A three-judge panel of the 8th U.S. Circuit Court of Appeals said Thursday that Minnesota’s absentee ballots that come in after Election Day should be separated from the rest of the ballots, in case a future order makes those votes invalid.
The ruling doesn’t block Minnesota’s seven-day extension for counting absentee ballots — but it does order a lower court to issue a ruling that would keep the late arriving ballots separate so they can be “removed from vote totals in the event a final order is entered” that finds them unlawful.
“The Secretary shall issue guidance to relevant local election officials to comply with the above instruction,” the appeals court said.
Republicans had argued that the extension — which had been approved in both state and federal courts due to the COVID-19 pandemic — violated federal law that establishes Nov. 3 as the date of the 2020 election.
The case now goes back to U.S. District Judge Nancy Brasel, who previously upheld a state court agreement that allowed ballots postmarked on or before Election Day to be counted if they are received by Nov. 10. Brasel said giving voters conflicting information after absentee ballots have gone out would create confusion.
The case was heard by Judge Bobby Shepherd, an appointee of President George W. Bush; Judge Jane Kelly, who was appointed by President Barack Obama; and Judge L. Steven Grasz, appointed by President Donald Trump. Kelly dissented from the majority.
Republicans have tried to block voter expansion across the country, and the Minnesota decision comes as similar extensions have gone before the U.S. Supreme Court with mixed results. The nation’s high court recently left a three-day extension for counting absentee ballots in Pennsylvania in place, but refused to reinstate a six-day extension in Wisconsin.
As of last Friday, nearly 2 million Minnesota voters had requested absentee ballots, and more than 500,000 of those ballots remained outstanding.
A majority of states require mail-in ballots to be received by Election Day, while others accept them days or even weeks later if they are postmarked by Election Day. Some states made changes, citing an expected flood of absentee ballots due to the coronavirus pandemic.
In Minnesota, state law requires absentee ballots to be received by 8 p.m. on Election Day. But because of COVID-19 concerns, a consent decree reached in state court changed the rules so ballots postmarked on or before Nov. 3 could be accepted for up to seven days after the election. The decree includes a provision that if a mailed ballot is missing a postmark, election officials should presume it was mailed by Election Day unless evidence shows otherwise.
Republican state Rep. Eric Lucero and GOP activist James Carson, who both would participate in the Electoral College if President Donald Trump carries Minnesota, opposed the state agreement and took the case to federal court. Their lawsuit, which was backed by the conservative-leaning Honest Elections Project, argued that an extension would create chaos and dilute the value of their votes by counting “unlawful” ballots after Election Day.
They argued on appeal that leaving the extension intact could lead to the disqualification of thousands of votes that are received after Nov. 3.
But attorneys for Democratic Secretary of State Steve Simon said the extension should stay in place, arguing that blocking it would create confusion and likely disenfranchise voters who are relying on instructions they have already received about deadlines for returning ballots by mail.
The consent decree came about after a legal challenge by citizen groups concerned about voter safety during the pandemic, and was agreed to by Simon.
Separately, the campaigns for Trump and Republican state legislative candidates petitioned the Minnesota Supreme Court this week to ask that mailed ballots received after Election Day be segregated, in case of legal challenges to their validity.
Trump narrowly missed winning Minnesota in 2016 and had vowed in 2020 to become the first Republican to capture the state since Richard Nixon in 1972.