Appeals Court: MN Absentee Ballots Received After Election Day Must Be Separated

[CORRECTION: An earlier version of this story said that absentee ballots would need to be in by close of polls Election Day -- 8 p.m. Actually, ballets that are being hand delivered need to be in by 3 p.m.]

MINNEAPOLIS (WCCO/AP) -- The 8th Circuit Court of Appeals has ruled that Minnesota absentee ballots may need to be in by 3 p.m. Election Day in order to be counted. The ruling puts the state's extended counting period at risk and sets the stage for post-election litigation.

The ruling doesn't block Minnesota's seven-day extension for counting absentee ballots — but it does order a lower court to issue a ruling to segregate the ballots so they can be "removed from vote totals in the event a final order is entered" that finds them unlawful.

The ruling orders Secretary of State Steve Simon to inform local election officials so they can comply, and sends the case back to the lower court for further proceedings.

"The court's decision is 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. 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," Simon said. "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."

The decision is likely to create voter confusion, with people who haven't returned their absentee ballots scrambling to make sure their votes count. People who are worried their absentee ballots may not arrive on time may drop off their ballots at a designated location, vote early at an early voting station, or vote in person on Election Day.

WEB EXTRA: Click here for information on tracking your ballot.

Previously, a ballot that was postmarked Nov. 3 would still be counted so long as it arrived within a week. This ruling now requires ballots to be physically received by the end of the polling period Tuesday.

The ruling says that the plaintiffs -- Secretary of State Steve Simon's office -- did not show that they were entitled to relief amid the continuing COVID-19 pandemic.

"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 reads.

Judge Bobby Shepherd, an appointee of President George W. Bush, and Judge L. Steven Grasz, appointed by President Donald Trump, formed the majority. Judge Jane Kelly, appointed by President Barack Obama, dissented.

"At this point, it is simply too late for any absentee voter who has not yet mailed their ballot to do so with confidence that it will arrive by Election Day," Kelly wrote. She said the ruling "has the effect of telling voters -- who, until now, had been under the impression that they had until November 3 to mail their ballots -- that they should have mailed their ballots yesterday (or, more accurately, several days ago)."

Minnesota DFL Party chair Ken Martin responded, "Today's ruling by the 8th Circuit Court of Appeals is 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. 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."

As of last Friday, there were 578,805 outstanding absentee ballots still not received. The new figures will be released tomorrow.

Republican state Rep. Eric Lucero and GOP activist James Carson, who both would participate in the Electoral College if President Donald Trump carries Minnesota, opposed the state agreement and took the case to federal court. Their lawsuit, backed by the conservative-leaning Honest Elections Project, argued that an extension would create chaos and dilute the value of their votes by counting "unlawful" ballots after Election Day.

Lucero said counting votes that come in after Election Day erodes confidence in elections and opens the door to fraud and abuse, and that Simon should have asked legislators to change the law. "The court was clear: 'There is no pandemic exception to the Constitution,'" he said in a statement.

(© Copyright 2020 CBS Broadcasting Inc. All Rights Reserved. The Associated Press contributed to this report.)

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• Pat Kessler