Note: This piece has been updated with comments from a noon Secretary of State Steve Simon press briefing.
If you haven’t returned your absentee ballot to your elections office, you might want to do that now — and not by U.S. mail.
On Thursday — five days before Election Day— the U.S. Court of Appeals for the Eighth Circuit issued a ruling that will require absentee ballots received by mail after 8 p.m. on Election Day to be separated from those received before that deadline, and potentially invalidated depending on future judicial rulings.
The ruling comes days after the U.S. Supreme Court declined to allow Wisconsin a six-day grace period and allowed a three-day extension in Pennsylvania and a nine-day extension in North Carolina to stand.
But it’s unclear what will ultimately happen to Minnesota’s late ballots.
State court overruled
In a normal election year, Minnesota has no grace period for ballots that arrive by mail after Election Day: according to statute, late ballots are not counted unless they arrive via U.S. Postal or package service by 8 p.m. on Election Day.
This year, though, the Minnesota Alliance for Retired Americans and other citizen groups challenged Minnesota’s typical Election Day deadline on the grounds that the pandemic and the onslaught of mailed-in ballots could result in some voters’ ballots arriving late and not counted through no fault of their own, which they said was a violation of the First and Fourteenth amendments to the U.S. Constitution.
A two-day absentee ballot deadline extension for was approved the primary, and a consent decree signed in August, allowed a seven-day deadline extension for ballots for the general election, so long as they were postmarked by Election Day. Absentee ballots sent out were accompanied by instructions telling voters their ballot could be received up to seven days after Election Day, provided it was postmarked by Election Day.
That consent decree was appealed to the Minnesota Supreme Court by President Donald Trump’s campaign and Republican groups, but the groups abandoned their appeal an waived their right to further challenge the consent decree.
More recently, Rep. Eric Lucero and James Carson, who will both serve as Republican electors if Minnesota goes for President Donald Trump, challenged the seven-day ballot deadline extension on the grounds that it violated the U.S. Constitution.
A federal district judge denied Lucero and Carson’s request for a preliminary injunction, arguing they did not have standing to bring the lawsuit.
Lucero and Carson appealed the judge’s ruling, and an Eighth Circuit panel of three judges ruled two to one on Thursday that the two did have standing. Judges Steven Grasz and Bobby Shepherd decided in favor of the plaintiffs concluded that the extension likely violates the law by going around the Legislature to extend the ballot deadline, particularly as it pertains to the legislature’s authority to determine the process for electing a president (and appointing presidential electors) in the state. Judge Jane Kelly dissented.
“Nothing in this statute authorizes the Secretary to override the Legislature’s ballot deadlines due to public health concerns,” the court’s decision reads.
It requires Minnesota Secretary of State Steve Simon to segregate ballots that arrive by mail after 8 p.m. on Election Day. The court said the late ballots must be separated and saved in a manner that allows votes for president and vice president to be removed from final tallies in the event a court rules them invalid.
What happens to the ballots?
Simon said at a press briefing Friday that his interpretation of the ruling is that although it requires segregation of ballots that arrive before and after 8 p.m. on Election Day, the late ballots are not automatically invalidated, and the plan as of now is to segregate them as required by the court but include them in vote tallies.
Furthermore, his understanding is that late ballots will be counted unless a court is moved to make a decision on them.
“A campaign, such as a campaign for president could decide, apparently, based on the numbers we know from Election Day, whether to seek to invalidate that segregated pile, and the court signaled that they would have a likelihood of success on the merits,” Simon said. Simon says the ruling appears to only pertain to votes for U.S. president, though he said candidates for other offices may also have standing to challenge the late votes based on the Eighth Circuit decision.
Presumably, the federal district court would be called upon for a fuller decision on what happens to those late ballots, said Raleigh Levine, a professor of law specializing in elections at Mitchell Hamline School of Law. Depending on appeals, it could then wind up back in the Eighth Circuit Court of Appeals, or ultimately in front of the U.S. Supreme Court.
If it does go to the U.S. Supreme Court (SCOTUS), Levine said the high court appears to see cases where state election rules have been changed due to the pandemic differently depending on how they make their way to the court.
Where federal courts second guess state Legislatures, the court has been inclined to intervene, she said. For example, when in South Carolina a federal court made changes to the state’s absentee ballot witness requirement, and in Wisconsin, where a federal court changed the state absentee ballot deadline, SCOTUS said federal courts should not interfere with state law, particularly so close to the election.
When state election law has been modified by state actors, the court has been less inclined to intervene, Levine said. Such was the case in Rhode Island, where state election officials settled a lawsuit by changing the state’s witness requirement; in North Carolina, where state officials settled a lawsuit by changing the absentee ballot deadline; and in Pennsylvania, where the state’s high court interpreted the state constitution as requiring a change to the state’s absentee ballot deadline, Levine said.
She thinks Minnesota would fall into the second category, since Simon, a state official, settled a lawsuit by changing Minnesota’s absentee deadline. But it’s not crystal clear how the high court would rule for a couple reasons.
First, while the court has weighed in on these cases, it has not issued full decisions that outline reasoning. And second, the recent addition of Justice Amy Coney Barrett to the court presents a level of uncertainty.
“It does seem as if there may be four justices who might be prepared to rule after the election that neither state supreme courts nor state election officials have the power to deprive state legislatures of their constitutional power to determine the manner of the presidential election,” Levine said. “But another four, including Chief Justice [John] Roberts, seem to follow the line of thinking … that where state presidential election laws are modified by state actors the court is not inclined to intervene. So that’s 4-4.”
Barrett has not been involved in the previous cases but could cast the deciding vote.
In a statement, Lucero, one of the plaintiffs in the case, praised the decision as a “significant victory for Minnesota voters, fair elections, and the rule of law.”
“The court was clear: ‘There is no pandemic exception to the Constitution,’” he said.
In a press conference following the news Thursday night, Simon called the decision “unnecessarily disruptive,” criticizing both its substance and its timing, just a few days before the election.
Simon said Friday nearly 390,000 absentee ballots requested by Minnesotans or in all-mail precincts have yet to arrive back at elections offices. “They could be in transit, or they could be on coffee tables throughout Minnesota,” he said Thursday.
Simon said the Eighth Circuit ruling could be appealed to the U.S. Supreme Court, but as of Thursday night, did not have an answer as to whether it would.
In light of the decision, he urged voters not to rely on the postal service to return their ballots on time at this point.
“Any Minnesota voter right now who ordered an absentee ballot to come to them by mail, it is too late for you, practically speaking, to get it back [in time]. Don’t risk it. Don’t put it in the mail,” he said.
He urged Minnesotans with outstanding absentee ballots to hand-deliver their ballots, have a trusted person drop it off for them, vote early in person — counties are required to have sites open Saturday and some have extended weekend hours — or vote on Election Day (more information can be found here). Minnesotans who have mailed their ballots can find out whether they have arrived and been counted on the state’s ballot tracker here. If a ballot has not yet been received the voter can go vote early or on Election Day to make sure their vote is counted (if their absentee is in transit at the time, it will be invalidated when another is cast).
Minnesotans with questions can call the Secretary of State’s office voting hotline at 1-877-600-VOTE (8683), or contact their local elections office (contact information for every county can be found here).