MINNEAPOLIS — Minnesota's one-week extension for counting mailed-in absentee ballots in November went before a three-judge federal appeals court panel Tuesday, one of several Republican election challenges being heard in battleground states.
Republican state Rep. Eric Lucero and GOP activist James Carson — both Minnesota GOP electors in the presidential race — have challenged a recent rule change that allows state election officials to count ballots received until Nov. 10 as long as they are postmarked by the regular Nov. 3 Election Day.
In their appeal from a lower-court ruling, they argue that votes received after Election Day could be disqualified.
Minnesota Secretary of State Steve Simon has argued that blocking the extension one week ahead of the election could cause confusion. Nearly 2 million people have requested absentee ballots with the understanding that the ballots will be counted as long as they are postmarked by next Tuesday.
At latest count, more than a half million requested ballots have yet to be returned.
Responding to an earlier lawsuit by a citizens group this year, Simon agreed to extend the state's deadline for accepting and counting mail ballots from 8 p.m. on Nov. 3 to Nov. 10.
The plaintiffs in that case — the Minnesota Alliance for Retired Americans Educational Fund — cited the pandemic and a record surge in mail ballots. The agreement also waived a requirement for witness signatures on absentee ballots.
President Donald Trump's campaign and the Republican National Committee initially appealed Simon's agreement to the Minnesota Supreme Court, but later abandoned the effort.
Lucero and Carson then challenged the agreement in federal court.
Earlier this month, U.S. District Judge Nancy Brasel rejected their motion for an order halting the extension, finding that neither one had legal standing to bring the case. Brasel also held that reversing the extended deadline one month after early voting started on Sept. 18 would create confusion among voters who had been instructed on the extension for months.
Tuesday's oral arguments in the case, before the 8th U.S. Circuit Court of Appeals, comes as the U.S. Supreme Court is ruling on similar extensions in key states such as Wisconsin, Pennsylvania and North Carolina.
The high court on Monday sided with Republicans in a 5-3 order that prevented Wisconsin from counting mailed ballots received after Election Day. A lower court order had installed a six-day extension in the state.
That order, in which the court's three liberal justices dissented, came before Monday's U.S. Senate vote to confirm Trump's nomination of Judge Amy Coney Barrett to the Supreme Court. Barrett joined the court on Tuesday, solidifying a 6-3 conservative tilt.
Last week, Chief Justice John Roberts joined his liberal colleagues in preserving a Pennsylvania state court order that extended its absentee ballot deadline by three days. Roberts voted the other way in the Wisconsin case, he later explained, because it had moved through federal courts.
Still, the latest rulings are prompting elected officials and advocates alike to urge Minnesota voters to drop off their ballots in person at election offices or other designated drop-off sites by 3 p.m. on Nov. 3 to avoid having their votes challenged or disqualified.
In a brief on behalf of Simon's office, Assistant Attorney General Jason Marisam pointed out that a sudden change in the deadline would "potentially disenfranchise thousands of voters relying on their ballot instructions," Marisam wrote.
Andrew Grossman, an attorney for Carson and Lucero, meanwhile argued that the deadline change is unconstitutional and preempted by federal law. Grossman wrote that Simon had no authority to override deadlines established by the Minnesota Legislature and U.S. Congress. Unless stopped, the extension "threatens chaos come Election Day," Grossman wrote, arguing that the new deadline effectively keeps the polls open an additional seven days.
Speaking before Tuesday's arguments, Gov. Tim Walz told reporters that he did not believe Minnesota's ballot deadline extension was in jeopardy. He likened arguments against the extension as "false innuendo" and "nothing more than a voter suppression tactic."
"I'm telling you, I've coached enough football, if you're complaining about the refs before the game starts, you're losing," Walz said.
