Carson v. Simon

Decision Date11 October 2020
Docket NumberCase No. 20-CV-2030 (NEB/TNL)
Citation494 F.Supp.3d 589
Parties James CARSON and Eric Lucero, Plaintiffs, v. Steve SIMON in his official capacity as Secretary of State of the State of Minnesota, Defendant, and Robert LaRose, Teresa Maples, Mary Sansom, Gary Severson, and Minnesota Alliance for Retired Americans Education Fund, Intervenor Defendants.
CourtU.S. District Court — District of Minnesota

Andrew Michael Grossman, Pro Hac Vice, Richard Bryan Raile, Pro Hac Vice, Baker Hostetler, Danyll Foix, Baker & Hostetler LLP, Washington, DC, Nathan M. Hansen, Nathan M. Hansen, Attorney at Law, North St. Paul, MN, for Plaintiffs.

Jason Marisam, Minnesota Attorney General's Office, St. Paul, MN, for Defendant.


Nancy E. Brasel, United States District Judge

In connection with a Minnesota state court action challenging the constitutionality of several of Minnesota's election laws, Secretary of State Steve Simon ("Secretary Simon") entered into a consent decree (the "Consent Decree") with the Minnesota Alliance for Retired Americans Education Fund and several of its members (collectively, the "Alliance"). The Republican Party of Minnesota and others intervened and objected. After a hearing, the state court issued an order consistent with the Consent Decree, ordering Secretary Simon not to enforce Minnesota's statutorily-mandated absentee ballot receipt deadline of 8:00 p.m. on Election Day, November 3, 2020. Instead, the court ordered Secretary Simon to count ballots that are postmarked by November 3, so long as election officials receive them within a week of Election Day.

Plaintiffs James Carson and Eric Lucero are certified nominees of the Republican Party to be presidential electors in the 2020 United States Presidential Election (the "Electors"). The Electors now bring suit in this Court against Secretary Simon, alleging that the Consent Decree and the state court's order confirming it are unconstitutional. The Electors move the Court for a preliminary injunction to enjoin enforcement of the state-court order. For the reasons that follow, the Court determines that the Electors lack standing and denies the motion for preliminary injunction.

I. The COVID-19 Pandemic

COVID-19 is a highly infectious respiratory disease that has caused a global pandemic and killed over 210,000 Americans and 2,100 Minnesotans. See generally CDC, Coronavirus (COVID-19) , (last accessed Oct. 8, 2020); Minn. Dep't of Health, Situation Update for COVID-19 , (last accessed Oct. 8, 2020); (ECF No. 14, Ex. C at 2–4 ("Consent Decree Order").) In response to COVID-19, Minnesota Governor Tim Walz has issued a series of emergency executive orders in an attempt to combat the spread of the virus throughout the state. E.g., Emergency Exec. Orders 20-01, 20-20, 20-33, 20-48, 20-56, 20-74, 20-78, 20-81, 20-89, available at These orders include directives for Minnesotans to stay home, limit social gatherings, wear masks in public spaces, and reduce capacity for indoor events. Emergency Exec. Orders 20-20, 20-56, 20-81. Both the pandemic and these restrictions necessarily impact Minnesotans’ ability to vote at the polls on Election Day.

II. Federal Law Governing Elections

The Electors’ claims are based in part on Article II of the Constitution, which grants state legislatures the authority to determine how to select presidential electors. The "Electors Clause" provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of [Presidential] Electors ...." U.S. Const. art. II, § 1, cl. 2. Article I has a corresponding provision for the selection of Senators and Representatives, the "Elections Clause," which provides that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." U.S. Const. art. I § 4, cl. 1. The Electors Clause and Elections Clause have "considerable similarity," and interpretations of one clause may inform the other. Ariz. State Leg. v. Ariz. Indep. Redistricting Comm'n , 576 U.S. 787, 839, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015) (Roberts, C.J., dissenting); see Donald J. Trump for President, Inc. v. Bullock , No. CV 20-66-H-DLC, 491 F.Supp.3d 814, 832–34, (D. Mont. Sept. 30, 2020) (finding that the term "Legislature" has the same meaning in both clauses).

The Elections Clause gives a state legislature authority to involve other state actors, including members of the state's executive branch, in setting the times, places, and manner of elections. U.S. Const. art. I § 4, cl. 1 ; Ariz. State Leg. , 576 U.S. at 816–18, 135 S.Ct. 2652. The phrase "the Legislature thereof" in this clause does not refer exclusively to the legislature; rather, it refers to the ordinary "lawmaking processes of a state." Corman v. Torres , 287 F. Supp. 3d 558, 573 (M.D. Pa. 2018) (three-judge panel) (citing Ariz. State Leg. , 576 U.S. at 816–18, 135 S.Ct. 2652 ).

The Electors Clause similarly gives a state legislature discretion in prescribing the process for selecting presidential electors. McPherson v. Blacker , 146 U.S. 1, 25–26, 13 S.Ct. 3, 36 L.Ed. 869 (1892). Under this clause, each state must appoint electors "in such Manner as the Legislature thereof may direct." U.S. Const. art. II, § 1, cl. 2. The words "in such Manner as the Legislature thereof may direct" do not mean that the legislature itself must select the electors for a given election; rather, they mean that the legislature has the sole authority to prescribe the process through which the state selects those electors. Id.; McPherson , 146 U.S. at 25, 13 S.Ct. 3 (citing U.S. Const. art. II, § 1, cl. 2). The legislature may (1) delegate the authority to select electors to the public at large, (2) delegate the authority to the executive, or (3) prescribe a different procedure entirely. Id. at 25–26, 13 S.Ct. 3. The Electors Clause operates only to ensure that the legislature determines how the electors are selected. Id.

The Electors also raise a claim under federal law governing the date of a presidential election. Under the Constitution, Congress has the power to set the date on which the presidential election occurs; that day must be the same throughout the country. U.S. Const. art. II, § 1, cl. 4. Congress used that power to set "the Tuesday next after the first Monday in November" as the date for selecting presidential electors. 3 U.S.C. § 1. This year, Election Day falls on November 3. Once selected, the presidential electors meet on "the first Monday after the second Wednesday in December." 3 U.S.C. § 7. This year, that date is December 14. Congress has also provided that it must generally accept the votes of electors selected and certified by six days prior to the meeting of the Electoral College—often called the "safe harbor." 3 U.S.C. § 5. Essentially, under the safe harbor, so long as a state certifies its election results by six days before the meeting of the Electoral College—this year, by December 8Congress must almost always accept those electors’ votes.1

III. Minnesota Election Laws, the Secretary of State's Authority to Issue Rules for Elections, and Minnesota's Counting Procedures

Minnesota has a no-excuse absentee voting system, which permits any eligible voter to vote absentee for any reason. Minn. Stat. § 203B.02 subd. 1. Absentee voting begins 46 days before Election Day; in 2020, that date was September 18. Minn. Stat. § 203B.081 subd. 1. A voter seeking to vote absentee may request a ballot at any time up to the day before Election Day and local election officials are responsible for providing ballots to those voters. Minn. Stat. §§ 203B.04 –.07.

By Minnesota statute, to be counted, an absentee ballot must reach election officials by either 3:00 p.m. (for hand-delivered ballots) or 8:00 p.m. (for mail-delivered ballots) on Election Day (the "Receipt Deadline"). Minn. Stat. § 203B.08 subd. 3 ; Minn. R. 8210.2200 subp. 1. Ballots received after the Receipt Deadline are marked as "late" and cannot be counted. Minn. Stat. § 203B.08 subd. 3. Many other states have similar Receipt Deadlines,2 which differ from Postmark Deadlines, where ballots are counted if they are postmarked by Election Day but received afterwards.3 The difference between these two absentee-ballot counting deadlines—and which one Minnesota will follow—is the crux of this case.

What happens when an absentee ballot is received is not the subject of much dispute. Minnesota law sets out a specific procedure for accepting, rejecting, and counting absentee ballots. Minn. Stat. § 203B.121. Each county has a ballot board that is responsible for either accepting or rejecting each absentee ballot. Id. subds. 1, 2. Upon receipt of an absentee ballot, the ballot board decides, based on several criteria, whether to accept or reject the ballot.4 Id. subd. 2. Generally, the ballot board begins to process "accepted" absentee ballots one week before the election (the "Processing Window"). Id. subd. 4. 2020 brings a different circumstance, and so Minnesota enacted special legislation extending the Processing Window to two weeks before Election Day. 2020 Minn. Sess. Law Serv. ch. 77 § 1 subd. 3 (altering certain Minnesota election laws for 2020 only). After the close of business two weeks before an election, a voter whose ballot the ballot board has accepted may not cast another ballot. Id. On each day during the Processing Window, the ballot board places absentee ballots in the ballot box to be counted separately from ballots cast in person. Minn. Stat. § 203B.121 subds. 4, 5. Once all absentee ballots have been received and counted, the tallies are added to the returns from in-person votes. Id. ...

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