Don Harris was appointed as the Yellowstone County District Court Judge by Governor Steve Bullock in October 2017 as a replacement to then candidate, Russell Fagg, who went on to run in an unsuccessful bid for the U.S. Senate. In a move late yesterday, the judge unilaterally ruled the COVID-19 “pandemic” to be a reason to delay election results until the Monday after the election. Never before in Montana’s state history have the people of Montana had to wait nearly a week to find out who won our statewide and local elections. Harris’ decision is likely to throw the Big Sky State into a constitutional crisis and election night chaos, as county clerks will now have to count ballots not into the courthouse until well after the election is over.
Claiming that the U.S. Postal Service was unreliable, Harris overturned the longtime and standard practice of requiring mail-in ballots to be at the courthouse by the end of day on election day. Now, because of Harris’ ruling, clerks must count the ballots until the Monday after the Tuesday, November 3 election.
With statewide races between Steve Bullock and Steve Daines for U.S. Senate, Matt Rosendale and Kathleen Williams for U.S. House of Representatives, Greg Gianforte and Mike Cooney for Governor, and Austin Knudsen and Raph Graybill for Attorney General all being within a three-point margin of error in the latest polling, it is highly unlikely that Montanans will know who will serve in these offices until well after November 3. With no way of knowing how many mail-in ballots are in transit within the U.S. Postal Service, it is not plausible that most races will be able to be called with any degree of certainty.
Bullock’s judge said, “The COVID-19 pandemic presents an untenable problem for voters who wish to have all the available information prior to casting their ballot, who wish to reduce potential COVID-19 exposure, and who also wish to have their vote counted.”
He went on, “Moving the Election Day receipt deadline to a postmark deadline would alleviate the pressures voters are facing in the November 2020 general election and result in less disenfranchised voters.”
As races tighten and most statewide races being within a small margin of voter difference, the vote-counting procedure stands to be contentious and probably litigious. In no uncertain terms, Harris’ ruling may make Montana look much like the chaos in Florida during the 2000 presidential election between George W. Bush and Al Gore.
Democrats, who are largely considered to be more adept at organizing mail-in votes, applauded Bullock’s judge’s order. Robyn Driscoll, chair of the Montana Democratic Party said in response, “This will provide an additional safeguard for Montana voters to ensure that their votes are counted.”
This wasn’t the only election law that Harris threw out the window as he legislated from the bench. Harris also ordered that voters could have until Nov. 12 to correct problems with mailed ballots, while state law gives voters until 3 p.m. on the day after Election Day to correct such issues. This is, for lack of a better way of phrasing it, a “hanging chad” type of nightmare scenario for Montana.
Picture every courthouse in Montana being thrown into disorder and chaos and attorneys and partisan poll-watchers have to over-see a week of ballot-counting rather than a day of it. Should volunteers of political parties and candidates even be available to oversee the process to ensure a fair and equal election, the scene is bound to become contentious, if not untenable.
Montanans should brace themselves for a long, drawn-out election week, full of problematic headlines and legitimate obstacles in the vote-counting process that county clerks have never before had to endure. A likely scenario, as has been posited by Republicans on the national scene, is that Republicans will handily win on election night, only to have their vote ratio diminished in the days following the election as new ballots are “found” by Democratic operatives both inside and outside official election mechanisms.
If there was ever a time in which legitimate civil unrest could be anticipated, it will be on the days following November 3, as no clear victors emerge in hotly contested races and both sides declare victory or file lawsuits to ensure a fair election thanks to this unfair ruling by Bullock’s district court judge.