Minnesota Lawyer
Update: Minnesota Secretary of State Steve Simon will not pursue U.S. Supreme Court review of the U.S. 8th Circuit’s ruling in the state’s absentee ballot case, his office announced Friday evening.
Meanwhile, the Trump campaign on Friday evening asked the Minnesota Supreme Court to hold its Oct. 28 petition “in abeyance” in light of the 8th Circuit’s opinion. The Trump campaign had sought an outcome similar to the one arrived at by the 8th Circuit, asking that mailed ballots be separated into groups, according to whether they were delivered by, or after Election Day.
All votes in Minnesota’s presidential race will be counted, Secretary of State Steve Simon said Friday. But they might not all count.
With its 2-1 ruling Thursday, a U.S. 8th Circuit Court of Appeals panel made clear that the chances of success are great if someone challenges ballots that arrive by mail after the usual 8 p.m. Election Day deadline.
But the 8th Circuit’s decision, enforced by an injunction from U.S. District Court Judge Nancy Brasel on Friday, does not specifically state that absentee ballots automatically get invalidated, even if they’re received as late as Nov. 10, Simon said.
So, unless someone files a motion to invalidate the ballots—even those received during the seven-day grace period created by a now-overturned Aug. 3 consent decree—they will be added to the state’s election totals, he said.
The 8th Circuit’s ruling, in favor of two Minnesota Republican electors, orders ballots that arrive before 8 p.m. on Election Day to be separated from those that arrive after that time.
That action was necessary, the court said, so the late ballots can be identified, challenged and subtracted from the vote total, if a competent court rules them invalid.
Simon said Friday that he and lawyers from the Attorney General’s office have yet to determine whether they will appeal that decision and that they continue to weigh their options.
They could call for an en banc hearing before the entire U.S. 8th Circuit Court of Appeals—but that seems unlikely given the short time remaining before Election Day and the probability that the case would need to go to the U.S. Supreme Court anyway.
Otherwise, his office could file a writ for certiorari for direct review by the U.S. Supreme Court. That appears to be the option most seriously being considered.
“I don’t have a final word yet on whether we’re going to go to the Supreme Court and seek a stay of the 8th Circuit opinion,” he told reporters Friday. “But we will let you know one way or another as soon as we decide.”
One reason for the delay, he said, is that his lawyers have not yet heard from the intervenors in the federal suit filed by Republican electors Jim Carlson and Eric Lucero. Those intervenors also have standing to seek a hearing before the Supreme Court, Simon said.
Carlson and Lucero successfully challenged the state District Court-approved consent decree, filed by Simon in July and approved Aug. 3. It permitted mailed ballots to count if they arrive by mail no later than Nov. 10, if postmarked by Election Day.
Their challenge failed in Brasel’s U.S. District Court earlier this month. She ruled that the plaintiffs had not shown the particularized injury needed to show they had standing to sue.
The 8th Circuit overruled her, ruling that the litigants had standing and finding their case would probably succeed on the merits. The judges then ordered Brasel to issue an injunction ordering segregation of ballots, which she did Friday.
By the numbers
Simon said that as of Friday morning, 1,746,354 Minnesotans had ordered absentee ballots. Of those, 1,434,227 have been accepted by election officials and are ready for counting.
If mail-in-only ballots—the ballots automatically sent to registered voters in remote rural areas so they can vote by mail—are included, the total delivered-ballot number rises to 1,969,728. With those included, the number of returned and accepted ballots is 1,581,193.
There are 312,127 absentee ballots still outstanding—meaning they have been sent out but not yet returned, Simon said. That number rises to 388,535 total unreturned ballots when rural mail-in votes are included.
“Needless to say, that is an extraordinary number—the fact that we are knocking on the door of 2 million people,” Simon said. He said a minimum of 3 million Minnesotans overall are expected to vote in 2020. That means more than half of the state’s total vote will not be cast in person at polling places on Election Day.
Simon was asked Friday how realistic it is to expect that no challenges would be filed and that late arriving votes will simply be counted as if the consent decree were still in place.
He said he doesn’t know.
“A lot candidly just depends on the margins nationally and in Minnesota, and whether it is worthwhile for any set of lawyers, or any entity, political party or candidate to go to the courts,” the secretary said. “So it is so hard to say.”
David Schultz, the Hamline University political science professor and attorney, said he agrees. In fact, he said, he and Simon had that very conversation earlier this week during a continuing legal education event.
By way of illustration, Schultz said, if on Election Day, Joe Biden is ahead by 300,000 votes and only 100,000 absentee ballots are still outstanding, Biden’s lead would be insurmountable, even if all late-arriving ballots were invalidated. “Chances are no one is going to litigate at that point,” Schultz said.
As he did during a Thursday night press availability, Simon on Friday urged voters not to place outstanding absentee ballots in the mail. “It would have to arrive by Tuesday to make absolutely certain that it’s counted,” he said. “And that at this point it’s just too risky.”
Simon has issued new guidance for voters following the ruling, outlining their options. Those include:
- Voters who have recently placed ballots in the mail can track them online at http://www.mnvotes.org/track. If the ballot has not yet been received, the voter can cast an in-person absentee ballot, overriding their mailed vote.
- Voters can deliver absentee ballots to county election officials by hand (or have someone they trust hand-deliver for them) no later than the end of business on Monday. County offices are closed Sunday, but all Minnesota counties are required to accept in-person absentee ballots on Saturday between 10 a.m. and 3 p.m., Simon said.
- Voters can also cast their votes in the usual way on Election Day. If they do go to the polls, Simon counsels them not to take along their absentee ballots, but instead to just line up and cast a regular vote.
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