In Outrageous 2-1 Decision Ignoring Reliance Interests and Rejecting the Purcell Principle, 8th Circuit Panel Orders Segregation of Late Arriving Ballots in Minnesota, With Strong Hints Late Arriving Ballots Will Be Excluded from The Count

It is hard to know where to start with this opinion. The majority suggests that a consent decree extending the deadline for absentee ballots in Minnesota, entered into by the Secretary of State and plaintiffs and approved by a state court, usurps the power of the state legislature under article II of the Constitution (under a theory a majority of the Supreme Court has not endorsed—at least not yet). The court reached this conclusion despite the fact that the Legislature did not object (the court found that Electors have standing, quite a dubious proposition that they could assert the rights of the legislature), that the Legislature delegated the power to the Secretary of State to take these steps, and despite the fact that we are on the eve of the election.

This timing issue is doubly troubling. First, the Supreme Court has said that federal courts should be very wary of changing election rules just before the election. This Purcell Principle is controversial but it has been applied very heavily by the Supreme Court this election season especially.

More importantly, think of the reliance interests of Minnesota voters, who have been told until today that they have extra time to mail their ballots. Now there is the very real chance that those late-arriving ballots won’t count through no fault of their own. Both the plaintiffs and courts could have moved much sooner if they had this concern. It is voters that are going to be on the short end of things.

Whether the state goes to the Supreme Court at this time or not, and whether they are successful at getting a majority to overturn this (I’d give it a fair shot given the reliance interests), things are so uncertain that the only advice to people in Minnesota is not to vote by mail at this point. Do NOT put your ballot in the U.S. Mail. Use official government drop boxes or vote in person.

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