MINNEAPOLIS — A challenge to Minnesota's seven-day extension for counting absentee ballots received after Election Day went before an appeals court panel Tuesday, as attorneys for the Republican plaintiffs argued that leaving the extension intact could lead to the disqualification of thousands of votes that are received after Nov. 3.
In their appeal of a lower court's ruling upholding the extension, lawyers for Republican state Rep. Eric Lucero and GOP activist James Carson — who both would participate in the Electoral College if President Donald Trump carries Minnesota — signal that if the extension stays in place, any votes that arrive after Minnesota’s traditional Election Day cutoff would be challenged as being ineligible.
Attorney Andrew Grossman wrote in his appeal that if the extension is illegal, voters who rely on it "face the prospect that their votes will be tossed out through challenges on and after Election Day. By contrast, an injunction would define the rules of the election in advance so that voters can act accordingly and avoid total loss of their votes.”
But attorneys for Democratic Secretary of State Steve Simon argued that it's too close to Election Day to make changes and said blocking the extension would cause confusion, as the nearly 2 million people who requested absentee ballots were told their votes would count if they were postmarked by next Tuesday. As of last Friday, more than 500,000 of those ballots were still outstanding.
The issue ultimately could be decided by the Supreme Court, which last week upheld a Pennsylvania extension to count votes but on Monday declined to reinstate a Wisconsin extension.
Lucero and Carson have argued that Minnesota's extension would dilute their own votes, and that delays and extended litigation could threaten Minnesota's participation in the Electoral College if federal deadlines are not met.
Attorneys for the state say Lucero and Carson brought their lawsuit too close to the election. Jason Marisam, an attorney for Simon, told the judges that the state tried hard to resolve these issues in state court in August — before early voting began on Sept. 18.
“We thought the worst case scenario would be where we are now, arguing about this on the eve of an election,” Marisam said.
A majority of states require mail-in ballots to be received by Election Day, while others accept them days or even weeks later if they are postmarked by Election Day. Some states made changes after Democrats argued that the flood of absentee ballots due to the coronavirus pandemic made extensions necessary for this election. In Minnesota, a citizens group went to state court seeking the extension and a consent decree was approved in August.
The state Republican Party and the Republican National Committee appealed to the Minnesota Supreme Court but dropped their appeal. Those groups and the Trump campaign waived their right to challenge the consent decree.
The appellate judges asked questions about Lucero's and Carson's standing as candidates for the Electoral College. Judge Jane Kelly questioned whether their relationship with the Trump campaign was one of “privity," meaning they were so intertwined that they would have to abide by the same agreement.
Grossman, an attorney for Lucero and Carson, said the two were appointed electors after the state case was resolved, so privity was not an issue at the time of the agreement.
Before the consent decree, state law required that absentee ballots be received by 8 p.m. on Election Day. Now, that’s the deadline for the postmark. The consent decree includes a provision that says if a mailed ballot is missing a postmark, election officials should presume it was mailed by Election Day unless evidence shows otherwise.
Lucero and Carson took issue with that presumption, saying it changes the date of the election. But state attorneys said it will ensure that voters aren't disenfranchised if they submit timely ballots that are not postmarked through no fault of their own.
“It is incredibly important that this presidential election, held during a once-in-a-century pandemic, goes as smoothly as possible. An order enjoining the postmark rule at this late date would cause confusion and interfere with orderly election administration," Marisam wrote.
Trump narrowly lost Minnesota in 2016 and vowed this year to become the first Republican to win the state since Richard Nixon in 1972. Recent polls have shown Democrat Joe Biden leading.
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Amy Forliti, The Associated Press
