by Steve Timmer

Oct 30, 2020, 5:30 PM

Sputtering hostility is not a legal argument

Recently, the 8^th Circuit considered a Minnesota law that postponed a federal election date when a major party (one of the cannabis parties) candidate died close enough to the election to require a postponement to permit the nomination of a substitute candidate. Second District Congresswoman Angie Craig brought suit to invalidate the postponement, which had been ordered by Secretary of State Steve Simon.

Craig’s lawyers argued that the Minnesota law, passed in the wake of the death of Paul Wellstone on the eve of an election, was contrary to the federal constitution and federal law which fixed the election day as the first Tuesday after the first Monday in November in even numbered years.

The Republican candidate, who is so forgettable that I can’t even write his name as I sit here, argued that putting the election back on for November 3^rd would be confusing to voters. That what the Attorney General’s office argued on behalf of the statute and the Secretary of State, too.

The Court held the Minnesota statute and Simon’s order were contrary to federal law and put the election back on for the 3^rd.

Democrats cheered.

On October 29th, the 8th Circuit held, in another election case, that allowing ballots to be counted if they were postmarked by election day, but received up to seven days thereafter, was also inconsistent with the federal constitution and federal law. The change was made by a state court order after an agreement between the Secretary of State and voter advocates who were concerned about the ability of the elderly, especially, to vote on time, due to the pandemic.

One of the arguments made in favor keeping the seven-day rule was that changing it late in the game would be confusing to voters. This time it was the Democrats making the argument.

Under the decision, the ballots received after the 3^rd of November will be set aside to perhaps be counted later. Or not.

When the decision was announced, this time the Democrats jeered.

If you pull back a little and look at the decisions though, what do they have in common? They both held that November 3^rd is election day, and that is the end of voting. And that voter confusion was a regrettable side effect of trying to mess with that.

I am not here to say one decision was right and the other was wrong, or that they’re both right or both wrong; there will be more litigation, on the seven-day rule, certainly. I’ve read that Wisconsin, Pennsylvania, and North Carolina are in similar boats, with diverse results so far.

I pointed out some of the similarity in the cases to a group of friends, and the reaction was, well, sputtering hostility.

I think, though, the DFL made a mistake relying on the seven-day rule. Donald Trump has telegraphed that the Republicans would do this for weeks. We should have known better. Seriously.