Calling Gov. Steve Bullock’s August directive permitting counties to hold the Nov. 3 election via mail ballot illegal, President Donald Trump’s campaign and three other Republican groups sued Bullock on Wednesday seeking to overturn it.
The suit filed in U.S. District Court in Helena by Trump’s campaign, the Republican National Committee, the National Republican Senatorial Committee and the Montana Republican State Central Committee also names Montana Secretary of State Corey Stapleton, a Republican.
“The Governor’s power grab under the cover of COVID-19 is particularly egregious. The Governor is running for U.S. Senate as a member of the Democratic Party and his race is one of the most competitive in the country. So he is using his current position to force a brand-new election system on Montanans that, according to his own party, will sway the election in his favor. This action cannot stand,” reads the suit.
Bullock responded, in a statement, that "this template lawsuit appears to be part of a pattern of lawsuits across the country by Republican party operatives to limit access to voting during the pandemic. Voting by mail in Montana is safe, secure, and was requested by a bipartisan coalition of Montana election officials seeking to reduce the risk of COVID-19 and keep Montanans safe and healthy. This is the same directive that the Republican President of the Senate and Republican Speaker of the House said was the right thing to do for the June primary. Today, we have many more active cases of COVID-19 than we did back in June.”
Bullock is running against incumbent Republican U.S. Sen. Steve Daines in a race deemed a toss-up by the nonpartisan Cook Political Report. The suit was filed the same day Daines’ campaign spokeswoman Julia Doyle sent an email with a vigorous objection to an anti-Daines ad featuring an Iraq war veteran saying, "I can't understand why Senator Steve Daines won't stand up to those that are trying to sabotage vote by mail in Montana."
Political analyst and University of Montana journalism professor Lee Banville said the suit puts Montana Republicans in a difficult position. Daines has positioned himself as being in lockstep with Trump; now the president’s re-election campaign — as well as the Republican Senatorial Campaign Committee, working to see Daines re-elected — is suing the state of Montana.
“What will be interesting to watch is, does Daines come out in opposition to the lawsuit or does he stay mum about it and let what seems like conflicting messages float around?” said Banville.
Doyle's email termed the ad, funded by a political action committee called VoteVets Action Fund, “blatantly false” and highlighted Daines’ concerns over recent U.S. Postal Service changes that could affect mail service. Her email included a letter from an attorney for Daines’ campaign asking that station managers withdraw the ad. One station already was “forced to pull an ad … for running falsehoods about the Senator,” Doyle wrote, saying other stations were urged to follow suit.
She later identified the station as KXLO in Lewistown, but station manager Phyllis Hall said the decision not to run the ad had nothing to do with any complaints; in fact, she said the station had received nothing from Daines’ campaign.
“I was a little uncomfortable with the message they (the PAC) were giving,” Hall said. A similar ad targeting Bullock would have gotten the same response, she said. In 2016, VoteVets was the highest-spending liberal nonprofit active in federal elections, according to the nonpartisan OpenSecrets.org.
Asked for comment about the senator's reaction to the suit, Doyle said that "the senator strongly supports giving Montanans the option to vote by mail" — which is what Bullock's directive does. She said Daines supports the lawsuit because Bullock did not work with the Legislature, repeating the lawsuit's contention that the directive is an overreach of power. Stapleton's office did not reply to a request for comment.
Similar lawsuits have been filed by the same national Republican groups in other states, including Nevada, Illinois and New Jersey. Democratic groups have likewise filed a flurry of suits around the country, many aimed at perceived barriers to voting. Justin Levitt, a Loyola Law School professor who tracks such suits, listed 228 cases in 43 states, Washington, D.C., and Puerto Rico as of Aug. 31, in his most recent update on Election Law Blog.
Bullock’s August directive on mail ballots followed a request from county clerks across Montana. Counties have until Friday to decide whether to use mail ballots or go with traditional polling places; roughly 40 have already opted for mail ballots. The governor's directive requires counties to also make in-person voting available.
"I don’t know how we’d switch gears right now. It would very difficult. I don't know how it would be possible," said Ravalli County Clerk and Recorder Regina Plettenberg, a former head of the Montana Association of Clerks and Recorders.
A key reason so many counties opted for mail ballots was because of the difficulty of staffing poll locations, she said. Election judges tend to be older people who are in a high-risk category for the novel coronavirus. "I know there are so many counties out there that don't have enough trained people," Plettenberg said. Ravalli County's ballots have already gone to a printer, and absentee ballots to members of the military serving overseas are scheduled to go out Sept. 18. "I'm just going to move forward," even with the possibility the ballots might have to be reprinted, she said.
All 56 counties used mail ballots in the June 2 primary election, which saw a 41% turnout rate, the highest in a midterm primary since the 47% who voted in 1994 during Democratic President Bill Clinton’s first term.
Most Montana voters — 73% in the 2018 midterms — already use absentee ballots that are mailed to them, and can either be returned by mail or dropped off in person, options also available with mail ballots.