President Donald Trump’s campaign and North Carolina’s Republican legislative leaders asked the U.S. Supreme Court on Thursday to return the state to a shorter deadline for accepting late-arriving absentee ballots postmarked by Election Day.
The legislative leaders argue in their appeal that the longer deadline, which was extended after early voting had begun, will result in unequal treatment of voters and dilute the value of ballots cast before the rule was changed.
They also say the board usurped legislators’ authority to set election rules by altering a deadline specified in state law. The Trump campaign's separate but similar appeal also asks the high court to force the key battleground state to revert to stricter rules for fixing absentee ballot errors.
The high court is giving the other parties in the case until Saturday afternoon to file responses.
The North Carolina State Board of Elections had announced in late September that absentee ballots could be accepted by counties until Nov. 12, as long as they were mailed by Nov. 3, which is Election Day. The rule change, contained in an official memo, lengthened the period for accepting ballots from three to nine days after the election.
The state board is "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,” says the appeal filed by lawyers representing state Senate leader Phil Berger and House Speaker Tim Moore, both Republicans.
The state board made the change as part of a legal settlement in state court with a union-affiliated group that had challenged what it saw as restrictive voting rules during the coronavirus pandemic. The settlement said the longer deadline was needed in case of postal delays. While the board has a Democratic majority, the settlement was also approved by two Republican board members who later resigned amid fallout from their party.
Federal district and appeals courts declined to intervene on the deadline issue.
A federal judge considering the deadline and other absentee ballot procedures, U.S. District Judge William Osteen, ruled last week that absentee ballots that arrive without a witness signature can’t be counted. That prompted the state to issue guidance Monday that such voters must start their ballot over and have it witnessed again, but that more minor problems such as an incomplete witness address can be fixed by the voter returning a signed affidavit. The court battle had caused absentee ballots with a range of errors to be set aside for about two weeks while the procedures were debated.
The appeal filed Thursday by the Trump campaign argues that the Supreme Court should go further than just shortening the ballot deadline. It asks the high court to block a series of directives, known as numbered memos, issued by the state board since Sept. 22 that lay out how absentee voters can address ballot errors, including the minor ones that can be fixed without casting an entirely new ballot.
"Plaintiffs urge the Court to prohibit the Board from implementing the Numbered Memos and enjoin it from further interfering with this election," the Trump appeal says.
The Trump campaign has also asked the state Supreme Court to overturn the court settlement that included the rule changes.
Both GOP appeals Thursday argue that they are not asking the courts to update election rules, but instead are seeking to return North Carolina to the framework established in state election laws.
But North Carolina Attorney General Josh Stein, a Democrat whose office represents the state elections board in court, accused Republicans of trying to make it harder to vote.
“If voters comply with the statute and mail in their ballots on or before Election Day, they should not be penalized by slow mail delivery in a pandemic. The Republicans have lost this argument at every turn because they are trying to stop votes from being counted,” he said in a statement Thursday.
The Supreme Court has already weighed in on another battleground state’s ballot deadline, ruling earlier this week that Pennsylvania could count mailed-in ballots received up to three days after the Nov. 3 election, rejecting a Republican appeal. The high court's Monday ruling upholds a Pennsylvania state Supreme Court decision that ballots may be accepted until Nov. 6, even without a clear postmark, as long as there is no proof they were mailed after the polls closed.
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