Right-wing judges threaten to toss Minnesota ballots that don't arrive by Election Day — even if they were sent on time
A judge's gavel (Shutterstock)

On Thursday, a three-judge panel for the Eighth Circuit Court of Appeals tossed out a consent decree protecting mail-in ballots in Minnesota that arrive later than Election Day, as long as they are postmarked by that date.

The 2-1 order, issued by judges appointed by George W. Bush and Donald Trump, argues that the Minnesota Secretary of State usurped the authority of the legislature. The decision does not automatically throw out ballots that arrive late — but orders state election officials to set them aside, and suggests that they could be invalidated after the election.

Law professor Rick Hasen, writing for his Election Law Blog, called the decision "outrageous," noting that the legislature was not even a party to the case, and that it contradicts settled precedent that prevents federal courts from changing election rules while a vote is in progress.

"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)," wrote Hasen. "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."