Federal Appeals Court Says Minnesota Mail-In Ballot Deadline Extension Likely Violates U.S. Constitution

From the Minnesota Reformer:

By Ricardo Lopez

October 29, 2020

A federal appellate court ruled on Thursday that mail-in ballots received after 8 p.m. on Nov. 3 must be segregated and could potentially be invalidated in case of future legal challenges, a victory for the campaign of President Donald Trump.

GOP activists James Carson and state Rep. Eric Lucero, R-Dayton, filed an eleventh-hour lawsuit to block the extension of an absentee ballot deadline extension reached this summer between Minnesota Secretary of State Steve Simon and the Minnesota Alliance for Retired Americans Educational Fund.

The group had sued to expand mail-in voting access amid the COVID-19 pandemic, but Carson and Lucero’s challenge came before a panel of judges on Tuesday, just a week before Election Day. The result was a deal to count ballots received up to a week after Nov. 3, postmarked or not.

In a 2-1 decision, the Eighth Circuit Court of Appeals ruled that the consent decree approved by a state court this past summer extending the deadline by a week was unconstitutional and unlikely to hold up on appeal.

“We conclude (Carson and Lucero) are likely to succeed on the merits,” the ruling said. “This follows from our determination that the secretary’s actions in altering the deadline for mail-in ballots likely violates the Elector’s Clause of Article II, Section 1 of the United States Constitution.”

It went on: “There is no pandemic exception to the Constitution.”

The three judges who decided the Minnesota case were Judge L. Steven Grasz, appointed by President Donald Trump, Judge Jane Kelly, appointed by former President Barack Obama; and Judge Bobby E. Shepherd, appointed by former President George W. Bush.

Kelly, the dissenting judge, wrote in her opinion that her colleagues had erred in reaching their decision and warned that the ruling would cause further voter confusion.

“The court’s injunctive relief will cause voter confusion and undermine Minnesotans’ confidence in the election process,” Kelly wrote in her dissent.

Simon, who addressed reporters Thursday night, declined more than once to criticize the merits of the decision, simply saying “The substance of the decision is deeply troubling.”

Instead, he made clear that voters should not use the mail to return their ballots. He said voters can hand deliver their ballots to city or county offices, use designated ballot drop-off boxes or sites or vote in person, either early or on Election Day.

The ruling, Simon said, left some things unclear. He said it’s possible that the state might have two tallies to report: one for ballots received by 8 p.m. on Nov. 3, and those received later. He also said, given the court’s hint that Lucero and Carson’s suit had merit, it was likely late-arriving ballots would be invalidated.

“We have to make sure that every legally cast ballot is counted,” he said. “That’s the mission.”

Simon said that as of Thursday night, nearly 400,000 absentee ballots are outstanding, meaning ballots that were requested by voters but not yet returned. They could be in transit or even still sitting on Minnesotans’ coffee tables, Simon said.

Reaction to the decision was split along partisan lines.

Lucero in statement called the ruling a “significant victory for Minnesota voters” in a

He added: “Secretary of State Steve Simon’s decision earlier this year to agree to count un-postmarked ballots arriving up to a week after Election Day eroded confidence in our elections and opens the door to fraud and abuse.”

Jennifer Carnahan, chair of Minnesota Republican Party, said she applauded the decision by the court.

“The pandemic has caused upheaval in many areas of life but hiding behind the pandemic to manipulate the election process is not democratic, and we appreciate that our laws and interpretation of those laws matter,” Carnahan said.

Ken Martin, chair of the Democratic-Farmer-Labor Party, said called the ruling “an attack on democracy brought about by a Republican Party desperate to stifle the voices of Minnesotans across our state.”

He said: “This absurd and misguided opinion will toss out the rules that have been in place since before voting began in September. Now, with just five days before election day, and Republicans surely heading for defeat at the polls, the Republican Party is responsible for potentially disenfranchising thousands of Minnesotans who were prepared to vote by mail in the coming days.

The Minnesota Reformer is an independent, nonprofit news organization dedicated to keeping Minnesotans informed and unearthing stories other outlets can’t or won’t tell..