Federal Judge OKs Extension of Ballot Counting in Minnesota

Election workers process ballots in Minneapolis on July 29, 2020. (Glen Stubbe/Star Tribune via AP, File)

ST. PAUL, Minn. (CN) — A federal judge upheld Minnesota’s extended vote-counting timeline Sunday night, denying Republicans’ request for an injunction disqualifying mail-in ballots received after Election Day.  

A pair of Republican electors had argued that Democratic Secretary of State Steve Simon exceeded his authority and violated federal law mandating a Nov. 3 election by announcing that his office would accept ballots for up to a week later if they are postmarked by Election Day. But U.S. District Judge Nancy Brasel, appointed by President Donald Trump, found that the electors lacked standing.

Simon had pushed back the deadline as part of an August consent decree with the Minnesota Alliance for Retired Americans, which a state court judge approved, but a federal court rejected. Republican presidential electors James Carson and Eric Lucero challenged that consent decree late in September, arguing that the agreement would cause “widespread and severe vote dilution,” and could even cast Minnesota’s election results into doubt.

Brasel dismissed those concerns, noting that presidential electors are scheduled to meet on Dec. 14 this year and that an extension of vote counting would not prevent Carson, Lucero or any other electors from representing the state at the Electoral College. Their concerns that absentee ballots counted after Election Day would dilute the value of their own votes, she wrote, did not give them standing because any such dilution would affect all Minnesota voters equally.

The judge also found that the abundant information publicly distributed to voters prevented the electors from using voter confusion as an injury supporting standing.

“In reality, the electors are in danger of creating confusion rather than avoiding,” Brasel wrote. Widespread reporting of the new deadline and its requirement that ballots still be postmarked by Election Day, Brasel wrote, is “a difficult genie to put back in the lamp. Giving Minnesota voters conflicting messages after they have received their absentee ballots would certainly cause some of those voters uncertainty and confusion.”

Brasel also dismissed the electors’ concerns that the consent decree would jeopardize Minnesota’s ability to meet the Electoral College’s Dec. 8 “safe harbor” deadline, which allows states about a month after the election to settle any controversies over electors or electoral votes. Those concerns, she wrote, are “unsupported by any factual allegations,” and the consent decree was designed to ensure those deadlines would be met.

“In the implausible event that Minnesota fails to meet the safe harbor deadline,” the judge wrote, “there are no allegations supporting the notion that it would lose its representation in the Electoral College.”

She added, “To suppose that Congress would make such findings requires a good deal of speculation; to further suppose that Congress would make these findings because of Secretary Simon’s actions here requires even more.”

The electors have already entered notice of their appeal to the St. Louis-based Eighth Circuit.  

Neither the Minnesota GOP, which intervened in the case, nor Lucero, who also serves in the state House of Representatives for a district in the northwestern Twin Cities metro, responded to a request for comment.

Simon’s thoughts on the ruling were brief.

“We are grateful that the court’s decision left intact the rules that have been agreed upon for the upcoming general election,” the secretary said in a statement.

Raleigh Levine, a professor at the Mitchell Hamline School of Law in St. Paul, said the judge’s standing decision made sense. Vote dilution, a concept derived from gerrymandering and voter suppression cases, is difficult to apply to this case. 

“It is really difficult to envision a set of circumstances that would result in somebody’s vote not being counted or being improperly diluted because other votes are counted,” she said. “Because the decision applies to everybody, it doesn’t privilege particular people or disadvantage particular people.” 

Levine also said she appreciated that Brasel had considered the Supreme Court’s doctrine in Purcell v. Gonzalez, which advises federal courts against changing election rules too close to the date of an election. 

“It is important in cases like this, filed so close to the election, that federal courts be cognizant of the effect that their decisions will have on the states,” Levine said. “The issue with all of these cases is that there’s just a few weeks now left before the election, and decisions that change the status quo are going to have a hugely disenfranchising effect on voters who are relying on the information that they’ve already gotten.”

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