By Mitch Kokai
Carolina Journal News Service
RALEIGH — The U.S. Supreme Court will decide soon whether N.C. election officials count absentee ballots received by mail between Nov. 7 and Nov. 12. Two sets of plaintiffs filed paperwork Sunday, Oct. 25, arguing for the high court to block those ballots from being counted.
The plaintiffs are seeking an emergency injunction to block counting of ballots received after Nov. 6, which is three days after Election Day. A 5 p.m. Nov. 6 deadline is set by state law.
“An emergency injunction is urgently needed to ensure that our federal election is governed by the statutes enacted by the people’s duly elected representatives, and not by the whims of an unelected state agency,” said plaintiffs in the case named Wise v. Circosta. “The North Carolina State Board of Elections insists that its election-eve rewrite of the state election code as part of a back-room settlement with a partisan advocacy group is only a ‘modest’ response to the COVID-19 pandemic. But that disregards the grave constitutional interests at stake.”
The Wise plaintiffs note that the N.C. General Assembly approved bipartisan legislation in June. It changed state election law to address challenges linked to COVID-19. In passing new legislation before the election began, the legislature “carefully balanced the challenges posed by the pandemic with the need to protect the election’s integrity,” according to the brief. “The [elections] Board seeks to upend that balance by substituting its own policy preferences for those of the General Assembly, an egregious rule-of-law violation that can lead only to chaos and voter confusion.”
The state elections board engaged in “abuse of authority,” according to the Wise plantiffs. “Applicants urge this Court to safeguard our federal election, enforce the Constitution, and put a stop to this election-law abuse.”
Plaintiffs in the Wise case include individual voters, President Trump’s re-election campaign, two Republican congressmen, and state and national GOP groups. A separate case, Moore v. Circosta, features the Republican leaders of the N.C. House and Senate, two voters, and a GOP congressional candidate.
“The North Carolina General Assembly’s constitutional power to set the rules for federal elections and North Carolina voters’ right to vote on equal terms are at stake in this case,” said Moore plaintiffs in their Sunday filing. “A nonrepresentative body — the North Carolina State Board of Elections — has usurped the constitutionally delegated authority of the General Assembly to structure federal elections under the Constitution’s Elections Clause.”
“By extending the absentee ballot receipt deadline from 5 p.m. on November 6, 2020, to 5 p.m. on November 12, 2020 — in direct contravention of the General Assembly’s duly enacted statute … — the NCSBE is sowing confusion among both voters and election officials by unconstitutionally changing the election rules after the election has already started and causing disparate treatment of voters in the ongoing election in violation of the Elections Clause and the Equal Protection Clause.”
Moore plaintiffs argue that the Democrat-dominated state elections board “is implementing an ‘insidious formula’” to replace state law with “its own policy preferences.”
Plaintiffs in both cases object to a state lawsuit settlement finalized Oct. 2. The settlement represented a deal among the elections board, the Democratic N.C. attorney general, and plaintiffs working with Marc Elias, national Democrats’ point man for election lawsuits across the country. The controversial settlement included the mail-in ballot deadline extension, along with other provisions that generated criticism from legislative leaders and Republican groups.
The emergency application for an injunction sits with U.S. Chief Justice John Roberts, who hears all emergency appeals from the federal court system’s 4th Circuit. Roberts set a Saturday deadline for filings from other parties in the case.
In addition to responses from the original defendants in both cases, three other groups are attempting to sway Roberts and his Supreme Court colleagues.
The national election-integrity group True the Vote filed a friend-of-the-court brief Friday. True the Vote supports efforts to stop the state elections board from rewriting N.C. election law.
On the other side of the case, left-of-center activist group Democracy North Carolina, the League of Women Voters, and other plaintiffs in an earlier election lawsuit are urging the Supreme Court to reject an injunction.
Fourteen Democratic state attorneys general and the attorney general for the District of Columbia have filed a joint brief. They also oppose a Supreme Court injunction.
Roberts can issue a decision on his own or refer the cases to his colleagues. It’s unclear whether the court will make a decision before the U.S. Senate votes to fill the current Supreme Court vacancy. A vote on nominee Amy Coney Barrett is expected Monday.
