No.

22O155, Original

IN THE
Supreme Court of the United States
________
TEXAS,
Plaintiff,
v.

COMMONWEALTH OF PENNSYLVANIA, STATE OF

GEORGIA, STATE OF MICHIGAN, AND STATE OF
WISCONSIN,
Defendants.
________

MOTION FOR LEAVE TO FILE AND BRIEF OF

STEVE BULLOCK, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF MONTANA AS
AMICUS CURIAE IN SUPPORT OF
DEFENDANTS
________

RAPHAEL GRAYBILL ADAM G. UNIKOWSKY

Chief Legal Counsel Counsel of Record
RYLEE SOMMERS-FLANAGAN KATHRYN WYNBRANDT
Deputy Legal Counsel Jenner & Block LLP
Office of the Governor 1099 New York Ave, NW
P.O. Box 200801 Washington, DC 20001
Helena, MT 59620-0801 (202) 639-6009
(406) 444-3179 aunikowsky@jenner.com

ATTORNEYS FOR GOVERNOR STEVE BULLOCK

 MOTION FOR LEAVE TO FILE

Steve Bullock, in his official capacity as Governor

of Montana, respectfully moves for leave to file a brief as
amicus curiae respecting the motions for leave to file a
bill of complaint and for a preliminary injunction in this
case (i) without 10 days’ advance notice to the parties of
its intent to file as ordinarily required by Supreme Court
Rule 37.2(a), and (ii) in an unbound format on 8½-by-11-
inch paper rather than in booklet form. See Sup. Ct. R.
37.

Plaintiff filed its motion for leave to file a bill of

complaint in this matter on December 7, 2020. On
December 8, the Court requested responses to the
motion by 3 p.m. on Thursday, December 10. In light of
this expedited briefing schedule, it was not feasible to
provide 10 days’ notice to the parties. In addition, the
compressed schedule prevented Governor Bullock from
having the brief finalized in sufficient time to allow it to
be printed and filed in booklet form. Plaintiff and
Defendants have been notified of Governor Bullock’s
intent to file an amicus brief. When notified, counsel for
Pennsylvania consented to the filing of this brief, and
counsel for Wisconsin and Georgia informed Governor
Bullock that they did not object. Counsel for Michigan
and Texas have not yet responded to Governor Bullock’s
request for consent.

As set forth in the enclosed brief, the undersigned

amicus has a strong interest in the outcome of this case.
Governor Bullock, in his official capacity, has an
important interest in governors and state executive
branch actors retaining their key role in interpreting
and implementing state election law. Governor Bullock
likewise has a critical interest in ensuring that these
actors retain their ability to safely accommodate voters
in light of emergencies such as the COVID-19 pandemic.
Based on Governor Bullock’s successful experience
defending these interests in challenges similar to those
Defendant States face here, Governor Bullock has a
distinct perspective on Defendants’ interests, and the
amicus brief includes relevant material not already
brought to the attention of the Court by the parties that
may be of considerable assistance to the Court. See Sup.
Ct. R. 37.1. Specifically, Governor Bullock will make
three points if granted leave.

First, Governor Bullock will describe the failed

pre-election challenges to Montana’s voting procedures
that closely resemble Texas’s challenge in this case.
Prior to the general election, the Trump campaign and
other plaintiffs brought challenges to Governor
Bullock’s Election Directive, which expanded access to
vote-by-mail in Montana for the November 3 general
election. Those challenges failed both because the
Governor’s Election Directive was a lawful exercise of
delegated authority under state law, and because
equitable considerations precluded changing election
administration at the last minute.

Second, Governor Bullock will argue that the

process and outcome in Montana are instructive in
demonstrating why Plaintiff’s motions before this Court
should fail. The Montana proceedings required the
District Court to scrutinize the facts on the ground and
make a judgment based on the evidentiary record the
parties had developed—not based on the parties’ bare
assertions. Upon examining that record, the court was
compelled to conclude that the plaintiffs failed to identify
a single instance of the harms they alleged. Texas’s
decision to bring its complaints directly to this Court is
an attempt to avoid precisely that fate. Texas has not
developed an evidentiary record of violations in any of
the states whose results it challenges, and so it seeks to
simply skip the critical fact-finding stage. Texas should
not be permitted to short-circuit the judicial process in
this way and obtain relief to which it is not entitled.

Third, Governor Bullock will argue that Purcell

v. Gonzalez, 549 U.S. 1 (2006) (per curiam), militates
against disturbing the results of this election. The
Purcell principle—cited approvingly by Texas itself in
election-related litigation regarding its own election
procedures—warns federal courts to avoid altering state
election laws close to the election date. The purpose of
such restraint is to avoid discouraging voter turnout,
sowing confusion that might lead voters to cast their
ballots improperly, or undermining public faith in
elections. These commonsense concerns counsel even
more strongly against taking action that would cast
doubt on an election that has already taken place. The
Purcell principle therefore weighs heavily against the
relief Texas now seeks.
 CONCLUSION

Governor Bullock respectfully requests that the

Court grant leave to file an amicus brief respecting
Texas’s motions.

December 10, 2020 /s/ Adam G. Unikowsky

RAPHAEL GRAYBILL ADAM G. UNIKOWSKY

Chief Legal Counsel Counsel of Record
RYLEE SOMMERS-FLANAGAN KATHRYN WYNBRANDT
Deputy Legal Counsel Jenner & Block LLP
Office of the Governor 1099 New York Ave, NW
P.O. Box 200801 Washington, DC 20001
Helena, MT 59620-0801 (202) 639-6009
(406) 444-3179 aunikowsky@jenner.com
 i
TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................... ii

INTRODUCTION ............................................................. 1
ARGUMENT ...................................................................... 4
I. Pre-Election Challenges to Montana’s Mail
Ballot Voting Procedures Failed.......................... 4
a. Governor Bullock issued an
Election Directive in response to
the COVID-19 emergency. ....................... 4
b. The Trump campaign’s challenge to
the Election Directive failed in
court. ............................................................. 6
II. Montana’s Experience Shows Why this
Court Should Stay Its Hand. ................................ 9
III. The Purcell Principle Applies to Electors
Clause Claims—and Applies With
Particular Force Here. ........................................ 10
CONCLUSION ................................................................ 16
 ii
TABLE OF AUTHORITIES
CASES
Democratic National Committee v. Wisconsin
State Legislature, No. 20A66, 2020 WL
6275871 (U.S. Oct. 26, 2020) ............................. 10, 13
Driscoll v. Stapleton, 473 P.3d 386 (Mont.
2020) ............................................................................ 2
Donald J. Trump for President, Inc. v.
Bullock, No. CV 20-66, __ F. Supp. 3d __,
2020 WL 5810556 (D. Mont. Sept. 30, 2020) .. 6, 7, 8
Lamm v. Bullock, No. 20A61 (U.S. Oct. 8,
2020) ............................................................................ 8
Purcell v. Gonzalez, 549 U.S. 1 (2006) .... 10, 13, 14, 15
Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7 (2008) ............................................. 10
STATUTES
Mont. Code Ann. § 10-3-104(2)(a) ............................ 4, 6
Mont. Code Ann. § 10-3-103(4) ................................. 5, 6
Mont. Code Ann., tit. 13, ch. 19 .................................... 4
OTHER A UTHORITIES
Memorandum of Law in Opposition to
Plaintiffs’ Application for Temporary
Restraining Order and Preliminary
Injunction, Texas Voters All. v. Dallas
County, No. 4:20-cv-775 (E.D. Tex. Oct. 15,
2020), 2020 WL 6578026 ......................................... 12
 iii
State Defendants’ Response to Plaintiffs’
Motion for a Preliminary Injunction, Texas
League of United Latin American Citizens
v. Abbott, No. 1:20-cv-1006 (W.D. Tex. Oct.
8, 2020), 2020 WL 6692910 ..................................... 12
Texas Secretary of State Ruth R. Hughs’s
Response in Opposition to Plaintiffs’ Motion
for Preliminary Injunction, Texas Alliance
For Retired Americans v. Hughs, No. 5:20-
cv-128 (S.D. Tex. Sept. 2, 2020), 2020 WL
6603307 ..................................................................... 12
 1
INTRODUCTION1

Texas has sued four other States, directly in this

Court, seeking to overturn the results of the presidential
election. Texas alleges that those States’ efforts to
facilitate voting in the midst of the COVID-19 pandemic
violated the Electors Clause. Texas further maintains
that expanding the availability of mail ballots resulted in
fraud on a massive scale. Seventeen states have signed
an amicus brief in support of Texas’s lawsuit.

Texas chose not to include the State of Montana,

where President Trump and other Republicans were
successful in a mail ballot election conducted to reduce
the impact of COVID—underscoring, of course, that this
action is less about election integrity than it is about
attempting to overturn the will of the electorate. But if
Texas is successful in its suit, it would destabilize the
results of elections in Montana and any other state that
took valid state-law actions to minimize the impact of the
virus on voting, including states that delivered victories
to Republican candidates using mail ballots.2

1
Pursuant to this Court’s Rule 37.6, amicus states that this brief
was not authored in whole or in part by counsel for any party, and
that no person or entity other than amicus, its members, or its
counsel made a monetary contribution intended to fund the
preparation or submission of this brief.

2
The Montana Attorney General joined an amicus brief of
Republican Attorneys General urging this Court to accept the
Texas suit. His participation is a surprise. As detailed throughout,
nearly identical claims arose in litigation in Montana this fall and
were resoundingly rejected by a federal district court in Montana.
 2
There are many reasons to reject Texas’s
extraordinary lawsuit. One reason is simply that it is not
a procedurally appropriate way to challenge state
election laws. As this Court has repeatedly emphasized,
challenges to state election laws should occur in an
orderly fashion, on a non-emergency basis, well in
advance of elections, according to ordinary rules of civil
procedure. They should not be raised in the Supreme
Court, on an emergency basis, in an effort to overturn
the result of an election that has already occurred.

Were that not enough, challenges to state election

laws should proceed on a state-by-state basis, rather
than in an omnibus suit seeking to reverse the outcome
of the presidential election in four states simultaneously.
Texas’s claims under the Electors Clause hinge on its
theory that voting procedures in Pennsylvania,
Wisconsin, Michigan, and Georgia conflict with the
enactments of those states’ respective legislatures. But
state election laws vary considerably. Hence, even
accepting Texas’s premise that a state-law objection to
a voting procedure could yield a federal constitutional
violation, the Electors Clause analysis necessarily
differs from state to state. Likewise, the susceptibility
of state voting procedures to fraud, as well as states’
historical experiences with fraud, may differ from state
to state. It is impossible for such allegations to be
properly adjudicated in a single Original Action
involving four States, with no factual record or legal

Montana’s experience with mail ballots has been a successful one,

aided in no small part by the Montana Attorney General’s prior,
strenuous defense of Montana’s election laws. See Driscoll v.
Stapleton, 473 P.3d 386 (Mont. 2020).
 3
conclusions by any lower court, on a highly expedited
time frame.

When litigants did bring state-by-state

challenges before the election, those challenges proved
unsuccessful. Montana’s experience is a prime example.
The Trump campaign and several other plaintiffs
associated with the Republican Party sued Governor
Bullock before the election, alleging, among other
things, that the Governor’s mail ballot directive
(“Election Directive”) violated the Electors Clause. The
U.S. District Court for the District of Montana
concluded that the Governor’s directive complied with
Montana law as enacted by the Montana legislature; that
there was no Montana-specific evidence of election
fraud; and that the lawsuit was brought too late. The
Ninth Circuit and this Court denied applications to
enjoin the Election Directive.

Although Montana is not a defendant in this

Court, the Montana litigation is pertinent to this case for
three reasons. First, it illustrates that States have
highly individualized, state-specific defenses to Electors
Clause claims. Such claims cannot be resolved based on
sweeping assertions that the Electors Clause bars any
effort by state executive branch officials to alleviate the
risks of COVID-19 in elections. Second, Montana’s
experience illustrates that when plaintiffs (including the
Trump campaign) were afforded the opportunity to
create an evidentiary record establishing that mail
voting would yield election fraud, they were unable to do
so. The Court therefore should not credit Texas’s
assertion of widespread voter fraud in the absence of
 4
such an evidentiary record. Third, the Montana litigation
shows that the Purcell principle applies to Electors
Clause claims just as much as it applies to other types of
constitutional claims. The Purcell principle applies with
particular force here, when Texas seeks to overturn the
results of an election that has already occurred.

ARGUMENT

I. Pre-Election Challenges to Montana’s Mail

Ballot Voting Procedures Failed.

a. Governor Bullock issued an Election

Directive in response to the COVID-19
emergency.

In response to the COVID-19 crisis, Governor

Bullock declared a state of emergency on March 12, 2020,
which remains in place today. Following that
declaration, the Governor issued a directive on
March 25, providing for measures to implement the June
primary election safely. Among those measures was a
directive ensuring wider access to mail voting. Montana
law ordinarily authorizes mail ballots to be used for
certain local elections, but not for regularly scheduled
federal elections. See generally Mont. Code Ann., tit. 13,
ch. 19. Yet Montana law also confers on the Governor the
authority to “suspend the provisions of any regulatory
statute prescribing the procedures for conduct of state
business or orders or rules of any state agency if the
strict compliance with the provisions of any statute,
order, or rule would in any way prevent, hinder, or delay
necessary action in coping with the emergency or
disaster.” Mont. Code Ann. § 10-3-104(2)(a). A
 5
“[d]isaster” is defined in relevant part as an “outbreak of
disease.” Id. § 10-3-103(4). Exercising that express
statutory authority, Governor Bullock authorized
counties to conduct the primary using statutory mail
ballot procedures ordinarily used for local elections.

Over the course of the summer months and into

early autumn, rates of COVID-19 infection in Montana
first rose and then skyrocketed, with the average
number of daily new cases more than doubling in the last
two weeks of September. On October 3, a record of 501
new cases was reported. In the weeks immediately after
the election, daily new case records were repeatedly
broken as the rate of new cases continued to grow.
Relying on input from public health officials and county
election administrators, the Governor issued on August
6 an Election Directive permitting counties to adopt
mail-balloting procedures for the November general
election. Like the directive during the Primary, the
Election Directive authorized counties to use
procedures already established in Montana law to
conduct the 2020 general election using mail ballots,
subject to certain conditions enumerated in the
Directive. For example, counties were also required to
give voters an option to vote in-person at the county
election office or other designated location through
Election Day, to provide satellite voting offices for
Indian reservations, to expand early voting
opportunities and time for voter registration, and to
adopt infection control protocols at polling places.
 6
b. The Trump campaign’s challenge to the
Election Directive failed in court.

On September 2, 2020, several plaintiffs,

including the Trump campaign and the Republican
National Committee, sued Governor Bullock in the
District of Montana, seeking to enjoin the Election
Directive. Much like Texas here, the plaintiffs alleged
that the Election Directive violated the Electors Clause
of the Constitution and made sweeping assertions that
mail voting would lead to voter fraud.

The District Court carefully analyzed the

plaintiffs’ claims and dismissed them all. See Donald J.
Trump for President, Inc. v. Bullock, No. CV 20-66, __
F. Supp. 3d __, 2020 WL 5810556 (D. Mont. Sept. 30,
2020). First, the District Court undertook a close
analysis of Montana’s election laws and concluded that
the Election Directive did not violate state law. To the
contrary, it was an exercise of statutory authority
expressly conferred on the Governor by the State
Legislature. Under Montana law, the Governor has the
authority to “suspend the provisions of any regulatory
statute prescribing the procedures for conduct of state
business or orders or rules of any state agency if the
strict compliance with the provisions of any statute,
order, or rule would in any way prevent, hinder, or delay
necessary action in coping with the emergency or
disaster.” Mont. Code Ann. § 10-3-104(2)(a). A
“[d]isaster” is defined in relevant part as an “outbreak of
disease.” Id. § 10-3-103(4). The District Court found that
COVID-19 was an “outbreak of disease,” and that the
Election Directive fell squarely within the Governor’s
 7
explicit authority to “suspend the provisions of any
regulatory statute prescribing the procedures for
conduct of state business.” 2020 WL 5810556, at *10-11
(quoting Mont. Code Ann. § 10-3-103(4)).

Second, the District Court did not rely on the

plaintiffs’ bare assertions that fraud would be rampant,
but instead closely examined the evidentiary record as
to whether the Election Directive would increase the
risk of fraud. It found that “Plaintiffs have not
introduced even an ounce of evidence supporting the
assertion that Montana's use of mail ballots will inundate
the election with fraud,” and “[t]he record is replete with
evidence that Montana's elections and the use of mail
ballots present no significant risk of fraud.” Id. at *12.
“The declarations provided by Governor Bullock from
three elections officials in Montana fortif[y] the
conclusion that a county’s use of mail ballots does not
meaningfully increase the already nominal risk of voter
fraud in this State.” Id. at *13.

Third, the District Court examined the evidence

of record and found that “issuance of the injunctive relief
sought by Plaintiffs would have profound, and most
likely catastrophic consequences on the administration
of Montana's general election.” Id. at *15. It explained
“(1) the impossibility of procuring, training, and
certifying the competency of the election judges
necessary to administer an election in the absence of
mail ballot procedures; (2) the logistical nightmare posed
by completely reversing course at this late hour and
moving from a mail ballot to traditional election
administration; and (3) the difficulty, harm to election
 8
integrity, and resulting confusion that would occur if
counties had to notify their citizens of the abrupt last
minute change to available voting opportunities.” Id.
“The result is the possible disenfranchisement of
thousands of Montana voters who as of the date of this
Order, are operating under the belief that they will
shortly receive a ballot in the mail.” Id. at *16. The
District Court “heed[ed] the Supreme Court's warning
against changing the rules of the game on the eve of an
election.” Id. at *15.

The Trump campaign, Republican National

Committee, and numerous other plaintiffs did not bother
appealing this ruling. The Ravalli County Republican
Central Committee and certain individual plaintiffs
sought emergency relief from the Ninth Circuit, but it
was summarily denied. They then sought relief from this
Court, but Justice Kagan denied their request without
requesting a response. Lamm v. Bullock, No. 20A61
(U.S. Oct. 8, 2020).

Following this Court’s denial of injunctive relief,

the November 2020 election proceeded smoothly.
Although the Trump campaign and other plaintiffs
warned of logistical nightmares that would arise from
mail voting, no such logistical nightmares occurred. Nor
have there been any credible allegations of voter fraud
in Montana. Finally, although Montana continues to
struggle with COVID-19, amicus is unaware of any
COVID-19 outbreak in Montana caused or exacerbated
by the election.
 9
II. Montana’s Experience Shows Why this Court
Should Stay Its Hand.

The Montana litigation shows why this Court

should be skeptical of Texas’s claims—and even more
skeptical of Texas’s request to resolve them, on an
expedited basis, after the presidential election has
occurred.

First, neither Texas nor its amici undertake a

serious state-law analysis of whether the Defendant
States’ election procedures complied with the
enactments of their respective state legislatures.
Instead, they merely assert that state officials’ efforts to
alleviate the risks of COVID-19 during elections
automatically violate the Electors Clause if not explicitly
authorized by the state legislature. Yet as the Montana
litigation shows, that sweeping assumption is
unwarranted. As here, the Trump campaign made
broad, general statements that the Governor violated
state law; the Governor responded by identifying the
precise provision of state law that authorized his order;
the District Court ruled that his order was statutorily
authorized; and the Trump campaign did not appeal. The
timing of Texas’s suit in this Court makes it impossible
to conduct the careful state-law analysis needed to
resolve Texas’s claims.

Second, neither Texas nor its amici undertake a

serious effort to put forth competent evidence in support
of their claims of widespread voter fraud. Indeed,
because Texas filed suit directly in this Court rather
than in a trial court, there is no evidentiary record at all.
 10
As Montana’s experience illustrates, it is easy to make
accusations of voter fraud, but more difficult to support
such accusations with evidence. The Court should not
entertain accusations of fraud and misconduct that have
not been through the ordinary crucible of trial litigation.

III. The Purcell Principle Applies to Electors

Clause Claims—and Applies With Particular
Force Here.

Neither Texas nor its amici address the elephant

in the room: the Purcell principle. The District of
Montana rightly concluded that the Purcell principle
barred the Trump campaign’s last-minute Electors
Clause claim. That principle applies with even greater
force to this case.

As Justice Kavanaugh recently stated: “This

Court has repeatedly emphasized that federal courts
ordinarily should not alter state election laws in the
period close to an election—a principle often referred to
as the Purcell principle.” Democratic Nat’l Comm. v.
Wis. State Legislature, No. 20A66, 2020 WL 6275871, at
*3 (U.S. Oct. 26, 2020) (Kavanaugh, J., concurring)
(citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per
curiam)).

Purcell is a constraint on a federal court’s

authority to issue injunctive relief. As a general
principle, a plaintiff is never entitled to an injunction as
of right, even if that plaintiff has shown a likelihood of
success on the merits. Rather, to obtain an injunction, a
plaintiff must additionally show that “the balance of
equities tips in his favor, and that an injunction is in the
 11
public interest.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). “In exercising their sound
discretion, courts of equity should pay particular regard
for the public consequences in employing the
extraordinary remedy of injunction.” Id. at 24 (quotation
marks omitted). In other words, even a plaintiff who has
a winning federal claim should still be denied an
injunction when the equities or the public interest
counsel against injunctive relief.

Purcell applies those principles in the context of

elections. In Purcell, the Court stayed an injunction,
issued shortly before an election, against the application
of Arizona’s voter ID law. The Court did not opine on
whether Arizona’s law was constitutional. Rather, it
held that regardless of the plaintiff’s likelihood of success
on the merits, the balance of equities and the public
interest disfavor issuing injunctions that would alter
election rules on the eve of an election. The Court
explained that in deciding whether to issue such
injunctions, courts must weigh, “in addition to the harms
attendant upon issuance or nonissuance of an injunction,
considerations specific to election cases and its own
institutional procedures. Court orders affecting
elections, especially conflicting orders, can themselves
result in voter confusion and consequent incentive to
remain away from the polls. As an election draws closer,
that risk will increase.” Purcell v. Gonzalez, 549 U.S. 1,
4-5 (2006) (per curiam). Although Texas seeks an
injunction overturning election procedures in this case,
 12
it routinely invokes the protections of Purcell when its
own election procedures are challenged.3

In Purcell itself, and in several other Supreme

Court cases applying Purcell, a lower court had enjoined
a state statute that was an allegedly unconstitutional
restriction on voting rights, and the Supreme Court
stayed or reversed the injunction. But Purcell’s logic is
not limited to that scenario. Purcell is not a substantive
doctrine that disfavors constitutional challenges to
voting restrictions. Rather, it is an equitable doctrine
that disfavors last-minute federal injunctions that would
disrupt the status quo. As the District of Montana
rightly concluded, Purcell’s logic applies with equal
force regardless of whether the particular federal
constitutional challenge seeks to expand or restrict
voting rights, and regardless of whether the federal
constitutional provision at issue is the Due Process
Clause, the Electors Clause, or anything else. Under
Purcell, federal courts should not issue last-minute
injunctions that would disturb voters’ reliance on
pronouncements of state officials—whatever those

3
See, e.g., Memorandum of Law in Opposition to Plaintiffs’
Application for Temporary Restraining Order and Preliminary
Injunction, Tex. Voters All. v. Dallas County, No. 4:20-cv-775 (E.D.
Tex. Oct. 15, 2020), 2020 WL 6578026; State Defendants’ Response
to Plaintiffs’ Motion for a Preliminary Injunction, Tex. League of
United Latin Am. Citizens v. Abbott, No. 1:20-cv-1006 (W.D. Tex.
Oct. 8, 2020), 2020 WL 6692910; Texas Secretary of State Ruth R.
Hughs’s Response in Opposition to Plaintiffs’ Motion for
Preliminary Injunction, Texas All. For Retired Ams. v. Hughs, No.
5:20-cv-128 (S.D. Tex. Sept. 2, 2020), 2020 WL 6603307.
 13
pronouncements are or whatever the reason those
pronouncements allegedly violate the Constitution.

Against that backdrop, it is clear that Purcell,

which involved a request for federal relief to enjoin
enforcement of a state law immediately prior to Election
Day, applies with even more force to the current context
of a request for federal relief dictated by this Court after
Election Day.

First, consider Purcell’s core concern that late-

breaking court orders can cause “voter confusion and
consequent incentive to remain away from the polls.” 549
U.S. at 4-5. That concern is powerful even in advance of
an election, before voters have cast their ballots. But it
is even more so when the rule changes occur after
Election Day: When rule changes occur after ballots are
cast, there is not just the potential for
disenfranchisement by causing voters to “remain away
from the polls,” there is actual disenfranchisement of
voters who actually went to the polls and cast a legal
ballot.

As Justice Kavanaugh recently reiterated,

“[w]hen an election is close at hand, the rules of the road
should be clear and settled.” Democratic Nat’l Comm.,
2020 WL 6275871, at *3 (Kavanaugh, J., concurring). In
other words, voters should know that when they follow
the rules in casting their ballots, those ballots will be
counted. See id. (noting the importance of “state and
local officials” being able to “communicate to voters how,
when, and where they may cast their ballots through in-
person voting on election day, absentee voting, or early
 14
voting”). Indeed, in evaluating the “considerations
specific to election cases and [their] own institutional
procedures,” Purcell, 549 U.S. at 4, there is perhaps no
greater consideration than voters’ reliance on the fact
that if they follow the rules that have been
communicated to them, they will not be disenfranchised.
Purcell thus not only prohibits federal courts from
changing the election rules that voters rely on in the
period close to an election, it also prohibits federal courts
from changing the election rules after the election has
occurred.

Second, the Court emphasized in Purcell that “[a]

state indisputably has a compelling interest in
preserving the integrity of its election process” and that
“[c]onfidence in the integrity of our electoral processes
is essential to the functioning of our participatory
democracy.” 549 U.S. at 4 (quotation marks omitted).
Although the Court made these remarks while
explaining the justifications for the voter ID law at issue
there, the same principles justify Purcell’s limitations on
injunctive relief. Purcell rests on a concern that a federal
injunction on the eve of an election risks making election
results less trustworthy. But whatever the magnitude of
that perception, it would be dwarfed by the counter-
perception of unfairness in throwing out thousands of
votes that were legally cast under the rules in place at
that time. Invalidating votes en masse when voters will
have no chance to cure their ballots in compliance with a
court’s determination decimates, rather than
safeguards, confidence in elections.
 15
Third, and most fundamentally, the entire
premise of Purcell was that the rules that are in place on
Election Day are the rules that govern the election. See
id. at 5-6 (“Given the imminence of the election and the
inadequate time to resolve the factual disputes, our
action today shall of necessity allow the election to
proceed without an injunction suspending the voter
identification rules.”). Purcell’s holding effectively ruled
out the possibility of a post-election injunction
retroactively changing the rules (for instance, allowing
provisional votes cast by voters without voter IDs to be
counted). If a federal court could not issue a post-election
injunction forcing state officials to count votes they
would otherwise discard, then a federal court similarly
cannot issue a post-election injunction forcing state
officials to discard votes they would otherwise count.

The District Court rightly ruled that the Trump

campaign’s challenge to Montana’s Election Directive
was barred by Purcell. Texas’s challenge here—which
would disenfranchise millions of legal, good-faith voters
and overturn a presidential election—is even more
plainly barred by Purcell.

Governor Bullock also urges this Court to

consider that Texas’s untimely suit would not merely
disenfranchise voters in the four Defendant states.
Texas’s arguments could just as well be made with
respect to any State that took precautionary measures
against the COVID-19 pandemic. As such, Texas’s suit
threatens to destabilize the result of the general election
in all such States. If any action by the courts could shake
confidence in republican government to its core, it would
 16
be the overturning of state election outcomes based on
the retroactive nullification of safety precautions validly
adopted in the face of a once-in-a-century global
pandemic.

Thus, this Court should decline to entertain

Texas’s complaint.

CONCLUSION

The motion for leave to file a bill a complaint

should be denied.

Respectfully submitted,

December 10, 2020 /s/ Adam G. Unikowsky

RAPHAEL GRAYBILL ADAM G. UNIKOWSKY

Chief Legal Counsel Counsel of Record
RYLEE SOMMERS-FLANAGAN KATHRYN WYNBRANDT
Deputy Legal Counsel Jenner & Block LLP
Office of the Governor 1099 New York Ave, NW
P.O. Box 200801 Washington, DC 20001
Helena, MT 59620-0801 202) 639-6009
(406) 444-3179 aunikowsky@jenner.com