HELENA — Montana’s secretary of state has filed notice that he plans to appeal a court ruling that extended the deadline for county elections offices to accept 2020 general election ballots returned by mail.
Attorney General Tim Fox filed the notice Monday with the Montana Supreme Court that Secretary of State Corey Stapleton is appealing Judge Donald Harris’ ruling. The notice does not include the arguments for appeal.
The Montana judge earlier extended the state's deadline for returning 2020 general election ballots by mail, saying that uneven U.S. Postal Service delivery times could result in ballots being delayed, unfairly requiring some people to vote earlier than others or requiring voters to risk exposure to COVID-19 to return their ballots in person. Harris wrote late Friday that all valid Montana ballots postmarked by Election Day for this election must be counted as long as they are received by county election offices by the following Monday.
Missoula County elections administrator Bradley Seaman said he doesn't expect an extended deadline for returning ballots to delay election results because the new deadline coincides with the deadline to count provisional ballots, which Seaman expects there to be less of due to the mail-in election.
"We're always counting those ballots the Monday after the election," Seaman said. "I think that the lower number of provisional ballots could offset ballots postmarked for a very similar timeframe to any election in the past."
However, Seaman said the Missoula County Elections Office is still watching the ruling and possible appeals process closely.
"We've been very cautious on this because in the primary election, there was a very similar court ruling and postmark deadline," he said. "This same ruling applied for three days before it was overturned by a higher court."
"This will provide an additional safeguard for Montana voters to ensure that their votes are counted," said Robyn Driscoll, chair of the Montana Democratic Party, in response to the ruling from Harris. The party and the Democratic Senatorial Campaign Committee challenged the law that requires ballots be received in election offices by 8 p.m. on Election Day in order to be counted.
Ballots are to be mailed to voters starting on Oct. 9. Driscoll urged voters to return their ballots as soon as possible "to be on the safe side."
For a large-scale federal election, the Missoula County Elections Office would typically have over 1,500 provisional ballots to count on the Monday following the election. Provisional ballots are issued to voters when there is uncertainty about a their eligibility to vote, and are kept separate from other ballots until after the election, when a determination is made as to whether the voter was eligible to vote.
Seaman said that if this election is similar to the primary, which was also mail-in in Montana, there will be fewer provisional ballots issued than in past polling place elections where voters who got an absentee ballot opted to vote at the polling place instead, and were thus issued a provisional ballot.
Montana has highly competitive races for U.S. Senate and governor. Democratic Gov. Steve Bullock is challenging Republican U.S. Sen. Steve Daines while Lt. Gov. Mike Cooney and Republican U.S. Rep. Greg Gianforte are battling for the open governor's seat. The Bullock-Daines race could be key in determining the majority party in the U.S. Senate while a Gianforte win in the governor's race would likely put the House, Senate and governor's seat all in Republican hands.
The ballot deadline case is among a handful of lawsuits related to Montana's election this year.
The campaign of President Donald Trump is challenging in federal court the governor's emergency suspension of a state law that requires polling places to be open for general elections. Because of the coronavirus pandemic, counties were given the option to mail ballots to all active voters.
Forty-five of Montana's 56 counties have decided to mail ballots. People in those counties will still have options to vote in person starting on Oct. 2. Eleven counties will open traditional polling places on Nov. 3, will mail requested absentee ballots and will offer early in-person voting starting on Oct. 5.
Oral arguments in the case brought by Trump's campaign and Republican Party groups were held Tuesday in Missoula. U.S. District Judge Dana Christensen has not yet made a ruling.
In state court, the Democratic groups also challenged the deadline by which voters must correct deficiencies in a returned ballot and challenged a 2018 law that restricted third-party collection of absentee ballots.
Just for the 2020 election, Harris also ordered that voters be given until Nov. 12 to correct any issues with mailed ballots, such as a missing or mismatched signature. State law gives voters until 3 p.m. on the day after Election Day to correct such deficiencies.
Harris also found a voter-approved law that restricted third-party collection of absentee ballots is unconstitutional. District Judge Jessica Fehr ruled earlier Friday that the Ballot Interference Protection Act was unconstitutional in a separate case brought by Native American groups.
"The burdens BIPA places on voting fall disproportionately on the poor; the elderly; the disabled; inexperienced voters; those who cannot miss work to vote; Native Americans, especially those living on rural Native American tribal lands; students; and those whose work and family care responsibilities significantly limit their ability to return their absentee ballot on their own," Harris wrote.
The arguments in the lawsuit brought by the Democrats wrapped up Tuesday. Harris said then that changing the ballot receipt deadline and the ballot deficiency correction deadline for the 2020 election would give the Montana Legislature time to review the state's election deadlines and determine if changes were needed, The Billings Gazette reported.
Cameron Evans of The Missoulian contributed to this story.