‘No Pandemic Exception’: Federal Court Says Minnesota Must Separate Out Later Ballots

A federal appeals court ordered Minnesota election officials to set aside any mail-in ballots that arrive after 8 p.m. Nov. 3, a move that threatens a seven-day extension the state had imposed to make sure all votes were counted amid the COVID-19 pandemic.

In a 2-1 decision, a three-judge panel on the U.S. Court of Appeals for the 8th Circuit said the state’s decision earlier this year to apply the grace period amid coronavirus precautions could result in legal challenges after the election over the validity of ballots postmarked by Nov. 3 but delivered later. The ruling doesn’t completely block late ballots from being counted, and any ballots that arrive in time are unaffected.

“There is no pandemic exception to the Constitution,” according to the ruling.

They added that the short time frame — ruling just five days before the election — was “not lost on us.” The court said all ballots received after 8 p.m. local time be set aside, but it did not rule out that they could be counted later or that they could be “removed from vote totals in the event a final order is entered.”

“We acknowledge and understand the concerns over voter confusion, election administration issues, and public confidence in the election,” the majority wrote in its decision. “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.”

The case was brought by Minnesota’s Republican presidential electors, who argued the extension violated federal law that has established Nov. 3 as the date of this year’s general election. It mirrored several efforts by the GOP around the nation to hamper mail-in voting provisions in an unprecedented election season as many Americans try to avoid crowds amid the pandemic.

The decision prompted Democrats in the state to urge voters to return ballots in person as soon as possible. Minnesota Secretary of State Steve Simon urged all voters to deliver their ballots by hand if they still have them, calling the decision a “tremendous and unnecessary disruption.”

“This last-minute change could disenfranchise Minnesotans who were relying on settled rules for the 2020 election,” Simon told the Star Tribune newspaper in Minneapolis. “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.”

Sen. Amy Klobuchar (D) also criticized the ruling.

“Because of LAST MINUTE ruling, Minnesota DO NOT put ballots in mail any more,” she wrote on Twitter. “In the middle of a pandemic, the Republican Party is doing everything to make it hard for you to vote.”

The Minnesota GOP chairwoman, Jennifer Carnahan, called the decision a “big win for election protection and freedom,” saying the additional counting time was “unnecessary and just a move by the left to play around with this election.”

Voters in Minnesota are still able to drop off their absentee ballots in person, vote early or vote in person on Election Day, The Associated Press said.

The New York Times, citing figures from the U.S. Elections Project, said about 578,000 absentee ballots that had been requested have not yet been returned in the state. Many of those votes could be in the mail.

Like many states, Minnesota allows all voters to vote by mail if they request a ballot, including those worried about contracting COVID-19, but also anyone that may be overseas or in the military. The state has issued bleak warnings that it is now too late to return such ballots by mail amid the latest court ruling.

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