How A Last-Minute Appeals Court Order Has Injected Mass Voter Chaos Into A Swing State

A photo of items that are sent to people who request a mail ballot, ballot, instructions, secrecy envelope, and official mailing envelope. Mail in Ballot materials for the Nov. 3, 2020 election, photographed at the Election Services Office for Berks County Pennsylvania, in Reading, PA Monday morning September 28, 2020.
Reading, PA - September 28: A photo of items that are sent to people who request a mail ballot, ballot, instructions, secrecy envelope, and official mailing envelope. Mail in Ballot materials for the Nov. 3, 2020 ele... Reading, PA - September 28: A photo of items that are sent to people who request a mail ballot, ballot, instructions, secrecy envelope, and official mailing envelope. Mail in Ballot materials for the Nov. 3, 2020 election, photographed at the Election Services Office for Berks County Pennsylvania, in Reading, PA Monday morning September 28, 2020. (Photo by Ben Hasty/MediaNews Group/Reading Eagle via Getty Images) MORE LESS
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October 30, 2020 11:05 a.m.

A Thursday court order that indicated a U.S. appeals court was likely to reject ballots that arrived within Minnesota’s post-election grace period has injected chaos and a potential for major disenfranchisement into a state that President Trump has long been trying to flip.

Under a consent decree that Minnesota had reached in state court litigation, election officials would count ballots that were postmarked by Election Day as long as they arrived within the week after Nov. 3. That message has been broadcast far and wide to voters, including in pamphlets they received with their mail ballots.

But now, many of those ballots are in jeopardy after the U.S. Court of Appeals for the Eighth Circuit — citing an extremely controversial legal theory that has not been endorsed by a majority of the Supreme Court — ordered them segregated from those that come in by Election Day.

The appeals court made clear that it was likely to order those ballots rejected at a later stage in the judicial proceedings.

Minnesota Secretary of State Steve Simon (D) said in a press teleconference Thursday night after the order came down that the state had not decided whether to now seek the Supreme Court’s intervention.

In the meantime, Minnesota election officials and their partners are launching a desperate public messaging campaign stressing to voters that — despite the instructions that came with their ballots — it is now too late to use mail delivery to submit ballots.

The order not only disrupted the voting plans of those who had not yet submitted their ballots. Given that the U.S. Postal Service has advised voters that they give their ballots no fewer than seven days to make it through the mail service, voters who put their ballots in the mail earlier this week — when the extended deadline was still firmly in place — may also see their ballots in jeopardy.

Secretary of State Simon is encouraging those voters to monitor their ballots’ delivery on the ballot tracking technology service the state offers. If it looks like the ballot will not arrive by Election Day, they should vote in-person (or request and submit in person another absentee ballot) instead, he said.

The amount of confusion the court has thrown at voters, just five days before the election, is the exact scenario the U.S. Supreme Court has said federal courts should avoid, beginning with a 2006 order that put on hold a lower court decision that changed the rules of an election.

The 2006 Supreme Court order, in a case called Purcell v. Gonzales, discouraged federal courts from taking actions that “themselves result in voter confusion and consequent incentive to remain away from the polls.”

It’s hard to think of a decision that turns that guidance more on its head than the one the Eighth Circuit handed down on Thursday evening, disrupting on Oct. 29 a policy that had been put in place in July. State officials had agreed to the extensions and the state’s Democratic legislature has not challenged their move to do so.

As part of the state court litigation, the Trump campaign agreed to not challenge the consent decree the state officials had reached extending the ballot deadlines. But two of Trump’s electors sued in federal court to challenge the decree.

Addressing Purcell, the appeals court claimed that it had at least put “voters on notice now while they still have at least some time to adjust their plans and cast their votes in an unquestionably lawful way.”

The mess the court has made for election officials is extensive. Simon on Thursday said the order was not “a model of clarityas he struggled to answer reporters’ question on what will happen next. His office could not figure out from the order the answers to basic questions like whether the tallies that are released after the polls closed next week should include the segregated ballots and if not, should only the presidential results from those ballots be separated out.

The timing of the order also present unique challenges — beyond the obvious scrambling its asking of voters. A Facebook policy on late-in-the-cycle political ads prohibits the state from running new ads on the social media platform, restricting one pathway for the state to emphasize the need to avoid the mail at this point.

Simon said the state’s ad agency was looking for ways around that ban, while noting the other ways his office will be communicating with voters.

“We’ll do what we can with the channels available to us to get the message out,” he said.

Here is his office’s guidance for voters:

Voters should no longer place their absentee ballot in the mail. Instead, voters have several options to ensure their vote is counted in the November general election:

  • Voters who have already put their ballot in the mail can track their ballot at http://www.mnvotes.org/track. If their ballot has not yet been received the voter can vote in-person either by absentee, or at their polling place on Election Day.
  • Voters can deliver their ballots to their county election office by hand (or have someone they trust hand-deliver it for them).
  • Voters can cast their vote in person with an absentee ballot at their local election office up until November 2, 2020.
  • Voters can cast their votes in person on Election Day. Use our Pollfinder Tool to find out where to vote.
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