 

In a five-page order, the high court said it stood by its reasoning in granting the injunction that would have required the initiative be printed. 

If the initiative were left off the ballot, and later found to have met legal requirements, there would be no remedy, the court had argued on Tuesday. But if it were included — and approved by voters — there would have been an avenue to revoke the initiative if found legally insufficient. 

Now, the court said there is “no remedy” under state law. 

After Tuesday’s ruling, the city-county filed a notice asking how it was expected to comply with the order with ballots already mailed to voters. 

State statute has provisions for correcting ballots if there are errors in some office, but does not spell out a method for correcting issues with ballot initiatives — including if they are left off. 

The city-county asked whether it should send out new, corrected ballots or send out supplemental ballots with the initiative question, and whether they should include all registered voters, including those who had already turned in ballots. 

“Montana’s ballot statutes do not contemplate this decision and we have no good answers for the city-county’s very good questions as to how Sherman can implement our order,” and comply with state law, the order states. 

The court also points out that the situation was “entirely avoidable,” if the city-county had filed a notice that ballots had already gone out while the court was deliberating, and if the proponents of the ballot measure had also indicated a timeline for printing. 

In addition, the court also said that due to a “clerical error” there was a multi-week delay before the court learned that an appeal had been filed, which also added to the issue. 

Representatives for 406 People First told the Daily Montanan Thursday night they are speaking with counsel and considering next possible steps. Lawyers for the group filed an additional emergency petition asking the court to reconsider the issue, determine the timeline for ballots being sent out, and ensure the county complied with a previous temporary restraining order.