The Montana Supreme Court on Wednesday said the deadline for receiving mailed, absentee ballots in Montana’s primary election will remain at 8 p.m. Election Day, next Tuesday – thus blocking a district judge’s order that said the ballots need only be postmarked by Tuesday.
The 5-2 decision said the high court will consider an appeal of last Friday’s ruling by District Judge Don Harris of Billings, but that the current deadline law will remain for the primary election.
The court majority noted that ballots mailed to 600,000 Montana voters in early May, in Montana’s first statewide all-mail election, had instructions that said the ballots must be returned by 8 p.m. Election Day to be counted.
Because of those instructions, “we conclude that there is good cause to maintain the election-day deadline for this primary election in order to avoid any voter confusion and disruption of election administration,” Justice Beth Baker wrote for the majority.
Secretary of State Corey Stapleton had asked the court to block Harris’s order, while it heard his appeal of the case.
Attorney General Tim Fox also asked the court this week to take control of the case and rule quickly, before the primary election.
The court, however, rejected that latter request and said it would allow a regular appeal of Harris’s order to proceed and decide the case before the general election in November.
In a statement Wednesday, Fox said he's pleased that the Supreme Court maintained Montana's "long-standing" ballot receipt deadline of 8 p.m. on Election Day, and noted that some counties are using prepaid return envelopes that are not postmarked.
"Ten days before an election is not an appropriate time to upend an important and widely known voting deadline," he said.
Montana is holding an all-mail-ballot election because of the Covid-19 coronavirus outbreak, closing polling stations on June 2 to avoid putting voters or election judges in danger.
County election officials mailed ballots to all active, registered voters on May 8. As of Tuesday night, nearly 237,000 voters had already returned their ballots.
The June 2 primary election features several high-profile contests, including contested party primaries for governor, U.S. House, U.S. Senate and attorney general.
The Montana Democratic Party and others filed suit in March, challenging the law that said mailed absentee ballots must be received by election day to be counted and saying they need only to be post-marked by that date.
Last Friday, Harris granted a request by the plaintiffs to block the current law while the case is decided, saying ballots must be counted if they are post-marked by June 2.
Stapleton and Fox, both Republicans, quickly appealed Harris’ order to the Supreme Court and asked the court to block the order.
Chief Justice Mike McGrath and Justice Dirk Sandefur dissented from Wednesday’s order, saying they would not have blocked it.
“Given the fundamental right of voting, I would not grant a stay,” McGrath wrote. “Allowing ballots to be counted in the same manner as military ballots is not a significant distinction from the current system.”
Ballots cast by Montanans in the military and overseas can be received until June 8 and still be counted.