The Supreme Court on Thursday rejected a request from Republicans in Montana to block a plan that will allow county election officials to choose whether to send mail-in ballots to all registered voters in the state on Oct. 9. Justice Elena Kagan, who fields emergency requests from the geographic area that includes Montana, denied the plea without calling for a response from Montana Gov. Steve Bullock or referring the request to the full court.
The dispute was a challenge to a directive issued by Bullock in response to the COVID-19 pandemic that suspended the state’s ban on mail-in ballots in general elections and permitted counties to choose whether to use mail-in ballots. The challengers argued that the directive violates the Constitution’s elections clause, which gives the state legislatures the power to determine the “manner” of an election. It also infringes on their right to vote in a variety of ways, they alleged, including by creating the risk that their votes will be diluted by illegal ballots and the possibility that their votes will not be counted at all because election officials will be overwhelmed by the sheer number of ballots.
A federal district court in Montana rejected the challengers’ arguments, and the U.S. Court of Appeals for the 9th Circuit declined to temporarily block the plan while they appealed. The challengers went to the Supreme Court on Monday, stressing that the justices have indicated that courts should normally not second-guess a decision by a state legislature to change its election rules or to maintain them in light of COVID-19. But Kagan denied the request without calling for a response or referring the request to her colleagues, suggesting that she did not see the case as a close call.
This post is also published on SCOTUSblog.