RICHMOND, Va. (CN) — Handing a loss to the Trump campaign, the full Fourth Circuit refused late Tuesday to roll back North Carolina’s extension to the deadline for tallying absentee ballots.
President Donald Trump’s team tried to change the deadline for counting mail-in ballots from nine to three days after Election Day, in line with recently amended state law, but three judges Trump appointed to the Fourth Circuit joined the 12-3 majority in finding the North Carolina Board of Elections has the authority to extend the deadline.
“All ballots must still be mailed on or before Election Day,” U.S. Circuit Judge James Wynn, a Barack Obama appointee, wrote in an opinion published Tuesday night. “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 added, “North Carolina voters deserve clarity on whether they must rely on an overburdened Post Office to deliver their ballots within three days after Election Day.”
The dispute started in August when the North Carolina Alliance for Retired Americans filed suit against the elections board over its requirement that mail-in ballots be received within three days of Election Day. The next month, the board voted – as Wynn noted, in “in bipartisan fashion!” – to extend that deadline another six days and settle the case.
A state court approved the settlement in early October, but North Carolina House Speaker Tim Moore, a Republican, sued and argued the board lacked the authority to make such an alteration. He also claimed the extended deadline for counting absentee ballots violates the equal protection clause by allowing “otherwise unlawful votes to be counted, thereby deliberately diluting and debasing lawful votes.”
While waiting for an answer in federal court, North Carolina Republicans also took their case to the state’s appeals court, which initially granted their request but later reversed its decision following an order from the federal court denying it.
President Trump’s reelection campaign entered the fray when the case was appealed to the Fourth Circuit. Bobby R. Burchfield with the Washington-based firm King & Spalding argued on behalf of the president’s campaign, writing in a brief that the deadline extension “would substantially override North Carolina’s election code.”
He pointed to a three-day extension approved by the North Carolina General Assembly in June with bipartisan support, and signed by Democrat Governor Roy Cooper, arguing the state’s legislative body had already acted on the matter and any further changes by the elections board amounts to an abuse of authority.
“The [Board of Elections] fails to dispute that the [rule changes] ‘flout North Carolina’s election statute… and are causing disruption among county election boards,’” Burchfield wrote. “The lawfulness of these changes is very much in doubt.”
That argument found sympathy among two dissenters – U.S. Circuit Judges J. Harvie Wilkinson and Steven Agee, appointed by Ronald Reagan and George W. Bush, respectively – who said that the elections board’s actions amounted to “nonrepresentative entities changing election law immediately preceding or during a federal election.”
“The board adopted major changes to the election law that clearly clash with the General Assembly’s intent,” they wrote.
But the majority of the Richmond-based appeals court – including U.S. Circuit Judges Julius Richardson, Marvin Quattlebaum and Allison Rushing, all appointed by President Trump – disagreed.
“This fast-moving case is proceeding in state court and involves an ongoing election—two sound reasons for us to stay our hand,” Wynn wrote for the majority. “Because plaintiffs have not established a likelihood of success on the merits—and because, in any event, [precedent requires] that we not intervene at this late stage—we rightly decline to enter an injunction pending appeal.”
The Fourth Circuit’s decision leaves in place the nine-day deadline extension, though Trump’s campaign could still appeal to the U.S. Supreme Court. But time is running out, with less than two weeks before Election Day.
A request for comment on the decision sent to Burchfield, including whether an appeal is being considered, was not returned by press time.
Marc Elias, the famed Democratic elections lawyer with the Washington firm Perkins Coie who also intervene to defend the rule change, took to Twitter to celebrate the ruling.
“The ruling was 12-3 in favor of voting rights,” he wrote, specifically pointing to Trump’s three appointees in the majority. “It was an excellent result.”