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A bitterly divided federal appeals court has denied an attempt by Republicans to block an agreement by North Carolina state officials allowing absentee ballots in next month’s election to be counted if they are postmarked by Election Day and received up to nine days later.
The Tar Heel state typically counts absentee ballots that arrive up to three days after the election, but last month the State Board of Elections agreed to extend that window to nine days due to the increased ballot requests related to the ongoing coronavirus pandemic, as well concerns about mail delays due to recent Postal Service changes.
In a ruling released Tuesday night, the 4th Circuit Court of Appeals voted 12-3 to deny an emergency stay that GOP legislative leaders sought to reimpose the ordinary, three-day-after-Election-Day rule.
The Richmond-based appeals court issued no majority opinion explaining its decision, but backers and opponents of the ruling filed 45 pages of opinions jousting and wrangling over the legal issues, often in a vitriolic tone not commonly seen in such courts.
While many liberals have decried the concerted campaign by President Donald Trump and Senate Republicans to fill the federal appeals courts with conservative appointees, the line-up in Tuesday’s decision contained some surprises.
Although all three dissenters were Republican appointees, the 4th Circuit’s three Trump appointees voted with all the court’s Democratic appointees to deny the relief sought by North Carolina GOP officials: Senate leader Phil Berger and House Speaker Tim Moore.
The judges in the minority said the extension — backed by a state-court consent decree — threatened “chaos” and deprived the North Carolina legislature of its constitutionally mandated role. The dissenters also issued an unusual plea to Berger and Moore to urgently take the fight to the Supreme Court.
“This case presents a clean opportunity for the Supreme Court to right the abrogation of a clear constitutional mandate and to impart to the federal elections process a strong commitment to the rule of law. Allowing the Board’s changes to go into effect now, two weeks before the election and after half a million people have voted in North Carolina, would cause yet further intolerable chaos,” Judges J. Harvie Wilkinson and Steven Agee wrote in an opinion joined by Judge Paul Niemeyer.
“We urge plaintiffs to take this case up to the Supreme Court immediately. Not tomorrow. Not the next day. Now,” the dissenting judges added.
The dissenters said that, without a clear signal from the Supreme Court, a flood of litigation threatens to mire the upcoming election in confusion. Many of the case seek to persuade state judges or executive officials to extend ballot deadlines or waive requirements like witness signatures on account of the pandemic.
The dissenting judges argued that those moves usurp the power the Constitution gives to state legislatures to set rules for federal elections in their states.
“Endless suits have been brought to change the election rules set by state legislatures,” the dissenters wrote. “This pervasive jockeying threatens to undermine public confidence in our elections. And the constant court battles make a mockery of the Constitution’s explicit delegation of this power to the state legislatures.”
Two judges in the majority, James Wynn and Diana Motz, accused the dissenters of wildly exaggerating the impact of the ballot-receipt extension at issue and ignoring Supreme Court precedents governing election litigation.
“Reading the dissenting opinion … one might think the sky is falling,” Wynn wrote. “The change is simply an extension from three to nine days after Election Day for a timely ballot to be received and counted. That is all.”
Wynn noted that the North Carolina elections board often intervenes to adjust ballot receipt deadlines, having done so twice for hurricanes in the last two years.
Wynn, an appointee of President Barack Obama, also took aim at the dissenters’ stance by invoking states rights’ rhetoric more often heard from conservatives. He also accused the dissenting judges of twisting a 2006 Supreme Court decision, Purcell v. Gonzalez, that advises federal judges not to make last-minute changes in state election procedures.
“Our colleagues justify federal court intervention — the one thing Purcell clearly counsels against — based on their own notions of what the Supreme Court should have said in Purcell,” Wynn wrote. “We cannot agree with such an expansion of federal court power at the expense of states’ rights to regulate their own elections.To do so would amount to inappropriate judicial activism.”
Wynn also said his dissenting colleagues’ claim that voters would be befuddled by the changes was unfounded in a case about how to treat ballots postmarked by Election Day.
“It is difficult to conceive what chaos our colleagues can possibly be envisioning here,” he wrote. “Voter behavior cannot be impacted by our decision one way or another … The deadline extension only changes two things: more votes cast by mail will be counted rather than discarded because of mail delays, and fewer voters will have to risk contracting the novel coronavirus by voting in person. Only a grotesquely swollen version of Purcell would consider this ‘voter confusion,’ or in any way harmful.”
On Monday, a deadlocked U.S. Supreme Court let stand a Pennsylvania Supreme Court ruling that extended the ballot-receipt deadline in that state until three days after Election Day. Four GOP-appointed justices would have blocked the order, but Chief Justice John Roberts voted with the high court’s liberals to deny a stay. The result left the Pennsylvania Supreme Court decision in effect, at least for now.
Many of the legal arguments in the North Carolina case are similar, although its route through the state and federal courts was more byzantine.
The Supreme Court’s deadlock on the election-related issues could be broken as soon as Monday, when the Senate is expected to vote on President Donald Trump’s nomination of Judge Amy Coney Barrett to fill the vacancy created by the death last month of Justice Ruth Bader Ginsburg.
It is unclear which election-related emergency applications will be pending at the high court if Barrett is sworn in next week and whether she or the broader court will be reluctant to make interventions in the election process with just days to go before the Nov. 3 vote.
An attorney for the North Carolina GOP leaders who unsuccessfully sought intervention from the appeals court, Berger and Moore, did not immediately respond to a message Tuesday night asking if the legislators plan to take up the dissenters’ suggestion of an immediate plea to the Supreme Court.
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