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Justice Kagan Rejects Republicans’ Request to Stop Montana from Mailing Ballots to All Eligible Voters


Supreme Court Justice Elena Kagan, ruling without explanation or comment on Thursday, rejected an emergency petition by Montana Republicans to block the state’s plan to send mail-in ballots to all eligible voters. The high court’s refusal to reconsider the Ninth Circuit’s ruling in favor of mail-in ballots came just one day before Montana was due to send out mail-in ballots to voters.

Democratic Gov. Steve Bullock issued a directive in August that permitted all Montana counties to send mail ballots to all voters, even when those voters had not specifically requested to vote by mail. Bullock’s directive, issued as an emergency measure to respond to the COVID-19 crisis, suspended a state law that would have prohibited any federal election in Montana to be conducted via mail. After Bullock’s emergency directive, voters would still have the option to vote in person if they so chose.

Shortly thereafter, the Ravali County Republican Central Committee, Joe Lamm, and several Republican voters sued, argued that Bullock’s order had gone too far—exceeding the legal scope of his authority and intruding on the territory of the state legislature.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled in Bullock’s favor, upholding U.S. District Judge Dana Christensen’s ruling that had noted, “When pressed during the hearing in this mater, the Plaintiffs were compelled to concede that they cannot point to a single instance of voter fraud in Montana in any election during the last 20 years.”

In a petition for emergency injuction before SCOTUS, plaintiffs downplayed the role of the pandemic, given that voters already had the option to request absentee ballots.

“While COVID-19 is a national tragedy,” they conceded, “it posed no emergency to justify the Directive because the Montana Legislature already allowed any qualified voter to obtain a no-excuse ‘absentee ballot’ by merely applying.”

The petition went on to argue that countywide decisions to mail ballots to everyone amounts to “displacing the legislative finding of what is safe and unsafe in this state for this election,” which would run contrary to “the Legislature’s authoritative and expert balancing of election access and integrity.” Interfering with state law in such a way, they argued, constitutes a violation of the right to vote.

Justice Kagan clearly did not agree.

The mail-in ballots are scheduled to be sent to voters in Montana on Friday.

[Image via Doug Mills/The New York Times POOL PHOTO]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos