Voting rights advocates fear a last-minute federal appeals court ruling could prevent thousands of votes from counting in Minnesota

• Voting rights advocates fear a Thursday federal appeals court ruling could prevent thousands of mail-in votes from counting in Minnesota.
• Five days before the 2020 presidential election, the US Court of Appeals for the 8th Circuit ruled Thursday evening that late absentee ballots must be separated from those received by Election Day.
• To avoid any issues, people who have already mailed their absentee ballot should check its status on the Secretary of State's website, Coleman said.
• Those who haven't yet voted should drop their absentee ballot in a drop-box or vote in person instead. If you mailed your ballot and it is not expected to arrive in time, you can still vote in person, CNN reported.
• Visit Business Insider's homepage for more stories.

Voting rights advocates fear a Thursday federal appeals court ruling could prevent thousands of mail-in votes from counting in Minnesota.

In an opinion that left voters, media, and state officials confused — five days before the 2020 presidential election — the US Court of Appeals for the 8th Circuit ruled Thursday evening that late absentee ballots must be separated from those received by Election Day. 

The ballots received after Election Day will be separated from others while judges decide whether those ballots will count in the general election, according to the opinion issued by the court. (This could mean there are two tabulations happening Minnesota, one that includes the ballots received after Election Day and one without.)

Craig Coleman, a lawyer who has represented the American Civil Liberties Union in Minnesota voting rights cases, said the opinion means late-arriving ballots will not count unless the US Supreme Court interferes. By separating the late ballots from the ones received before Election Day, election officials can easily adjust election results depending on how litigation proceeds, according to the court's opinion.

State officials say voters cannot expect their ballot to arrive before Election Day if they mail it now. In a press release Thursday night, Minnesota Secretary of State Scott Simon called the opinion an "unnecessary disruption" as it arrived only five days before the election.

The ruling is relatively unclear, Simon said, and the new deadline appears only to apply to presidential votes and not down-ballot races.

This confusion contributed to conflicting headlines, with some outlets focusing on the ballot separation and others focusing on the deadline change.

What Minnesota voters are being urged to do now

To avoid any issues, people who have already mailed their absentee ballot should check its status on the Secretary of State's website, Coleman said. Those who haven't yet voted should drop their absentee ballot in a drop-box or vote in person instead. If you mailed your ballot and it is not expected to arrive in time, you can still vote in person, CNN reported.

"This is really bad for voters," said Nick Harper, civic engagement director for League of Women Voters Minnesota. "The deadline had been set for six weeks and and all of a sudden, the rules have changed."

Jennifer Carnahan, Chairwoman of Republican Party of Minnesota, called the decision a "BIG WIN" in the Tweet. 

"In MN we already have six-weeks for people to vote early. An extra seven-days to receive a ballot was always unnecessary and just a move by the left to play around with this election," she tweeted.

The court's decision and a changing message

In August, citizen groups sued Secretary of State Simon, asking that he extend the deadline for mail-in votes to account for the COVID-19 pandemic, which makes in-person voting riskier.

A state judge ruled that ballots postmarked by Nov. 3 and received up to one week after Election Day would still count. Organizations working to get out the vote focused on communicating that all ballots postmarked by Election Day would be counted, Harper told Business Insider.

That message changed on Thursday evening when the federal appeals court ruled 2-1 that late ballots must be set aside, prompting voting advocates to swiftly change their message. 

"We need to focus on getting out the word that people need to get their ballots in as soon as possible by dropping it in a drop-box or voting in person," said Sami Banat, Minnesota coordinator for Rock the Vote. 

US Senator Amy Klobuchar, of Minnesota, tweeted on Thursday: "BREAKING: Because of LAST MINUTE ruling, Minnesota DO NOT put ballots in mail any more. In the middle of a pandemic, the Republican Party is doing everything to make it hard for you to vote."

"Vote in-person or take mail-in ballot directly to ballot box," she wrote. This message was then retweeted by progressive Rep. Alexandria Ocasio-Cortez.

In late September, two Republicans activists filed a suit in federal court, arguing that by counting late-arriving ballots, election officials are violating a state law that says only mail-in ballots received by 8 p.m. on Election Day can be counted. 

The initial suit was rejected by Federal District Judge Nancy E. Brasel in part because Minnesota law allows a Secretary of State to make changes to election procedures, including accepting late ballots, when a court order has prevented the election from proceeding as usual. 

The Republican electors then appealed that decision to the federal circuit court, where they found allies in two Republican-appointed judges. The dissenting judge, appointed by President Barack Obama, said "with the court's injunction in place, fewer eligible Minnesotans will be able to exercise their fundamental right to vote."

Who activists say the change could hurt

Simon said that the state was still waiting on a little less than 400,000 absentee ballots that had been requested but not yet returned, CNN reported.

Harper said that elderly voters and voters of color are most likely to be affected by the ruling, as they face higher risks of contracting COVID-19 and suffering negative effects. Voting by mail is a safer choice, he said. 

Banat pointed out that this ruling could also impact Minnesota voters who live out of state, like college students. 

"I think it's going to affect the same people who continually, year after year, have their vote suppressed: low-income folks, people who already have trouble voting and getting out to the polls," Banat said. 

The decision is also disturbing due to the precedent it sets for future voting rights litigation, said Coleman, the ACLU lawyer.

"It's been a long standing history in this country that you go to court to get redress for voting rights and to make it easier for people to vote," he said, and this ruling goes against that tradition. 

Coleman predicts that if left standing, this decision could make it harder for voters and voting rights groups to assert their right to vote. He plans on fighting that however he can.

"We will make sure your vote counts, one way or another," he said.