Republicans are challenging a move by Minnesota election officials to allow ballots to be counted past Election Day even if they are not postmarked.
State representative Eric Lucero (R.) and Republican elector James Carson filed a lawsuit Tuesday challenging secretary of state Steve Simon's consent decree that allows mail-in ballots to be counted as late as eight days after Election Day with or without a postmark. The lawsuit argues the decree violates the U.S. Constitution by moving the ballot deadline without the authority of the state legislature and violates federal law by permitting "ballots with no post mark and no evidence of having been cast on November 3" to be counted.
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"This means that persons in Minnesota may vote for days after Election Day and have their votes counted," the lawsuit states. It also warns that the decree will likely lead to disputed results, disenfranchised voters, and may even cause the results of the vote in Minnesota to be rejected entirely.
The consent decree states that if a ballot is not postmarked, "the election official reviewing the ballot should presume that it was mailed on or before Election Day unless the preponderance demonstrates it was mailed after Election Day." Simon described the seven-day window as "an automatic seven-day cushion" for Minnesota voters.
Simon's office did not respond to a request for comment about the assumption that unmarked ballots were sent on or before Election Day.
The lawsuit was filed with the support of the Honest Elections Project, a nonpartisan election integrity group whose executive director Jason Snead told the Washington Free Beacon that the decree could incentivize illegal voting.
"You wind up with these ballots that arrive potentially many days after the election, they could be the decisive ballots. But there's absolutely no proof that they were cast validly on Election Day," Snead said. "And when you consider what's at stake here, not only does that amplify the need for us to have clear outcomes, it also amplifies the incentive to try to gin up a few extra ballots after the fact if you see that your candidate is losing."
"Even if that's not going to happen, the mere fact that it is possible risks casting doubt on the result," he said.
Minnesota is among 16 other states this year that permit mail-in ballots that arrive after Election Day to be counted, including the battleground states of North Carolina, Ohio, Pennsylvania, Virginia, and Texas. With the exception of West Virginia, which allows ballots without postmarks to be counted up to one day after the election, it is the only state to allow ballots without postmarks to be counted.
As the election nears, Republicans and Democrats have stepped up efforts to litigate state voting regulations. Lawsuits filed in Ohio, Pennsylvania, Michigan, New Jersey, and Nevada have pitted the parties against one another in protracted fights over the use of ballot drop boxes, and ballot deadlines, as well as rules for collecting, processing, and counting ballots. Republicans have largely favored maintaining existing voting regulations within states, while Democrats have advocated expanding voting access and loosening regulations.