By Jan Wolfe
(Reuters) - A federal appeals court on Thursday said Minnesota's plan to count absentee ballots received after Election Day was illegal, siding with Republicans in the battleground state.
In a 2-1 decision, the U.S. 8th Circuit Court of Appeals said the deadline extension was an unconstitutional maneuver by the state's top election official, Minnesota Secretary of State Steve Simon, a Democrat.
"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," the decision stated.
"There is no pandemic exception to the Constitution," the majority wrote.
The 8th Circuit sent the case back to a lower court and instructed it to require Minnesota election officials to identify and "segregate" absentee ballots received after Nov. 3.
The litigation is in a preliminarily stage and those ballots would not be counted if a final judgment is entered in the Republicans' favor.
The ruling came one day after the U.S. Supreme Court left in place North Carolina and Pennsylvania's extended deadlines for receiving mail-in ballots.
Simon said in a call with reporters that the timing of the ruling was "unnecessarily disruptive" and that Minnesotans should find alternatives to mailing in their ballots.
"Just shy of 400,000" absentee ballots that were ordered by voters have not yet been received, Simon said.
"They could be in transit or they could be on coffee tables throughout Minnesota," he said.
Simon said the ruling was "confusing" and not clear about whether the segregated ballots would be included in the official results.
Officials are considering an appeal to the U.S. Supreme Court, he said.
Minnesota Senator Amy Klobuchar, a Democrat, said on Twitter that because of the "last minute" ruling, Minnesotans should vote in person or take a mail-in ballot directly to election officials.
"In the middle of a pandemic, the Republican Party is doing everything to make it hard for you to vote," Klobuchar said.
The two judges in the majority, Circuit Judges Bobby Shepherd and L. Steven Grasz, were appointed by Republicans. Shepherd is an appointee of former President George W. Bush, while Grasz was appointed by President Donald Trump.
Circuit Judge Jane Kelly, who dissented, was appointed by former President Barack Obama.
Minnesota law requires that absentee ballots be received by Election Day. But that deadline was extended through a settlement Simon reached with a citizens group that sued earlier this year.
Under that settlement, which was approved by a judge, state election officials could count ballots received until Nov. 10 as long as they are postmarked by Nov. 3.
The settlement said if a mailed ballot was missing a postmark, election officials should presume it was mailed by Nov. 3 unless evidence showed otherwise.
"The Democrats are losing it. Their efforts to manipulate our election laws met a road block today: the 8th Circuit Court of Appeals and the law," Minnesota Republican Party Chairwoman Jennifer Carnahan said on Twitter.
"The integrity of our election to have votes in by 8 pm Election Day is intact. We will always applaud freedom and fairness."
(Reporting by Jan Wolfe; Editing by Noeleen Walder, Tom Brown, Richard Pullin and Gerry Doyle)