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Bar Buzz: New election suits? Lawyers, candidates keep powder dry

It’s possible that there has never been a better time to be an American election lawyer. But at last check — about 4 p.m. Thursday — Minnesota’s election attorneys and their clients appeared to be keeping their powder dry.

No new election-related lawsuits naming Secretary of State Steve Simon or his office had been filed as of deadline for this edition, spokesman Peter Bartz-Gallagher said Thursday.

There has been concern, if not expectation, that President Donald Trump’s campaign would sue the state to stop the counting of absentee ballots received after 8 p.m. on Nov. 3.

A court-approved consent decree, which survived a trip to Minnesota’s U.S. District Court, allowed election officials to receive and count absentee ballots arriving as late as Nov. 10, as long as they were postmarked by Election Day.

But the 8th Circuit ruled the consent decree invalid and ordered officials to segregate late-arriving absentees from other ballots, so they could easily be identified and challenged, should a litigant sue to declare them invalid.

What the court did not do, however, was order those votes to go uncounted. So Simon has been adamant that, while they will be segregated as ordered, the votes will be counted and added to state’s election total.

To change that, he said, someone will have to sue.

Simon told reporters on Nov. 4, that he had a feeling such a suit — at least as described by the 8th Circuit — might never materialize. “I don’t want to get too far into punditry here — this is more like arithmetic than punditry,” he said. “But the margin in Minnesota in the presidential contest seems to foreclose that.”

As of Thursday evening, 230,013 uncounted absentee ballots were still outstanding in Minnesota. But the margin of Joe Biden’s victory in Minnesota stood at 232,180 votes. So the absentee ballots that exist — even if they all got counted and President Trump wins them all — aren’t enough for the president to pull ahead.

Yet that does not entirely foreclose possible litigation. There are other tight legislative races — the apparent victory of Sen. Warren Limmer, R-Maple Grove, over challenger Bonnie Westlin, DFL-Maple Grove comes to mind.

In that Senate District 34 race, which has not yet been called by the Associated Press, Limmer leads by exactly 900 votes. And there are about 3,500 absentee ballots outstanding in the district.

But even without accounting for the strong likelihood that many of those delivered ballots were never mailed back, a 900-vote margin is probably insurmountable in that race, Simon said.

Still, while the 8th Circuit’s ruling addressed the presidential race and mentioned only a potential presidential challenger, Simon said he is cognizant that others might sue to stop the count. But if that’s on anyone’s mind, they have yet to pull the trigger.

“There might be some who might draw inspiration from the 8th Circuit’s language and seek to invalidate ballots in that particular contest,” Simon said. “I just don’t know. But we’re prepared for it if it comes.”

Simon said that among Minnesota’s 4,118,462 eligible voters, 3,216,814 are known to have cast votes.

That’s a 78.1% voter participation rate. That tally could creep slightly upwards when it is definitively known how many Minnesota voters mailed in ballots.

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About Kevin Featherly

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former freelance writer who has covered politics, law, business, technology and popular culture for publications and websites in the Twin Cities and nationally since the mid-1990s.

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