Case 6:20-cv-00066-DLC Document 18 Filed 09/04/20 Page 1 of 6

RAPHAEL GRAYBILL
Chief Legal Counsel
Office of the Governor
PO Box 200801
Helena, MT 59620-0801
T: (406) 444-3179
Raphael.Graybill@mt.gov

Attorney for Governor Steve Bullock

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
HELENA DIVISION

DONALD J. TRUMP FOR Case No. CV 20-00066-H-DLC

PRESIDENT, INC., REPUBLICAN
NATIONAL COMMITTEE,
NATIONAL REPUBLICAN GOVERNOR BULLOCK’S RESPONSE
SENATORIAL COMMITTEE; and BRIEF IN OPPOSITION TO
MONTANA REPUBLICAN STATE PLAINTIFFS’ MOTION TO
CENTRAL COMMITTEE, EXPEDITE BRIEFING

Plaintiffs,

v.

STEVE BULLOCK, in his official

capacity as governor of Montana, and
CORY STAPLETON, in his official
capacity as Secretary of State,

Defendants.

As a common placard on many office desks reads, “your lack of planning is

not my emergency.” Plaintiffs are not entitled to truncate Governor Bullock’s

opportunity to respond to their motion—a cookie-cutter effort to discredit voting

1
 Case 6:20-cv-00066-DLC Document 18 Filed 09/04/20 Page 2 of 6

by mail1—simply because they chose to wait nearly a month after Governor’s

August 6, 2020, mail-ballot elections directive2 to take action. Governor Bullock

issued a nearly identical directive for Montana’s primary election nearly six

months ago.3 By public letter dated July 24, 2020, a bipartisan group of county

election administrators formally requested the local option to conduct the 2020

general election by mail. And yet, Plaintiffs chose to wait until after dozens of

counties already decided whether to offer expanded early voting and mail-ballot

elections, only one day before the deadline for submitting mail-ballot election

plans to the Secretary of State, see Mont. Code Ann. § 13-19-205(1), and after

county plans for expanded early voting and mail-ballot elections are already well

underway.

Instructive on this point is Truth about Proposition #2 v. Cox, 2018 U.S.

Dist. LEXIS 172881, 2018 WL 4855269 (D. Utah Oct. 5, 2018). In Cox, opponents

1
Plaintiffs, or some iteration thereof, have brought similar claims in many
cases, as the RNC’s “protect the vote” website proclaims. See
http://protectthevote.com.
2
The Directive is available at:
https://covid19.mt.gov/Portals/223/Documents/2020-08-06_Directive%20-
%20November%20Elections.pdf?ver=2020-08-06-112431-693. Contrary to
Plaintiffs’ characterization, the Directive does not permit Montana counties to
conduct an “all mail” election; rather, it permits counties to elect to expand both
early voting opportunities and the availability of mail ballots while still allowing
voters the option of voting in person at certain designated locations.
3
The primary election Directive is available at:
https://covid19.mt.gov/Portals/223/Documents/Directive%20on%20Elections.pdf?
ver=2020-03-25-152812-903.

2
 Case 6:20-cv-00066-DLC Document 18 Filed 09/04/20 Page 3 of 6

of a measure on the November 2018 general election ballot waited until October 3,

2018, to move for a preliminary injunction, accompanied by a motion to shorten

the time for filing an opposition to five days. Cox, 2018 U.S. Dist. LEXIS 172881,

at *4–*5. The court denied the motion to shorten time, noting that the plaintiffs

were aware the measure would be on the ballot for months, but nevertheless waited

until days before mail ballots were to be sent to seek a preliminary injunction. The

district court refused to reward this dilatory tactic, noting that “[t]he need for an

expedited briefing schedule could have easily been avoided if the Plaintiffs had

filed their Motion sooner.” Id. at *8. This alone, the court held, justified denial of

the motion to shorten time. Id.

As an independent ground for denial, the court in Cox indicated that the

request came too late, and after certain ballots had already been mailed. Id. at *8–

*9. This echoes recent Supreme Court decisions indicating that Court’s disfavor of

injunctions that upend the status quo close to an election. See Republican Nat’l

Comm. v. Democratic Nat’l Comm., 140 S.Ct. 1205, 1214 (Apr. 6, 2020) (per

curiam) (“This Court has repeatedly emphasized that lower federal courts should

ordinarily not alter the election rules on the eve of an election.”). The preliminary

relief sought here would accomplish much the same. County election offices in

Montana have already largely foregone plans for a traditional in-person election—

including the time-intensive process of recruiting election judges, confirming

3
 Case 6:20-cv-00066-DLC Document 18 Filed 09/04/20 Page 4 of 6

polling locations, and all of the other logistical planning attendant to a primarily in-

person election—and instead have actively prepared to conduct an election with

expanded early voting and mail-ballots. To be clear: Montana’s local election

officials are many weeks past the point at which a traditional primarily in-person

election could be conducted (setting aside the inherent safety risks of large

gatherings amidst a pandemic). Granting Plaintiffs the relief they seek would inject

chaos into the election, and effectively disenfranchise Montanans across the state

while inserting immense ethical, constitutional, and safety risks into the election

process. That Plaintiffs seek to inject this level of chaos in the election is bad

enough; that they have timed their complaint and motion to cut off the Governor’s

efforts to mount an opposition makes it all the more troublesome.

Plaintiffs seek to minimize the extraordinary nature of their motion to

expedite, claiming the Governor will still have eight days to respond. The reality,

as they very well know, is that assuming this Court rules on their motion today,

Friday, September 4, 2020, that would leave the Governor only three working days

to mount a response—including not only drafting the brief, but gathering the

necessary factual and evidentiary support for that response, a task complicated by

the holiday weekend.

To steal one more cliché, Plaintiffs made their bed when they chose to wait

until the last minute to challenge the Governor’s directive; now they must lie in it.

4
 Case 6:20-cv-00066-DLC Document 18 Filed 09/04/20 Page 5 of 6

The primary election Directive—conveniently omitted from the Complaint—

issued nearly six months ago and resulted in a safe, secure primary election free of

fraud. The nearly identical general election directive has been in effect for a month.

Now, on the eve of the election, with dozens of Montana counties already in the

midst of preparations for expanded early vote and mail ballots, Plaintiffs come to

Montana to request that this Court throw the election into chaos. Fundamental

fairness to the Governor, the county election officers preparing for this

unprecedented pandemic-era election, and the integrity of that process demand

adequate time to respond to this extraordinary request with extraordinary stakes for

our republican form of government. The motion to expedite should be denied.

DATED this 4th day of September, 2020.

OFFICE OF THE GOVERNOR

P.O. Box 200801
Helena, MT 59620-0801

By: /s/ Raphael Graybill

RAPHAEL GRAYBILL
Chief Legal Counsel

Attorney for Governor Bullock

5
 Case 6:20-cv-00066-DLC Document 18 Filed 09/04/20 Page 6 of 6

CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.1(d)(2), I certify that this brief is printed with a

proportionately spaced Times New Roman text typeface of 14 points; is double-

spaced except for footnotes and for quoted and indented material; and the word

count calculated by Microsoft Word for Windows is 925 words, excluding the

caption, certificates of service and compliance, and if required, any tables of

contents and authorities, and exhibit index.

By: /s/ Raphael Graybill

RAPHAEL GRAYBILL
Chief Legal Counsel

CERTIFICATE OF SERVICE

I hereby certify that the foregoing has been served on Plaintiffs by filing

through CM/ECF, and will be served by email on Austin James at

austin.james@mt.gov, counsel for Secretary of State Corey Stapleton.

By: /s/ Raphael Graybill

RAPHAEL GRAYBILL
Chief Legal Counsel