Ballots for the June 2 primary must be received at elections offices by 8 p.m. on Election Day in order to be counted, the Montana Supreme Court said in an order Wednesday.
The order, signed by five of the seven justices, reverses a decision last week from Billings Judge Donald Harris that changed the cutoff to include ballots postmarked by June 2 and received by June 8. In past elections, mailed ballots needed to arrive at elections offices by 8 p.m. on Election Day.
This year's primary is being conducted mostly by mail because of the health risks posed by the novel coronavirus. In parts of the state, it can take several days for a ballot to make its way from a sender to the county elections office, which two Democratic groups argued in a lawsuit could cause confusion for voters.
The state Supreme Court, however, said following the status quo would give more clarity to the electorate.
"This year's all-mail-ballot primary election is a first for Montana and presents an unusual situation. Election administrators have responded swiftly to ensure that ballots were timely mailed to voters across Montana. Because those ballots include express directive that they will not be counted unless received by the 8 p.m. Election Day deadline, we conclude that there is good cause to maintain the Election Day deadline for this primary election in order to avoid voter confusion and disruption of election administration," reads the order.
Chief Justice Mike McGrath disagreed.
"This is a unique situation of course, as there has never been an all-mail election in Montana. More significantly, we have not had all of the usual polling places closed. Allowing ballots to be counted in the same manner as military ballots is not a significant distinction from the current system," McGrath wrote. Justice Dirk Sandefur joined McGrath in dissent.
In March, the Montana Democratic Party, its chair Robyn Driscoll and the Democratic Senatorial Campaign Committee filed a lawsuit in Billings asking to change the voting deadline and for a halt in the enforcement of the Ballot Interference Protection Act (BIPA), which limits the number of ballots a person can drop off for others at six. Judge Donald Harris ordered both the suspension of BIPA and the deadline change to a postmark of June 2. Harris wrote the existing deadline would "significantly suppress voter turnout."
The extended deadline was immediately challenged by the secretary of state's office, which countered that the last-minute change would confuse voters and be unfair to those who had already cast ballots. It did not object to the halting of BIPA.
The office appealed Harris' order in District Court and also filed with the state Supreme Court, asking it to both reverse the lower court and take up the case instead of waiting for the appeals process to play out.
While it overruled Harris on Wednesday, the Supreme Court declined to take over the case, saying there was sufficient time for the appeals process before the Nov. 3 general election.
"The court determines that the ordinary course of appeal, with an expedited briefing schedule, affords adequate time to address the issues the Secretary of State presents with the benefit of the record and full development of the arguments by both parties," the order reads.
The secretary of state's office praised the restoration of the original ballot deadline.
“I am pleased that the voter confusion and disruption to the voting process has ended. As has been the practice for decades, ballots will not be counted if they are not received by the 8 p.m. deadline," wrote Deputy Secretary of State Christi Jacobsen in an emailed statement.
Jacobsen is also running in the Republican primary for secretary of state.
State Attorney General Tim Fox, who represented the secretary of state, also said he was happy with the outcome.
“I am pleased that the Montana Supreme Court maintained our long-standing ballot deadline of 8 p.m. on Election Day, especially since some counties are using prepaid ballot return envelopes that won’t be postmarked," Fox wrote in an emailed statement. "Ten days before an election is not an appropriate time to upend an important and widely known voting law.”
Fox is also a candidate in the GOP primary for governor.
In an emailed statement, the Montana Democratic Party chair looked toward the general election in the fall.
"We will continue to fight to ensure Montanans can cast their ballots and trust they will be counted," Driscoll said. "The ruling today applies to the June 2 primary and we are confident the Montana Supreme Court will affirm the District Court ruling and prevent Montanans from being disenfranchised in November and future elections."
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