[EL] 8th Circuit 2-1 decision cuts back Minnesota deadline; more news and commentary

Fri Oct 30 06:18:15 PDT 2020

As it happens, the statute in question *does *have a rather "objectively
discernible" meaning, and it's one that *supports *the Secretary here.  Section
204B.47 provides: “When a provision of the Minnesota Election Law cannot be
implemented as a result of an order of a state or federal court, the secretary
of state *shall* adopt alternative election procedures to permit the
administration
of any election affected by the order.”

The statutory receipt deadline here can't be implemented because of an
order of a state court (the approval and entry of the consent decree), and
therefore the Secretary was using a Nov. 10 deadline, in conformity with
that court order, just as Section 204BB.47 *requires *him to do ("shall").
For a federal court to conclude that this reasonable (indeed, objectively
discernible) state judicial and executive reading of a state statute is so
unreasonable as to require an injunction, well, I'm not even sure how to
describe that.

On Fri, Oct 30, 2020 at 8:48 AM Jonathan Adler <jha5 at case.edu> wrote:

> Only if one concludes that the state statute lacks an objectively
> discernible meaning or range of permissible meanings.
>
>
> ----
> Jonathan H. Adler
> Johan Verheij Memorial Professor of Law
> Director, Coleman P. Burke Center for Environmental Law
> Case Western Reserve University School of Law
> 11075 East Boulevard
> Cleveland, OH 44106
> ph) 216-368-2535
> fax) 216-368-2086
> cell) 202-255-3012
> jha5 at case.edu
> SSRN: http://ssrn.com/author=183995
> Blog: https://reason.com/people/jonathan-adler/
> Web: http://www.jhadler.net
>
>
>
>
> On Fri, Oct 30, 2020 at 8:28 AM Samuel Bagenstos <sbagen at gmail.com> wrote:
>
>> Can I ask a naive question?  If SCOTUS is telling us that a state court
>> or other state entity impermissibly deviated from a state statute, isn't
>> SCOTUS violating Article II by displacing the role of the state
>> legislature?  I think this Article II theory logically cannibalizes
>> itself.  Not that logic means anything, especially.
>>
>> On Fri, Oct 30, 2020, 8:25 AM Lori A Ringhand <ringhand at uga.edu> wrote:
>>
>>> It is striking to me how much these opinions (and the debate surrounding
>>> them) have surpassed even the three-justice plurality in *Bush v. Gore*.
>>> Justice Rehnquist's opinion in that case decidedly did not say that
>>> decisions of the state supreme court, the secretary of state, or the
>>> Florida canvassing boards were invalid simply because these bodies are not
>>> "the legislature." Instead, the opinion rested on the idea that the state
>>> supreme court's interpretation of state law was unreasonable and therefore
>>> exceeded its authority, *not *that the Constitution requires that it or
>>> any other of these entities need to be cut out of the regular state law
>>> process as a matter of course. The opinion even talks (approvingly) of how
>>> state law vests discretion over recounts in the canvassing boards, and how
>>> the state supreme court opinion deviated from established practice
>>> "prescribed by the Secretary."
>>>
>>> Lori A. Ringhand
>>> Fulbright Scotland Visiting Professor, University of Aberdeen
>>> J. Alton Hosch Professor of Law, University of Georgia
>>> Athens, GA 30601
>>>
>>> ringhand at uga.edu
>>> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=332414
>>>
>>>
>>> ------------------------------
>>> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
>>> behalf of Schultz, David <dschultz at hamline.edu>
>>> *Sent:* Thursday, October 29, 2020 9:29 PM
>>> *To:* Levitt, Justin <justin.levitt at lls.edu>
>>> *Cc:* Election Law Listserv <law-election at uci.edu>
>>> *Subject:* Re: [EL] 8th Circuit 2-1 decision cuts back Minnesota
>>> deadline; more news and commentary
>>>
>>> [EXTERNAL SENDER - PROCEED CAUTIOUSLY]
>>>
>>> Hi all:
>>> Justin basically gets the analysis right for Minnesota and it sets up a
>>> potential duality between state and federal races.  There is state law that
>>> mandates the requirements for absentee ballots and early voting that
>>> require signature requirements and as the Frankencase stipulated, strict
>>> compliance.
>>>
>>> It should also be noted that many of the ballots already in are from DFL
>>> areas and that any of ballots still to come in may be from Republican
>>> areas.  This decision may well hurt GOP voters more than Democrats,
>>> especially with the delays in mail especially from  rural areas.
>>>
>>> On Thu, Oct 29, 2020 at 7:59 PM Levitt, Justin <justin.levitt at lls.edu>
>>> wrote:
>>>
>>> In the Coleman-Franken contest, as I recall, the Minnesota Supreme Court
>>> said that Minnesota law required *that the voter* maintain “strict”
>>> compliance with all statutory requirements (for absentee ballots).  In
>>> contrast, the court traced a 144-year history of finding that if a voter
>>> complies with the law, his vote “should not be rejected because of
>>> irregularities, ignorance, inadvertence, or mistake, or even intentional
>>> wrong on the part of the election officers.”  767 N.W.2d 453, 462 (2009).
>>>  The original 1865 case refused to invalidate an election when certain
>>> pollworkers didn’t take an oath, despite facially plausible arguments based
>>> on the statutory structure that by declaring that elections shouldn’t be
>>> invalidated for X and Y reason, the legislature implied elections
>>> *should* be invalidated based on a failure of the oath.  That logic was
>>> based on the state constitution … and seems (I’d hope) uncontroversial.
>>>
>>>
>>>
>>> The Eighth Circuit today, citing SCOTUS dicta, says that the
>>> legislature’s power in Presidential elections can’t be modified by state
>>> constitutions.  And the Coleman-Franken court didn’t cite a state statute
>>> for its interpretation (maybe a Minnesota expert will let me know if one
>>> exists).  So barring a state statute on point, I presume that that line of
>>> caselaw in Minnesota is now invalid in the Eighth Circuit for federal
>>> elections.  I’d hope that the principle is still a part of federal law.
>>> But as a matter of state law under the Eighth Circuit’s decision, when the
>>> ballots go to be counted in Minnesota, doesn’t this mean that
>>> election-official mistakes in statutes that purport to be mandatory,
>>> however minor, don’t invalidate a ballot for state races, but maybe might
>>> invalidate a ballot for federal races?  Does that latter conclusion depend
>>> on an interpretation of the state statutory structure based on something
>>> other than background state legal principles (and if so, where does it come
>>> from?), for rules that state statutes purport to make mandatory?
>>>
>>>
>>>
>>> There’s still an oath requirement in Minnesota law – 204B.24 requires
>>> “each” poll worker to sign a very specific oath and attach that statement
>>> to the election returns of the precinct, which implies that the oath is of
>>> some significance specifically related to the validity of the returns.  If
>>> there’s a printing error on the oath paper so that the oath isn’t exactly
>>> as prescribed in statute, or if one of several poll workers fails to sign
>>> the oath, I certainly hope that doesn’t invalidate the election-day
>>> precinct returns for all of the federal candidates on the ballot there.
>>>
>>>
>>>
>>> And yes, that conclusion would be absurd.
>>>
>>>
>>>
>>> But would it be absurd based on the actual text of the state statutes
>>> passed by the state Legislature, or based on something else?
>>>
>>>
>>>
>>> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
>>> Behalf Of *Rick Hasen
>>> *Sent:* Thursday, October 29, 2020 4:05 PM
>>> *To:* Election Law Listserv <law-election at uci.edu>
>>> *Subject:* [EL] 8th Circuit 2-1 decision cuts back Minnesota deadline;
>>> more news and commentary
>>>
>>>
>>>
>>>
>>>
>>>
>>> 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 <https://electionlawblog.org/?p=117784>
>>>
>>> Posted on October 29, 2020 4:03 pm
>>> <https://electionlawblog.org/?p=117784> by *Rick Hasen*
>>> <https://electionlawblog.org/?author=3>
>>>
>>> It is hard to know where to start with this opinion
>>> <https://www.documentcloud.org/documents/7278436-8th-Circuit-Court-of-Appeals-MN-absentee-ballot.html>.
>>> 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.
>>>
>>> [image: Share]
>>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117784&title=In%20Outrageous%202-1%20Decision%20Ignoring%20Reliance%20Interests%20and%20Rejecting%20the%20Purcell%20Principle%2C%208th%20Circuit%20Panel%20Orders%20Segregation%20of%20Late%20Arriving%20Ballots%20in%20Minnesota%2C%20With%20Strong%20Hints%20Late%20Arriving%20Ballots%20Will%20Be%20Excluded%20from%20The%20Count>
>>>
>>> Posted in absentee ballots <https://electionlawblog.org/?cat=53>
>>>
>>>
>>>
>>>
>>> “How a fake persona laid the groundwork for a Hunter Biden conspiracy
>>> deluge” <https://electionlawblog.org/?p=117781>
>>>
>>> Posted on October 29, 2020 3:35 pm
>>> <https://electionlawblog.org/?p=117781> by *Rick Hasen*
>>> <https://electionlawblog.org/?author=3>
>>>
>>> NBC News
>>> <https://www.nbcnews.com/tech/security/how-fake-persona-laid-groundwork-hunter-biden-conspiracy-deluge-n1245387>
>>> :
>>>
>>> *Nine month before a purported leak of files from Hunter Biden’s laptop,
>>> a fake “intelligence” document about him went viral on the right-wing
>>> internet, asserting an elaborate conspiracy theory involving former Vice
>>> President Joe Biden’s son and business in China.*
>>>
>>> *That document, a 64-page composition that was later disseminated by
>>> close associates of President Donald Trump, appears to be the work of a
>>> fake “intelligence firm” called Typhoon Investigations, according to
>>> researchers and public documents.*
>>>
>>> *The author of the document, a self-identified Swiss security analyst
>>> named Martin Aspen, is a fabricated identity, according to analysis by
>>> disinformation researchers, who also concluded that Aspen’s profile picture
>>> was created with an artificial intelligence face generator. The
>>> intelligence firm that Aspen lists as his previous employer told NBC News
>>> that no one by that name had ever worked for their company, and no one by
>>> that name lives in Switzerland, according to public records and social
>>> media searches.*
>>>
>>> *One of the original posters of the document, a blogger and professor
>>> named Christopher Balding, took credit for writing parts of the document
>>> when asked about it by NBC News, and said that Aspen does not exist.*
>>>
>>> *Despite the document’s questionable authorship and anonymous sourcing,
>>> its claims that Hunter Biden has a problematic connection to the Communist
>>> Party of China have been used by people who oppose the Chinese government,
>>> as well as by far-right influencers, to baselessly accuse candidate Joe
>>> Biden of being beholden to the Chinese government.*
>>>
>>> *The document and its spread have become part of a wider effort
>>> <https://www.nbcnews.com/tech/tech-news/inside-campaign-pizzagate-hunter-biden-n1244331> to
>>> smear Hunter Biden and weaken Joe Biden’s presidential campaign, which
>>> moved from the fringes of the internet to more mainstream conservative news
>>> outlets.*
>>>
>>> *An unverified leak of documents including salacious pictures from what
>>> President Donald Trump’s lawyer, Rudy Giuliani, and Delaware Apple repair
>>> store owner claimed to be Hunter Biden’s hard drive were published in the
>>> New York Post on Oct. 14. Associates close to Trump, including Giuliani and
>>> former White House chief strategist Steve Bannon, have since promised more
>>> blockbuster leaks and secrets, which have yet to materialize.*
>>>
>>> *The fake intelligence document, however, preceded the leak by months
>>> and helped lay the groundwork among right-wing media for what would become
>>> a failed October surprise: a viral pile-on of conspiracy theories about
>>> Hunter Biden.*
>>>
>>> [image: Share]
>>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117781&title=%E2%80%9CHow%20a%20fake%20persona%20laid%20the%20groundwork%20for%20a%20Hunter%20Biden%20conspiracy%20deluge%E2%80%9D>
>>>
>>> Posted in cheap speech <https://electionlawblog.org/?cat=130>, chicanery
>>> <https://electionlawblog.org/?cat=12>
>>>
>>>
>>>
>>>
>>> “Ruling Revision ‘Doesn’t Go Far Enough’, Vermont Secretary of State
>>> Tells Justice Kavanaugh” <https://electionlawblog.org/?p=117779>
>>>
>>> Posted on October 29, 2020 3:33 pm
>>> <https://electionlawblog.org/?p=117779> by *Rick Hasen*
>>> <https://electionlawblog.org/?author=3>
>>>
>>> Jess Bravin
>>> <https://www.wsj.com/livecoverage/election-live-updates-trump-biden-2020-10-29/card/yw4eyads0C0mLKh5tfcJ> for
>>> the WSJ:
>>>
>>> *Vermont Secretary of State Jim Condos isn’t satisfied with Justice
>>> Brett Kavanaugh’s revision to a recent voting-rights opinion that Mr.
>>> Condos said misstated his state’s election rules.*
>>>
>>> *On Wednesday, Justice Kavanaugh revised a Monday opinion
>>> <https://www.wsj.com/livecoverage/election-live-updates-trump-biden-2020-10-28/card/DPUm2bTc6zMFE7HPfyKS> that
>>> originally said Vermont hadn’t changed its “ordinary election rules” in
>>> response to the coronavirus pandemic to state that it hadn’t changed its
>>> “ordinary election deadline rules,” after Mr. Condos complained that the
>>> justice overlooked a host of other measures the state took to help voters
>>> limit exposure to Covid-19.*
>>>
>>> *“I’m glad he admitted a mistake and modified his opinion, but a
>>> one-word addition doesn’t go far enough,” Mr. Condos, a Democrat, said
>>> Thursday. “I will not sit idly by while Justice Kavanaugh uses factually
>>> incorrect information about the Green Mountain State as cover to erode
>>> voting rights in the middle of a pandemic-distressed election.”*
>>>
>>> [image: Share]
>>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117779&title=%E2%80%9CRuling%20Revision%20%E2%80%98Doesn%E2%80%99t%20Go%20Far%20Enough%E2%80%99%2C%20Vermont%20Secretary%20of%20State%20Tells%20Justice%20Kavanaugh%E2%80%9D>
>>>
>>> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>>>
>>>
>>>
>>>
>>> “How The 2020 Election Could End Up In The Courts”
>>> <https://electionlawblog.org/?p=117777>
>>>
>>> Posted on October 29, 2020 3:31 pm
>>> <https://electionlawblog.org/?p=117777> by *Rick Hasen*
>>> <https://electionlawblog.org/?author=3>
>>>
>>> WMFE
>>> <https://www.wmfe.org/how-the-2020-election-could-end-up-in-the-courts/167846> talks
>>> to Ciara Torres-Spelliscy.
>>>
>>> [image: Share]
>>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117777&title=%E2%80%9CHow%20The%202020%20Election%20Could%20End%20Up%20In%20The%20Courts%E2%80%9D>
>>>
>>> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>>>
>>>
>>>
>>>
>>> Ariane de Vogue and I Joined John King on CNN to Talk About Latest
>>> Supreme Court Rulings on Voting (Video)
>>> <https://electionlawblog.org/?p=117775>
>>>
>>> Posted on October 29, 2020 3:23 pm
>>> <https://electionlawblog.org/?p=117775> by *Rick Hasen*
>>> <https://electionlawblog.org/?author=3>
>>>
>>> You can watch here:
>>> <https://www.youtube.com/watch?v=-vKLik6Ptpc&feature=youtu.be>
>>>
>>> [image: Share]
>>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117775&title=Ariane%20de%20Vogue%20and%20I%20Joined%20John%20King%20on%20CNN%20to%20Talk%20About%20Latest%20Supreme%20Court%20Rulings%20on%20Voting%20(Video)>
>>>
>>> Posted in Supreme Court <https://electionlawblog.org/?cat=29>
>>>
>>>
>>>
>>>
>>> “So, Russia, You Want to Mess With Our Voting Machines? The United
>>> States should threaten to retaliate — and I’m not talking about economic
>>> sanctions or legal indictments.” <https://electionlawblog.org/?p=117773>
>>>
>>> Posted on October 29, 2020 2:47 pm
>>> <https://electionlawblog.org/?p=117773> by *Rick Hasen*
>>> <https://electionlawblog.org/?author=3>
>>>
>>> Tim Wu
>>> <https://www.nytimes.com/2020/10/29/opinion/election-interference-russia-iran.html> for
>>> NYT Opinion.
>>>
>>> I made the same point in Election Meltdown. An attack on our election
>>> infrastructure or power grid on Election Day should be seen as an act of
>>> war and declared that in advance by the President.
>>>
>>> [image: Share]
>>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117773&title=%E2%80%9CSo%2C%20Russia%2C%20You%20Want%20to%20Mess%20With%20Our%20Voting%20Machines%3F%20The%20United%20States%20should%20threaten%20to%20retaliate%20%E2%80%94%20and%20I%E2%80%99m%20not%20talking%20about%20economic%20sanctions%20or%20legal%20indictments.%E2%80%9D>
>>>
>>> Posted in Election Meltdown <https://electionlawblog.org/?cat=127>
>>>
>>>
>>>
>>>
>>> Why Did Justice Alito Not Address the Huge Standing Issue in Yesterday’s
>>> Pennsylvania Case? <https://electionlawblog.org/?p=117766>
>>>
>>> Posted on October 29, 2020 12:09 pm
>>> <https://electionlawblog.org/?p=117766> by *Rick Hasen*
>>> <https://electionlawblog.org/?author=3>
>>>
>>> Yesterday I wrote <https://electionlawblog.org/?p=117673> about the
>>> Supreme Court order in the Pennsylvania case and Justice Alito’s separate
>>> statement strongly suggesting the PA Supreme Court acted unconstitutionally
>>> in taking power away from the state legislature.
>>>
>>> It’s a controversial theory but I want to put that to one side and raise
>>> the point that the PA Legislature did not file this cert. petition nor did
>>> legislative leaders (who were on an earlier stay request, but not this
>>> cert. petition).
>>>
>>> Isn’t the lack of standing, which I flagged earlier
>>> <https://electionlawblog.org/?p=117413>, reason enough to defeat this
>>> claim? That is, how can the party complain about the loss of the
>>> Legislature’s purported rights?
>>>
>>> [image: Share]
>>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D117766&title=Why%20Did%20Justice%20Alito%20Not%20Address%20the%20Huge%20Standing%20Issue%20in%20Yesterday%E2%80%99s%20Pennsylvania%20Case%3F>
>>>
>>> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>>>
>>> --
>>>
>>> Rick Hasen
>>>
>>> Chancellor's Professor of Law and Political Science
>>>
>>> UC Irvine School of Law
>>>
>>> 401 E. Peltason Dr., Suite 1000
>>>
>>> Irvine, CA 92697-8000
>>>
>>> 949.824.3072 - office
>>>
>>> rhasen at law.uci.edu
>>>
>>> http://www.law.uci.edu/faculty/full-time/hasen/
>>>
>>> http://electionlawblog.org
>>>
>>>
>>>
>>>
>>> _______________________________________________
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>>>
>>>
>>> --
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>>> Hamline University
>>> Department of Political Science and
>>> Department of Legal Studies
>>> 1536 Hewitt Ave
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>>> Twitter:  @ProfDSchultz
>>> My latest book:  Presidential Swing States:  Why Only Ten Matter
>>>
>>> https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
>>> FacultyRow SuperProfessor, 2012, 2013, 2014
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>>
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