Carson v. Simon

Under Minnesota law, all ballots must be received by Election Day. But this year the Minnesota Alliance for Retired Americans Educational Fund and some of its members filed a lawsuit in state court challenging that deadline. They contended that – particularly because of the coronavirus pandemic and the well-documented problems with the U.S. Postal Service – thousands of voters would be disenfranchised if the Election Day deadline were enforced, because they would mail their ballots on time but the ballots would arrive too late. The challengers and Minnesota Secretary of State Steve Simon entered into a consent decree that would require election officials to count all mail-in ballots that are postmarked on or before Election Day but received within one week of Election Day. The state court approved the consent decree in August.

James Carson and Eric Lucero, who are both registered voters in Minnesota and nominees of the Republican Party to be presidential electors there, filed a lawsuit in federal court. They claimed that the extension of the deadline for the receipt of mail-in ballots violates the federal Constitution, which gives the state legislature the exclusive power to determine how presidential electors will be selected.

The district court turned down Carson and Lucero’s request to block state officials from implementing the extended deadline. It concluded that Carson and Lucero did not have a legal right to sue, known as standing.

In an unsigned opinion on Oct. 29, a divided three-judge panel of the U.S. Court of Appeals for the 8th Circuit reversed the district court’s ruling that Carson and Lucero did not have standing. As presidential electors, Judges Bobby Shepherd and Steven Grasz explained in an unsigned opinion, the two men are considered candidates under Minnesota law and therefore have a right to sue.

The majority then moved on to a question that the district court had not considered: whether to block the implementation of the extended deadline for the receipt of mail-in ballots. The majority wrote that the extended deadline likely violated the Constitution because “only the Minnesota Legislature, and not the Secretary,” has the power “to establish the manner of conducting the presidential election in Minnesota.” That power, the majority continued, cannot be modified or transferred. “However well-intentioned and appropriate” the deadline might be during the pandemic, the majority stressed, “it is not the province of a state executive official to re-write the state’s election code, at least as it pertains to selection of presidential electors.” Citing Justice Brett Kavanaugh’s concurring opinion from the court’s orders on Oct. 26 declining to reinstate accommodations for COVID-19 for elections in Wisconsin, the majority concluded that there is “no pandemic exception to the Constitution.”

Counting mail-in ballots received after Election Day will also threaten permanent harm to Carson and Lucero, the majority continued, by allowing ballots that would otherwise be invalid to be counted. And although reversing course on the deadline may create some “voter confusion so close to the election,” the majority suggested that an order blocking the state from implementing the extended deadline before the election would allow voters to try to submit their ballots by Election Day and would therefore be preferable to post-election litigation. Moreover, the majority added, allowing the extended deadline to remain in place would set a precedent that is “toxic to the concepts of the rule of law and fair elections.”

The court directly addressed the Purcell principle – the idea that federal courts should normally not change state election rules in the run-up to the election – noting that it “protects the status quo” but also recognizes that legislatures are responsible for establishing election procedures. In this case, the majority emphasized, it was the secretary of state who upended the status quo by extending the deadline, and so “the same rationale that works to prevent election interference by federal courts also works to prevent interference by other entities as well.”

Judge Jane Kelly dissented from the unsigned majority opinion. She was skeptical that Carson and Lucero have standing to bring their challenge to the consent decree. But even if they do, she continued, and even if only the Minnesota legislature has the power to make rules for the presidential election, the consent decree is still valid because the legislature delegated some of its authority to the secretary of state. Indeed, Kelly observed, the legislature has “expressed no opposition to the decree or to its extension of the deadline for absentee voters to submit their ballots.” And by now, Kelly continued, “it is simply too late for any absentee voter who has not yet mailed their ballot to do so with confidence that it will arrive by Election Day.” “With the court’s injunction in place,” Kelly concluded, “fewer eligible Minnesotans will be able to exercise their fundamental right to vote.”