WASHINGTON (CN) — The Supreme Court ruled Wednesday to keep in place an extended deadline for tallying absentee ballots in North Carolina.
The Fourth Circuit also denied a challenge from the Trump campaign last week to whittle the deadline extension from nine days after the election to three. Without explanation, Chief Justice John Roberts denied cutting the deadline down, with Justice Clarence Thomas noting he would grant the application.
Justice Amy Coney Barrett also is noted as taking no part in the consideration of the application.
Justice Neil Gorsuch, joined by Justice Samuel Alito, dissented from the denial, noting just two days ago the court struck down a similar dispute involving the Wisconsin Legislature’s extension of mail-in ballot deadlines.
“The Seventh Circuit stayed that ruling, and we agreed with its disposition,” Gorsuch wrote. “For many of the same reasons I believe that decision was correct, I believe we should stay the Board’s action here.”
Gorsuch writes, in his view, state law only gives the election board power for interim rules but that delegation of rules is only triggered under specific circumstances, or when invalidated by state court. It was not “a blank check” for the state’s board to rewrite election code, he wrote.
“Such last-minute changes by largely unaccountable bodies, too, invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results,” Gorsuch wrote.
The issue first arose this August, with North Carolina Alliance for Retired Americans filing a lawsuit against the elections board over the three-day requirement. The board voted in September to extend the deadline six days and settled the dispute.
When the state court approved the settlement, North Carolina Speaker of the House Tim Moore, a Republican, sued, arguing the Constitution entrusted the state Legislature alone with regulating the elections, not the state’s board of elections. The board had circumvented the state General Assembly’s authority through the board’s extension, he argued.
North Carolina Republicans took their case to the state’s appellate court while awaiting a decision on Moore’s challenge. That appeal was granted but later reversed, following an order from the federal court denying it. They appealed to the Fourth Circuit.
In a reply brief to the high court, Bobby Burchfield, a King & Spalding attorney representing challengers to the extension, argues similarly to Moore.
“This case is part of a calculated strategy to enlist the courts in a scheme to usurp the constitutional authority of the people’s elected representatives and impose partisan election rules,” the brief states.
Ryan Park, an attorney representing North Carolina’s Board of Elections, notes in his brief to the court, the state has extended the deadline for tallying absentee ballots twice in the past three years after hurricanes hit the state’s coast. Mail-in ballots additionally need more time to arrive and be counted in an exasperated postal system due to the Covid-19 pandemic, they argue.
“As of October 22, more than 1,420,665 North Carolina voters had requested absentee ballots for the 2020 General Elections (compared to 220,058 requests at this time in 2016),” the brief states.