491 F.Supp.3d 814
D. Mont.2020Background
- In response to COVID-19, Montana Gov. Steve Bullock issued an August 6, 2020 directive using his emergency suspension power to permit (but not require) counties to conduct the November 3, 2020 general election, in part, by mail ballot; 45 of 56 counties opted in (covering ~94% of registered voters).
- Plaintiffs (Trump campaign, RNC, state Republican committees, two legislative leaders, county committee, and individual voters/candidates) sued seeking to enjoin the Directive, alleging violations of the Elections Clause, Electors Clause, and the Fourteenth Amendment (fraud, disenfranchisement, and unequal treatment).
- The district court consolidated two related cases, expedited briefing, and held a merits hearing on September 22, 2020; ballots were scheduled to be mailed beginning October 9, 2020.
- Plaintiffs proffered no evidence of past Montana voter fraud; at the hearing they conceded no instance of fraud in Montana in the prior 20 years; Montana had recently used mail ballots in a primary without reported fraud.
- The court held it had jurisdiction (Ex parte Young applicable), rejected Pullman abstention, found the Governor acted within the suspension authority delegated by the Montana Legislature, and concluded the Directive did not violate the Elections or Electors Clauses.
- The court denied injunctive, declaratory, or other relief and entered judgment for the defendants on September 30, 2020.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Directive violates the Elections and Electors Clauses by altering time/place/manner of federal elections without legislative action | Gov. Bullock exceeded legislative power by suspending statutes that prohibit mail ballots for regularly scheduled federal elections | Montana Legislature empowered the Governor by statute to suspend regulatory procedures during disasters; that delegation is consistent with the Elections and Electors Clauses | The Governor acted pursuant to legislatively authorized suspension power; the delegation is constitutional and Directive does not violate Elections or Electors Clauses |
| Whether mail-ballot mailing will cause voter fraud or postal failures that abridge the right to vote | Mail ballots will invite widespread fraud and lost/late ballots, causing disenfranchisement | No evidence of past or likely mail-ballot fraud in Montana; statutory safeguards remain; recent primary showed no fraud | Plaintiffs presented no evidence of actual or likely fraud or postal failure; right-to-vote claims fail |
| Whether the Directive violates Equal Protection by giving voters in opt-in counties greater voting power | Voters in counties using mail ballots will have proportionally greater influence, diluting others' votes | Different county procedures do not create unconstitutional disparate treatment; in-person voting remains available statewide | No equal protection violation; differing county procedures are permissible and record contains no evidence of unequal treatment |
| Whether injunctive relief is appropriate (including standing/abstention and equitable balancing) | Emergency claims require immediate relief to prevent constitutional injury | Courts should defer to state emergency response; injunction would cause chaos, disenfranchisement, and public-health harms | Court had jurisdiction and standing existed for at least some plaintiffs; abstention inappropriate; equitable factors and public-health/logistical harms strongly weigh against an injunction |
Key Cases Cited
- Burdick v. Takushi, 504 U.S. 428 (1992) (protecting the right to vote is fundamental and state election regulations are subject to scrutiny)
- Ex parte Young, 209 U.S. 123 (1908) (permits prospective injunctive suits against state officials for federal-law violations)
- Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984) (limits Ex parte Young for claims seeking orders to comply with state law)
- Smiley v. Holm, 285 U.S. 355 (1932) (Elections Clause interpretation may account for state-law lawmaking structures like vetoes)
- Davis v. Hildebrant, 241 U.S. 565 (1916) (referendum power can be part of a State's "Legislature" for Elections Clause purposes)
- Arizona State Legislature v. Arizona Indep. Redistricting Comm'n, 576 U.S. 787 (2015) (Elections Clause respects state choices to assign lawmaking power to mechanisms other than the representative body)
- Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) (discusses voter fraud as a justification for election regulations)
- Bush v. Gore, 531 U.S. 98 (2000) (equal protection principles apply to vote-counting and treatment of ballots)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (injunctive relief is extraordinary and requires particular balancing)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (state election laws are valid exercises of regulatory authority over elections)