Supreme Court leaves NC absentee ballot deadline at Nov. 12

The Supreme Court will allow absentee ballots in North Carolina to be received and counted up to nine days after Election Day.

The justices, by a 5-3 vote Wednesday, refused to disturb a decision by the State Board of Elections to lengthen the period from three to nine days because of the coronavirus pandemic, pushing back the deadline to Nov. 12. The board’s decision was part of a legal settlement with a union-affiliated group.

Republicans had asked the high court to step in.

Under the Supreme Court’s order, mailed ballots postmarked on or before Election Day must be received by 5 p.m. on Nov. 12 in order to be counted.

Chief Justice John Roberts and Justice Brett Kavanaugh joined the three liberal justices in the majority. Three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, dissented.

New Justice Amy Coney Barrett took no part in the case “because of the need for a prompt resolution and because she has not had time to fully review the parties’ filings,” court spokeswoman Kathy Arberg said.

North Carolina Attorney General Josh Stein, a Democrat whose office defended the deadline extension in court, hailed the high court’s decision in a statement. “North Carolina voters had a huge win tonight at the U.S. Supreme Court. The Court upheld the State Board of Elections’ effort to ensure that every eligible vote counts, even during a pandemic,” he said. “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!”

Republican state Senate leader Phil Berger said the high court’s order will undermine public confidence in government.

“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? If public confidence in elections is important to our system of government, then hopefully the answer to that question is no,” Berger said in a statement.

State and national Republican groups, including President Donald Trump’s campaign, had filed separate but similar appeals asking the high court to make the state revert to a Nov. 6 deadline for accepting late-arriving ballots that were postmarked by Election Day. That three-day timeframe was specified in state law.

The appeals, including one led by the state’s Republican legislative leaders, argued that the deadline change put in place by the State Board of Elections usurped legislators’ constitutional authority to set rules for elections. They also said the change made after early voting started would create unequal treatment of voters who had cast ballots under previous, stricter rules.

The State Board of Elections had lengthened the period as part of a late September legal settlement with the North Carolina Alliance for Retired Americans, a union-affiliated group represented by Marc Elias, a lawyer prominent in Democratic circles. The legal settlement, which also loosened requirements for fixing absentee ballots that lacked a witness signature, was approved by a state judge. The settlement said counties should have longer to accept ballots because of possible mail delays.

A federal judge later ruled that counties couldn’t accept absentee ballots that lacked a witness signature but declined to intervene on the deadline extension.

Gorsuch said the state legislature already had responded to voting challenges related to the pandemic by allowing absentee ballots to arrive three days after the election and still be counted. The election board and the state judge “worked together to override a carefully tailored legislative response to COVID,” Gorsuch wrote.

The changes developed by the Democratic-majority state elections board and defended in court by Stein prompted accusations from Republican legislative leaders that state elections officials had cut a backroom deal to favor left-leaning candidates and causes. State House Speaker Tim Moore and Berger quickly moved to challenge the rule changes in state and federal court, as did the Trump campaign, the Republican National Committee and other national groups.

Earlier this week, a different 5-3 majority of the high court declined to reinstate a lower court order out of Wisconsin that called for mailed ballots to be counted if they are received up to six days after the Nov. 3 election. The 7^th Circuit Court of Appeals had previously put that order on hold. 

The Chicago-based appellate court similarly ruled in favor of the state of Indiana, upholding its law requiring absentee ballots to be received by noon on Election Day.

Southern Indiana District Court Senior Judge Sarah Evans Barker had enjoined Indiana’s noon deadline, but the appellate panel overturned the injunction, which Barker had stayed.