8th Circuit overturns ballot extension

Update: All votes will be counted, Simon says

Minnesotans’ mailed absentee ballots must arrive by Election Day or they likely will not count.

That is the 2-1 ruling of the 8th Circuit Court of Appeals, which arrived late Thursday.

Secretary of State Steve Simon, speaking to reporters afterward, called the ruling “unnecessarily disruptive” and “confusing.”

For instance, he said, it appears that the ruling only applies to the presidential election—not the other Nov. 3 contests.

He said the ruling arrives at a time when some 399,000 outstanding absentee ballots remain either in the hands of voters or in transit. He urged voters not to put any more absentee ballots in the mail and instead deliver them in person.

The ruling orders Simon to set aside all ballots that arrive by mail after Nov. 3, so they can be subtracted from vote totals “in the event a final order is entered by a court of competent jurisdiction determining such votes to be invalid or unlawfully counted.”

It dissolves a state District Court-approved consent decree, signed on Aug. 3, which permitted mailed-in absentee ballots to be received and counted until Nov. 10, as long as they are postmarked by Election Day.

The decree, granted to allow more voters to cast ballots safely by mail during the pandemic, survived a challenge at Minnesota’s U.S. District Court in October. It was then appealed to the 8th Circuit, which ruled two days after Oct. 27 oral arguments.

“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,” the ruling states. “There is no pandemic exception to the Constitution.”

Simon said his office can petition for U.S. Supreme Court review. But he said he needs to huddle with his lawyers before that decision is made.

The intervenor defendants in the case, the Minnesota Alliance for Retired Americans and several other individuals, also have standing to file for SCOTUS review, he said.

‘Not lost on us’

The majority, comprising judges Bobby Shepherd and L. Steven Grasz, acknowledges in their per curiam order that, under the “Purcell principle,” federal courts are expected to refrain from interfering with state election laws close to an election. The principle was set as precedent by the U.S. Supreme Court’s 2002 Purcell v. Gonzalez decision.

“Purcell protects the status quo,” the judges write. “But the Constitution recognizes something else. Namely, that the design of electoral procedures is, at bottom, a job for the Legislature.”

It was Simon, the ruling says, who disrupted the status quo by putting the consent decree in play through the courts, rather than working through lawmakers.

Among other things, the ruling establishes that petitioners had standing to bring the case—reversing the decision of Minnesota’s U.S. District Court Judge Nancy Brasel, who said they didn’t.

It sends the matter back to her court with orders to grant plaintiffs a preliminary injunction worded as follows:

“The Secretary and his respective agents and all persons acting in concert with each or any of them are ordered to identify, segregate and otherwise maintain and preserve all absentee ballots received after the deadlines set forth in Minn. Stat. § 203B.08, subd. 3, in a manner that would allow for their respective votes for presidential electors pursuant to Minn. Stat. § 208.04, subd. 1 (in effect for the President and Vice President of the United States) to be removed from vote totals in the event a final order is entered by a court of competent jurisdiction determining such votes to be invalid or unlawfully counted. The Secretary shall issue guidance to relevant local election officials to comply with the above instruction.”

“I think they got the law wrong,” Simon said late Thursday.

Shepherd and Grasz noted that the issue of relief sought by petitioners Eric Lucero and Jim Carlson remains unresolved. The judges ordered the lower court to “conduct further proceedings not inconsistent with this opinion” to resolve them.

“The consequences of this order are not lost on us,” the judges wrote. “We acknowledge and understand the concerns over voter confusion, election administration issues, and public confidence in the election that animate the Purcell principle.”

“With that said,” they continue, “we conclude the challenges that will stem from this ruling are preferable to a postelection scenario where mail-in votes, received after the statutory deadline, are either intermingled with ballots received on time or invalidated without prior warning.”

Lucero, a GOP state House member and party to the suit, released a written statement calling the ruling “a significant victory for Minnesota voters, fair elections and the rule of law.” It also prevents potential ballot fraud, he said.

“Secretary Simon should have come to the Legislature to change state law rather than needlessly injecting confusion into the long-established voting process by attempting to rewrite state statute unilaterally,” he said.

Mirroring another case

Oddly, the resolution to the case was not one sought by the petitioners, who simply wanted to set the deadline for ballot arrivals set back to Election Day, Nov. 3, with no late coming votes to be counted after that.

But it does mirror the goals enunciated by the Trump administration in a surprise suit filed with the Minnesota Supreme Court late Thursday.

In that suit, the Donald Trump for President campaign—ignoring a waiver its lawyers agreed to in August—filed a petition pursuant to Minn. Stat. § 204B.44. But rather than trying to reject ballots received after Election Day, as Lucero and Carlson tried to do, the Trump suit asks Minnesota’s high court to collect and separate all mailed-in ballots into three groups:

• Mail-in ballots received before the 8 p.m. on Election Day.
• Mail-in ballots received after 8 p.m. on Election Day, but before the Nov. 10 deadline for counting ballots set by the consent decree.
• Mail-in ballots received after Nov. 10.

Segregating them into discrete piles will “preserve the petitioners’ ability to challenge the legality of the Secretary’s actions and to ensure the fairness and integrity of the election,” the petition says.

It is signed by St. Paul attorney R. Reid LeBeau on behalf of the Trump campaign, the Senate Victory Fund, the House Republican Campaign Committee and Ryan J. Beam, a politically unaffiliated Elk River voter.

On Thursday, Associate Justice G. Barry Anderson issued an order telling the Trump campaign and the other petitioners to file memos by Friday afternoon explaining why they couldn’t have filed earlier and why the doctrine of laches—an unreasonable delay—shouldn’t bar their case.

Simon was told to file any response to the petition and to Friday’s laches memo by 9 a.m. on Monday, the order says.

The court gave permission to the Minnesota Alliance for Retired Americans and several individual voters to intervene as respondents—just as the same appellants did in the 8th Circuit case. Their response is due at the same time as Simon’s.

As of this writing, that case was still active. Simon said he doesn’t know what will become of it. “That’s up to the plaintiffs to decide,” he said.

8th Circuit appeal

Oral arguments in the 8th Circuit appeal, Carson et. al. v. Simon, were heard by a panel that included Judge Jane Kelly as well as Shepherd and Grasz.

It was filed by two Minnesota Republicans. Lucero is a GOP state representative, Carson a former 4th Congressional District Republican Party chair. Both are certified Minnesota nominees to the Electoral College.

In part, Carson and Lucero argued that if the deadline for counting votes gets extended a week, it could jeopardize their opportunity to serve as GOP electors, causing irreparable injury.

Presidential electors meet this year on Dec. 14. But they can’t assume their role until states’ election results are certified and electors get formally voted into the job, their petition says.

They argued that if Minnesota’s counted ballots aren’t received on schedule—by Nov. 3—it could delay certification of Minnesota’s presidential election results, particularly if any results are contested.

If that delay extends as far as Dec. 8, the date by which Congress requires electors to cast votes for president, the pair’s ability to serve as electors would be undermined. In fact, they contend, the state’s entire slate of electors might get rejected.

“A state that fails to comply with these acts of Congress forfeits its votes in the Electoral College,” the plaintiffs argued in their Sept. 22 complaint in the U.S. District Court.

The duo also argued that, because the U.S. Constitution’s Elections Clause and its Electors Clause are so similar, they have the same standing to challenge ballots as would candidates for elected office. And they charged that the extended deadline would mean many ineligible votes would get counted, diluting the votes they cast as regular citizens.

Brasel had rejected those claims as speculative and for failing to show particularized injury that might demonstrate standing as litigants. She dismissed their case  without deciding the merits.

The 8th Circuit majority found in the electors’ favor, in part because Carlson and Lucero “have a cognizable interest” in the final vote tally being an accurate reflection of votes legally cast.

“An inaccurate vote tally is a concrete and particularized injury to candidates such as the electors,” the court ruled. “The Secretary’s use of the consent decree makes the Electors’ injury certainly impending, because the former necessarily departs from the Legislature’s mandates. Thus, the electors meet the injury-in-fact requirement.”

In her dissent, Kelly disagreed with majority ruling’s logic. She said she doubts that the electors have valid standing or that their case could succeed on the merits.

She also expressed concern that nothing in the order puts Minnesota voters on notice that the election rules in place since last summer have suddenly changed.

“The court’s injunctive relief has the effect of telling voters—who, until now, had been under the impression that they had until November 3 to mail their ballots—that they should have mailed their ballots yesterday (or, more accurately, several days ago),” Kelly writes.

“With court’s injunction in place,” she concludes, “fewer eligible Minnesotans will be able to exercise their fundamental right to vote. That, in and of itself, should give us significant pause before granting injunctive relief.”