Since lawmakers were unable to hold an override vote while the Legislature was in session, The Montana Association of Counties, Wild Montana and the Montana Wildlife Federation sued Gianforte and Jacobsen shortly after, alleging that the governor used a loophole to block an override.

Gianforte claimed legislators could have voted during the session or called a special session.

The case centers around the correct procedure in a situation where a veto occurs during session but adjoins prior to the Legislature learning of it.

In mid-January of this year, a Lewis and Clark District ruled in favor of the petitioners, ruling that a veto is ineffective until the Legislature is polled and ordered Jacobsen to conduct an override poll within two-weeks.

Gianforte’s motion to stay the order delayed it until Tuesday, March 19 by filing a motion to stay judgement pending appeal.

The district court denied the motion to stay, a decision upheld by the Supreme Court on last Friday, March 15 — meaning Jacobsen had until the end of day on Tuesday to issue the poll.

On Tuesday morning it remained unclear is Jacobsen would comply with the order. Gianforte had sent her his veto letter, as stipulated in statute, to kick off the process on Monday.

In the letter, Gianforte maintained that he kept with the Montana Constitution when he originally vetoed the bill.

“I provide a copy of my veto message in an attempt to comply with the court’s order and while we await the Montana Supreme Court’s ruling on the underlying constitutional question about whether the judiciary can manage rules, processes, and political questions that are solely the purview and authority of the Legislature,” Gianforte wrote in his letter.

If the Supreme Court overturns the decision in the appeal, the governor’s veto will stand regardless of the poll’s result and if the Supreme court affirms the previous judgement, the results of the poll will control SB 442’s status.

Justices of the Supreme Court wrote that the fate of SB 442 could “ultimately go either way” in last Friday’s decision.

In the meantime, legislators have 30 days to vote in the override poll. They must and return ballots to the office of the Secretary of State no later than 5 p.m. on April 18.

In the cover letter for the override poll, Jacobsen called it historic and unprecedented.

“To my knowledge, the Secretary of State has never polled members of the legislature on a bill returned to the legislative branch during session, before or after statehood, until now,” Jacobsen wrote. “Nor has the Secretary of State ever conducted a veto poll prior to the receipt of the bill. Finally, having the legitimacy of the poll itself weighed and potentially invalidated at any time is certainly unusual,” she wrote.

The situation is also the current subject of political debate, with 28 state senators sending separate letters to Gianforte and Jacobsen claiming the issuance of an override poll at the request of the courts is an unconstitutional violation of separation-of-powers.

Attorney for for Wild Montana and the Montana Wildlife Federation and the Executive Director of Upper Seven Law, Rylee Sommers-Flanagan said the legislators’ letter appear “to profoundly misunderstand the Court’s order” and is an attempt to shift the discussion away from the benefits of the bill.

“At this time, we’re focused on trying to ensure that SB 442, a bill that helps every Montanan, gets a fair shot at becoming law,” Noah Marion, Wild Montana political and state policy director, said in an issued statement.

Marion emphasized that the bill is extremely popular, supported by more than 100 organizations representative of tens of thousands of Montanans and by 130 of 150 legislators during the session.

“That kind of collaboration deserves to be honored and SB 442 deserves to become law,” Marion stated.