Today, Montana voters, candidates, and a local Republican party (collectively “Voters”), who sued Montana Governor Bullock's Directive setting aside key provisions of Montana's election law and, thereby, letting Montana counties to choose “mail ballot” voting the November 3 general election, asked the U.S. Supreme Court to enjoin the mail balloting schemes and to order that mail ballots not be sent out on October 9, when Montana counties plan to send them.
Montana already has no-excuse “absentee ballots,” which any qualified voter can obtain by a simple application. And in-person voting is already being done for early voting in compliance with the safeguards in the Montana Governor's own COVID-19 Phase 2 reopening order. So there was no COVID-19 emergency to justify the Governor invoking of any emergency powers to suspend Montana state election law and to authorize mail balloting. The Governor is a candidate for U.S. Senate in the November election.
“Mail ballots,” which are sent to all registered voters automatically without application, pose a heightened risk of ballot fraud and lost, tardy or disqualified ballots due to the sudden flood of mail ballots. And while Montana election law allows mail ballot in some local elections, it expressly bans them for federal, general elections as is happening on November 3.
Voters challenged Bullock's Directive on four grounds. (1) It violates the U.S. Constitution's requirement that state election laws and procedures be adopted by the legislature, not the governor, (2) It creates a substantial risk that Voters will have their votes diluted by fraudulent votes, violating their right to vote. (3) It creates a substantial risk that Voters voting by absentee ballots will have late or lost ballots, violating their right to vote. (4) It violates the equal-protection rights of voters in counties not participating in the mail-ballot scheme, because voters in mail-ballot counties have enhanced voting power overall, in violation of Bush v. Gore.
Voters also point out to the Court that nearly 350 cases have already been filed, and many more are expected before and after the election, by the Democrat Party, and their liberal allies, claiming that COVID-19 justifies setting aside numerous anti-fraud provisions of state election laws. This litigation flood is likely to overwhelm the courts and the Supreme Court if the Supreme Court doesn't clearly and immediately reaffirm that only legislatures, not state officials or the courts, have the authority under the Constitution to adopt election laws by balancing election access with election-integrity concerns, such as ballot fraud and a sudden flood of mailed ballots. Voters ask the Court to explain that long-standing state election laws should not be overturned by state officials or state courts on the eve of an election, as Governor Bulluck's Directive does.
Catherine Engelbrecht, President of True the Vote, which helped bring the lawsuit, says: “The Democrat Party and Democrat state officials, such as Governor and Senate candidate Bullock, are spearheading a nationwide effort to overturn state election laws that prevent fraud and abuse and to design new election procedures that they think favor their election. True the Vote and our allies are on the front lines to fight for election integrity and preserve state election laws.”
James Bopp, Jr., of The Bopp Law Firm, PC, lead counsel for the Voters and General Counsel for True the Vote, says: “Montana already had no-excuse ‘absentee ballots,' and in-person voting is already being conducted safely under the Governor's own reopening guidelines. So there was no COVID-19 problem with voting, no need to flood the state with ‘unsolicited ‘mail ballots,' and no emergency to trigger the Governor's emergency powers to set aside state laws.”
Bopp continued: “Under the U.S. Constitution, the Legislature, not a Governor, has the authority to prescribe how an election is to be conducted, and the Montana Legislature banned unsolicited mail ballots in general elections, which the Governor has set aside. The Directive opens Montana up to election fraud and the chaos of mail-in voting evidenced already across the country.”
Finally, Bopp said: “The U.S. Supreme Court needs to immediately step in to reaffirm the constitutional mandate that only long-standing, legislatively enacted laws govern elections. Otherwise, we will continue to suffer this chaotic flood of litigation which will deprive Voters of their right to vote by diluting their votes or by them not being count at all.”
The application to the U.S. Supreme Court is available here.