Split federal appeals court tells Minnesota to kill mail-in ballot grace window 5 days before election

A three-judge panel of the U.S. Eight Circuit Court of Appeals ruled 2-1 late Thursday that any mail-in ballot received after 8 p.m. on Election Day needs to be set aside, overturning a state court–approved consent decree from July that allowed ballots postmarked by Election Day to be counted up to a week after Nov. 3. Minnesota's governor and secretary of state criticized the decision, which sided with two Republican presidential electors, and urged voters to either hand-deliver their absentee ballots, ASAP, or vote in person. President Trump's campaign cheered the ruling.

The two-judge appellate panel majority, appointed by Trump and fellow Republican George W. Bush, said only the state legislature, not the secretary of state, had the authority to extend the deadline to count ballots. "However well-intentioned and appropriate from a policy perspective in the context of a pandemic during a presidential election," the two judges wrote, "there is no pandemic exception to the Constitution."

In her dissent, Judge Jane Kelly, appointed by Democrat Barack Obama, said changing months-old rules five days before the election "will cause voter confusion and undermine Minnesotans' confidence in the election process." Minnesota Secretary of State Steve Simon said about 400,000 of the 2 million requested absentee ballots have not yet been returned.

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The two GOP-appointed judges are relying on a legal theory that "a majority of the Supreme Court has not endorsed — at least not yet" — and disregarding that the Minnesota legislature both "did not object" to the consent decree and "delegated the power to the secretary of state to take these steps," election law expert Rick Hasen writes. Also, "the Supreme Court has said that federal courts should be very wary of changing election rules just before the election," something called the Purcell Principle.

The idea that state legislators have the sole authority over voting rules, not state courts, was first asserted by a three-justice conservative minority — including Justice Clarence Thomas — in 2000's Bush v. Gore. Justices Brett Kavanaugh and Neil Gorsuch have embraced that theory this month as the Supreme Court takes an active role in deciding local election issues, and Justice Samuel Alito appears sympathetic. Chief Justice John Roberts signaled in a Pennsylvania case that he thinks federal courts shouldn't step on state legislatures' election authority but state courts can interpret state laws. Justice Amy Coney Barrett is expected to side with the four hard conservatives.