by Scott McClallen
Absentee ballots received by 8 p.m. on Election Day must be separated from ballots received later in case of another order voiding those votes, a Minnesota Court of Appeals ruled.
In a 2-1 decision, the ruling didn’t determine the validity of the post-Election Day ballots but said the separation would allow for them to be “removed from vote totals in the event a final order is entered” finding the votes invalid.
Minnesota Secretary of State Steve Simon and the Minnesota Alliance for Retired Americans Education Fund previously agreed to extend accepted ballots postmarked on or before Nov. 3 for up to seven days post-election because of COVID-19.
Republican state Rep. Eric Lucero, R-Dayton, sued over the agreement, arguing the extension would result in counting “unlawful” ballots after Election Day.
The panel ruled the legislature’s power “cannot be taken from them or modified even through ‘their state constitutions’” – so Simon’s change is invalid.
“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, at least as it pertains to selection of presidential electors,” the ruling read.
Simon called the decision “a tremendous and unnecessary disruption to Minnesota’s election, just days before Election Day.”
“This last-minute change could disenfranchise Minnesotans who were relying on settled rules for the 2020 election – rules that were in place before the August 11 primary and were accepted by all political parties,” Simon said in a statement.
“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. I won’t let any Minnesota voter be silenced. My mission is now to make sure all voters know that a federal court has suddenly changed the rules, and that their ballot needs to be received by Election Day.”
Lucero celebrated the ruling.
“The ruling today by the Eighth Circuit Court of Appeals is a significant victory for Minnesota voters, fair elections, and the rule of law. The court was clear: ‘There is no pandemic exception to the Constitution,’” Lucero said in a statement.
Lucero alleged Simon’s agreement to accept late ballots “eroded confidence in our elections and opens the door to fraud and abuse.”
“Secretary Simon should have come to the Legislature to change state law rather than needlessly injecting confusion into the long-established voting process by attempting to rewrite state statute unilaterally,” Lucero said.
Minnesota DFL Party chair Ken Martin called the ruling “an attack on democracy brought about by a Republican Party desperate to stifle the voices of Minnesotans across our state.”
“This absurd and misguided opinion will toss out the rules that have been in place since before voting began in September,” Martin said in a statement. “Now, with just five days before election day, and Republicans surely heading for defeat at the polls, the Republican Party is responsible for potentially disenfranchising thousands of Minnesotans who were prepared to vote by mail in the coming days.”
The Minnesota Republican Party also issued a statement: “We applaud the Eighth Circuit Court of Appeals for upholding the integrity of the election and affirming Election Day as November 3rd. The pandemic has caused upheaval in many areas of life but hiding behind the pandemic to manipulate the election process is not democratic, and we appreciate that our laws and interpretation of those laws matter.”
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Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi.
Photo “MN Absentee Ballot” by Tony Webster CC BY-SA 2.0.