Montana Supreme Court vacates Butte data center ballot ruling

The Montana Supreme Court on Thursday withdrew an order requiring a Butte data center initiative to appear on November ballots after learning that ballots had already been mailed to voters - and some had been returned.

The reversal came less than 48 hours after the court ordered the Butte-Silver Bow elections office to print the measure, which would require voter approval for data center construction. The court said state law offered no way to implement its Tuesday order once ballots had gone out.

"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.

Mailed ballots complicate court order

After Tuesday’s decision, the city-county asked the court how to comply. It questioned whether election officials should mail corrected ballots or supplemental ballots containing the initiative, and whether those should go to all registered voters, including people who had already voted.

State law provides for correcting ballot errors involving some offices, but it does not specify how to address an omitted ballot initiative.

Sherman told the court that "absentee/mail ballots had been issued" but the Secretary of State’s Office maintains an Oct 9 timeline for sending general election ballots, except for overseas ballots, which go out Sept. 18.

In its five-page order, the court maintained that its original reasoning for granting the injunction was sound. Leaving the initiative off the ballot would offer no remedy if it later proved legally sufficient, the court had reasoned Tuesday. Including it would allow the measure to be revoked later if voters approved it but it failed to meet legal requirements.

With ballots already mailed, however, the court said there is "no remedy" under state law.

Dispute began with signature deadline

Denise Kelly and citizens’ group 406 People First submitted signatures in early August to qualify the initiative for the ballot. Cynthia Sherman, the county’s clerk and recorder overseeing elections, initially accepted and certified more than the 3,652 signatures required.

The elections office later informed organizers that a new Montana law had moved the submission deadline earlier by more than a week, invalidating the measure.

The proponents went to district court to stop the elections office from applying the new statutory deadline. After losing there, they appealed directly to the Montana Supreme Court.

In vacating its ballot order, the high court described the situation as "entirely avoidable", saying the city-county should have notified it while deliberations were underway that ballots had already been sent. The court also said proponents should have provided a printing timeline.

A "clerical error" caused a multi-week delay before the court learned an appeal had been filed, adding to the problem, the court said.

Representatives for 406 People First told the Daily Montanan Thursday night that they were consulting counsel and considering possible next steps. Lawyers for the group also filed an additional emergency petition asking the court to reconsider, establish when ballots were sent and ensure the county had complied with a previous temporary restraining order.

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