Court won’t block extended deadline for North Carolina mail-in ballots (updated)

The Supreme Court on Wednesday night rejected a request by the Trump campaign and North Carolina Republicans to intervene in a dispute over the deadline for mail-in ballots in North Carolina. With three justices dissenting, the court left in place an extension of the deadline for the receipt of mail-in ballots to nine days after the election. Just as she had in a ruling a few hours earlier on a similar issue in Pennsylvania, Justice Amy Coney Barrett did not participate in the court’s decision.

Wednesday’s ruling came in a dispute that began when the North Carolina Alliance for Retired Americans and a group of voters filed a lawsuit in state court to challenge the state’s rule that mail-in ballots must be received by Nov. 6, three days after Election Day. The challengers argued that the deadline should be extended in light of the coronavirus pandemic. The state court eventually approved a consent agreement between the challengers and the state’s board of elections that extended the deadline for mail-in ballots by six days, to Nov. 12.

Two Republican legislators – Timothy Moore, the Republican speaker of the state’s House of Representatives, and Philip Berger, the highest-ranking Republican in the state’s senate — went to federal court in North Carolina to stop the consent agreement from going into effect, as did the Trump campaign and the Republican National Committee. But the U.S. Court of Appeals for the 4th Circuit turned down their request on Oct. 20, by a vote of 12-3, with dissenting Judge J. Harvie Wilkinson urging them to “take this case up to the Supreme Court immediately.”

Moore, Berger, the Trump campaign and the RNC came to the Supreme Court two days later. They argued that the justices should step in because the extension of the deadline for absentee ballots violates two different provisions of the Constitution: the elections clause, by taking away the state legislature’s responsibility to determine the time, place and manner for federal elections; and the equal protection clause, by applying different rules depending on when voters cast their ballots. They told the justices that election officials “are disserving North Carolina voters and sowing considerable confusion through their” consent agreement and “ever-changing directives.” the Trump campaign and the RNC also asked the Supreme Court to issue a decision on the merits of the case “as soon as possible.”

The state and NCARA urged the justices to stay out of the fray. They argued that the campaign, the RNC and the legislators do not have a legal right, known as “standing,” to challenge the extension of the deadline. And in any event, they concluded, the merits of their claims rested on “anomalous interpretations of longstanding and long-settled constitutional dictates.” An order from the Supreme Court blocking the extension of the deadline, they warned, would “risk the very confusion and potential disenfranchisement that this Court has cautioned against by imposing a new deadline on the receipt of absentee ballots that is six days earlier than advertised.”

In a pair of brief orders on Wednesday night, the justices turned down the requests without explanation, leaving the extended deadline in place. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have blocked the extension of the deadline. In a three-and-a-half-page dissent, Gorsuch stressed that the state’s legislature had already taken action to respond to COVID-19, including by reducing the number of witnesses required for absentee ballots and by allowing voters to request absentee ballots online. But the legislature kept the deadline for the receipt of mail-in ballots, Gorsuch observed, requiring them to be postmarked by Election Day and received no more than three days later. Just as the Supreme Court recently “rejected a similar effort” in Wisconsin “to rewrite a state legislature’s election deadlines,” Gorsuch contended, the justices should do the same here. Indeed, he suggested, “this case may be even more egregious, given that a state court and the” board of elections “worked together to override a carefully tailored legislative response to COVID.”

Gorsuch agreed with Wilkinson that actions such as the board’s “offend the Elections Clause’s textual commitment of responsibility for election lawmaking to state and federal legislators” and “do damage to faith in the written Constitution as law.” Moreover, he added, “last-minute changes by largely unaccountable bodies” can “invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results.”

A statement from the court’s Public Information Office indicated that, as in the Pennsylvania case, Barrett, who joined the court just one day ago, did not participate in the court’s disposition of the Republicans’ request because she had not had an opportunity to fully review the filings in the case. The justices have not yet acted on a third pending request for emergency relief: President Donald Trump’s plea to block a New York grand jury subpoena seeking his financial records from his longtime accountant, which has been fully briefed for nine days.

Update: The court on Thursday afternoon also denied — without requesting a response — a plea from North Carolina Republicans to block the consent agreement while they appeal it in the state courts. Thomas, Alito and Gorsuch indicated that they would have granted the request to block the ballot-receipt deadline. Barrett once again did not participate in the court’s disposition of the request. [Updated Oct. 29, 2020, 3:32 p.m.]

This article was originally published at Howe on the Court.