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Election 2020
Amy Forliti, Associated Press

Federal judge upholds Minnesota's extended ballot counting

A pair of hands prepares a mail-in ballot.
An election judge assembles packets of absentee ballots at at the Stearns County Service Center. Each absentee ballot packet contains an “I Voted” sticker, just like the one you get when voting in person.
Paul Middlestaedt for MPR News file

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Updated: 11:15 a.m.

A federal judge has upheld a Minnesota state court agreement that allows counting of absentee ballots received up to seven days after Election Day.

Republicans had asked U.S. District Judge Nancy Brasel to block the seven-day extension that Democratic Secretary of State Steve Simon agreed to in state court after a citizens’ rights group cited concerns about voter safety due to the COVID-19 pandemic. Ballots still must be postmarked on or before Election Day to be counted.

But Brasel ruled late Sunday night that the plaintiffs in the case — state Rep. Eric Lucero and another Republican who serves as an elector in the presidential election — don't have standing and denied their motion for a preliminary injunction. She said giving voters conflicting information after absentee ballots have gone out would create confusion.

“This is a difficult genie to put back in the lamp,” Brasel ruled.

Messages left Monday with Lucero and the Republican Party were not immediately returned, but attorneys for the plaintiffs filed a notice saying they will appeal.

Richard Fiesta, executive director of the citizens' group, the Alliance for Retired Americans, called it “an important common sense voting rights victory."

“Thousands of older Minnesota voters can protect their health and cast a ballot that will be counted. As in any election, the rights of voters to cast their ballots in the least burdensome manner is paramount. This decision furthers that ability," Fiesta said.

Before the consent decree, state law required absentee ballots to be received by 8 p.m. on Election Day. Now, that's the deadline for the postmark. The consent decree includes a provision that says if a mailed ballot is missing a postmark, election officials should presume it was mailed by Election Day unless evidence shows otherwise.

Brasel's decision to keep the extension intact comes just days after a federal appeals court blocked a similar extension in Wisconsin — a win for Republicans who have fought attempts to expand voting across the country. The Minnesota plaintiffs had pointed to that ruling to bolster their case.

A majority of states require mail-in ballots to be received by Election Day, while others accept them days or even weeks later if they are postmarked by Election Day. Tens of millions of Americans are likely to vote by mail this year because of concerns about coronavirus exposure at polling places.

The federal lawsuit in Minnesota was filed by Lucero and GOP activist James Carson, who both would participate in the Electoral College if President Donald Trump carries Minnesota. Their lawsuit, backed by the conservative-leaning Honest Elections Project, argued that the extension violates federal law that establishes Nov. 3 as the date of the 2020 election.

Attorneys for the state said the extension should stay in place, arguing that blocking it would create confusion and likely disenfranchise voters who are relying on instructions they have already received about deadlines for returning ballots by mail.

Brasel rejected a variety of claims from the plaintiffs in ruling against their request to stop the extended counting, including their assertion that it would dilute the value of their own votes by counting “unlawful” ballots after Election Day. She also rejected their claim that the consent decree created chaos and uncertainty, ruling that information about the new absentee process had been clearly communicated to voters.

“In reality, the Electors are in danger of creating confusion rather (than) avoiding” it, Brasel wrote.

Trump narrowly missed winning Minnesota in 2016 and had vowed in 2020 to become the first Republican to capture the state since Richard Nixon in 1972. But recent polls have showed Joe Biden leading, and Trump's campaign has scaled back some TV ad buys in the state.

Have questions leading up to the Election Day? #AskMPRNews. We want to hear your stories, too. #TellMPRNews what is motivating you to get out and vote this year.