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Federal judges order post-Election Day ballots to be separated

By Stephen Montemayor, Star Tribune (Minneapolis) on

Published in News & Features

MINNEAPOLIS — A federal appeals court sided Thursday with a GOP challenge to Minnesota's extended deadline for receiving absentee ballots after Election Day next Tuesday, imperiling a state rule that would count mail-in ballots received up to a week after the election.

In a 2-1 decision, a panel of the 8th U.S. Circuit Court of Appeals ordered that all mail-in ballots received after 8 p.m. on Election Day be set aside, setting the stage for a potential legal battle after the election. But the order stopped short of a final determination on the validity of the post-Election Day ballots.

The ruling came in a case brought by Minnesota GOP officials challenging a state rule allowing election officials to count ballots received until Nov. 10, as long as they are postmarked by Nov. 3. It is one of several Republican challenges to extended deadlines that were adopted in Wisconsin, Pennsylvania and North Carolina in response to concerns about the pandemic and potential mail delays.

The Trump campaign also has sought a similar order from the Minnesota Supreme Court to separate ballots arriving after Election Day. That case is pending.

In an interview Thursday before the appellate panel's ruling, Minnesota Secretary of State Steve Simon told the Star Tribune that a reversal of the deadline extension could lead to large swaths of ballots not being counted and headaches for local elections administrators statewide.

"If that is reversed, it would be extraordinarily disruptive — not to mention disenfranchising," Simon said.

Simon agreed to the extension in response to a lawsuit filed by a citizens group in state court earlier this year. The lawsuit cited the coronavirus pandemic and a surge in mail voting as concerns that thousands of votes cast on Nov. 3 but received after that day's 8 p.m. deadline could go uncounted.

Republican state Rep. Eric Lucero and GOP activist James Carson — both Minnesota GOP electors in the presidential race — challenged the July consent decree in a federal lawsuit. They appealed to the 8th Circuit after District Judge Nancy Brasel ruled that they lacked standing to sue Simon over the agreement. Thursday's ruling reversed Brasel's decision.


The 8th Circuit opinion concluded that state and federal law supersede Simon's state court agreement. "The rule of law, as established by the United States Constitution and the Minnesota Legislature, dictates these rules must be followed notwithstanding the Secretary's instructions to the contrary," Thursday's majority opinion read. "There is no pandemic exception to the Constitution."

Judges Bobby Shepherd and L. Steven Grasz sided with the GOP challenge. Judge Jane Kelly, in a dissenting opinion, sided with Simon's extended deadline. The majority ruling, she wrote, "will cause voter confusion and undermine Minnesotans' confidence in the election process."

The Republican challengers also argued that ballots received after Election Day could be called into question because Simon's agreement requires mail ballots without postmark dates to be counted unless a "preponderance of the evidence" shows that the ballots were mailed after Nov. 3.

In briefings to the 8th Circuit, Andrew Grossman, an attorney for Carson and Lucero, warned that votes received after Nov. 3 could be challenged and disqualified. Meanwhile, Assistant Attorney General Jason Marisam, representing Simon, argued that a sudden change in the deadline — which has been communicated to voters for months — would "potentially disenfranchise thousands of voters relying on their ballot instructions."

Nearly 2 million Minnesotans have requested absentee ballots with the understanding that their votes will be counted as long as they are postmarked by Tuesday. At last count, more than a half million requested ballots have yet to be returned.

The U.S. Supreme Court has been ruling on similar extensions in the battleground states of Wisconsin, Pennsylvania and North Carolina. The high court on Monday sided with Republicans in a 5-3 order that stopped Wisconsin from counting mailed ballots received up to six days after Election Day. That order, in which the court's three liberal justices dissented, came before Monday's U.S. Senate vote to confirm Trump's nomination of Judge Amy Coney Barrett to the Supreme Court. Barrett joined the court on Tuesday, solidifying a 6-3 conservative tilt.

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