Donald J. Trump for President, Inc. v. Bullock

• Citation: 491 F.Supp.3d 814
• Decision Date: 30 September 2020
• Docket Number: CV 20-66-H-DLC (,C/w Case No. CV-20-67-H-DLC)
• Parties: DONALD J. TRUMP FOR PRESIDENT, INC., Republican National Committee; National Republican Senatorial Committee; Montana Republican State Central Committee, Plaintiffs, and Greg Hertz, in his official capacity as Speaker of the Montana House of Representatives; Scott Sales, in his official capacity as President of the Montana Senate, on behalf of the Majorities of the Montana House of Representatives and the Montana Senate, Intervenor-Plaintiffs, v. Stephen BULLOCK, in his official capacity as Governor of Montana; Corey Stapleton, in his official capacity as Secretary of State of Montana, Defendants, and DSCC, DCCC, and Montana Democratic Party, Intervenor-Defendants.
• Court: U.S. District Court — District of Montana

491 F.Supp.3d 814

DONALD J. TRUMP FOR PRESIDENT, INC., Republican National Committee; National Republican Senatorial Committee; Montana Republican State Central Committee, Plaintiffs,

and

Greg Hertz, in his official capacity as Speaker of the Montana House of Representatives; Scott Sales, in his official capacity as President of the Montana Senate, on behalf of the Majorities of the Montana House of Representatives and the Montana Senate, Intervenor-Plaintiffs,

v.Stephen BULLOCK, in his official capacity as Governor of Montana; Corey Stapleton, in his official capacity as Secretary of State of Montana, Defendants,andDSCC, DCCC, and Montana Democratic Party, Intervenor-Defendants.

CV 20-66-H-DLC (

C/w Case No. CV-20-67-H-DLC)

United States District Court, D. Montana, Helena Division.

Signed September 30, 2020

James Edward Brown, The James Brown Law Office, PLLC, Helena, MT, Bryan Weir, Pro Hac Vice, Cameron T. Norris, Pro Hac Vice, Thomas R. McCarthy, Pro Hac Vice, Tyler R. Green, Pro Hac Vice, Consovoy McCarthy PLLC, Arlington, VA, for Plaintiffs.

Anita Y. Milanovich, Milanovich Law, PLLC, Butte, MT, Dennis W. Polio, Pro Hac Vice, Jason Torchinsky, Pro Hac Vice, Holtzman Vogel Josefiak Torchinsky PLLC, Washington, DC, for Intervenor-Plaintiffs.

Raphael Graybill, Christopher D. Abbott, Montana Department of Justice, Rylee K. Sommers-Flanagan, Office of Governor Steve Bullock, Helena, MT, for Defendants.

Austin M. James, Montana Secretary of State, Helena, MT, for Defendants.

Peter M. Meloy, Meloy Law Firm, Helena, MT, Abha Khanna, Pro Hac Vice, Perkins Coie - Seattle, Seattle, WA, for Intervenor-Defendants.

ORDER

Dana L. Christensen, District Judge

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." Burdick v. Takushi , 504 U.S. 428, 441, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). As this case illustrates, protecting this right during a global pandemic presents unique challenges. Indeed, jurisdictions across the country have had to make difficult decisions about their electoral processes, often balancing the interests of public health against the interests of ensuring their citizens can adequately exercise their franchise. Montana is no exception.

This litigation requires the Court to determine the constitutionality of Governor Bullock's August 6, 2020 directive permitting counties to conduct the November 3, 2020 general election, in part, by mail ballot ("the Directive"). Plaintiffs in the lead case (CV 20–66–H–DLC) ("Lead-Plaintiffs"), Intervenor-Plaintiffs, and Plaintiffs in the member case (CV–20–67–H–DLC) ("Member-Plaintiffs") (collectively "the Plaintiffs") ask this Court to permanently enjoin enforcement of the Directive. (Docs. 1 at 34; 1 at 39;¹ 38 at 21–22.) Additionally, Member-Plaintiffs seek to enjoin Secretary Stapleton's approval of proposals from counties seeking to conduct the November 3, 2020 general election, in part, by mail ballot. (Doc. 1 at 39.)

In response, Defendant Stephen Bullock ("Governor Bullock") and Intervenor-Defendants (collectively referred to as "Defendants") assert that not only do Plaintiffs’ claims fail, but jurisdictional hurdles preclude the issuance of the relief they seek. (See generally Docs. 73–74; 81.) For the reasons stated herein, the Court finds that while it has jurisdiction over the dispute, the Plaintiffs’ claims are without merit. Accordingly, the Plaintiffs’ prayers for relief will be denied and judgment in Defendants’ favor will be entered.

In many respects, this case requires the Court to separate fact from fiction. As referenced throughout this Order, the parties have provided the Court with considerable evidence in the form of declarations and documents. Central to some of the Plaintiffs’ claims is the contention that the upcoming election, both nationally and in Montana, will fall prey to widespread voter fraud. The evidence suggests, however, that this allegation, specifically in Montana, is a fiction.

When pressed during the hearing in this matter, 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. Importantly, Montana's use of mail ballots during the recent primary election did not give rise to a single report of voter fraud. This is due, in large part, to the fact that Montana has a long history of absentee voting by as many as 73% of its electorate, combined with the experience, dedication, and skill of Montana's seasoned election administrators. Thus, there is no record of election fraud in Montana's recent history, and it is highly unlikely that fraud will occur during the November 3, 2020 general election. This is fact, which should provide comfort to all Montanans, regardless of their political persuasion, that between now and November 3, 2020 they will be participating in a free, fair, and efficient election.

BACKGROUND

I. Factual Background

The COVID-19 pandemic constitutes a serious global health risk that has paralyzed most of the world. As with the rest of the United States, Montana has not been immune to the virus’ effect on society. In response to COVID-19's worldwide outbreak, on March 12, 2020, Governor Bullock issued an executive order declaring a state of emergency within Montana. (Doc. 81-8.) Notably, on March 13, 2020, Governor Bullock amended his prior executive order "to run concurrent to the emergency declaration of the President of the United States," after President Donald J. Trump declared a national state of emergency earlier that day. (Doc. 81-9.) Currently, both the United States and Montana remain in states of emergency because of the COVID-19 pandemic.

As Montana's 2020 primary election approached, Governor Bullock issued a directive permitting counties to "conduct the June 2 primary election under the mail ballot provisions of Title 13, Chapter 19." (Doc. 81-10 at 4.) Pertinent to this case, Governor Bullock rooted this directive in the suspension power vested in him by Montana Code Annotated § 10-3-104(2)(a) by suspending Montana Code Annotated § 13-19-104(3)(a) ’s prohibition on the use of mail ballots for a "regularly scheduled federal ... election." (Id. at 2, 4.) Interestingly enough, one of the Intervenor-Plaintiffs in this case, the Speaker of the Montana House of Representatives, Greg Hertz, expressed his "full support" for the directive which, in his view, allowed "counties to choose what is best for their voters and election staff during this state of emergency." (Doc. 81-20 at 3.)

Following Montana's successful June 2, 2020 primary election, which resulted in a record 55% turnout rate, the Montana Association of Counties and the Montana Association of Clerk & Recorders wrote to Governor Bullock applauding his prior directive, and urging him to issue a similar directive for the November 3, 2020 general election. (See generally Doc. 81-2.) On August 6, 2020, Governor Bullock issued the Directive, which, as with Montana's primary election, permits, but does not require, counties to "conduct the November 3, 2020 election under the mail ballot provisions of Title 13, Chapter 19, MCA." (Doc. 81-15 at 4.) As with the prior directive, Governor Bullock relies on the suspension power vested in him by Montana Code Annotated § 10-3-104(2)(a), to render Montana's prohibition on the use of mail ballots for federal elections ineffective. (Id. at 2.) Pursuant to the Directive, 45 of Montana's 56 counties have opted to conduct the November 3, 2020 general election by mail ballot.²

II. Procedural Background

Lead-Plaintiffs filed suit on September 2, 2020 advancing several constitutional challenges to the Directive. (Doc. 1.) Specifically, Lead-Plaintiffs’ complain that the Directive violates: (1) Article I, Section IV of the United States Constitution by changing the time, place, and manner of the November 3, 2020 general election without legislative involvement; (2) Article II, § I of the United States Constitution by changing the manner in which Montana appoints electors for the November 3, 2020 general election without legislative involvement; and (3) their rights under the Fourteenth Amendment of the United States Constitution by facilitating fraud and other illegitimate voting practices. (Doc. 1 at 31–33.)

Following the filing of this complaint, the DCCC, DSCC, and the Montana Democratic party moved to intervene as defendants and Greg Hertz and Scott Sales, on behalf of the Republican majorities of the Montana House of Representatives and the Montana Senate, moved to intervene as plaintiffs. (Docs. 28; 33.) The Court permitted such intervention and placed the Plaintiffs’ motion for preliminary injunctive relief on an expedited schedule. (Doc. 35.) The Intervenor-Plaintiffs have asserted claims identical to those advanced by the Lead-Plaintiffs. (Doc. 38.)

A nearly identical lawsuit was filed by Member-Plaintiffs on September 9, 2020. (Doc. 1.) In that case, the Plaintiffs’ complain that the Directive violates: (1) Article I, Section IV of the United States Constitution by changing the time, place, and manner of the November 3, 2020 general election without legislative involvement; (2) their right to vote by "vote-dilution disenfranchisement" on account of the "cognizable risk of ballot fraud from mail-ballot elections"; (3) their right to vote by "direct disenfranchisement" on account of "the sudden surge in mail in ballots" resulting in "requested ballots never" arriving or arriving too late and "filled-out ballots" getting lost or delayed in the return process; and (4) their right to vote and the Equal Protection Clause of the Fourteenth Amendment by providing greater voting power to voters in counties that elect to send mail ballots than voters in the 11 counties that do not. (Doc. 1 at 33–38.)

Given the common questions of law and fact that exist in the lead case (CV 20–66–H–DLC) and the member case (CV–20–67–H–DLC), this Court...