Federal panel weighing Minnesota's expanded window for absentee ballot counting

A rule granting Minnesota election officials extra time to accept absentee ballots came before a federal court Tuesday.

An area at the Zumbrota City Hall where voters can fill out early in person absentee ballots Monday, Oct. 26, 2020, in Zumbrota. (Joe Ahlquist /
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ST. PAUL — Election officials could continue accepting and counting Minnesota ballots up to one week after Election Day — or not — depending on the decision of a federal court.

The 8th U.S. Circuit Court of Appeals on Tuesday, Oct. 27, weighed arguments in a case over the secretary of state's rule allowing the votes to be counted until Nov. 10 as long as absentee ballots were postmarked on or before Nov. 3. Minnesota's rules are among the latest battleground state protocols to face federal scrutiny.

The arguments come one week before Election Day and as election workers around the state accept mail-in and in-person absentee votes. Behind the scenes, early ballots are already being counted to reduce the backlog on Election Day and more than 1.2 million people had already cast their ballots as of Friday, Oct. 23.

Secretary of State Steve Simon earlier this year tweaked election rules to accommodate more people voting from home during the pandemic. Simon waived the requirement for a signature on absentee ballots and gave a longer window for ballots to make their way to election workers after Election Day following challenges from voter groups.

The extension initially met opposition from the Republican Party and Donald Trump's presidential campaign, among other GOP groups that challenged it in state court. The groups ultimately dropped the challenge, but Republican state Rep. Eric Lucero and activist James Carson took the question to federal court.


Andrew Grossman, an attorney representing the pair of presidential electors, said the rule change runs afoul of state and federal election law and if allowed to proceed, "every ballot accepted after the Legislature’s deadline is subject to challenge."

Meanwhile, Assistant Attorney General Jason Marisam arguing on behalf of the secretary of state's office said altering the process so late in the game could lead to chaos, confusion and the disenfranchisement of voters who thought they had more time to get absentee ballots submitted.

“It is too late now to litigate the rules of the road and the rules of the election,” Marisam said.

Gov. Tim Walz on Tuesday at an unrelated news conference said he was confident that the courts would allow the state to continue counting after Election Day.

"Spreading false innuendo and information about Minnesota's voter system is nothing more than a voter suppression tactic," Walz said. "I've coached enough football (to know that) if you're complaining about the refs before the game, you're losing. And we have fairness here, it will be protected."

The three-judge panel didn't make an immediate decision in the case Tuesday and gave no indication of their timeline for issuing their determination.

Dana Ferguson is a Minnesota Capitol Correspondent for Forum News Service. Ferguson has covered state government and political stories since she joined the news service in 2018, reporting on the state's response to the COVID-19 pandemic, the divided Statehouse and the 2020 election.
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