Battle over North Carolina election rules taken to the U.S. Supreme Court

The legal battle over North Carolina’s election rules is not over.

State legislative leaders Thursday morning filed an appeal to the U.S. Supreme Court over the amount of time the N.C. Board of Elections can accept mailed-in ballots after Election Day, Nov. 3.

Under state law, ballots postmarked by Nov. 3 can be accepted three days after the election, through Nov. 6.

But the 4th U.S. Circuit Court of Appeals ruled earlier this week that ballots could be accepted through Nov. 12, under a policy adopted by the board of elections. The board said concerns about the speed of delivery by the U.S. Postal Service prompted the change.

Republican leaders of the state House and Senate sued seeking to force the board to follow the date set by law.

“The question now before the U.S. Supreme Court is whether an unelected state panel should be able to change election laws after voting has already started,” Senate Leader Phil Berger said in a news release. “Multiple judges in multiple jurisdictions have already said no, and this case was thrown into further chaos by the shocking behavior of one appeals judge who thwarted the Fourth Circuit’s favorable ruling before they could publish the opinion.”

The appeal comes as nearly 700,000 North Carolinians had already cast mailed-in ballots and nearly 1.8 million people had voted early in person.

“It’s a disgrace that Republicans are trying to block eligible voters from having their votes counted,” Attorney General Josh Stein said in a written statement. “If voters comply with the statute and mail in their ballots on or before Election Day, they should not be penalized by slow mail delivery in a pandemic.

“The Republicans have lost this argument at every turn because they are trying to stop votes from being counted.”

Stein said his office will work to ensure every eligible voter can cast their ballot easily and safely during the pandemic and that their vote will count.

N.C. Board of Elections spokesman Pat Gannon said normally the agency doesn’t comment on pending lawsuits but offered assurance to voters.

“We are focused on continuing to carry out a smooth and safe election,” Gannon said. “More than 2.5 million voters have already cast their ballot in our state.”

The State Board of Elections changed the due date for mail-in ballots as part of an agreement to settle a lawsuit brought by a political group representing retirees. The settlement also created a process for affirming mail-in ballots that were missing witness signatures on the envelope that would allow voters to go without the required signature.

A Wake County Superior Court judge accepted the settlement agreement on Oct. 3, even as the Trump campaign and state Republican leaders asked state and federal judges to intervene. A federal judge stopped the new signature policy from being enforced, and the board of elections agreed to send new ballots to voters missing a witness signature on the ballot envelope.

But the federal judge said extending the time for accepting a mailed-in ballot needed to be decided by the appellant court.

Late Tuesday, the U.S. Court of Appeals agreed to the extension, and Republican lawmakers said they planned to appeal to the U.S. Supreme Court, as suggestion by the minority of the judicial panel.

Berger cited those judges on Thursday.

“The dissenting Fourth Circuit judges rightly diagnosed what’s happening nationwide: ‘It takes no special genius to know what this insidious formula is producing. Our country is now plagued by a proliferation of pre-election litigation that creates confusion and turmoil and that threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves,’” he wrote.

Still, the majority of the appeals court said that extending the time for accepting mailed-in ballots does not affect voters. The deadline for mailing the ballots has never changed, the judges wrote. No matter what day the board of elections accepts a ballot, a voter must mail it by Nov. 3.

Election Day is 12 days away.

This story was originally published October 22, 2020 at 12:47 PM.