Two days after three judges on the U.S. Court of Appeals for the 4th Circuit urged them to “take this case up to the Supreme Court immediately,” the Trump campaign and North Carolina Republicans did exactly that, asking the justices to block an extension of the deadline for absentee ballots in that state to nine days after the election. Timothy Moore, the Republican speaker of the state’s House of Representatives, and Philip Berger, the highest-ranking Republican in the state’s senate, told the justices that they should step in immediately to stop an “unconstitutional usurpation of power,” and “to avoid the specter of a post-election dispute over the validity of ballots received during the disputed period in North Carolina.” A second filing, by the Trump campaign and the Republican National Committee, characterized the extension of the deadline as an “extraordinary attempt by an unelected state board of elections to rewrite the unambiguous terms of a statute enacted in June” by the North Carolina legislature.
Moore and Berger asked the justices to intervene in a dispute that began this summer, when the North Carolina Alliance for Retired Americans and several voters filed a lawsuit in state court to challenge the state’s rule that mail-in ballots be received within three days of Election Day – that is, by Nov. 6. The challengers and the state’s board of elections entered into a consent agreement to extend the deadline for mail-in ballots by six days, to Nov. 12, and the state court approved that agreement earlier this month.
Moore and Berger had entered the state case as defendants to argue that the state should keep the original deadline, but they also went to federal court, where they sought to block the consent agreement from going into effect. Although a federal judge initially granted that request, the additional six-day extension – bringing the deadline to Nov. 12 – eventually went into effect.
Moore and Berger then went to the 4th Circuit, as did the Trump campaign and the RNC, which had also tried to stop the implementation of the consent agreement in federal court. By a vote of 12-3, the court of appeals denied their plea, leaving the nine-day extension in place. Judge James Wynn stressed that all absentee ballots must still be mailed by Election Day, and that the state’s election procedures had previously allowed ballots to be counted as long as they arrived within three days of Election Day. All that the consent agreement does, Wynn reiterated, is extend that deadline from three days to nine.
Judge J. Harvie Wilkinson dissented from the 4th Circuit’s order, in an opinion joined by two other judges. Wilkinson complained that federal courts and state election boards are “upend[ing] the set rules” for elections, which are established by state legislatures, and then claiming that their actions are the “new status quo” and cannot be disturbed.
Both sets of filings at the Supreme Court on Thursday made similar arguments, telling the justices that the extension of the deadline for absentee ballots violates the Constitution’s elections clause, which tasks the state legislatures with determining the time, place and manner for federal elections, as well as the Constitution’s equal protection clause, by applying different rules depending on when voters cast their ballots. Both filings also argued, as Moore and Berger put it, that election officials “are disserving North Carolina voters and sowing considerable confusion through their” consent agreement “and ever-changing directives.” However, the Trump campaign and the RNC sought broader relief than Moore and Berger, asking the court to block not only the extension of the absentee-ballot deadline but also other changes to the state’s election procedures and suggesting that the court treat their request as a petition for review and issue a decision on the merits “as soon as possible.”
Both requests will go to Chief Justice John Roberts, who handles emergency appeals from the 4th Circuit. Roberts can act on the request alone or, as is more likely, refer it to the full court after first calling for a response. Depending on the timing of the briefing schedule, Supreme Court nominee Amy Coney Barrett could participate in the case if – as is expected – she is confirmed by the Senate next week.
Update: On Thursday afternoon, Roberts called for a response in both applications by Saturday, Oct. 24, at 3 p.m. EDT.
This post is also published on SCOTUSblog.