Minnesota Democrats and election officials on Friday urged people with absentee ballots not yet mailed to drop them off by hand or vote in person, a day after an appellate court’s ruling raised questions about whether ballots that arrive up to seven days beyond Election Day would be counted.
Thursday’s ruling by a three-judge panel of the 8th U.S. Circuit Court of Appeals said absentees arriving after Election Day should be separated from other ballots, raising the specter that they could later be found to be invalid.
The ruling doesn’t outright block Minnesota’s seven-day extension — which was agreed upon months ago in state court due to COVID-19 concerns — but it raised a host of legal questions and prompted top Democrats, including the governor and attorney general, to warn voters that it’s too late to put their ballots in the mail.
“I will be honest, the full extent and reach of the 8th Circuit’s rationale here, is as of this point, not clear to me,” said Secretary of State Steve Simon.
Simon added that the state will not appeal to the U.S. Supreme Court, though there might be cause for litigation later. He noted that while there is currently no court order that invalidates ballots arriving after Nov. 3, his current focus is on making sure voters cast their ballots by the time the polls close on Election Day.
While legal issues were being sorted out, the state’s Democratic Party turned its operation toward alerting people of the issue. Simon, a Democrat, said an ad agency working with the state is redirecting its messaging to inform people about how to make their vote count. Additionally, the state is talking with Facebook to see if a blast can be sent out to notify Minnesotans of the change.
Democratic Party Chairman Ken Martin said officials were reaching out to voters with unreturned absentee ballots, and Democratic Sen. Tina Smith, who is up for re-election Tuesday, is creating a television ad to send the same message. The city of Minneapolis expanded hours for ballot drop-off sites to make voting more accessible.
“What’s shameful to me, we had great pride in this state, Democrats and Republicans, in being the highest voting turnout state in the nation, with great engagement," Martin said. "You haven’t heard a peep from Republicans since the ruling ... trying to educate voters on what happened, because what they are trying to do is disenfranchise thousands of Minnesotans who are trying to exercise their right to vote.”
Simon said voters who still have absentee ballots in hand may drop them off at a designated location before 3 p.m. on Election Day, vote early at an early voting station, or vote in person on Nov. 3. Those who already returned absentee ballots can track them online to see if they’ve been received – and if a ballot is still outstanding, the voter can instead cast a vote in person. Their absentee ballot will be cancelled once the state receives it.
As of Friday, 388,535 of nearly 2 million requested absentee ballots remained outstanding, Simon said.
Tim McVean, 38, of Minneapolis, was one voter who got the message. He was planning on mailing his ballot until he got a push alert on his phone late Thursday about the court’s decision. He grabbed the ballot sitting on his kitchen counter and dropped it off Friday at a southeast Minneapolis early vote center.
McVean, who works in sales and considers himself a moderate Democrat, said he worried about people without the time he had to drop his ballot off in person.
“I hope that down the road, we can put in some safeguards to get stuff like this fixed ahead of time so that it’s not such a kneejerk reaction," McVean said. "To have this happen in the 11th hour is unfortunate.”
David Schultz, a political science and legal studies professor at Hamline University in St. Paul, said the 8th Circuit ruling sets up “a lot of voters” to claim that they were denied their right to vote.
“They acted in good faith and reliance on a consent decree that gave them sufficient opportunity to postmark their ballot by Election Day, get them in in seven days,” Schultz said. “There could be thousands of voters who lose their right to vote as a result of that. ... I just don’t think the 8th Circuit thought this through.”
It wasn't immediately clear whether the order to set aside votes after Nov. 3 applied only to the presidential race. Minnesota's U.S. Senate race, with Smith facing Republican Jason Lewis, could be key to control of the chamber.
“We’re just going to count everything for every office,” Simon said. “Nothing has been invalidated at this point.”
Appeals Court Judge Bobby Shepherd, an appointee of President George W. Bush, and Judge L. Steven Grasz, appointed by President Donald Trump, formed the majority in Thursday’s 8th Circuit ruling. Judge Jane Kelly, appointed by President Barack Obama, dissented.
The case now goes back to U.S. District Judge Nancy Brasel, who previously upheld a state court agreement that allowed ballots postmarked on or before Election Day to be counted if they are received by Nov. 10.
Republicans have tried to block voter expansion across the country, and the Minnesota decision comes as similar extensions have gone before the U.S. Supreme Court with mixed results. The nation’s high court recently left a three-day extension for counting absentee ballots in Pennsylvania in place, but refused to reinstate a six-day extension in Wisconsin.
Minnesota's extension came after a citizens group went to state court seeking the extension and a consent decree was approved in August, with Simon's support. Republican state Rep. Eric Lucero and GOP activist James Carson, who both would participate in the Electoral College if President Donald Trump carries Minnesota, sued.
Richard Hasen, an election law professor at the University of California Irvine School of Law, said Thursday's ruling was unusual and could lead to serious voter disenfranchisement. He said voters who have absentee ballot instructions at home are relying on government information about when their ballots are due – and there’s no reliable way to make sure everyone is notified of the change.
“For conservative judges, who supposedly believe in judicial restraint and not overreaching, this is an audacious and unprecedented kind of decision so close to the election," Hasen said. "It’s the opposite of the kind of restraint that we’ve heard many conservatives preach.”
Associated Press writer Doug Glass contributed to this report.
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