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No. 20A- in the Supreme Court of the United States Emergency Application for Writ of Injunction, Relief Requested by Thursda

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No. 20A- in the Supreme Court of the United States Emergency Application for Writ of Injunction, Relief Requested by Thursda No. 20A- In the Supreme Court of the United States _______________ Joe Lamm, Ravalli County Republican Central Committee, Jeff Wagner, Sylvia Wagner, Fiona Nave, and Brent Nave, Applicants, v. Stephen Bullock, in his official capacity as Governor of Montana, and Corey Stapleton, in his official capacity as Secretary of State of Montana, Respondents _______________ Emergency Application for Writ of Injunction, Relief Requested by Thursday, October 8, 2020 _______________ To the Honorable Elena Kagan Associate Justice of the Supreme Court of the United States and Circuit Justice for the Ninth Circuit _______________ James Bopp, Jr. Counsel of Record [email protected] Richard E. Coleson Emily Jones [email protected] [email protected] Courtney Turner Milbank JONES LAW FIRM [email protected] 2101 Broadwater Ave. THE BOPP LAW FIRM, PC P.O. Box 22537 1 South Sixth St. Billings, MT 59104 Terre Haute, IN 47807!3510 Telephone: 406/384-7990 Telephone: 812/232!2434 Counsel for Applicants Lead Counsel for Applicants Questions Presented Montana’s Governor recently issued a Directive allowing the Montana Secretary of State to approve county “mail balloting” plans for the upcoming general election. The Secretary initially approved “mail ballot” plans on September 9 and they were final as of September 29. Counties with approved plans intend to send “mail ballots” to all registered voters on October 9. The Legislature banned “mail ballots” for gen- eral elections, instead allowing only by-request, no-excuse-required “absentee bal- lots” and in-person voting compatible with Phase 2 safety restrictions in the Gover- nor’s COVID-19 reopening plan. The District Court upheld the Governor’s Directive and the Secretary of State’s approval of “mail ballot” plans and also held that Purcell v. Gonzalez, 549 U.S. 1 (2006), barred an injunction to redress any violations of constitutional rights caused by the Governor’s and Secretary’s actions. I. Do the doctrines designed to protect long-standing Legislatively adopted elec- tion laws, the Purcell principle, also protect an “eve of an election” substan- tial change in election laws by state officials, contrary to that prescribed by the Legislature? II. Does the Directive violate the Elections Clause, U.S. const., art. I, § 4, cl. 2, by displacing the “Manner” prescribed by the Legislature? III. Does the Directive violate the right to vote by creating a substantial risk of vote-dilution disenfranchisement by allowing mail ballots that the Legisla- ture deemed dangerous to election integrity in its expert balancing of election i access and integrity concerns? IV. Does the Directive violate the right to vote by creating a substantial risk of direct disenfranchisement by the sudden flood of mail ballots that the Legis- lature deemed dangerous to election integrity in its expert balancing of elec- tion access and integrity concerns? V. Does the Directive violate the one-person-one-vote, equal-protection rights, under the Fourteenth Amendment, of voters in counties not choosing “mail ballot” elections? ii Parties to the Proceeding The caption contains the names of all parties. Corporate Disclosure Statement No party is a corporation, so none has a parent corporation or stock. Related Proceedings Below U.S. Court of Appeals for the Ninth Circuit: • Lamm et al. v. Bullock et al., No. 20-35847 (9th Cir.) — appeal pending; motion for an injunction pending appeal was denied Oct. 6 U.S. District Court for the District of Montana: • Lamm et al. v. Bullock et al., No. 6:20-cv-0067-DLC (D. Mont.) — judgment en- tered Sept. 30, 2020. • This case was consolidated with Donald J. Trump for President, Inc. et al. v. Bullock et al., No. 6:20-cv-0066-DLC (D. Mont.) — no notice of appeal was filed as of the time of filing this Application iii Table of Contents Introduction . 2 Decisions Below . 3 Jurisdiction. 3 Constitutional and Statutory Provisions Involved . Factual and Procedural Background. 4 A. Mailed ballots pose a greater risk of ballot fraud. 4 B. Sudden floods of mailed ballots pose a risk to election integrity. 5 C. The Directive was not based on an emergency. 6 D. Appellants will be irreparably harmed. 8 Reasons for Granting the Application. 9 I. There is a “significant possibility” this Court would grant certiorari and reverse because the violation of Voters’ rights are “indisputably clear.” . 10 A. The mail-ballot Directive was unjustified because in-person voting complies with reopening Phase 2 and requesting an absentee ballot is a noncognizable burden on the right to vote. 11 B. Voters have standing to challenge the Directive.. 12 C. Properly integrating the Elections Clause, Anderson-Burdick test, and Purcell principle resolves this case and abates the flood. 15 1. The Elections Clause requires that the “Manner” of an elec- tion be prescribed by the “Legislature.”. 16 2. The Anderson-Burdick test and the Purcell principle protect long- standing Legislatively adopted state election laws. 20 D. The Directive violated the Elections Clause by overturning Legisla- tively enacted voting procedures. 22 1. The Governor is neither the Legislature nor has legislative power. 22 2. Burdick and Purcell don’t protect the Governor’s election-eve change in law but rather condemn it. 24 a. Burdick doesn’t protect the Directive but rather condemns it. 24 b. Purcell doesn’t protect the Directive but rather condemns it.. 25 iv E. The Directive also violates the right to vote in three ways.. 25 1. The Directive creates substantial risk of vote-dilution disenfran- chisement. 26 2. The Directive creates substantial risk of direct disenfranchisement. 29 3. The Directive violates equal protection under one-person-one-vote doctrine.. 30 II. Voters will suffer irreparable harm absent an injunction. 32 III. The balance of equities and the public interest support injunctive re- lief. 32 Conclusion . 33 Appendix Contents Order denying injunction pending appeal, Lamm et al. v. Bullock et al., No. 20-35847 (9th Cir.) . 1a Order denying permanent injunction, Lamm et al. v. Bullock et al., No. 6:20-cv- 0067-DLC (D. Mont.) . 2a Judgment, Lamm et al. v. Bullock et al., No. 6:20-cv-0067-DLC (D. Mont.) . 48a Order denying injunction pending appeal, Lamm et al. v. Bullock et al., No. 6:20- cv-0067-DLC (D. Mont.) . 50a U.S. Const. art. I, § 4, cl. 1. 52a U.S. Const. amend I . 52a U.S. Const. amend XIV . 52a Mont. Const. art. III, § 1 . 53a Mont. Const. art. IV, § 3 . 54a Mont. Code Ann. (“MCA”) § 10-3-104(2)(a) . 54a MCA § 10-3-104(2)(c) . 54a MCA § 13-13-201 . 55a v MCA § 13-13-205 . 56a MCA § 13-13-211 . 56a MCA § 13-13-212 . 56a MCA § 13-13-213 . 60a MCA § 13-13-214 . 61a MCA § 13-13-245 . 62a MCA § 13-19-101 . 63a MCA § 13-19-104 . 64a MCA § 13-19-105 . 64a MCA § 13-19-106 . 65a MCA § 13-19-201 . 66a MCA § 13-19-202 . 66a MCA § 13-19-205 . 67a MCA § 13-19-206 . 68a MCA § 13-19-306 . 69a MCA § 13-19-307 . 69a 42 U.S.C. § 1983 . 70a Gov. Bullock, Directive implementing Executive Orders 2-2020 and 3-2020 and pro- viding for measures to implement the 2020 November general election safely (Aug. 6, 2020) . 71a vi Table of Authorities Cases Am. Trucking Associations, Inc. v. Gray, 483 U.S. 1306 (1987). 12 Anderson v. United States, 417 U.S. 211 (1974) . passim Andino v. Middleton, No. 20A55, 592 U.S. ___, slip op. (Oct. 5, 2020) . 38 Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015) . 25-26 Buckley v. Valeo, 424 U.S. 1 (1976) . 20 Burdick v. Takushi, 504 U.S. 428 (1992) . passim Bush v. Gore, 531 U.S. 98 (2000) . 18, 33 Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000) . 18 Cook v. Gralike, 531 U.S. 510 (2001)..
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