Election Law Potpourri – Terminator Edition

Just a quick updater on the goings-on of the Minnesota election law scene. And quite the scene it’s been, keeping federal appellate courts and EVEN the U.S. Supreme Court busy. And the Terminator has even intervened. Let’s get to it:

1) I wrote a post a few days ago detailing the gossip going down in the Minnesota’s Second Congressional District (“CD2”), with a battalion of lawyers descending upon the state after the Minnesota Secretary of State cancelled the CD2 election in November. He was only doing his job, of course, since..ahem…the “major party” known as Legal Marijuana Now (“LMN”) had their candidate (Adam Weeks) for the CD2 seat suddenly pass away, and state law required that the election be rescheduled for February as a result of the death.

The incumbent Angie Craig (D) sued (leading in the polls, thus wanting the election pronto), and her opponent Tyler Kistner (R) (not leading in the polls, thus not wanting the election pronto) got himself added as the defendant. Much legal wrangling ensued, and Craig won decisions at both the federal and appellate court levels, meaning the CD2 election was back on for November.

Kistner appealed to the Supreme Court, and promptly smacked into the judicial version of a brick wall. A day after filing, Justice Neil Gorsuch summarily denied the appeal, meaning Kistner has reached the end of the road (cue Boyz II Men song) in his efforts to cancel the CD2 election before the November 3 contest. As is customary in these sorts of emergency motions, Gorsuch didn’t offer any written opinion. However, Gorsuch could have referred the appeal for review by the full Supreme Court. [Narrator’s voice]: He didn’t. Which probably speaks volumes regarding what Gorsuch though of the appeal.

[Self-serving segue]: Asking yourself why Gorsuch drew the case? For each appellate court circuit, the Supreme Court appoints a justice to administer these types of emergency motions that require quick action. The justice can decide the motion for themselves, or refer the motion to the full court. Minnesota is in the Eight Circuit, and Gorsuch is the justice assigned to the Eighth Circuit, and Gorsuch felt he like could rule on the case just fine by himself.

I think Kistner could appeal to the full court, but given that a justice expected to give this sort of case a sympathetic ear just stamped your case “ACCESS DENIED,” I’m guessing the Kistner camp didn’t like their chances. To wit, Kistner just announced he will be going back to the Eighth Circuit.

But aren’t we done with all this nonsense? Poppycock. There’s so much more lawyering to do! All this legal mumbo jumbo was just about staying the injunction that was imposed to stop the Secretary of State from cancelling the CD2 election. Now, Craig and Kistner (and maybe the state, which has flipped-flopped on this issue) will battle it out on whether the injunction was proper in the first place (Craig will want to certify, Kistner will not). The Eighth Circuit has expedited the appeal so that it can rule before Minnesota certifies the election results on November 24. In other words, if Kistner unexpectedly wins the election, he will be fighting to stop the state from certifying his big win. Awkwaaaaard…..

And oh. We’re still not done. The District Court still hasn’t even heard the case on its merits yet. A lawyer’s delight…..

Stay tuned!

2) In another development, the Eighth Circuit today heard arguments in a case involving the cut-off in Minnesota when absentee ballots must be received to count. Under state law, absentee ballots must be received on Election Day by 3:00pm (if delivered in person), or 8:00pm (if mailed).

An advocacy group for elderly voters sued, arguing that the law was unconstitutional as an “undue burden” on the right to vote under the First and Fourteenth Amendments, and a deprival of due process under the Fourteenth Amendment. [Note to the dear reader: I will always, always be honest with you. All those topics are covered in law school in a Constitutional Law II class. I got my lowest law school grade by far in that class, and I never understood all that stuff. Any attempt by me would mere drabble. You’d get better information on Wikipedia. Trust me.]

The lawsuit sought to force the state to accept absentee ballots within a “reasonable time” after Election Day. They got their wish.

The Secretary of State last summer entered into a settlement where he agreed to not enforce the state law, while also instructing election judges to accept absentee ballots that were postmarked by Election Day and received within seven days of Election Day. This settlement was then endorsed by a state court.

[Editorial Note: I have no @#$&ing idea how a Secretary of State can agree to not enforce an unambiguous state statute, and instead adopt a new standard completely contrary to the statute. But, a court went along with it, sooooooooooo….what do I know?]

Several Republican parties and the Trump Campaign promptly sued, but then mysteriously dropped their opposition on the eve of a Minnesota State Supreme Court hearing on the matter. Moreover, they agreed to no longer contest the delayed absentee ballot deadline. I have yet to hear why the Republicans dropped their case (despite much Googling), and if you’ve heard, I’m all ears.

Sounds settled, right? Wrong! If we’ve learned nothing from this blog posting, it’s that there’s always something to argue about in election law. A group of Republican Presidential Electors (quick civics lesson…when you vote for the President, you’re actually not voting for President. Rather, you’re voting for a slate of electors that have pledged to vote for that party’s presidential/vice presidential nominee. Mind. Blown. That’s another tale for another blog posting…) sued in federal court kinda sorta at the last second – seven weeks after the state court action authorizing the delayed deadline (which appeared to have annoyed the court in its decision). For their part, the electors alleged the delayed deadline violated the federal requirement that electors be selected on Election Day.

The district court didn’t reach a decision on the merits, but instead ruled that the electors lacked “standing,” which means they didn’t have the right to bring a lawsuit. Standing is boring, and I won’t bore you with the details, other than to say that you need to show some actual, direct harm to yourself before you can sue for that grievance. The court ruled they didn’t suffer such harm, and it tossed the lawsuit.

The electors, of course, appealed (hence this blog posting!). The Eighth Circuit heard the appeal today, and apparently didn’t tip its hand on how it felt about the case, or when they would rule. The pundits are engaging in punditry, though, that given the Supreme Court’s recent decision to strike down a similar absentee ballot extension in Wisconsin, the Supreme Court would likewise stop the Minnesota extension. My personal editorial feeling is that the courts will be happy to spike the case on the technical jurisdictional grounds of standing, thus not having to reach a controversial issue. Also, given that the parties that would have a better argument at standing (e.g., the Republican parties) took a pass on the lawsuit, the court may not have much incentive to reach on this one. Just my two cents.

You’ve waited this long! Now it’s time for the Termination reference. Governor Arnold Schwarzenegger himself filed a “friend of the court” brief with the Eighth Circuit in support of the state’s position. When he’s not wiping out the future of humankind, declaring “it’s not a tumor!” [one of the greatest movie quotes of all time] or running the fifth biggest economy in the world, he’s working on election law issues. Fucking renaissance man.

No word yet on whether the electors have retained the legal services of John Connor.

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