Initiative backer makes bid for court intervention

The lead sponsor of an anti-marijuana ballot initiative appeared in Flathead District Court on Friday to request that the measure be placed on the November ballot in Montana, alleging that Flathead County election officials lost thousands of petition signatures in support of Initiative 176.

No decision from the judge is expected until next week.

Steve Zabawa, a Billings business owner and the lead petitioner for the initiative, asked Flathead District Judge Heidi Ulbricht for the emergency order after his proposed ballot measure fell 4,137 signatures short of the 24,175 signatures needed to appear on the November ballot.

He also wants the court to order a thorough search of the Flathead County Election Department’s offices to recover the 2,588 unaccounted-for petitions.

Initiative 176 would align Montana’s classification of illegal drugs with federal law, effectively shutting down the state’s medical marijuana program.

Ulbricht said her decision will address Zabawa’s requests for a search of the county election offices and the inclusion of the initiative on the November ballot, but not Zabawa’s allegations that an additional 3,200 signatures were wrongly rejected by election offices across the state, including in Flathead County.

Secretary of State Linda McCulloch has declined his request to have the rejected signatures counted, citing the July 15 deadline for them to be officially certified.

Zabawa’s attorney, Chad Adams, told the court that the handling of the ballot initiative by the state and county amounts to a rejection of Montanans’ constitutional right to legislation by referendum.

“What happened unfortunately is elected officials have stepped in and created problems where the citizens had submitted sufficient signatures that it should be on the ballot,” Adams said.

Attorneys representing the Flathead County Election Department and McCulloch argued the county has already conducted an “exhaustive search” and that Zabawa has failed to produce any substantive evidence that the petition signatures in question were ever submitted to the office.

“The petitioner is asking Flathead County to do something that is already done,” deputy county attorney Caitlin Overland said.

Representing McCulloch’s office, Jorge Quintana added that the allegedly missing petitions still wouldn’t bring the signature total to the “magic number” necessary for certification.

Kalispell resident Jordan Loyola, a paid petition gatherer for the ballot initiative effort, testified that he submitted the 2,588 notarized petition signatures from Flathead County residents to county election and recording manager Monica Eisenzimer on April 17.

Megan Cady, a Whitefish Credit Union employee, confirmed that she had notarized the eight stacks of signature sheets that day, but because that task only requires that she confirm the identification of the person signing for the documents, she couldn’t speak to their contents.

“There were a bunch of pages with a bunch of signatures. That’s all I remember,” she said.

Eisenzimer said she remembered Loyola having submitted petitions to her office earlier in the year, but didn’t recall whether he had dropped any off that day.

Her account of the office’s handling of the petition signatures differed from that of Loyola, who said he was instructed to place his signatures on a cluttered table in the election department’s temporary, primary-season office at the Country Kitchen in the Flathead County Fairgrounds.

Eisenzimer said all signature sheets received by her office for the state’s ballot initiative campaigns were placed in a designated box in the office to await validation. After staffers confirmed the number of registered voters on the signature sheets, the hard copies were sent by certified mail to the Secretary of State and copies are stored in the department’s permanent office, she said.

With Eisenzimer on the stand, Adams introduced a packet of petition sheet copies that he said Safe Montana had requested from the election office in July. The packet contained a pair of unrelated documents. Responding to Adams, Eisenzimer admitted it was unusual that the pages from an unrelated county department would have gotten mixed in with the petition signatures.

Zabawa testified that an audit of his campaign’s records found an apparent discrepancy with the validated signatures received by McCulloch’s office, prompting his initial request that the county search for the unaccounted-for signatures.

“That was the only county out of 56 where the results were not matching up to what we thought we had,” he said, alleging that county election officials initially refused requests to search for the documents.

But Eisenzimer said that after the election department received a call from Zabawa’s campaign questioning the official tally, she and two members of her staff searched all of the offices used by the department during the time in question.

“We searched through all our offices, at the Country Kitchen and every piece of paper in the courthouse [office] to make sure there wasn’t anything,” she said.

Ulbricht asked the parties to submit their proposed findings of fact and conclusions to the court by the end of Monday.

The deadline for a decision is Thursday, when McCulloch must validate ballots under state law.

Zabawa said after the hearing that if Ulbricht orders the initiative placed on the November ballot, his attorneys will request a decision on the rejected signatures.

If those signatures are found to have been properly rejected, the ruling would effectively kill the initiative, although it would still appear on the November ballot.

Reporter Sam Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com.