Jаmes Carson; Eric Lucero v. Steve Simon, Secretary of State of the State of Minnesota, in his official capacity
No. 20-3139
United States Court of Appeals For the Eighth Circuit
October 29, 2020
Appeal from United States District Court for the District of Minnesota. Submitted: October 27, 2020. [Published]. Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.
This appeal involves the rules governing the counting of absentee ballots cast in Minnesota for the upcoming general election for President of the United States. Minnesota law dictates that election officials only count ballots received by election day. The Minnesota Alliance for Retired Americans Education Fund and some of its members (the “Alliance“) sued Minnesota Secretary of State Steve Simon in Minnesota state court, alleging the statutory deadline was unconstitutional. The Secretary and the Alliance entered into a consent decree purporting to change these rules, by essentially making the statutorily-mandated absentee ballot receipt deadline inoperative. A Minnesota state court confirmеd that decree. As a result of this agreement, the Secretary has directed election officials to count absentee ballots received up to a week after election day, notwithstanding Minnesota law.
James Carson and Eric Lucero, both Minnesota registered voters and also certified nominees of the Republican Party to be presidential electors, sued the Secretary, alleging that the consent decree and the state court‘s order confirming it violate the United States Constitution. Carson and Lucero sought an injunction, which the district court denied after concluding they lacked standing to bring the claims. On appeal, we conclude that Carson and Lucero
I.
Article II of the United States Constitution grants state legislatures the authority to select presidential electors and Congress the authority to select the date of the election. The so-called “Electors Clause” states that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors[.]”
Under Minnesota Election Law, “[a]ny eligible voter may vote by absentee ballot.”
Minnesota law provides receipt deadlines for absentee ballots depending on the delivery method.
In May 2020, the Alliance sued the Secretary to enjoin enforcement of the receipt deadline. LaRose v. Simon, No. 62-CV-20-3149 (Minn. Dist. Ct. 2020). The Alliance alleged the receipt deadline was unconstitutional under the First and Fourteenth Amendments because it purportedly disenfranchised thousands of voters who would timely mail their ballots but not have them count because they were not received by the receipt deadline. The Alliance alleged this was particularly true in 2020 because of the COVID-19 pandemic and an anticipated inсrease in absentee ballots overwhelming the United States Postal Service. The Alliance sought an injunction directing the Secretary to accept timely postmarked absentee ballots received within a “reasonable” time after Election Day. The Alliance sought this relief for both the August 11, 2020, primary election and the November 3, 2020, general election.
The Secretary and the Alliance then filed a partial consent decree for the primary election and asked the state court to approve it. In mid-June, the Minnesota state court entered the partial consent decree order. Under the primary election consent decree, the Secretary agreed to not enforce the receipt deadline. Instead, election officials would accept all absentee ballots received up to two days after the primary so long as they were postmarked on or before the date of the primary. The Secretary also agreed to issue instructions to election officials about the change. These included enclosing information with each absentee ballot telling voters that their ballots could arrive up to two days after the date of the primary, as well as taking additional steps to inform the public.
After the state court entered of the primary consent decree, the Republican Party of Minnesota, the Republican National Committee, the National Republican Congressional Committee, and Donald J.
Under the general election consent decree, the Secretary agreed to not enforce the ballot receipt deadline in
The state court intervenors appealed the general election consent decree order to the Minnesota Supreme Court, but quickly abandoned the appeal. The Minnesota Supreme Court dismissed the appеals the same day upon motion of the parties.
In late August, the Secretary issued guidance to state election officials as agreed in the consent decree. The Secretary provided state election officials with documents to use as instructions for absentee ballot return envelopes. The absentee ballot guidance directed election officials to include the language with each ballot instructing voters that the ballot must be postmarked by November 3 but would be counted if received up to one week after Election Day.
Minnesota voters who requested absentee ballots for the general election began receiving their ballots on September 18, 2020, when early voting began. As of September 29, over 1 million Minnesota voters had requested absentee ballots.
In August 2020, Carson and Lucero were both certified pursuant to
On October 12, after briefing and a hearing, the district court denied the preliminary injunction. The district court based its denial solely on its conclusion that it lacked subject-matter jurisdiction because the Electors lacked both constitutional and prudential standing.
The Electors appealed and moved for a stay pending appeal as well as expedited resolution of the case. We ordered expedited
II.
A. Standing
Standing is a separation-of-powers doctrine that “ensure[s] that federal courts do not exceed their authority as it has been traditionally understood” under the United States Constitution. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). We review the question of Article III standing de novo. Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1029 (8th Cir. 2014). “[T]he irreducible constitutional minimum of standing” requires: (1) an injury in fact; (2) a causal connection between the injury and the challenged conduct; and (3) a likelihood that a favorable decision will redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
In this case, the Electors have standing as candidates. While the Secretary and Alliance contend that the Eleсtors are not candidates, we disagree because the plain text of Minnesota law treats prospective presidential electors as candidates. See
Chapter 208 references Chapter 200 for its definitions. Compare
In detailing how most offices appear on a ballot, Section 204B.03 expressly excepts “presidential electors” but refers to them in the same section as “[c]andidates of a major political party for any partisan office[.]”
Meanwhile, Chapter 208 describes how major political parties nominate presidential electors. See
“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Spokeo, 136 S. Ct. at 1548
As candidates, the Electors argue that they have a cognizable interest1 in ensuring that the final vote tally accurately reflects the legally valid votes cast. An inaccurate vote tally is a concrete and particularized injury to candidates such as the Electors. The Secretary‘s use of the consent decree makes the Electors’ injury certainly-impending, because the former necessarily departs from the Legislature‘s mandates. Thus, the Electors meet the injury-in-fact requirement.
Next, the Electors meet the causal-connection requirement because the injury flows from the challenged conduct (the Secretary‘s policy). And, even though the Secretary and the Alliance do not appear to challenge the redressability requirement, it is likely that the requested relief (an injunction) will redress the injury (an inaccurate vote tally) because the former will mitigate the latter.
For these reasons, we conclude the Electors have Article III standing as candidates.2 Having so concluded, we must decide whether the district court was correct in concluding the Electors lacked prudential standing because they are asserting the rights of third parties — namely the Minnesota Legislature. We disagree with the distriсt court‘s assessment.
First, we note the Supreme Court has greatly narrowed the doctrine of prudential standing. See Lexmark, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014). Where constitutional standing is present, refusing to hear a case based on prudential standing “is in some tension with . . . the principle that a federal court‘s obligation to hear and decide cases within its jurisdiction is virtually unflagging.” Id. at 126 (cleaned up). While the Supreme Court recognized the concept of third-party standing may still fit within the prudential standing analysis, id. at 127 n.3, we do not find it applicable here because the Electors are raising their own rights as candidates in the Minnesota general election. Although the Minnesota Legislature may have been harmed by the Secretary‘s usurpation of its constitutional right under the Elector
Having concluded the Electors have Article III and prudential standing to bring their claims, we must reverse the district court‘s decision to the contrary.
B. Preliminary Injunction
Because the district court did not decide any issue other than standing, we would normally remand to the district court. See MPAY Inc. v. Erie Custom Comput. Applications, Inc., 970 F.3d 1010, 1021 (8th Cir. 2020) (explaining that remanding to the district court “is ordinarily the appropriate course of action“) (emphasis added). “However ‘where the merits comprise a purely legal issue, reviewable de novo on appeal and susceptible of determinatiоn without additional factfinding, a remand ordinarily will serve no useful purpose.‘” Mangual v. Rotger-Sabat, 317 F.3d 45, 64 (1st Cir. 2003) (quoting N.H. Right to Life v. Gardner, 99 F.3d 8, 18 (1st Cir. 1996)). Here, resolution on the merits depends primarily on the purely legal issue of whether the Secretary‘s extension of the ballot deadline violates the Electors Clause. Further, the timing of this appeal makes it impractical to remand to the district court to decide the merits in the first instance. We therefore consider the Electors’ constitutional challenge to evaluate the propriety of preliminary injunctive relief.
We generally review a denial of a motion for a preliminary injunction for abuse of discretion, but here, because the district court never considered the merits, we are left with a purely legal question to consider de novo. See Llapa-Mukasey, 520 F.3d 897, 899 (8th Cir. 2008). The factors for evaluating whether a preliminary injunction should be issued are: “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys. Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). “While ‘no single factor is determinative,’ the probability of success factor is the most significant.” Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (citations omitted) (quoting Dataphase, 640 F.2d at 113).
1. Success on the Merits
We conclude the Electors are likely to succeed on the merits. This follows from our determination that the Secretary‘s actions in altering the deadline for mail-in ballots likely violates the Electors Clause of Article II, Section 1 of the United States Constitution. The analysis is relatively straightforward. By its plain terms, the Electors Clause vests the power to
Simply put, the Secretary has no power to override the Minnesota Legislature. In fact, a legislature‘s power in this area is such that it “cannot be taken from them or modified” even through “their state constitutions.” McPherson, 146 U.S. at 35; see also Palm Beach, 531 U.S at 76–77. Thus, the Secretary‘s attempt to re-write the laws governing the deadlines for mail-in ballots in the 2020 Minnesota presidential election is invalid. However well-intentioned and appropriate from a policy perspective in the context of a pandemic during a presidential election, it is not the province of a state executive official to re-write the state‘s election code, at least as it pertains to selection of presidential electors. The democratically-enacted election rules in Minnesota provide that mail-in votes must be received by 8:00 p.m. on Election Day in order to be counted (or 3:00 p.m. if delivered in person).
The Secretary and the Alliance argue the Minnesota Legislature has delegated its authority to the Secretary by means of a general statute in the election code.
The Secretary‘s instructions to count mail-in ballots received up to seven days after Election Day stand in direct contradiction to Minnesota election law governing presidential elections, and the Electors have strongly shown likely success on the merits since the Secretary‘s actions are likely to be declared invalid under the Electors Clause of Article II of the United States Constitution.
The Secretary‘s plan to count mail-in ballots received after the deadline established by the Minnesota Legislature will inflict irreparablе harm on the Electors. The Secretary‘s directions to local election officials to count ballots received up to a week after the statutory deadline necessarily means that otherwise invalid ballots will be entered in the vote totals that determine whether the Electors will be elected or not. “The counting of votes that are of questionable legality . . . threaten[s] irreparable harm.” Bush v. Gore, 531 U.S. 1046, 1047 (2000) (granting stay) (Scalia, J., concurring). Further, as discussed above, the Secretary‘s direction to local election officials to disregard
3. Balance of Equities and the Public Interest
The balancing of equities in this instance is not a perfunctory exercise. It is beyond question that an injunction may create harm in terms of voter confusion so close to the election. However, the inevitable post-election challengеs to the counting of invalid ballots if no injunction is granted is even more problematic since it would give voters no opportunity to adjust their mailing time or to deliver their mail-in ballots on Election Day to obviate their risk. As discussed further below, the Purcell principle does not preclude an injunction under the present facts, especially if the injunctive relief is limited in scope. And other considerations tip the balance in favor of the Electors. These considerations are closely intertwined with the public interest, which also weighs in favor of injunctive relief. The precedent it would set to allow an executive branch official to negate the duly-enacted election laws of a state as they pertain to a presidential election is toxic to the concepts of the rule of law and fair elections. So we conclude the balance of harms weighs in favor of preserving the ability to uphold the duly enacted election law of Minnesota and the rule of law.
The public interest is likewise served by maintaining the ability to enforce the law adopted by the Minnesota Legislature and in upholding the exclusive authority vested in the Minnesota Legislature under the Electors Clause of the United States Constitution.
While injunctive relief preserving the ability to effectuate Minnesota election law, as written by the Legislature, has some potential for administrative disruption and voter confusion, this die was cast long ago. Voter confusion was inevitable once the Secretary issued guidance to voters that was directly in contradiction to Minnesota election law. An orderly process was hopelessly compromised when he usurped the authority of the Legislature under the Electors Clause of the Constitution. During the entire pendency of this litigation, Minnesota voters have been left with two sets of contradicting instructions: one from the Secretary and another that has long been, and remains, codified in the election laws of Minnesota. In the end, “it is alwаys in the public interest to protect constitutional rights.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City of Manchester, 697 F.3d 678, 692 (8th Cir. 2012) (en banc). Likewise, it is in the public interest to maintain the integrity of elections by ensuring the ability to separate and count only those ballots cast according to law.
The Purcell principle — that federal courts should usually refrain from interfering with state election laws in the lead up to an election — is well established. See Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam). The Supreme Court has recently and repeatedly reaffirmed it. See, e.g., DNC, 2020 WL 6275871; Andino v. Middleton, No. 20A55, 2020 WL 5887393 (U.S. Oct. 5, 2020); Republican Nat‘l Comm. v. Democratic Nat‘l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam). Election rules must be clear and judges should normally refrain from altering them close to an election. Purcell protects the status quo.
But the Constitution recognizes something else. Namely that the design of electoral procedures is, at bottom, a job for “the Legislature.”
The Purcell principle is a presumption against disturbing the status quo. The question here is who sets the status quo? The Constitution‘s answer is generally the state legislature. And in the case of presidential elections, the Electors Clause vests power exclusively in the legislature. In our case, the Minnesota Legislature set the status quo, the Secretary upset it, and it is our duty, consistent with Purcell, to at least preserve the possibility of restoring it.
The consequences of this order are not lost on us. We acknowledge and understand the concerns over voter confusion, election administration issues, and public confidence in the election that animate the Purcell principle. With that said, we conclude the challenges that will stem from this ruling are preferable to a post-election scenario where mail-in votes, received after the statutory deadline, are either intermingled with ballots received on time or invalidated without prior warning. Better to put those voters on notice now while they still have at least some time to adjust their plans and cast their votes in an unquestionably lawful way.
III. CONCLUSION
We therefore reverse the district court‘s denial of the Electors’ motion for a preliminary injunction and remand to the district court with instructions to immediately enter the following order granting a preliminary injunction:
The Secretary and his respective agents and all persons acting in concert with each or any of them arе ordered to identify, segregate, and otherwise maintain and preserve all absentee ballots received after
Finally, matters remain before the district court including the Electors’ prayer for a permanent injunction, and the district court shall conduct further proceedings not inconsistent with this opinion.
KELLY, Circuit Judge, dissenting.
The Electors,3 six days before the presidential election, seek to enjoin enforcement of a state court order governing Minnesota‘s deadline for absentee ballots. Because I believe they have failed to shоw they are entitled to preliminary injunctive relief, I dissent.
As a threshold matter, I am not convinced the Electors have Article III standing to assert claims under the Electors Clause. Although Minnesota law at times refers to them as “candidates,” see, e.g.,
candidates for president and vice president shall be deemed a vote for that party‘s electors.“). They are not presented to and chosen by the voting public for their office, but instead automatically assume that office based on the public‘s selection of entirely different individuals. But even if we nonetheless assume the Electors should be treated like traditional political candidates for standing purposes, I question whether these particular candidates have dеmonstrated the “concrete and particularized” injury necessary for Article III standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To the contrary, their claimed injury—a potentially “inaccurate vote tally,” ante at 9—appears to be “precisely the kind of undifferentiated, generalized grievance about the conduct of government” that the Supreme Court has long considered inadequate for standing. Lance v. Coffman, 549 U.S. 437, 442 (2007) (examining standing in the context of a claim under the Elections Clause). Because the Electors, should they in fact assume that office, must swear an oath to mark their Electoral College ballots for the presidential candidate who won the state popular vote,
But even assuming the court is right that the Electors have standing, the merits of this case implicate both “the authority of state courts to apply their own constitutions to election regulations,” Democratic Nat‘l Comm. v. Wis. State Legislature, No. 20A66, 2020 WL 6275871, at *1 (Oct. 26, 2020) (Roberts, C.J., concurring in denial of application to vacate stay), and Minnesota‘s efforts to preserve its “democratically
One of the statutes that delegates lawmaking аuthority to the Secretary of State provides that “[w]hen a provision of the Minnesota Election Law cannot be implemented as a result of an order of a state or federal court, the secretary of state shall adopt alternative election procedures to permit the administration of any election
affected by the order.”
The underlying state court litigation begаn when the Alliance sued the Secretary concerning the constitutionality of a Minnesota statute, as applied in the context of a pandemic, requiring that absentee ballots be received by Election Day to be counted.
The court concludes that this change to the deadline for receipt of absentee ballots violates the Electors Clause because only “the Legislature” can designate the “Manner” of appointing electors under the Electors Clause.
ban—on curbside voting in this election);6 see also Bush v. Gore, 531 U.S. 98, 116 (2000) (per curiam) (Rehnquist, C.J., concurring)
The court relies on the idea that the Secretary “initiated” the state court order to conclude that
Notably, the Minnesota legislature has expressed no opposition to the decree, or to its extension of the deadline for absentee voters to submit their ballots. See
Republican Nat‘l Comm. v. Common Cause R.I., No. 20A28, 2020 WL 4680151 (Aug. 13, 2020) (denying an application to stay a consent decree because, unlike other cases where the state “defends its own law,” “the state election officials support[ed] the chаllenged decree, and no state official ha[d] expressed opposition“). In short, the fact that the Secretary, a defendant in a civil suit, settled a case pursuant to stipulated terms rather than going to trial does not render the resulting court-ordered Partial Consent Decree any less of a “state or federal court order” preventing a provision of the Minnesota election law from being implemented. See
I am thus not persuaded the Electors have established a likelihood of success on the merits, the “most significant,” ante at 11, factor in evaluating the propriety of preliminary injunctive relief. The other factors set out in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc)—the potential harm injunctive relief will cause to other parties, the threat of irreparable injury to the Electors, and the public interest—also weigh in favor of denying the injunction. Further, the Supreme Court has cautioned that courts considering injunctive relief on the eve of an election must “weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and [the court‘s] own institutional procedures.” Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (per curiam). When courts alter election procedures close to an election, they can themselves cause “voter confusion and consequent incentive
The court‘s injunctive relief will cause voter confusion and undermine Minnesotans’ confidence in the election process, implicating both Purcell concerns and the public interest inherent in having eligible citizens participate in state elections, as well as causing potential harm for voters. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“By definition, the public interest favors permitting as many qualified voters to vote as possible.” (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (cleaned up)). Voters have received but one set of instructions for returning their absentee ballots this election. Those instructions, which are printed on each of the more than 1.7 million absentee ballots the Secretary has already mailed out to voters this election cycle, direct voters as follows: your mail-in ballot will be counted so long as (1) it is postmarked by November 3; and (2) election officials receive it within seven calendar days of November 3. Under Minnesota law, these are the only ballot-return procedures in place. As of October 23, almost 580,000 Minnesota voters had requested—but not yet returned—their absentee ballots. In accordance with Minnesota‘s current election procedure, these voters would have until November 3 to mail or otherwise submit their ballots. The court‘s action today, however, moves up that absentee ballot receipt deadline, which has been in place since August 3, by one whole week. Any absentee voter who has not yet returned their ballot, and who is anxious about doing so in person because of COVID-19, especially given Minnesota‘s rising case numbers, runs the substantial risk of being disenfranchised.
The court‘s novel injunctive relief also harms Minnesota and the Secretary. Four days before Election Day, they are now required to figure out new procedures for sorting ballots that will comply with the court‘s order “to identify, segregate, and otherwise maintain and preserve all absentee ballots received after” election day. Ante at 17.
Finally, I‘m not convinced the Electors have shown they would suffer any irreparable harm should this court deny injunctive relief. It cannot be ascertained at this point how mаny absentee voters will in fact mail their ballots on, or shortly before, Election Day, causing them to be received by local election authorities within the seven days following November 3. Nor can we know whether those votes, if counted, would make any difference to the Electors’ position. Any claimed harm is thus insufficient to constitute irreparable injury to the Electors.
The Supreme Court has “repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat‘l Comm. v. Democratic Nat‘l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam). Nonetheless, this court has issued an order directing the Minnesota Secretary of State to
court‘s injunction in place, fewer eligible Minnesotans will be able to exercise their fundamental right to vote. That, in and of itself, should give us significant pause before granting injunctive relief.
I respectfully dissent.