Carson et al v. Simon
ORDER ON EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL. Based on the foregoing and on all the files, records, and proceedings herein, the Plaintiffs' emergency motion for injunction pending appeal #61 is DENIED. (Written Opinion) Signed by Judge Nancy E. Brasel on 10/16/2020. (KMW)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 20‐CV‐2030 (NEB/TNL)
JAMES CARSON and ERIC LUCERO,
STEVE SIMON in his official capacity as
Secretary of State of the State of
ROBERT LAROSE, TERESA MAPLES,
MARY SANSOM, GARY SEVERSON,
and MINNESOTA ALLIANCE FOR
RETIRED AMERICANS EDUCATION
ORDER ON EMERGENCY MOTION
FOR INJUNCTION PENDING APPEAL
On August 3, 2020, the state court entered an order and partial consent decree
suspending Minnesota’s absentee ballot receipt deadline for the upcoming presidential
election. (ECF No. 36‐1, Ex. C.) In late September, Plaintiffs (“the Electors”) filed this
action seeking to enjoin the state court’s order and the consent decree. The Court denied
the Electors’ motion for a preliminary injunction. (ECF No. 59 (“Preliminary Injunction
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Order”).) The Electors have appealed, and they now seek an injunction pending that
appeal. (ECF No. 61.) For the reasons that follow, the Court denies the motion.
The Court has previously laid out the facts in this case in detail. (Preliminary
Injunction Order at 2–18.) Thus, the Court recounts only the facts necessary to
contextualize this motion. Intervenor Defendants in this suit (“the Alliance”) sued
Defendant Minnesota Secretary of State Steve Simon (“Secretary Simon”) in state court
seeking to enjoin, among other things, enforcement of the Minnesota statute requiring
that election officials receive absentee ballots by 8:00 p.m. on Election Day. (Preliminary
Injunction Order at 9–10.) Secretary Simon and the Alliance reached an agreement
embodied in a consent decree (the “Consent Decree”), in which Secretary Simon agreed
not to enforce the receipt deadline; the state court confirmed and entered the Consent
Decree. (Id. at 12.) Later, the Electors brought this suit seeking to enjoin enforcement of
the Consent Decree. (ECF No. 1 (“Compl.”).) The Electors claim that the entry of the
Consent Decree violated the Constitution and federal statutes. (Id. ¶¶ 2–3, 53–65, 75–90.)
After an expedited briefing schedule and a hearing, the Court found that the
Electors lacked standing to bring their claims, declined to address the merits of their
claims, and denied the preliminary injunction. (Preliminary Injunction Order.) The
Electors filed a notice of appeal and this emergency motion for injunction pending appeal
(ECF Nos. 60, 61).
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Under Federal Rule of Civil Procedure 62(d), a court may “suspend, modify,
restore, or grant an injunction” while there is a pending appeal from an interlocutory
order that grants, denies, or modifies an injunction. Fed. R. Civ. P. 62(d). When
considering whether to issue an injunction pending appeal, a court must “engage in the
same inquiry as when it reviews the grant or denial of a preliminary injunction.” Walker
v. Lockhart, 678 F.2d 68, 70 (8th Cir. 1982) (citations omitted). Thus, the Court must
consider (1) the likelihood of success on the merits; (2) the likelihood of irreparable harm
to the movant if the injunction is not granted; (3) the absence of any substantial harm to
other interested parties if an injunction is granted; and (4) the public interest. Shrink Mo.
Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998) (citing Dataphase Sys., Inc. v. C L Sys.,
Inc., 640 F.2d 109, 114 (8th Cir. 1981)). The moving party has the heavy burden to establish
that the injunction should be granted. Nken v. Holder, 556 U.S. 418, 439 (2009) (Kennedy,
In the Preliminary Injunction Order, the Court found that the Electors lacked
standing and denied the Electors’ motion for a preliminary injunction. (Preliminary
Injunction Order at 38.) In doing so, the Court rejected the Electors’ various theories of
injury—vote dilution (Id. at 20–24), uncertainty (Id. at 24–27), risk of a safe harbor
violation (Id. at 27–30), and injury as candidates for election (Id. at 30–34). The Court also
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concluded that the Electors lack prudential standing because the injuries belong, if to
anyone, to the Minnesota Legislature and Congress. (Id. at 34–37.) Since the Electors
lacked standing to bring their claims, the Court did not reach, among other issues, the
merits of their claims. (Id. at 37–38.)
The Electors Still Lack Standing
The Electors now primarily argue that the Court erred in determining that they
lack standing for a preliminary injunction. The Electors’ brief does not change the Court’s
analysis or their standing shortfalls. While many of the Electors’ arguments under Rule
62(d) are the same as those contained in their original briefing, the Court will address a
few points below.
A. Article III Standing
1. Candidate Standing
The Electors again argue that they have standing based on their status as
candidates to serve as presidential electors. They rely on the same three cases to support
this theory—Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000); Bush v. Gore,
531 U.S. 98 (2000); and McPherson v. Blacker, 146 U.S. 1 (1892)—but argue that the Court
The Electors first assert that the Court ruled that McPherson was “wrongly decided
or upended by subsequent doctrinal developments.” (ECF No. 62 (“Pl. Br.”) at 5.) In their
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view, the Court’s conclusion “calls into question virtually all election‐related challenged
by candidates.” (Id.)
The Electors mischaracterize the Preliminary Injunction Order’s analysis of
McPherson. The Preliminary Injunction Order did not conclude that McPherson was
wrongly decided or that its holding was disturbed by later doctrine. The narrow point
the Court made was that, contrary to the Electors’ assertions, McPherson does not stand
for the proposition that candidates to serve as presidential electors have standing to
challenge these election procedures. (Preliminary Injunction Order at 31–32); cf. Comm.
for Monetary Reform v. Bd. of Governors, 766 F.2d 538, 544 n.37 (D.C. Cir. 1985) (refusing to
accord precedential value to a court’s standing analysis when that case preceded an
intervening change in the constitutional standards for standing). McPherson is still good
law, but it does not support the proposition the Electors claim it does—that candidates to
serve as presidential electors automatically have standing to challenge election
procedures. The McPherson Court simply never considered the issue of standing.
Next, the Electors contest the Preliminary Injunction Order’s distinction between
the present case and Bush v. Gore and Palm Beach County. (Pl. Br. at 5–6.) In the Preliminary
Injunction Order, the Court noted that both cases “involved post‐election litigation with
tangible, concrete harms, not vague, pre‐election concerns over the possibility of post‐
election litigation asserted here.” (Preliminary Injunction Order at 32.) The Electors claim
that this analysis goes to ripeness, not standing. (Pl. Br. at 5.) The Electors are wrong on
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this point; the Court was addressing exactly what it said it was addressing—standing.
(Preliminary Injunction Order at 32). To establish standing, injuries must be concrete,
actual, imminent, and more than merely speculative.1 Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). The Electors’ claim that the entry of the Consent Decree would harm
their ability to serve as presidential electors is, as of now, a speculative injury.
The Electors also try to minimize the distinction between the present case and Bush
v. Gore and Palm Beach County. (Pl. Br. at 5–6.) In their view, they have suffered a
substantially similar injury to the plaintiffs in those two cases. (Id.) Specifically, the
Electors claim that in those cases, like here, Vice President Gore had no reason to believe
that the challenged ballots would favor one candidate over the other. (Id. at 5.) This
contention misses the mark. In Bush v. Gore and Palm Beach County, Florida election
officials had certified Bush the winner of the state’s popular vote, and there was evidence
of inconsistent vote‐counting practices. Gore v. Harris, 772 So. 2d 1243, 1248 (Fla. 2000).
The harm to Gore was clear and not merely hypothetical—if the vote‐counting practices
were not rectified, Gore would lose. This distinction is critical. As of now, all the Electors
can do is speculate that ballots postmarked by November 3 and received afterward might
affect the election, and that those votes would cost them the election.
1 Ripeness, on the other hand, “turns on ‘the fitness of the issues for judicial decision’ and
‘the hardship to the parties of withholding court consideration.’” Pac. Gas & Elec. Co. v.
State Energy Res. Conserv. & Dev. Comm’n, 461 U.S. 190, 201 (1983) (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 149 (1967)). The Court discussed neither of these in the Preliminary
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2. Uncertainty and Confusion
The Electors assert that the Court, in concluding that their uncertainty and chaos
theory did not confer standing, “improperly ma[de] assumptions about the merits during
the standing inquiry.” (Pl. Br. at 6 (emphasis omitted).) The Electors’ argument here is
that because they pled it, the Court must assume that the Consent Decree is unlawful and
that it will cause confusion. The Electors cite no case for the proposition that taking
allegations as true for standing purposes reaches this far. Taken to its logical end, the
Electors’ argument would mean that any citizen could challenge any law on the grounds
that the unlawfulness would lead to confusion. (ECF No. 69 at 12.) More importantly, the
Electors have not made any factual assertions to back up their conclusory allegations. The
claims are too speculative to support standing.
3. Voter Standing
Next, the Electors again claim that their votes will be diluted if the Consent Decree
is not enjoined. Even assuming that the Electors’ votes would be diluted, this harm would
be felt in precisely the same way by every Minnesota voter,2 which is necessarily true for
To illustrate this point, suppose that 3,000,000 Minnesota voters cast a “non‐challenged”
ballot (that is to say, an absentee ballot received on or before Election Day, a vote cast in
person during early voting, or a ballot cast in person on Election Day). Each voter’s vote
counts for 1/3,000,000 of the total. If election officials receive 10,000 “challenged ballots”—
those postmarked by Election Day but received up to a week after Election Day. Each
voter’s vote is now worth 1/3,010,000 of the whole. Each of the initial 3,000,000 voter’s
votes is now worth marginally less of the whole, but the marginal dilution is spread
exactly evenly, including to the Electors’ votes.
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a state‐wide election. In such an election, there is nothing that distinguishes any single
Minnesota vote from any other Minnesota vote. Even those ballots received after the
Receipt Deadline will be diluted to the same extent as if they had been timely cast. This
is in direct contrast to Baker, Gill, and numerous “one‐person, one‐vote” Equal Protection
cases. In Baker, the plaintiffs lived in overpopulated districts where the ratio of citizens to
elected official was higher than in other districts in the state. 369 U.S. at 192–93. This
“plac[ed] them in a position of constitutionally unjustifiable inequality vis‐a‐vis voters in
irrationally favored counties,” providing the requisite individual and personal injury: the
vote of a voter in one district was worth more than that of a voter in another. Id. at 207–
08. Gill made clear that the claimed injury from vote dilution must be “district specific.”
138 S. Ct. at 1930. Indeed, plaintiffs in Gill asserted a state‐wide injury, but the Supreme
Court rejected this theory as too generalized to confer standing—the voters who could
have had standing under this theory were those from individual districts who had been
personally injured. Id. at 1931. Finally, in Reynolds, the Supreme Court held that “an
individualʹs right to vote for state legislators is unconstitutionally impaired when its
weight is in a substantial fashion diluted when compared with votes of citizens living on other
parts of the State.” 377 U.S. at 568 (emphasis added). In sum, these three cases illustrate the
principle that when vote dilution is claimed as an injury, the dilution must be specific
and personal to the plaintiff or to a specific group whose vote power was diluted vis‐à‐
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vis another person or group. In the present case, the harm, if it exists, is felt equally by
every Minnesota voter.3
The Electors also seek to distinguish their case from other recent cases that found
that plaintiffs did not have standing as voters. (Pl. Br. at 9–10.) The chief distinction, in
the Electors’ view, is that fraud was not certain to occur in those cases, where here it is a
certainty that “many late votes will be counted.” (Id.) This contention ignores the fact that
the Court found that the Electors lacked standing on their vote dilution theory because it
is too generalized to confer standing. (Preliminary Injunction Order at 20–24.) Even if the
Court accepted as true that the challenged ballots are invalid, the claim that those votes
will dilute the Electors’ votes is still too generalized. (Id.)
The Electors argue against this conclusion by claiming that the injury is specific to
them, since only votes cast on or before Election Day will be diluted. (Pl. Br. at 10.) But
votes received after Election Day will similarly be worth a smaller percentage of the total
amount of votes cast. Even if the Electors were correct that only votes received on or
before Election Day would be diluted, their vote dilution injury is still shared equally by
The Electors contend that the Preliminary Injunction Order “cast[s] a shadow on voting
rights in the United States by calling into question even individual voters’ right to
challenge vote dilution.” (Pl. Br. at 9.) The Electors have again misinterpreted the
Preliminary Injunction Order by reading its conclusions much more broadly than is
justified. The Court did not call into question an individual voter’s ability to challenge
vote dilution. At most, the Court found that, based on the evidence in this case, the
Electors’ vote dilution theory was too generalized to confer standing. The Court’s ruling
was no broader than that and does not foreclose other justiciable challenges to alleged
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millions of Minnesota voters—every voter who cast their ballot early in person, in person
on Election Day, and had their absentee ballot received prior to Election Day. This injury
would still be “shared in substantially equal measure” by a “large class of citizens” and
would still constitute a generalized grievance. Warth, v. Seldin, 422 U.S. 490, 499 (1975).
The fact remains that even if the Electors’ votes are diluted, this harm is neither personal
nor individual to them. Gill, 138 S. Ct. at 1929.
4. Safe Harbor
The Electors assert that the Court misconstrued their theory that failure to meet
the safe harbor deadline constitutes a cognizable injury that confers standing. (Pl. Br. at
10–11.) The Court found that this theory did not confer standing because: (1) the prospect
of Minnesota changing the rules by which it appoints electors after the election was too
speculative; and (2) the state failing to certify a set of electors by the safe harbor deadline
was similarly speculative. (Preliminary Injunction Order at 28–30.) The Electors now
clarify that this theory of injury relies on the supposition that Secretary Simon’s Consent
Decree is not a “law enacted” within the meaning of the safe harbor provision. (Pl. Br.
at 10–11); 3 U.S.C. § 5.
The best support that the Electors are able to marshal for this conclusion is pointing
to the Complaint, which states that “[t]he consent decree is not an enacted law but an
executive policy in flat contradiction to State law.” (Pl. Br. at 11.) According to the
Electors’ theory, Minnesota, by applying the Consent Decree rather than its enacted
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statutes, will be deemed to have changed the procedures it uses to appoint electors after
Election Day. (Id.) This alternative theory fails for the same reason as the Electors’ other
safe harbor‐related theories failed—it is too speculative. The Electors provide no support
for their assertion that Minnesota will be deemed to have changed its procedures after
Election Day. The procedures outlined in the Consent Decree will have been in place well
before Election Day. (See ECF No. 36‐1, Ex. C (entering the Consent Decree on August 3,
2020).) The circumstance the Electors raise is not a case where the popular vote comes in,
Minnesota election officials certify it, and then the legislature changes the rules of picking
electors. Further, Secretary Simon had the authority to adopt alternative election
procedures when Minnesota’s election laws could not be implemented due to a court
order—authority that came from a law already on the books in Minnesota well before
Election Day. Minn. Stat. § 204B.47.
Presumably Congress would be the one to make the determination that Minnesota
has changed its procedures in violation of the safe harbor, but the Court has no reason to
believe that such a result is “certainly impending” or that there is a “substantial risk that
the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quotation
marks and citation omitted). The Electors have not cited any instances of Congress
making a similar determination in the past, any electoral votes being rejected for this
reason, or any reason to suppose that Congress will do so in the future. At this stage, the
claimed injury is merely hypothetical, and does not confer standing.
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Compounding this revised theory’s problems is the fact that the Electors have
mostly ignored the effect of Minnesota Statutes Section 204B.47. Section 204B.47 allows
Secretary Simon to “adopt alternative election procedures” when a provision of the
Minnesota election laws “cannot be implemented” due to a court order. Minn. Stat. §
204B.47. That this provision empowers Secretary Simon to adopt alternate procedures
makes the Electors’ theory even more speculative. Not only would Congress have to find
that the Consent Decree is not a “law enacted” by Minnesota for purposes of the safe
harbor provision, they would have to ignore section 204B.47 in doing so.
Finally, even assuming that the Electors are correct that the Consent Decree would
cause Congress to find that Minnesota failed to satisfy the safe harbor provision, the
Electors still have not addressed the speculative nature of the steps that would follow. In
the Preliminary Injunction Order, the Court noted that the chain of events between
Minnesota failing to obtain safe harbor and it losing its electoral votes is tenuous.
(Preliminary Injunction Order at 28–30.) The Electors claim that loss of safe harbor is a
cognizable injury since an increased risk of harm is sufficient to confer standing, and
failing to obtain safe harbor increases the risk that Minnesota will lose its electoral votes.4
In so arguing, the Electors again misread Bush v. Gore. They claim that “the loss of safe‐
harbor status” was a “sufficiently great injury to require terminating a recount.” (Pl. Br.
at 12.) As a threshold matter, the discussion of safe harbor in Bush v. Gore did not involve
standing. In addition, the Supreme Court was concerned about failing to heed the Florida
Legislature’s desire to obtain safe harbor certification (as expressed through the Florida
Supreme Court and Florida Legislature), not about the failure to obtain safe harbor in and
of itself. In other words, the Supreme Court terminated the recount because not doing so
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(Pl. Br. at 11–12.) Although it is true that increased risk of harm may establish the requisite
injury for standing, this observation does not obviate the requirement that claimed
injuries not be too speculative. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).
Despite the increased risk, as explained in the Preliminary Injunction Order, the prospect
of Minnesota losing its electoral votes remains hypothetical at best.
In sum, as the Court concluded in its previous order, none of the Electors’ theories
confers Article III standing.
B. Prudential Standing
The Electors criticize the Court’s conclusion that they lack prudential standing to
bring their claims. (Pl. Br. at 12–14.) In so doing, the Electors again miss the Preliminary
Injunction Order’s conclusions. The Electors advance new arguments to support their
motion, but the Court’s conclusion is the same—the Electors lack prudential standing.
Under the Electors reading of the Preliminary Injunction Order, the upshot of the
Court’s conclusions is that “no preemption claim can be brought in federal court.” (Pl. Br.
at 12.) This is clearly not the case. To the contrary, the Preliminary Injunction Order’s
conclusion is much narrower—the Electors are not asserting their own rights when they
claim that the Consent Decree is preempted by federal statutes setting the election date.
would violate Florida’s election laws, not because failing to obtain safe harbor is a “great
injury.” The only thing that Bush v. Gore says about the safe harbor provision is that when
a state legislature expresses a desire to obtain safe harbor, a recount cannot be continued
if doing so would violate the legislature’s wish. As such, the Electors’ citation to Bush v.
Gore for this point is inapposite.
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(Preliminary Injunction Order at 34–35.) This conclusion does not foreclose all
preemption claims. Certain preemption claims may involve real, tangible injuries to an
individual’s rights, but this is not such a case. The Electors provide some helpful
examples of cases where individual plaintiffs may bring preemption claims. (Pl. Br. at
12.) For example, in Springfield Television, Inc. v. City of Springfield, 462 F.2d 21 (8th Cir.
1972), the Court held that plaintiffs had standing to assert preemption when they suffered
a “direct economic injury” and were within the zone of interests that the regulations
sought to protect. Id. at 23. In Viceroy Gold Corp. v. Aubry, 75 F.3d 482 (9th Cir. 1996), the
plaintiff had standing to assert that the National Labor Relations Act preempted state law
when the plaintiff was within the zone of interests of the statute and suffered an injury—
that due to state law it was not allowed to structure its employees’ schedules as it wished.
Id. at 488. The reasoning of the Preliminary Injunction Order is not in tension with either
of these outcomes since, unlike those cases, the Electors here have not established a
cognizable injury nor demonstrated that they are within the zone of interests that
Congress intended to protect when it established a uniform election day.
The Electors also claim that they have prudential standing to bring Count I,
challenging Secretary Simon’s ability to enter into the Consent Decree. The Electors
rightfully note that “private parties can litigate the constitutionality or validity of state
statutes, . . . so long as each party has a sufficient personal stake in the outcome of the
controversy.” (Pl. Br. at 13 (emphasis added) (quoting Cherry Hill Vineyards, LLC v. Lilly,
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553 F.3d 423, 430 (6th Cir. 2008)).) The problem here is that the Court has already
determined that the Electors do not have a personal stake in the outcome. (Order at 18–
34); supra Analysis I.A.1–4; Warth, 422 U.S. at 498 (noting that the standing inquiry
assesses whether the plaintiff has a personal stake in the outcome of the litigation).
Finally, the Electors claim that the Court misapplied Bond v. United States, 564 U.S.
211 (2011), by taking an overly narrow view of its holding. The fact remains, however,
that the Electors are not making a Tenth Amendment claim, they are making a claim
under Article II of the Constitution. Bond was based on a federal invasion of a state’s
police powers, and the litigant had standing to challenge the statute for that reason. Bond,
564 U.S. at 223–24. The Electors discuss the “balance of powers” that Article II provides,
(Pl. Br. at 14), but they fail to identify a violation of the principles of federalism. Indeed,
the Electors’ claims involve violations of the power the Constitution delegated to the
states, not on powers reserved to the states. In short, there is no federalism issue here,
and thus Bond does not apply.
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Based on the foregoing and on all the files, records, and proceedings herein, the
Plaintiffs’ emergency motion for injunction pending appeal (ECF No. 61) is DENIED.
Dated: October 16, 2020
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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