Updated: 10:20 p.m.
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.
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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 Thursday night, nearly 400,000 of some 2 million requested absentee ballots remained outstanding, Democratic Secretary of State Steve Simon said.
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 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.
“The court's decision is a tremendous and unnecessary disruption to Minnesota's election, just days before Election Day. This last-minute change could disenfranchise Minnesotans who were relying on settled rules for the 2020 election — rules that were in place before the August 11 primary and were accepted by all political parties. It is deeply troubling that the people who brought the lawsuit, a conservative legislator and presidential elector, would seek to sabotage the system for political gain,” Simon said in a release.
He added that voters should no longer mail their absentee ballots, instead deliver their ballots to their county election office by hand, or cast a vote in person with an absentee ballot up until Nov. 2, or cast a vote in person on Election Day.
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.
Minnesota Republican Party Chair Jennifer Carnahan said in a statement they applaud the decision to uphold “the integrity of the election and affirming Election Day,” as Nov. 3.
"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 in the statement.
DFL Party Chair Ken Martin said in a release the ruling is “an attack on democracy” aimed to stifle voices of Minnesotans.
“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,” Martin said.
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. But recent polls have showed Joe Biden leading.