Minnesota Ordered to Segregate Votes Arriving After Election

A federal appeals court ordered Minnesota election officials to segregate mail-in ballots that arrive after Nov. 3 in case a future court order requires such votes to be purged from the count.

Two Republican electors in Minnesota are challenging the state’s plan to accept mail-in ballots up to a week after Election Day as long as they’re postmarked on time — an extension the state put in place to account for an expected flood of absentee voting during the pandemic as well as mail delays.

The decision Thursday by the U.S. Court of Appeals in St. Louis is a setback for a Democratic-linked group that sued to secure the new deadline. The Democrats’ nationwide effort to ensure ballots mailed by Election Day get counted has had mixed success, including at the U.S. Supreme Court.

The appeals court acknowledged in its 2-1 decision that ruling so close to the election “may create harm in terms of voter confusion.”

“However, the inevitable post-election challenges 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,” the court held.

A group of Democratic-led states had submitted a filing defending Minnesota’s plan, arguing the extended deadline encourages safer voting during the pandemic and assures more ballots will be properly counted in light of persistent U.S. Postal Service delays — a factor “over which voters have no control,” they said.

Read More: USPS Says Timely Vote Delivery Isn’t a Constitutional Right

The appellate panel ordered a lower-court judge to grant an injunction in the suit by the two GOP electors who argued the ballots should be set aside. The two judges in the majority were appointed by President Donald Trump and former President George W. Bush, both Republicans.

As in other suits over rules for mail-in ballots, Republicans have argued that Minnesota’s secretary of state violated the constitution by changing election rules that are set by the state legislature. In a dissenting opinion, Judge Jane Kelly said the election official was within his right to adjust the rules during the pandemic through an accord that settled a state-court lawsuit.

“Minnesota’s legislature has expressly delegated some of its lawmaking authority to the Minnesota Secretary of State where elections are concerned,” wrote Kelly, a Barack Obama appointee. “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.”

Jason Snead, executive director of the conservative Honest Elections Project, which backed the suit, said in a statement that the decision was a “tremendous victory” that would result in less confusion for voters.

“The Court of Appeals could not have been more clear: there is no pandemic exception to the Constitution,” Snead said.

The GOP’s argument that changing the deadline would also lead to a massive fraud had been rejected by the lower court, citing evidence that the rate of such fraud in the state since 1979 is just 0.000004%.

Read More: Understanding the Split High Court Decisions on Mail Ballots

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Senate Advances Barrett’s Court Nomination to Final Vote

The U.S. Senate took its second-to-final step toward putting Amy Coney Barrett on the Supreme Court, a move that would seal a 6-3 conservative high-court majority and cap a swift but bitterly partisan confirmation process.

The Senate, on a 51-48 tally on Sunday, advanced Barrett’s nomination toward a final vote to be held on Monday. Barrett was Donald Trump’s choice to replace the liberal Justice Ruth Bader Ginsburg, who died of cancer on Sept. 18.

Sunday’s vote followed ultimately fruitless delaying tactics by Democratic opponents and demonstrated that Barrett, 48, has the backing she needs to be be seated on the court just a week before Election Day. Republicans have a 53-47 Senate majority.

Senate Majority Leader Mitch McConnell, speaking moments after the vote, called Barrett “a stellar nominee in every single respect.”

”Her intellectual brilliance is unquestioned. Her command of the law is remarkable. Her integrity is above reproach,” McConnell said.

Barrett, an appellate court judge who teaches at Notre Dame Law School and once clerked for the late Justice Antonin Scalia, will extend Trump’s drive to reshape the federal judiciary and could give the Supreme Court a rightward tilt for decades.

Undue Haste

Senate Democrats used hours of procedural delays and a Judiciary Committee boycott to protest a process they say unfolded with undue haste after Ginsburg’s Sept. 18 death, and even as early voting was under way in the presidential election. They say Barrett could change how the court might rule in areas including abortion, the Affordable Care Act, civil rights and lawsuits that could stem from the 2020 elections.

“The Senate has never confirmed a Supreme Court justice so close to the election,” Senate Democratic Leader Chuck Schumer said after the vote.

“Republicans are rushing to hold a confirmation vote tomorrow night, eight days before the election and after more than 50 million Americans have voted for president — quite possibly a different president — to pick justices on their behalf,” Schumer said. He accused Republicans of leveraging “raw political power.”

Senate Democrats and two Republicans — Susan Collins of Maine and Lisa Murkowski of Alaska — voted Sunday against allowing Barrett’s nomination to speed ahead for Monday’s final vote. Both said earlier the vacancy should be filled by the next president, whether it’s Trump or Democrat Joe Biden.

Collins has also said she’ll vote against Barrett’s confirmation, but Murkowski announced Saturday she ultimately would support confirmation in Monday’s vote because Barrett, in her opinion, is qualified for the job.

“While I oppose the process that has led us to this point, I do not hold it against her,” Murkowski said in a floor speech on Saturday.

Vice presidential nominee Senator Kamala Harris of California was campaigning in Michigan on Sunday and didn’t vote.

Hot-Button Issues

In testimony this month to the Senate Judiciary Committee, Barrett said she would be her own judge, and declined to answer questions on how she might rule on issues ranging from abortion to voting rights to health care.

While saying she wasn’t calling for the court to be more aggressive in overturning its precedents, when given a chance she didn’t include cases involving access to abortion and contraception rights on her list of “super-precedents” that would be unthinkable to overturn.

Democrats spoke on the Senate floor, as they did in her confirmation hearing, about Barrett’s potential impact on the ACA, their central issue for the upcoming election. Barrett likely would be on the court when it hears arguments Nov. 10 in a case that could undo Obamacare, which provides health insurance for 20 million Americans. She’s criticized Chief Justice John Roberts for a 2012 majority opinion he wrote that upheld the core of the law.

‘Signals’ Received

”She’s sent plenty of signals in the past about how she feels about the ACA,” said Senator Dick Durbin on Illinois, the No. 2 Democratic leader and a senior Judiciary Committee member. He said Trump Republicans are “bound and determined” to abolish Obamacare, and that’s why they’re pushing so fast to confirm Barrett.

When pressed by Democrats, the nominee wouldn’t commit to recusing herself from cases related to the 2020 election that may come before the court. Trump said earlier he wanted Ginsburg’s replacement to help rule in his favor.

A devout Catholic and mother of seven, Barrett personally opposes abortion and once wrote that it is “always immoral.” But she testified she will set aside her personal views in her work as a judge.

Barrett’s nomination angered Democratic activists, who poured hundreds of millions into election campaigns in the wake of Ginsburg’s death.

Conservative non-profit groups had plans to spend about $30 million by month’s end advocating for Barrett’s confirmation, said people familiar with the activities. The money has financed a barrage of advertising and grass-roots activity — mostly in battleground states — that could have the side effect of energizing Trump’s voters and boosting GOP senators facing tight re-election races.

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Amy Coney Barrett Steps Into Crucible of Confirmation Hearings

Voters will get their first intensive look at Judge Amy Coney Barrett in hearings that begin Monday and are all but certain to lead to President Donald Trump’s Supreme Court nominee being placed on the high court just days before the election.

Her confirmation by the Republican-led Senate isn’t in doubt, barring a major bombshell during the four days of statements and questioning by the Judiciary Committee. Democrats will use the forum to prod the nominee on the Affordable Care Act and abortion rights, looking to make the proceedings part of their case to unseat Trump and retake the Senate on Nov. 3.

For Republicans, it’s a chance to cement a 6-3 conservative majority on the top U.S. court, potentially for decades. Yet it carries risks for a handful of GOP senators in close races for re-election.

Barrett, a 48-year-old appellate court judge, mother of seven, devout Catholic and former clerk to the late Justice Antonin Scalia, was Trump’s pick to replace Ruth Bader Ginsburg and is the late liberal justice’s ideological opposite.

In her writings, Barrett has suggested a willingness to cast aside Supreme Court precedent, asserted that the Catholic Church’s teachings say abortion is “always immoral,” and criticized Chief Justice John Roberts for his rationale in the 2012 opinion that upheld core elements of the ACA, or Obamacare.

To the panel, though, Barrett is set to portray herself as a restrained jurist committed to ensuring her personal views don’t interfere with her rulings.

Read more

What to Watch for in the Amy Coney Barrett Confirmation Hearings

Barrett to Tell Senate That Making Policy Isn’t Court’s Role

Barrett Offers Supreme Court Many Paths to Erode Abortion Rights

“In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court and done my utmost to reach the result required by the law, whatever my own preferences might be,” she wrote in remarks prepared for Monday that were released Sunday by the White House.

Democrats haven’t been able to shake support for Barrett — or more generally, for the hasty replacement of Ginsburg — among GOP senators. Only two of the Senate’s 53 Republicans — Susan Collins of Maine, who’s up for re-election, and Lisa Murkowski of Alaska — objected to considering a new justice so close to the Election Day.

Judiciary panel Democrats say they’ll use various delaying tactics, but unless a few Republicans turn against her, they can’t stop the schedule set by Majority Leader Mitch McConnell and Judiciary Chairman Lindsey Graham, or keep Barrett off the court.

Courts Transformed

Barrett would cap the conservative transformation of the U.S. court system during the Trump years, with the GOP-led Senate already having confirmed Justices Neil Gorsuch and Brett Kavanaugh, along with 53 appellate court and 161 district court judges.

The hearings will be taking place with some members of the Judiciary participating remotely as a result of the spread of the coronavirus in Washington. Several people who were at the Sept. 26 White House event where Trump formally presented Barrett as his nominee later tested positive for the virus.

Democrats say their questioning will focus on the future of Obamacare, a key issue for American voters.

If Republicans follow through on their aggressive timetable, Barrett will be on the court to hear arguments a week after the election in a case that could undo the ACA, which provides health insurance for 20 million Americans and other benefits for millions more.

“That’s what is at stake with this Supreme Court appointment,” said Senator Dick Durbin of Illinois, the No. 2 Democratic leader and a Judiciary panel member. “That’s why Republicans are determined and rushing to fill this seat.”

Obamacare Decision

Democrats say they’ll ask Barrett about a paper she wrote in 2017 that criticized Roberts’ reasoning in the decision that upheld Obamacare’s core. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote for the Notre Dame Law School journal.

Barrett also will face questions about whether she might overturn Supreme Court precedents in other areas, including the landmark 1973 Roe v. Wade decision that established a woman’s right to have an abortion.

She wrote in a 2013 law review article that judges shouldn’t necessarily be bound by precedent when considering whether to overturn major decisions that conflict with their view of the Constitution.

Democrats want to avoid the suggestion that their questioning makes Barrett’s faith an issue. A backlash followed Barrett’s 2017 Circuit Court confirmation hearing when Senator Dianne Feinstein suggested that the nominee’s religious “dogma” would guide her work as a judge.

At the time, Barrett said she agreed judges should follow what the law requires in deciding a case, not their own “personal convictions.”

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Supreme Court Won’t Block Women From Getting Abortion Pill By Mail During Pandemic

WASHINGTON (AP) — The Supreme Court on Thursday said it would for now continue to allow women to obtain an abortion pill by mail during the COVID-19 pandemic.

The action came over the dissent of two conservative justices who would have immediately granted a Trump administration request to reinstate the requirement that women must visit a hospital, clinic or medical office to obtain a pill.

The court did little more than defer its first action on an abortion-related issue since the death of Justice Ruth Bader Ginsburg last month. The court called for a lower-court judge to take a new look at the issue and rule within 40 days. That would put any further high court action after the Nov. 3 election.

The court said in an unsigned opinion that it was holding the administration’s appeal “in abeyance.”

The administration is asking to be allowed to enforce a U.S. Food and Drug Administration rule. The administration has suspended similar in-person visits for other drugs, including opioids in some cases, but refused to relax the rules for getting the abortion pill.

A federal judge in Maryland ruled in July that, during the public health emergency declared by Health and Human Services Secretary Alex Azar, health care providers can arrange for mifepristone to be mailed or delivered to patients. The FDA has approved mifepristone to be used in combination with a second drug, misoprostol, to end an early pregnancy or manage a miscarriage.

Justices Samuel Alito and Clarence Thomas said they would have granted the administration’s request. “Six weeks have passed since the application was submitted, but the Court refuses to rule,” Alito wrote.

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Schumer Says It’s Unsafe to Hold Supreme Court Senate Hearings

Senate Minority Leader Chuck Schumer said it won’t be safe for the Senate to move ahead with Supreme Court hearings for Amy Coney Barrett given the virus outbreak that has sickened three Republican senators.

While acknowledging that Democrats can’t block the hearings, he said they plan to use “every tool in the toolbox” to try to delay a final confirmation vote for President Donald Trump’s nominee.

Senate Majority Leader Mitch McConnell has said the hearings would go forward as scheduled Oct. 12 and senators could attend remotely. Two members of the committee — Mike Lee of Utah and Thom Tillis of North Carolina — have tested positive for Covid-19, as well as a third Republican, Ron Johnson of Wisconsin.

McConnell has said he plans to seek a two-week recess of the full Senate for all but brief pro-forma sessions. He is likely to get bipartisan consent for the plan on Monday, according to a Senate aide.

“If it’s not safe for the Senate to be in session, it’s not safe for the hearings to go forward,” Schumer said at a press conference in New York.

Schumer said holding the hearings would endanger senators and staff, and he dismissed virtual hearings as insufficient for a lifetime appointment that he said could cast deciding votes on ending abortion rights, protections for pre-existing health conditions and more.

Schumer also said McConnell has blocked a coronavirus testing plan for all senators and staff at the Capitol.

“I have asked McConnell repeatedly that all of our senators and staff get testing,” but McConnell has resisted, Schumer said. “I think he is very, very wrong.”

McConnell on Friday in Kentucky dismissed a question about Schumer’s call for a testing regime, saying that the Senate had been successfully following CDC recommendations.

Schumer also demanded “full transparency” about the health of the president and others at the White House who have been infected with the virus. Schumer pointed to the “super spreader” Rose Garden ceremony for Barrett eight days ago as an example of risky behavior he said Trump had repeatedly encouraged and participated in.

“Loads of people, sitting closely together for long periods of time, with no masks, most of them,” Schumer said. “In fact, when they were inside, they were encouraged to take off their masks.”

— With assistance by Laura Litvan

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