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

09/23/2020

Case Number: DA 20-0396
2

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:

__________________________________________

Clerk

Vir-6A.-if
3

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 
4

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. 
5

¶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 
6

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. 
7

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). 
8

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. 
9

¶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”); 
10

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
11

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 
12

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. 
13

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).
14

¶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 
15

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.
16

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.
17

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 
18

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 
19

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.
20

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).