Politics & Government
US Supreme Court keeps Nov. 12 deadline for NC to accept mailed-in absentee ballots
North Carolina voters will have more than a week for their ballots to reach election officials and still be counted after the U.S. Supreme Court declined to intervene Wednesday night.
The new deadline for mail-in ballots to be received is Nov. 12, though ballots must still be postmarked on or before Nov. 3, Election Day.
The previous deadline for ballots to be received by local boards was Nov. 6, as set by state lawmakers.
The Supreme Court declined to overturn lower court rulings in a 5-3 decision. New Justice Amy Coney Barrett did not participate in the consideration or decision.
The central issue in the case was whether the State Board of Elections had the authority to change the deadline without action from the legislature.
The Democratic-controlled state board, in a settlement agreement for a lawsuit, extended the deadline for receiving ballots to Nov. 12.
Concerns about postal service delivery delays drove the decision, as far more voters turn to voting by mail during the coronavirus pandemic.
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented. They would have granted the relief sought by state Republicans and the Trump campaign to move the deadline back to Nov. 6.
“Despite the General Assembly’s considered judgment about the appropriate response to COVID, other state actors — including the State Board of Elections — recently chose to issue their own additional and supplemental set of amendments to state election laws,” Gorsuch wrote in a dissent joined by Alito.
“... Everyone agrees, too, that the North Carolina Constitution expressly vests all legislative power in the General Assembly, not the Board or anyone else.”
The deadline to request an absentee by-mail ballot was Tuesday.
More than 3.6 million North Carolina voters already have cast their ballot as of Wednesday morning, according to the state board of elections. More than 1.45 million voters requested absentee by-mail ballots and more than half (over 819,363) had returned them as of Wednesday morning.
“North Carolina voters had a huge win tonight at the U.S. Supreme Court,” North Carolina Attorney General Josh Stein said in a statement Wednesday night. “The Court upheld the State Board of Elections’ effort to ensure that every eligible vote counts, even during a pandemic. Voters must have their mail-in ballots postmarked by Election Day, but now we all have certainty that every eligible vote will be counted. Let’s vote!”
Stein, a Democrat who is running for re-election, was part of the decision by the state board to extend the deadline.
Not everyone who requests an absentee by-mail ballot ends up using it. Voters who request one can still vote early in-person or on Election Day. But they cannot vote more than once. Early in-person voting ends Saturday at 3 p.m.
There is another similar North Carolina case pending before the U.S. Supreme Court.
“The question is simple: May unelected bureaucrats on a state panel controlled by one political party overrule election laws passed by legislatures, even after ballots have already been cast?” North Carolina Senate leader Phil Berger said in a statement Wednesday night.
“If public confidence in elections is important to our system of government, then hopefully the answer to that question is ‘no.’”
Several court challenges
The debate over North Carolina’s mailed-in absentee ballots began this summer when a state and two federal lawsuits challenged North Carolina’s election laws. Concerns over the election stem from whether people could safely vote in a global pandemic.
But a decision on those challenges ping-ponged back and forth between the state and federal courts after Wake County Superior Court Judge Bryan Collins accepted a settlement agreement that changed the election rules as voting was already underway.
There are two main points of contention in the settlement. One allowed an extra six days for the board of elections to collect ballots that were postmarked by Election Day. The other allowed the board to accept ballots without a witness signature if a voter signed an affidavit that they had cast the vote.
Both of the changes went against current election rules in North Carolina. And House Speaker Tim Moore and Berger said that despite being part of the lawsuit, they were not included in the settlement negotiations.
A federal judge intervened and put a temporary restraining order on the Board of Elections from moving forward with the agreement.
Days later, U.S. District Court Judge William Osteen ruled that the Board of Elections could not collect ballots without a witness signature. The N.C. Board of Elections agreed to Osteen’s ruling, making further court action a moot point.
But one question still lingered: How long could the mailed-in ballots be accepted after the election?
Berger, Moore and several others asked the U.S. Supreme Court to make a final ruling. State and national Republicans filed appeals to the Supreme Court on Oct. 22 to reverse the state board’s decision.
The 4th U.S. Circuit Court of Appeals permitted the Nov. 12 deadline on Oct. 27.
The N.C. Supreme Court on Monday rejected a request from Republican legislative leaders to block an extension of the deadline. The decision mirrors a similar order from the N.C. Court of Appeals last week. Berger, Moore and other plaintiffs have appealed that second case to the Supreme Court.
Concerns over mail delivery
North Carolina is far from alone in its disputes over extensions to mail-in voting in 2020, as concerns about the coronavirus pandemic, slow mail delivery and intense interest in the election have created a near-perfect storm.
The Supreme Court ruled 5-3 on Monday night that Wisconsin could not extend its deadline for accepting mail ballots to past Election Day.
Last week, the court, in a 4-4 decision, failed to block a decision by the Pennsylvania Supreme Court to allow ballots received up to three days after Election Day to be counted.
Chief Justice John Roberts explained why he opposed a deadline extension in Wisconsin but approved one in Pennsylvania.
“While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes,” Roberts wrote.
“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin.”
Gorsuch in his dissent Wednesday mentioned the Wisconsin case and wrote “in some respects, this case may be even more egregious, given that a state court and the Board worked together to override a carefully tailored legislative response to COVID.
“Indeed, the president pro tempore of the North Carolina Senate and the speaker of its House of Representatives have intervened on behalf of the General Assembly to oppose revisions to its work.”
For more North Carolina government and politics news, listen to the Domecast politics podcast from The News & Observer and the NC Insider. You can find it on Megaphone, Apple Podcasts, iHeartRadio, Stitcher or wherever you get your podcasts.
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