Late Minnesota absentee ballots must be separated, federal judges order

"There is no pandemic exception to the Constitution": Ballots that arrive by mail after 8 p.m. Election Day or after 3 p.m. in-person will be held separately upon arrival.

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Absentee and early voting is available at the auditor-treasurer's office in the Douglas County Courthouse in Alexandria. (Lowell Anderson / Echo Press)
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ST. PAUL — Minnesota election officials will have a hard cutoff on election night Nov. 3 in accepting absentee ballots, a federal panel announced Thursday, Oct. 29.

A three-member panel of the 8th Circuit Court of Appeals ruled 2-1 in support of a pair of Minnesota Republican electors who challenged a state move to extend the date that officials could accept and count ballots by a week if the ballots were postmarked by Nov. 3. The pair argued that the extension violates state and federal election law and shouldn't be allowed to stand.

The decision means absentee ballots that arrive by mail after 8 p.m. Election Day or after 3 p.m. in-person will be held separately upon arrival. And their fate likely will be determined by another court.

In their decision, Judges Bobby Shepherd and L. Steven Grasz wrote that Minnesota law puts the power to make decisions about elections with the state Legislature, not the secretary of state's office. And while it may have been a decision made with good intentions amid with COVID-19 pandemic, the judges said the extended counting period shouldn't stand.


"The rule of law, as established by the United States Constitution and the Minnesota Legislature, dictates these rules must be followed notwithstanding the Secretary's instructions to the contrary," the panel wrote. "There is no pandemic exception to the Constitution."

The decision comes less than a week before the Tuesday, Nov. 3, Election Day, and as election workers around the state accept mail-in and in-person absentee votes.

In a dissenting opinion, Judge Jane Kelly wrote that the Legislature had given the secretary of state latitude in this area and dropping the deadline so close to Election Day would cause "voter confusion and undermine Minnesotans' confidence in the election process."

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 but the groups ultimately dropped the challenge. Republican state Rep. Eric Lucero and activist James Carson, meanwhile, took the question to federal court.

It was there that they found support from Shepherd, an appointee of former President George W. Bush, and Grasz, who was appointed by President Donald Trump. Kelly, who dissented, was appointed by former President Barack Obama.

Republicans celebrated the decision on Thursday, while Democrats said it would disenfranchise voters. Democratic-Farmer-Labor Party leaders urged voters to turn in absentee ballots before the Tuesday deadline.


"Secretary of State Steve Simon’s decision earlier this year to agree to count un-postmarked ballots arriving up to a week after Election Day eroded confidence in our elections and opens the door to fraud and abuse,” Lucero said in a news release. "Those seeking to cast a ballot early have had the opportunity to do so for more than six weeks now via no-excuse absentee voting, in-person voting locations, and ballot drop-off sites."

Simon in a news release said the decision would cause a "tremendous and unnecessary disruption to Minnesota's election" very late in the game.

"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," Simon said. "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."

Gov. Tim Walz in an interview with CNN on Thursday night said he disagreed with the decision but assured voters that their voices would still be heard.

"I would tell voters if you have an absentee ballot in your hand right now drop it off in-person," Walz said. "Here in Minnesota, we will still count all the votes, the system is still secure, those ballots will be segregated and this will obviously go further up through the judiciary to get a decision but at this point in time, people can avoid all this by simply going and dropping their ballots off in-person."

Earlier this week, the state reported that more than 1.3 million people had submitted absentee ballots and 580,000 had applied for the ballots but had not yet submitted them.

Follow Dana Ferguson on Twitter @bydanaferguson, call 651-290-0707 or email

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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