Federal Appeals Court Tells Minn. Supreme Court to Pound Sand -- Orders Ballots Arriving After Statutory Cut-Off Date to Not Be Counted

AP Photo/Patrick Semansky

Now this is what you call a fast moving legal story.

As I noted in this story posted earlier today, the Minnesota Supreme Court received a petition yesterday from the Trump Campaign and other Republican interest groups asking that all ballots received after the 8:00 pm deadline on election day — which appears in the Minnesota election law statute — be segregated from mailed ballots that are received in compliance with that deadline.

The Minnesota Supreme Court responded with an Order directing the petitioners to file a brief explaining why it could not have requested that relief earlier, and why the doctrine of “laches” should not preclude the Court from granting such relief only days ahead of the election.

Just moments ago the United States Circuit Court for the Eighth Circuit issued an order saying “Laches Smatches — Segregate the ballots!!”, and strongly suggesting that it is likely to invalidate the extended ballot-receipt period that was created by a “friendly” settlement of a lawsuit in Minnesota state court.  The statutory deadline set forth in the laws passed by the Minnesota legislature establish 8:00 pm on election day as the deadline by which mailed ballots must be in the possession of election officials.  A lawsuit was filed in July challenging the election day deadline as a “burden of the right to vote” during the COVID-19 pandemic.  The settlement reached by the parties — Democrats all — extended the deadline by seven calendar days, and provided that any ballot envelope received without a postmark would be presumed to have been mailed timely, and therefore accepted and counted.

Various efforts were made in state and federal court to contest the validity of the settlement agreement in changing Minnesota election law, but with not favorable outcome yet.

That is until just now.

Later I’ll work through the details of the opinion, which does not have an author but the three judge panel is Judges Shepherd, Kelly, and Grasz. The decision is 2-1 with Judge Kelly dissenting.

As you might have guessed, Judge Shepherd is an appointee of Pres. Bush 43, Judge Grasz is an appointee of Pres. Trump, and Judge Kelly is an appointee of Pres. Obama.  Amazingly, the Eighth Circuit has only one Obama appointed Judge — Judge Kelly.  There are six Bush appointed Judges, and four Trump appointed Judges.

The decision by the Court adopts the “single legislature doctrine” that says the Election Clause of the US Constitution vests all authority for setting the “time, place, and manner” of federal elections in the legislature of each state, and state executive officials lack authority to make changes to the laws as set by the legislature.

Here are some highlights from the text of the majority opinion:

[T]he Secretary’s actions in altering the deadline for mail-in ballots likely violates the Electors Clause of Article II, Section 1 of the United States Constitution. The analysis is relatively straightforward. By its plain terms, the Electors Clause vests the power to determine the manner of selecting electors exclusively in the “Legislature” of each state. U.S. Const. art. II, § 1, cl. 2… And this vested authority is not just the typical legislative power exercised pursuant to a state constitution. Rather, when a state legislature enacts statutes governing presidential elections, it operates “by virtue of a direct grant of authority” under the United States Constitution… Consequently, only the Minnesota Legislature, and not the Secretary, has plenary authority to establish the manner of conducting the presidential election in Minnesota.


That’s a bullet right between the eyes of the claim that state election laws can be modified by state actors other than a state legislature.

The Minnesota statute as written says that ballots not received by the statutory deadline — 3:00 pm for hand-delivered ballots, and 8:00 for ballots received by mail — “shall be marked as received late by the county auditor or municipal clerk, and must not be delivered to the ballot board.” To facilitate compliance with this statute, all absentee ballots arriving after the deadline “shall be marked as received late by the county auditor or municipal court[.]”

Thus, the Secretary’s attempt to re-write the laws governing the deadlines for mail-in ballots in the 2020 Minnesota presidential election 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 democratically-enacted election rules in Minnesota provide that mail-in votes must be received by 8:00 p.m. on Election Day in order to be counted (or 3:00 p.m. if delivered in person).

I’m certain a motion for an emergency stay will be filed tonight or tomorrow with the Supreme Court.  One issue certain to be raised is the Purcell principle — a claim that the Eighth Circuit has acted too close to the election, and the Order should be set aside. But given the fact that the Order directs the Minnesota officials to set aside and preserve the late-arriving ballots, there is no harm to allowing the injunction to remain in place pending the Supreme Court’s ultimate decision on the “single legislature doctrine.”

I’m going to need to stock up on popcorn.

Joe Biden’s decision to make a late campaign stop in Minnesota is certainly taking on added significance now.