Minnesota Ordered to Segregate Votes Arriving After Election


A federal appeals court ordered Minnesota election officials to segregate mail-in ballots that arrive after Nov. 3 in case a future court order requires such votes to be purged from the count.

Two Republican electors in Minnesota are challenging the state’s plan to accept mail-in ballots up to a week after Election Day as long as they’re postmarked on time -- an extension the state put in place to account for an expected flood of absentee voting during the pandemic as well as mail delays.

The decision Thursday by the U.S. Court of Appeals in St. Louis is a setback for a Democratic-linked group that sued to secure the new deadline. The Democrats’ nationwide effort to ensure ballots mailed by Election Day get counted has had mixed success, including at the U.S. Supreme Court.

The appeals court acknowledged in its 2-1 decision that ruling so close to the election “may create harm in terms of voter confusion.”

“However, the inevitable post-election challenges to the counting of invalid ballots if no injunction is granted is even more problematic since it would give voters no opportunity to adjust their mailing time or to deliver their mail-in ballots on Election Day to obviate their risk,” the court held.

A group of Democratic-led states had submitted a filing defending Minnesota’s plan, arguing the extended deadline encourages safer voting during the pandemic and assures more ballots will be properly counted in light of persistent U.S. Postal Service delays -- a factor “over which voters have no control,” they said.

The appellate panel ordered a lower-court judge to grant an injunction in the suit by the two GOP electors who argued the ballots should be set aside. The two judges in the majority were appointed by President Donald Trump and former President George W. Bush, both Republicans.

As in other suits over rules for mail-in ballots, Republicans have argued that Minnesota’s secretary of state violated the constitution by changing election rules that are set by the state legislature. In a dissenting opinion, Judge Jane Kelly said the election official was within his right to adjust the rules during the pandemic through an accord that settled a state-court lawsuit.

“Minnesota’s legislature has expressly delegated some of its lawmaking authority to the Minnesota Secretary of State where elections are concerned,” wrote Kelly, a Barack Obama appointee. “Notably, the Minnesota legislature has expressed no opposition to the decree, or to its extension of the deadline for absentee voters to submit their ballots.”

Jason Snead, executive director of the conservative Honest Elections Project, which backed the suit, said in a statement that the decision was a “tremendous victory” that would result in less confusion for voters.

“The Court of Appeals could not have been more clear: there is no pandemic exception to the Constitution,” Snead said.

The GOP’s argument that changing the deadline would also lead to a massive fraud had been rejected by the lower court, citing evidence that the rate of such fraud in the state since 1979 is just 0.000004%.

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