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Election 2020
Brian Bakst
St. Paul

Appeals court considers Minnesota ballot cushion

Mail bins sit on a rack.
Received absentee ballots sit in mail bins before being scanned for counting on election night at the Ramsey County Absentee Ballot Count Center in St. Paul, on Oct. 21. A three-judge panel of the 8th Circuit Court of Appeals is weighing whether mailed ballots that arrive after Election Day should be counted.
Evan Frost | MPR News file

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Minnesota’s extended window for receiving ballots is in the hands of a federal appeals court panel, which is weighing whether mailed ballots that arrive after Election Day should be counted.

A three-judge panel of the 8th Circuit Court of Appeals was told by lawyers that their ruling would result in chaos and voter confusion — no matter what they decide. The lawsuit before them contests a grace period that will allow ballots sent in by Nov. 3 to count if they are received within the next seven days.

The panel didn’t immediately rule or say when it would.

Jason Marisam, an assistant Minnesota attorney general, argued that a court decree reached this summer by Secretary of State Steve Simon must stand given the proximity to the election.

“Unquestionably if there is an injunction at this late date, there will be massive confusion and disenfranchisement. There is no way for us to alert the voters with their ballots telling them in large letters to make sure every voter gets this, to say ‘Nope, the deadline has changed on the eve of the election,’” Marisam argued.

Andrew Grossman, who represents two Republican voters and presidential electors challenging the extended deadline, said overturning the decree now would spare hassle after the election. He argued that Simon didn’t have the latitude to make the deal he did.

“Every ballot accepted after the Legislature’s Election Day deadline is subject to challenge. And if we are right about federal law then those challenges will succeed and those ballots will be disqualified,” Grossman said. “The secretary’s actions are responsible for that result. We are trying to solve that problem now while people have time to cast timely ballots.”

The case took on a new dynamic after the U.S. Supreme Court refused to allow a similar ballot-counting extension in Wisconsin. There are differences in the two cases, but it put state officials here on edge.

Simon, a DFLer, said Tuesday on MPR News that it would be a mistake to upend the rules with a week to go in the 2020 election.

“I'm hopeful that the court will see what the confusion downstream effects would be upsetting this apple cart seven days before the election,” Simon said.

The volume of absentee and mail voting is unprecedented due to the pandemic. More than 1.7 ballots have been requested and a majority of those have been sent back in for processing. But the closer to Nov. 3, the more uncertain it is that mailed ballots will arrive by the close of voting.

A lower court judge ruled that the plaintiffs, James Carson and Eric Lucero, lacked standing to sue. They appealed that decision.

Normally, the question of whether they could sue would be the only thing for the appeals court to consider. But judges also heard arguments on the merits of the case Tuesday, well aware that time before the election is short.

“Here a ruling by the court now on the merits would actually serve to avoid disruption of the election and would serve to allow voters to vote confidently and to understand what rules would govern the counting of their ballot,” Grossman told the judicial panel.

The court decree Simon reached to settle a prior lawsuit had worked its way up through the state courts. Before the Minnesota Supreme Court could decide the case, various Republican entities that included President Donald Trump’s campaign abandoned their appeal and agreed not to press their arguments in any other court.

Marisam said that should apply to Carson and Lucero, who would serve as electors if Trump wins Minnesota. Grossman said the decision of the Republican party units shouldn’t bind them.

Marisam said there could be other pitfalls if the ruling goes against his client. He said it might only apply to the presidential race, which could leave local election officials to count late-arriving votes in races for Congress, the Legislature and other local offices.

“It is too late now to litigate the rules of the road and the rules of the election,” he said.