A federal appeals court on Thursday said Minnesota’s plan to count absentee ballots received after Election Day was illegal, siding with Republicans in the battleground state.
In a 2-1 decision, the U.S. 8th Circuit Court of Appeals said the deadline extension was an unconstitutional maneuver by the state’s top election official, Minnesota Secretary of State Steve Simon, a Democrat.
“However well-intentioned and appropriate from a policy perspective in the context of a pandemic during a presidential election, it is not the province of a state executive official to re-write the state’s election code,” the decision stated.
“There is no pandemic exception to the Constitution,” the majority wrote.
Because the case is in a preliminary stage, the appeals court did not formally order Minnesota officials to move up their deadline. But the court said Minnesota election officials should identify and “segregate” all absentee ballots received after Nov. 3 so they could be removed from the vote total if a final judgment is entered.
Simon said in a call with reporters that the timing of the ruling was “unfortunate” and that Minnesotans should find alternatives to mailing in their ballots.
Rick Hasen, an election law professor at the University of California-Irvine, wrote on his blog that the timing of the decision was “deeply troubling.”
Minnesota law requires that absentee ballots be received by Election Day. But that deadline was extended through a settlement Simon reached with a citizens group that sued earlier this year.
Under that settlement, which was approved by a judge, state election officials could count ballots received until Nov. 10 as long as they are postmarked by Nov. 3.
The settlement said if a mailed ballot was missing a postmark, election officials should presume it was mailed by Nov. 3 unless evidence showed otherwise.
The two judges in the majority, Circuit Judges Bobby Shepherd and L. Steven Grasz, were both appointed by Republicans. Shepherd is an appointee of former President George W. Bush, while Grasz was appointed by President Donald Trump.
Circuit Judge Jane Kelly, who dissented, was appointed by former President Barack Obama.
“The Democrats are losing it. Their efforts to manipulate our election laws met a road block today: the 8th Circuit Court of Appeals and the law,” Minnesota Republican Party Chairwoman Jennifer Carnahan said on Twitter.
“The integrity of our election to have votes in by 8 pm Election Day is intact. We will always applaud freedom and fairness.”
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