Judge hears arguments on mail ballot lawsuit, promises quick decision

NBC Montana

September 22, 2020

The plan for Montana’s Nov. 3 general election is in the hands of U.S. District Court Judge Dana Christensen as he decides what to do on an effort to stop mail ballot voting.

The Trump campaign, Montana GOP and other GOP groups filed the suit, claiming Gov. Steve Bullock’s directive that allows counties to hold mail ballot elections is unconstitutional. Several political groups joined the fight on both sides.

In Montana, 45 out of 56 counties decided to hold the general election by mail ballot while also offering an opportunity for in-person voting.

In Tuesday’s hearing, nobody provided any proof of previous voter fraud in Montana in the last 20 years when asked by Christensen, but plaintiffs’ lawyers said they were concerned there would be fraud by holding this election by mail. They also said the governor didn’t consult with the legislature and questioned his authority.


Tyler Green, a lawyer for the Trump campaign, said voters are in the habit of going to the same polling place every election, and receiving a ballot in the mail could be confusing. He said elections are years in the making, and a last-minute shift doesn’t allow them time to change get-out-the-vote efforts.

Anita Y. Milanovich, the lawyer representing GOP legislative leaders Greg Hertz and Scott Sales, said they were fine with the primary mail ballot election because the governor consulted the legislature and it was early in the pandemic. The lawyer said now our infection rates aren’t as prevalent as other areas in the country. That’s when Christensen weighed in, pointing out of 275 new cases reported in Montana Tuesday.

High-profile conservative attorney James Bopp said if Montana can be in phase 2 of the reopening plan, it can hold safe in-person elections. He also said correcting any violation of constitutional rights is worth administrative inconveniences.

On the defendants’ side, Bullock’s chief legal counsel Raph Graybill went into specifics about the burden an 11th-hour change would place on county elections offices, including what to do with the already printed ballots, postage and more.

He also addressed concerns about software capabilities in Montana’s voter registration systems that assign unique IDs for ballots and track them. He said he’s unaware of a feature in the software that would allow counties to reverse course in their choice to hold a mail ballot election, which he said would essentially undermine one of the safeguards currently in place to prevent voter fraud.

Graybill cited problems with in-person polling places this late in the game, including finding places that accommodate social distancing that aren’t nursing homes and schools. He also questioned how counties will recruit and train the required election judges in such a short amount of time. He said granting this motion would be catastrophic to Montana's election.

Everyone agreed the sooner the ruling can be issued, the better. Christensen promised a decision as soon as possible.

Remember, 45 Montana counties plan to send out mail ballots in a little more than two weeks.