Federal court says Minnesota must separate late mail-in ballots, in case they're ruled invalid

A federal court has ruled that absentee ballots in Minnesota arriving after Election Day must be separated from other ballots, in the event they are invalidated by a court order. 

The decision was made Thursday by a three-judge panel on the 8th Circuit Court of Appeals, in St. Louis.

Minnesota has a seven-day extension period for counting absentee ballots.

Also on Thursday, Minnesota Secretary of State Steve Simon told voters that it is too late for them to mail back absentee ballots, if they wish to absolutely ensure that their votes count.

"Voters should no longer place their absentee ballots in the mail. It is too late for you, practically speaking, to get it back. Don't risk it," he said. 

The court ruling will have no impact on ballots received prior to the close of polls on Election Day, but  create parameters for a post-election litigation.

The case has been sent back to a lower court for additional proceedings. 

Simon also said the court's decision is "not a model of clarity," and "leaves open a lot of unanswered questions."

He suggested that voters still in possession of their absentee ballots drop them off at a designated location, vote at an early-voting site or vote in person on Election Day.

Individuals who have already sent back their ballots can track them online. 

The majority in the 8th Circuit opinion wrote that they understand the significance of their decision as it pertains to voter confidence in what is already a contentious election. 

However, in their view, those issues are preferable to a scene of post-election confusion, in which valid and invalid votes are mixed together. 

“Better to put those 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 judges wrote in their opinion.

The ruling is understood to be a win for Republicans, who argued that post-November 3 extended grace period is violation of federal law that established the third as the indisputable date of the 2020 presidential election. Democrats, on the other side of things, have called the ruling "an attack on democracy."

The case has now been returned to U.S. District Judge Nancy Brasel, who previously upheld a state court agreement allowing ballots that are postmarked on or before the third to be counted, if they are received by the 10th of November. 

The majority on the 8th Circuit panel took issue with the way in which Secretary Simon issued the original extension, writing that he had no authority to override election laws that were set originally by the state Legislature. The majority of U.S. states require mail-in and absentee ballots to be received by Election Day, thought some will accept them days, or even weeks late, if they are postmarked by the date of the election. 

Simon says his office is now considering an appeal to the Supreme Court.