Appeals court rules Minnesota absentee ballots must be received by Election Night

The U.S. Court of Appeals for the Eighth Circuit has ruled that all absentee ballots in Minnesota must be received by local election offices by 8 p.m. on Election Night in order to be counted.

The 2-1 ruling Thursday night overrides a lower court ruling and upholds a Minnesota law saying only ballots received by Election Day can be counted. However, the court ordered Simon and election officials to identify, segregate and preserve all absentee ballots received after the deadline.

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Minnesota Secretary of State Steve Simon argued that, because of the COVID-19 pandemic and a higher demand for absentee ballots, ballots should be able to be counted as long as they are postmarked by Election Day and received within seven days.

Republican presidential electors sued, saying Simon’s actions violated the Constitution. The court agreed that the extension without legislative authorization likely were against the law.

5 EYEWITNESS NEWS has reached out to the state but has yet to hear back.

Voters that haven’t yet mailed an absentee ballot can drop it off in-person by 3 p.m. on Election Day or vote in-person before polls close at 8 p.m. Those who have already mailed a ballot can track the status of your mail-in ballot here.

In dissenting, Judge Jane Kelly, a President Barack Obama appointee, said the ruling so close to the election runs a "substantial risk" of disenfranchising voters who haven’t yet returned their ballots and who are anxious about doing so in-person amid the COVID-19 pandemic and "raises several questions" for election officials to figure out. Kelly added that Simon followed Minnesota law when implementing alternative procedures for receiving ballots after Election Day and the Legislature "expressed no opposition to the decree, or to its extension of the deadline for absentee voters to submit their ballots."

Judge Bobby Shepherd was appointed by President George W. Bush while Judge L. Steven Grasz was appointed by President Donald Trump.

Simon released the following statement regarding the ruling Thursday night:

"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.

"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 right to vote is fundamental. The court’s decision is a step in the direction of restricting the exercise of that right, during a pandemic that has altered everything about our daily lives. But Minnesotans always find a way to vote, and they’ll do so again this year. The spirit that has fueled Minnesota’s nation-leading voter turnout will continue."

Gov. Walz spoke about the decision on CNN Wednesday evening.

"It speaks volumes when your goal is to make it more difficult for people to vote, it probably speaks that they’re not really happy with your policies," he said. "So here in Minnesota we will still count all of the votes, the system is still secure, those ballots will be segregated and I think, you know, this will obviously will go forward up through the judiciary to get a decision."

Simon told reporters on Wednesday that his office could appeal the decision, however, they are still discussing with the Attorney General’s Office how to move forward.

If voters requested an absentee ballot but haven’t dropped it in the mail yet, Simon urges them to return it in person. He said ballots mailed now won’t arrive in time for Election Day.

Minneapolis City Clerk Casey Carl encourages voters to track the status of their ballots. Voters whose ballots haven’t been accepted yet can still vote in-person at an early voting center.

“If a voter has already requested a mail ballot and they put it into the mail to us but we haven’t accepted it yet, they can go vote in person and then what we’ll do is count that in-person vote,” Carl said.

The mailed-in ballot would then be invalidated, according to Carl.

He said in-person voting is an option even for those who are experiencing COVID-19 symptoms or have other health issues.

“We adapt our service to the voters,” he said. “Minnesota election law allows us to do something called curbside voting, and we would take advantage of that opportunity to adapt our service to take that ballot to the voter outside of the polling place so that they could still participate and cast their ballot with confidence.”

While Carl spoke on behalf of the City of Minneapolis, he said this applies to voters elsewhere in Minnesota.

“It doesn’t matter if you live in Minneapolis, or Bemidji, or Faribault or Duluth,” he said. “No matter where you live, election law says that you have those rights to access the ballot box.”

Carl told 5 EYEWITNESS NEWS they are prepared to receive ballots after Election Day.

“All mail ballots that come to us are first and foremost date stamped to provide evidence of the time they entered our possession,” he said. “We will continue to do that. So when the polls close on election night at 8 p.m., any mail that comes in the next day, or the days that follow, will be date stamped […] those ballots will be segregated in a different vault and will be kept there until a decision is made for whether those ballots may or may not be counted in this year’s election tally.”

As for Wednesday’s ruling, Carl said, “We were prepared yes, disappointed sure, but prepared.”