A federal appeals court invalidated Minnesota’s mail-in voting procedure Thursday evening, ruling that mail-in votes had to be received by the close of polls on Election Day, not simply postmarked by then, in order to be counted. Minnesota Secretary of State Steve Simon, in response to a different lawsuit this summer demanding an extension, agreed in July that mail-in votes would need to be postmarked by Nov. 3, with a seven-day window afterward for the vote to arrive and be counted. The state subsequently sent out some 1.7 million requested absentee ballots with specific instructions explaining just that. Months later, just five days before the election, the 8th U.S. Circuit Court of Appeals weighed in and changed the rules. Nearly 400,000 of the absentee ballots have yet to be returned, according to Simon.
The federal panel of judges voted 2 to 1 that Minnesota’s accommodation for the predicted surge in mail-in voting due to the pandemic was likely unconstitutional because it usurped the authority of the state Legislature to set voting rules. “The Secretary’s instructions to count mail-in ballots received up to seven days after Election Day stand in direct contradiction to Minnesota election law governing presidential elections,” the panel wrote. “There is no pandemic exception to the Constitution.” Under Minnesota law, the deadline to receive ballots is 8 p.m. on Election Day. The two judges in the majority—Judge Bobby Shepherd, an appointee of President George W. Bush, and Trump appointee Steven Grasz—decided that because the suit filed by a Republican activist was likely to succeed, votes postmarked before but received after Election Day should be set aside.
Welcome to the nightmare scenario. The votes received after Election Day as allowed by the state but disallowed by the court would then sit in limbo waiting to be battled over in court after the vote. Republicans have filed numerous lawsuits around the country to limit the scope of voting and counting, and the now-conservative Supreme Court has shown its willingness to agree. So don’t hold your breath for those votes to get included. The Republican-appointed judges said they understood the difficult circumstances around the late-breaking reversal. “With that said, 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,” the judges wrote. “Better to put those voters on notice now while they still have at least some time to adjust their plans and cast their votes in an unquestionably lawful way.”
Secretary of State Steve Simon noted, in frustration, that oral arguments in the case were held on Tuesday during a conference call, the very last day the Postal Service said a ballot could be postmarked and guaranteed to be delivered by Election Day. “I had hoped and reasoned that if the 8th Circuit was going to change a vitally significant deadline, like acceptance of ballots—if they were inclined to do that, I would hope they would have done it an hour after the hearing, even if it was a one-line order,” Simon said ahead of ruling. “It would be tremendously disruptive at this point … to issue an order overturning Minnesota’s postmark rule.” But the disruption is the point after all.