8th Circuit restores Minnesota’s election law

"If you read the opinion, the court says that the Secretary of State usurped the authority of the State Legislature given under the Constitution."

Unsplash/stock photo

Minnesota law on absentee ballots, passed by Minnesota’s elected officials, dictates that absentee ballots must be in by 8 p.m. on Election Day. In other words, it is up to the voter to mail the absentee ballot at a reasonable date in order to make sure it is received by Election Day.

In the wake of the coronavirus pandemic, Democratic lawsuits across the country have sought to have the courts overturn state voting law. These Democrat suits sought to turn state absentee rules into de-facto mail-in voting rules: by allowing ballots to be received after Election Day, even if they were not postmarked as being sent on Election Day; by not requiring a witness signature on the absentee ballots; and by allowing third parties to collect ballots, a practice known as ballot harvesting.

The lawsuits were led by Marc Elias, a DNC and Hillary Clinton campaign attorney behind the attempt to smear President Donald Trump as a Russian agent. The Minnesota suit used a left-wing retirees group connected to public sector unions — the Alliance for Retired Americans (ARA) — to argue that voters shouldn’t need a witness signature on their ballot because of the pandemic. More consequentially, it used a 24-year-old Yale Law School student, who says his vote wasn’t counted last election because he cast his absentee ballot too late, to argue that Minnesota should count ballots received after Election Day.

Minnesota’s left-leaning judges quickly dismantled state law and granted the lawsuit’s requests. Meanwhile, Secretary of State Steve Simon reached “agreements” with the liberal groups to settle cases and change state law. But now the 8th Circuit Court of Appeals, just below the Supreme Court in the judicial food chain, is pushing back.

“There is no pandemic exception to the Constitution [which gives power on election law to the state legislatures],” said the court in a 2-1 opinion.

Specifically, the 8th Circuit has directed the lower court to require Minnesota to count the ballots that come in after Election Day, but to keep them separate in case a future decision rules that they are invalid. The prospect of setting aside late absentee ballots has Minnesota’s mainstream media talking about “uncertainty.” And the DFL and Democratic Secretary of State Simon are furious, claiming that the court is attempting to “silence” voters.

In reality, the 8th Circuit is holding onto the possibility that a court (probably the U.S. Supreme Court) would rule that Minnesota should adhere to its law passed by the Legislature, not judge-made rules at the behest of Democrat plaintiffs. Critics of the Democrat-led lawsuits to change Minnesota’s election rules argue that any uncertainty is of the Democrats own making.

“If you read the opinion, the court says that the Secretary of State usurped the authority of the State Legislature given under the Constitution. The court’s analysis is plain,” said Kim Crockett, legal advisor for the right-leaning Minnesota Voters Alliance.

“This ruling [because it adheres to the existing rules passed by the Legislature] brings certainty and calm to an already chaotic election season, and greater acceptance of the outcome, whatever it is,” Crockett continued.

If voters do have absentee ballots and are worried that they will not be counted, they can drop the ballot off at a designated location, vote early at an early voting station, or vote in person on Election Day.

“The ruling today by the Eighth Circuit Court of Appeals is a significant victory for Minnesota voters, fair elections, and the rule of law,” state Rep. Eric Lucero said in a statement.

“Secretary of State Steve Simon’s decision earlier this year to agree to count un-postmarked ballots arriving up to a week after Election Day 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,” he continued. “Those seeking to cast a ballot early have had the opportunity to do so for more than six weeks now via no excuse absentee voting, in-person voting locations, and ballot drop-off sites.”


Willis Krumholz
 | Website

Willis L. Krumholz is a fellow at Defense Priorities. He holds a JD and MBA degree from the University of St. Thomas, and works in the financial services industry. The views expressed are those of the author only. You can follow Willis on Twitter @WillKrumholz.