A battle over the deadline for absentee ballots in North Carolina is playing out in both state and federal court and seems likely to arrive at the Supreme Court soon.
The dispute began this summer, when the North Carolina Alliance for Retired Americans (along with several voters) filed a lawsuit in state court against the state’s board of elections. Their lawsuit challenged, among other things, the state’s requirement that mail-in ballots be received within three days of Election Day – that is, by Nov. 6. In October, the state court approved a consent agreement between NCARA and the board of elections, which had voted in September to extend the deadline for mail-in ballots to nine days after the election – that is, Nov. 12.
Timothy Moore, the Republican speaker of the state’s House of Representatives, and Philip Berger, the highest-ranking Republican in the state’s senate, had entered the state case as defendants. Moore and Berger also went to federal court, where a judge granted their request to temporarily block the consent agreement from going into effect. But after later proceedings in both the state and federal courts, the additional extension for the receipt of mail-in ballots went into effect.
By a vote of 12-3, the full U.S. Court of Appeals for the 4th Circuit denied the Republicans’ request for relief, leaving the extension of the deadline for the receipt of absentee ballots in place. Judge James Wynn filed a brief statement regarding the court’s denial of emergency relief, emphasizing – in italics – that all absentee ballots must still be mailed by Election Day. The only change to the state’s election procedures, he stressed, is “an extension from three to nine days after Election Day for a timely ballot to be received and counted. That is all.”
Wynn added that the Purcell principle – the idea that federal courts should not change the rules in the run-up to the election – “strongly counsels against” a ruling for the North Carolina Republicans. The extension of the deadline until Nov. 12 has, he reasoned, “been the status quo ever since the trial court approved the settlement” on Oct. 2.
And on the merits of the Republicans’ argument, Wynn concluded, there is no indication that extending the deadline for absentee ballots will result in one person’s vote counting more than another’s or being evaluated unequally. In this case, Wynn observed, “no voter will be treated differently than any other voter as everyone will be able to have their absentee ballot counted if mailed in on time and received on time.”
Judge Diana Motz wrote separately to stress that “recent actions of the Supreme Court make clear that it is up to a state to decide what election procedures are in effect on Election Day, and not federal courts.” Motz also deemed the Republicans’ argument that the extension of the deadline deprived them of their right to equal protection as “deeply troubling.” The Republicans were not arguing that their right to vote had been injured, she explained. Instead, she observed, they were challenging “measures that remove burdens on other citizens exercising their right to vote.”
Judge J. Harvie Wilkinson dissented, in an opinion joined by Judges G. Steven Agee and Paul Niemeyer. He would have blocked the extension of the deadline while the Republican leaders appealed. Wilkinson explained that he was writing to “draw attention to the accelerating pace of pre-election litigation in this country and all the damaging consequences ensuing therefrom.” Specifically, Wilkinson outlined, although state legislatures are tasked with regulating elections, federal courts and state election boards are “upend[ing] the set rules right in the middle of the election” and then claiming that their actions are the “new status quo,” which cannot be disturbed.
Wilkinson acknowledged that Purcell “has traditionally been applied against federal courts changing the rules shortly before elections,” but he added that there is “no principled reason why this rule should not apply” to state courts and agencies as well. “The victim of a last-minute interference, whatever its source, is the same: a federal election.”
The Trump campaign and North Carolina Republicans went to the Supreme Court on Oct. 22, asking the justices to put the 4th Circuit’s ruling on hold. Moore and Berger told the court that election officials are “disserving North Carolina voters and sowing considerable confusion through their” consent agreement and “ever-changing directives,” while the Trump campaign suggested that the justices treat their request as a petition for review and issue a decision on the merits “as soon as possible.”
The state and the NCARA urged the justices to stay out of the dispute, with the state telling them that the state election board had extended the deadline for the receipt of absentee ballots “to protect lawful North Carolina voters from having their votes thrown out because of mail delays that the Postal Service had explicitly warned the State about.” But the board’s extension does not, the state reiterated, “affect the deadline for voters to submit their ballots — they must still be marked and mailed by Election Day.”
|Date||Proceedings and Orders|
|August 10, 2020||Complaint filed by North Carolina Alliance for Retired Americans, et al., in state court|
|September 22, 2020||Motion for settlement regarding mail-in ballot changes filed by North Carolina Alliance for Retired Americans and North Carolina State Board of Elections|
|September 26, 2020||Motion for restraining order of settlement filed by Timothy Moore, speaker of the North Carolina House of Representatives, et al., in federal district court|
|October 1, 2020||Response in opposition to motion for restraining order filed by Damon Circosta, chair of North Carolina State Board of Elections, et al.|
|October 3, 2020||District court order granting restraining order|
|October 5, 2020||Motion for stay of district court order filed by Damon Circosta, et al., in 4th Circuit|
|October 7, 2020||Response in opposition to motion for stay filed by Timothy Moore, et al.|
|October 14, 2020||District court order in related case upholding witness requirement, allowing signature-error fixing, for absentee ballots|
|October 20, 2020||Order denying application for stay issued by 4th Circuit|
|October 22, 2020||Application for stay of 4th Circuit order filed by Patsy Wise and Donald J. Trump for President, Inc., et al., at U.S. Supreme Court|
|October 22, 2020||Application for stay of 4th Circuit order filed by Timothy Moore, et al., at U.S. Supreme Court|
|October 26, 2020||Order denying application for stay issued by North Carolina Supreme Court|
|October 27, 2020||Application for stay of state supreme court order filed by Philip Berger, et al., at U.S. Supreme Court|
|October 28, 2020||Order denying applications for stay of 4th Circuit ruling issued by U.S. Supreme Court|
|October 29, 2020||Order denying application for stay of state supreme court ruling issued by U.S. Supreme Court|
#SCOTUS announces that it will hold a formal, although "purely ceremonial," investiture ceremony for Justice Amy Coney Barrett next Friday. Attendance at the ceremony is by invitation only, & press coverage will be pooled. Full announcement is here: https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_09-24-21
Need a refresher on "cert before judgment" practice at SCOTUS? We've got you covered.
@steve_vladeck examined the practice (among other types of extraordinary relief) in 2018: https://www.scotusblog.com/2018/12/power-versus-discretion-extraordinary-relief-and-the-supreme-court/
And Kevin Russell wrote a detailed explainer in 2011:
Abortion providers in Texas return to Supreme Court, now asking the justices for immediate review on the merits of their challenge to the state’s six-week abortion ban (cert. before judgment)
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Interesting new procedure for oral arguments when the justices return to in-person arguments next month. Does it increase the chances that we will continue to hear from Justice Thomas, who was an active participant using the taking-turns format? https://twitter.com/GregStohr/status/1440318536723812363
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Thomas criticized the media and defended the court's independence. Seems to be a theme among the justices lately.
💥 Breyer continues book tour (including @colbertlateshow two nights ago).
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💥 Thomas is slated to give the 2021 Tocqueville Lecture today @NotreDame (but, like Barrett's speech, there is apparently no livestream).
Incidentally, Gorsuch had been scheduled to give a speech at the University of Wyoming today, but his visit was canceled due to COVID.
Nothing from Kagan or Gorsuch though 😢 https://twitter.com/SCOTUSblog/status/1438530948207874050