Unusual Appeals Court Ruling Could Bring U.S. Supreme Court Into N.C. Election Battle | Beaufort County Now | North Carolina’s deadline for accepting mail-in absentee ballots in this year’s election finally may be settled at the venue state conservative leaders wanted: the U.S. Supreme Court. | carolina journal, appeals court, ruling, supreme court, election battle, october 22, 2020

Coronavirus Disease 2019 (COVID-19)

Unusual Appeals Court Ruling Could Bring U.S. Supreme Court Into N.C. Election Battle

Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is Rick Henderson.


    North Carolina's deadline for accepting mail-in absentee ballots in this year's election finally may be settled at the venue state conservative leaders wanted: the U.S. Supreme Court.

    The 4th U.S. Circuit Court of Appeals issued a convoluted opinion the justices must reverse, state legislative leaders and dissenting appeals court judges say. A 12-3 majority of the Appeals Court ruled Tuesday, Oct. 20, that the State Board of Elections could set the deadline for accepting and counting mail ballots at nine days after this year's election, rather than the three-day window written in state law. To reach this conclusion, critics say, the Appeals Court misread the Supreme Court's guidance. The full, 15-judge circuit also had to overrule a three-member panel of its own judges to reach its conclusion.

    "Our country is now plagued by a proliferation of pre-election litigation that creates confusion and turmoil and that threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves," the dissenting judges said. The majority "has encouraged others to regard state statutes as little more than advisory and for pre-election litigants fair game."

    The Appeals Court ruled on three lawsuits contesting the elections board's actions on mailed absentee ballots. Two were filed against the board by voters and Republican groups. A third was filed against the board by a union-backed group represented by Democratic legal heavyweight Marc Elias. U.S. District Court Judge William Osteen heard all three.

    A deal worked out in a closed session between Elias' clients, Democratic Attorney General Josh Stein, and the Democrat-dominated elections board would have weakened state law's election integrity protections in three ways. First, the deal extended the deadline to count mail-in ballots from three days to nine. Second, the deal would have removed a requirement for mailed absentee ballots to be signed by a witness. Third, it would allow local elections boards to count ballots left in unmanned boxes.

    Last week, Osteen said the witness requirement should stand, but he didn't rule on the other two issues. Meanwhile, state elections board director Karen Brinson Bell said votes dropped in unmanned boxes wouldn't be counted.

    The deadline for counting ballots after the polls close isn't settled. Mail-in ballots must be postmarked no later than Nov. 3.

    The Appeals Court was asked whether the elections board could change absentee ballot rules without the legislature's approval — the Democrats' wish — even though the rules would modify a law passed and signed into law earlier this year. That law expanded access to absentee voting because of concerns about the COVID-19 pandemic. Even if the elections board could change the rules, could it do so as voters were casting ballots?

    Judge James Wynn, writing for the majority, said yes. Citing the Supreme Court's 2006 Purcell principle, Wynn and his colleagues said the Republican-led lawsuits, rather than the elections board, were trying to change election rules in the middle of an election.

    But dissenting Judges Harvie Wilkinson, Steven Agee, and Paul Niemeyer said Wynn was turning Purcell on its head. The law passed by the General Assembly was the status quo. The elections board was trying to move the goalposts — in fact, the deal was OK'd by a state judge after hundreds of thousands of absentee ballots had been cast.

    The dissenters said the General Assembly had a point. Ballots cast before the elections board's deal was imposed would be treated differently than those cast after it. This fact constituted a violation of the Equal Protection Clause in the 14th Amendment.

    "According to the dissent, we actually won our appeal until one judge on the panel pursued a procedurally suspect scheme to overturn our victory before it could be become public. The veteran judges who dissented are right to question whether the court undermines its legitimacy with such antics," said Senate leader Phil Berger, R-Rockingham.

    The dissenters also agreed with Republicans that the elections board had no power to make rules without the General Assembly's consent.

    "We urge plaintiffs to take this case up to the Supreme Court immediately," the dissenters wrote. "Not tomorrow. Not the next day. Now."


HbAD0

Latest Op-Ed & Politics

The leftwing nuts hate Trump and now the hate anyone who supported Trump. Next is Franklin Graham
She is tiny in frame, only 4 feet, 8 inches tall, but Sherry-Lynn Womack, a Lee County School board member who is starting her second term, is standing tall against a liberal driven backlash for exercising her First Amendment rights.
Before he left office, former President Donald Trump ordered the Secret Service to continue protecting his children for the next six months.

HbAD1

As North Carolina prepares to celebrate National School Choice Week Jan. 24-30, the cause of educational freedom could see even more advancement during the North Carolina General Assembly’s 2021-2022 session.
Is the “Jet Pack Guy” who has been spotted several times flying miles in the sky near Los Angeles airport really a “guy”? Or is it just a drone dressed up to look like a guy?
Governor Roy Cooper has appointed William “Bill” Wolfe to serve as a Superior Court Judge in Judicial District 7C, serving Edgecombe and Wilson counties.
Get a good cup of coffee and decompress with The Wolfman as he gives us his account of what really happened on the ground in DC. This is an exclusive series that will not be found anywhere but BCN.
A recent examination by the Tax Foundation shows North Carolina’s high net migration rate may be due to its friendly tax climate.
Mark Zuckerberg of Facebook has now joined the ranks of those of us who have created moderated informational platforms that act as a hybrid publication.

HbAD2


HbAD3

 
Back to Top