[EL] Montana Mail in Balloting in the Supreme Court

[James Bopp Jr]

Rick linked the motion we filed in the Supreme Court seeking an injunction against the actions of Montana Governor Bullock and the Montana Secretary of State, authorizing universal mail in balloting in the state, contrary to state election law, The following are a few explanations about this.
 (1) Montana law prohibits universal mail in balloting in general elections.  On Aug 9th, Governor Bullock, using his emergency powers purportedly to fight COVID 19, suspended that prohibition and permitted counties to opt into a universal mail in balloting scheme, if approved by the Secy, which she initially did on Sept 9th. The Trump campaign and Montana Voters each filed separate suits challenging this "eve of an election" change in voting procedures by state officials contrary to Montana law.  I represent the Montana Voters in Lamm v. Bullock. (2) The Voters claim four constitutional violations, a violation of (a) the U.S. Constitution Art. II, sec 1 cl 2, which confers on the Legislature, not the Governor, the authority to determine the "Manner" of elections, (b) the right to vote by vote dilution as a result of the mail in balloting scheme, which removes the vital fraud protection of the prior contemporaneous application provided in absentee balloting, and which floods the state with ballots to all registered voters, (c) the right to vote by direct disenfranchisement because this flood of ballots will result in some absentee ballots not being counted because of overwhelmed election officials and the post office, and (d) equal protection because some counties have opted out of mail in balloting resulting in greater voting power in those that opted in. (3) The District Court found standing for the Voters and republican party organizations to make these claim, but denied them on the merits.  Voters in Lamm unsuccessfully sought an injunction pending appeal in both the District Court and 9th Circuit. No appeal has been taken in the Trump case. (4) The Lamm case involves the unique situation where state officials have overturned state election laws to fashion their own voting procedures and ironically, Governor Bullock is a candidate for U.S. Senate so he is fashioning the voting procedures for his own election. While historically this never happened as everyone know that enacting state election laws was the job of the Legislature, this year, based purportedly on concerns about COVID 19, state officials throughout the country have suspended many state laws which guard against fraud and protect the integrity of elections, as the Montana Governor has. And state courts are doing the same. (5) As the CDC and Dr. Fauci has explained, in-person voting can be conducted, and has been conducted, safely under CDC guidelines and Montana allows no-excuse absentee voting for anyone who does not want to go to the polls to vote. (6) There are now 343 pending lawsuits involving efforts to overturn state election laws or challenging state officials who have done that themselves. This litigation flood is largely the result of a nation-wide well-funded effort by the Democrat Party, and its liberal allies, to nullify as many state election laws, that protect the integrity of elections, as possible. Many more such lawsuits can be expected leading up to the general election and afterwords. And when the Democrats are successful, election and vote counting chaos is created which they can further exploit through lawsuits. The Democrats are attempting to win this election in the courts, rather than the ballot box. (7) Two of the many problems with this is (a) it threatens to overwhelm the courts, and particularly the U.S. Supreme Court, leaving Democrat state officials with carte blanche to throw out any state election law that they think stands in the way of their electoral victory and lower courts without effective accountability to higher courts, and (b) the courts are faced with the novel situation of state officials throwing out state election laws on the eve of an election.  (8) In dealing with this situation, two question arise in the courts: should courts apply the deferential Anderson-Burdick test regarding the constitutionality of the actions of state officials or state courts overturning state election law, or the Purcell principle to shield these actions from constitutional challenge when they occur on the eve of an election. (9) We argue in our Motion that (a) the deferential Anderson-Burdick test for constitutionality is designed only to apply to review of Legislative enactments of state election laws, not when state bureaucrats fashion their own election procedures contrary to state election laws, such as Governor Bullock has done, and (b) the Purcell principle is also designed to protect Legislative enactments from eve of an election court injunctions, not when state bureaucrats change state election laws on the eve of an election, as has happened in Montana. (10) We urge the Court to decide these issues now, by adopting a unified analysis on how state election law cases will be decided, in order "to resolve this case, provide much needed direction to lower courts for now and after the election, substantially increase the likelihood that election law cases will be decided correctly under the Constitution, abate the flood, reduce the resulting chaos regarding election procedures and the uncertainty regarding the outcome of the election, and restore public confidence in our elections." James Bopp, Jr.AttorneyThe Bopp Law Firm, PC | www.bopplaw.comThe National Building | 1 South 6th Street | Terre Haute, IN 47807voice: (812) 232-2434 ext. 22 | fax: (812) 235-3685 | cell: (812) 243-0825 | jboppjr at aol.com Sent from AOL DesktopIn a message dated 10/6/2020 11:49:11 PM US Eastern Standard Time, rhasen at law.uci.edu writes: 
Montana Republicans Seek Supreme Court Order to Block Expansion of Montana Mail in Balloting

Posted on October 6, 2020 4:04 pm by Rick Hasen

This petition faces an uphill battle. Note the attempted distinction between “absentee” and “mail in” ballots and the attempt to argue around the Purcell principle. Note too that this does not come from state defendants objecting to the expansion of mail-in balloting.

[This post has been updated.]
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