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Court to hear challenge to Minnesota mailed ballot extension

MINNEAPOLIS — A federal appeals court panel on Tuesday was set to hear a challenge to Minnesota’s seven-day extension for counting absentee ballots after Election Day, which the Republican plaintiffs argue could lead to thousands of votes received after Nov. 3 being disqualified and the election being thrown into chaos.

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.

“If Plaintiffs are right that the Secretary’s policy is unlawful, then voters who rely on it to cast late-received ballots face the prospect that their votes will be tossed out through challenges on and after Election Day,” attorney Andrew Grossman wrote, referring to Minnesota’s Democratic secretary of state, Steve Simon. “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.”

Attorneys for Simon, though, argue that it’s too close to Election Day to make changes and that 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.

A three-judge panel of the 8th U.S. Circuit Court of Appeals was scheduled to hear oral arguments in the case, which ultimately could be decided by the Supreme Court, which last week upheld a Pennsylvania extension to count votes but declined to reinstate a Wisconsin extension on Monday.

Lucero and Carson also argue 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 lack the legal standing to challenge the extension and that they brought their lawsuit too close to the election.

“Election day is days away. Any injunction now would certainly mean that some voters will not be able to get their ballots in on time,” state attorneys Jason Marisam and Cicely Miltich wrote.

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, including Minnesota, made changes after Democrats argued that the flood of absentee ballots due to the coronavirus pandemic made extensions necessary for this election.

Before a consent decree was reached in Minnesota state court in August, state law required that absentee ballots to 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,” the state’s attorneys 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 Joe Biden leading, and Trump’s campaign has scaled back some of its TV ad buys in the state.