Later today, Supreme Court Chief Justice John Roberts takes up an emergency appeal by Republican leaders of North Carolina’s House and Senate and the Trump campaign.
Amy Howe at SCOTUSblog explains the latest election intrigue from North Carolina. In settlement of COVID-19-related litigation brought by the North Carolina Alliance for Retired Americans (and specific litigants I know personally), the State Board of Elections extended the deadline for accepting absentee ballots from three to nine days after Nov. 3. The 4th Circuit Court of Appeals upheld the appeal 12-3, explaining, “The extension simply makes it easier for more people to vote absentee in the middle of a global pandemic that has killed over 200,000 Americans.”
North Carolina Republicans and the Trump campaign, Howe explains, took dissenting judges advice and appealed to the U.S. Supreme Court:
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.
Roberts handles emergency appeals from the 4th Circuit, Howe continues. He can act alone or refer it to the full court. Meaning, a newly confirmed Amy Coney Barrett could participate in the decision and break the 4-4 tie rendered in a similar Pennsylvania case on Monday. Roberts requested a response from parties by Saturday, Oct. 24, at 3 p.m. EDT.
The appeal filed by Moore and Berger argues for quashing the Memorandum issued by the State Board of Elections to implement the extension, arguing “administering the election in an arbitrary and nonuniform manner that will result in disparate treatment by inhibiting the rights of voters who cast their absentee ballots before the Memorandum was issued.”
One imagines an amicus curiae filing in support of Republicans:
BRIEF FOR AMICUS CURIAE HEADS, WE WIN, TAILS, YOU LOSE COALITION IN SUPPORT OF TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of Representatives; PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate; and Trump 2020 campaign.
In their ongoing efforts to secure the vote and improve election security, North Carolina Republicans have spent the better part of the last decade in court. They have been joined by the RNC, the several Republican-controlled states, and the Trump administration in:
- Limiting who counts as a person for census purposes
- Gerrymandering targeting “African Americans with almost surgical precision“
- Photo/voter ID laws
- Restrictions on acceptable IDs
- Onerous document requirements for voter registration
- Street address requirements for registering in communities lacking street addresses
- Limiting days/times/locations for voter registration services
- Restrictions on ex-felon registration
- Restrictions on voter registration drives
- Violating the “Motor Voter” law by state DMVs
- Restrictions on early voting times
- Siting early voting locations remote to minority neighborhoods
- Restrictions on absentee voting
- Restrictions on absentee ballot drop boxes
- Voter roll purges
- Closing polling places
- Limiting voting machines in minority precincts
- Voter intimidation tactics at the polls
- “Disenfranchisement by typo“
- Decades-long effort to undermine confidence in the election process itself
This year, Republicans under the leadership of newly appointed Postmaster General Louis DeJoy (a Republican mega-donor with no prior postal experience) have gone to great lengths to make mail service more efficient. Allegations that his actions sabotaged U.S. mail service in an election year we reject as categorically false. Fake news. DeJoy removed sorting equipment and mailboxes because they were not needed during a pandemic in which record numbers of Americans would vote by mail. He issued instructions resulting in mail piling up in warehouses to reduce costs, not to drag out delivery times.
Key battleground states are experiencing “some of the nation’s most erratic mail service” as a result of heroic efforts to set the venerable U.S. Postal Service on the path to fiscal health.
We join this appeal not out of rank partisanship, no. We recognize success in this case will disenfranchise both Republican and Democratic voters. (Of course, we predict that more Democrats are likely to lose their votes than Republicans. That outcome is simply incidental.)
How dare the North Carolina Alliance for Retired Americans, the North Carolina State Board of Elections, the 4th U.S. Circuit Court of Appeals and lower courts foil well-laid Republican plans by extending the ballot acceptance deadline.
The Heads, We Win, Tails, You Lose Coalition defends the deeply principled belief that counting the votes of voters who cast absentee ballots later inhibits the rights of voters who cast their absentee ballots earlier.
For all of the reasons discussed above, this Court should once again limit the franchise of non-Republican voters and uphold the core value we proudly declare in our organization’s name. Failure to do so will raise “the specter of a post-election dispute over the validity of ballots” and threaten to delay certification of a slate of presidential electors long enough to allow the Republican legislature under state law to appoint electors of its choosing. We promise.
Respectfully submitted on this 24th day in October, 2020.
Update: Added “Closing polling places.”
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