This is extraordinary:
A federal court sided Thursday with a GOP challenge to Minnesota’s extended deadline for receiving absentee ballots after Election Day, imperiling a state rule that would count mail-in ballots received up to a week after Tuesday’s election.
In a 2-1 decision, a panel of the Eighth U.S. Circuit Court of Appeals judges ordered that all mail-in ballots received after 8 p.m. on Election Day be set aside, setting the stage for a potential legal battle after the election. But the order stopped short of a final determination on the validity of the post-Election Day ballots.
The ruling came in a case brought by Minnesota GOP presidential electors challenging a state rule allowing election officials to count ballots received until Nov. 10, as long as they are postmarked by Nov. 3. It is one of several Republican challenges to extended deadlines that were adopted in Wisconsin, Pennsylvania and North Carolina in response to concerns about the pandemic and potential mail delays.
The Eighth Circuit opinion concluded that state and federal law superseded the state court-approved extension.
It’s almost impossible to overstate how lawless and partisan this decision is:
If SCOTUS doesn’t stay this batshit 8th Circuit decision (and GOP power-grab) attempting to throw out VALID mail ballots, after repeatedly reversing lower courts that change election laws, it will be exhibit A in the case for court reform.
Also possibly Barrett’s first vote.— Mark Joseph Stern (@mjs_DC) October 30, 2020
And there is no way two partisan judges on the 8th Circuit would’ve tried to get away with this if RBG were alive. They are brazenly testing SCOTUS’ limits. We’re going to see a lot more of this from the Trump-dominated lower courts soon, too.— Mark Joseph Stern (@mjs_DC) October 30, 2020
In my view, the theory that in the context of election law and no other giving power to the legislative branch in the first instance preempts judicial and/or executive constructions of its enactments is extraordinarily stupid, but more to the point it’s not the law. Circuit courts are not allowed to treat three-justice concurrences in 20-year-old cases as superseding binding precedent. And even if the constitutional argument is correct, it is completely inappropriate for the court to change the rules in a way that will disenfranchise voters 4 1/2 days before the election.
Expanding the circuit courts is almost as important as expanding the Supreme Court.
….holy shit they cited Kavanaugh’s American Thinker blog post as an authority.
To be clear, this isn't settled law. The 2-1 court here draws on cases that didn't decide the issue and a Kavanaugh concurrence on a procedural matter three days ago. The majority gives the constitutinal issue essentially 1 page of analysis. /3 pic.twitter.com/6X37c2C8Ag— Chiraag Bains (@chiraagbains) October 30, 2020