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For weeks, courts in North Carolina have parsed arguments about how long the U.S. Postal Service should have to deliver ballots mailed by Election Day — three days or nine. On Thursday, that question landed before the U.S. Supreme Court.
The justices’ decision won’t change what’s required of voters in the state: To be counted, a ballot must be completed and mailed — or shipped via a delivery service — by 5 p.m. Nov. 3.
In that narrow, practical realm, the legal fight is of little consequence.
However, the underlying arguments are very important, according to legal scholars. The outcome could subtly affect every American’s right to vote and shift the balance of power between state and federal courts for decades to come.
“There’s a huge amount at stake here,” said New York University elections law expert Richard Pildes.
The case also reveals just how deeply the struggle for dominance between the two political parties has touched the conduct of elections and the workings of courts throughout the land. It highlights once again the role of North Carolina, split almost evenly between Republicans and Democrats, as a national petri dish for partisan combat.
Finally, it raises the question of whether a system so enmeshed in partisan wrangling can maintain enough trust among average citizens to function at all.
Monday night, addressing a Wisconsin case that turns on similar facts but does not advance the same legal theory, both conservative and liberal justices chose to opine on the underlying theoretical issue.
That discussion – unnecessary in the context of the Wisconsin case but a signal that the theory is on the justices’ minds – caught the attention of legal scholars. Rick Hasen, a professor at the University of California at Irvine who maintains a widely read blog, called it the feature “of greatest importance in this case.”
A question of time
On its face, the issue on appeal to the court is whether to allow extra time for the Postal Service to deliver ballots mailed by Nov. 3, Election Day. Historically, voters have had three days for ballots to reach their county’s elections board, as laid out in state law.
However, in response to a lawsuit, the N.C. State Board of Elections agreed to extend that date to Nov. 12. The idea was to allow for postal delays caused by the conjunction of Postal Service cutbacks and the huge volume of mail ballots stemming from the COVID-19 pandemic.
The demands on individual voters are the same, with or without the deadline extension. They must correctly complete and send their ballots by 5 p.m. Nov. 3. And they must be able to prove it, either by a postmark, a delivery service receipt or through the online BallotTrax tracking system.
Other changes agreed to by the NCSBE and challenged in court have since been resolved. The most contentious would have affected voters who failed to have a witness sign their ballot envelopes. They would have been allowed to “cure” the omission by signing a statement swearing that they themselves — and not an unscrupulous ballot “harvester” — had cast the ballot.
That change, in particular, outraged Republicans, prompting House Speaker Tim Moore and Senate President Phil Berger to join the legal fight. Over the next few weeks, three lawsuits addressing the issues pinballed through various state and federal courts, ultimately getting pared down to the single case on the single issue now before the Supreme Court.
Moore and Berger see grave consequences to the deadline extension.
Their legal brief argued: “Applicants Moore and Berger will suffer irreparable harm if the General Assembly’s carefully crafted legislation for the upcoming election is upset. … An injunction from this Court will also prevent irreparable harm from occurring to North Carolina’s electorate by preventing unconstitutional changes to the State’s election laws.”
That line of reasoning found little sympathy in the last court to hear the case, the U.S. 4th Circuit Court of Appeals. “… in a sharp departure from the ordinary voting-rights lawsuit, no one was hurt by this deadline extension,” the court’s majority wrote.
“The extension does not in any way infringe upon a single person’s right to vote: all eligible voters who wish to vote may do so on or before Election Day.”
How narrowly should ‘legislature’ be defined?
The legal arguments invoked by Moore, Berger and the other plaintiffs rest on a section of the U.S. Constitution known as the elections clause.
It says state legislatures shall decide how to select members of Congress — except that Congress itself can override them in some instances. A parallel clause, the electors clause, says legislatures shall determine how each state chooses the slate of presidential electors that participates in the Electoral College.
The plaintiffs say because the Constitution says the “legislature” shall make the rules for federal elections, the NCSBE acted unconstitutionally in agreeing to change the rules for mail voting.
That line of argument involved the federal courts in a realm — the conduct of elections — that is more commonly, though certainly not exclusively, litigated in state courts. “They needed a federal hook,” said University of Kentucky law professor Joshua Douglas.
There are various reasons for parties to lawsuits to prefer one court over another. In instances where the outcome may advantage one political party and disadvantage another, court watchers sometimes discern the hand of partisanship. At various times, both parties have been adjudged guilty.
In North Carolina, the phenomenon is particularly visible because the state has a divided government. The legislature is controlled by Republicans. The governor is a Democrat, as is the attorney general, who was involved in the negotiations that led to the settlement Republicans are protesting. The NCSBE agreed to the settlement, and most of its members, appointed by the governor, are Democrats. The state Supreme Court is dominated by Democrats.
One other case involving similar issues and built on similar arguments reached the Supreme Court this term. It originated in Pennsylvania — another state with a Democratic executive branch and a Republican legislature.
In that case, the court split 4-4, with Chief Justice John Roberts voting with the liberal bloc. The court ruled narrowly, without addressing the underlying constitutional issues.
The same could happen in the North Carolina case, even if the justices choose to rule on it, which they may avoid this close to the election.
These days, even the method one chooses to cast one’s vote has taken on partisan overtones. After months of President Donald Trump discouraging mail voting, Republicans are opting to vote in person. Democrats and independents are much more likely to request mail ballots.
“The way people are choosing to vote has become a matter of political identity,” Pildes said.
It’s a phenomenon documented daily by the NCSBE. Statistics on the number of mail ballots requested and returned — dominated by Democrats and independents — means Democrats know it is to their advantage to expand mail balloting, and Republicans know it is in their interest to restrict it.
“We know the absentee vote will favor Biden, so we know the partisan implications of these rulings,” Pildes said.
Beyond this election, a victory for the North Carolina plaintiffs would increase the power of the legislature and decrease the reach of state courts. The question is, by how much?
“How autonomous is the legislature, even from its own state constitution?” Pildes asked.
The argument rests on a narrow reading of the word “legislature.” That’s not the only reading; in some contexts, the term is understood to include both the state constitution and the administrative bodies — such as the NCSBE — that lawmakers create to administer the law.
That’s an interpretation Moore and Berger reject. “By choosing to use the word ‘Legislature,’ the Elections Clause makes clear that the Constitution does not grant the power to regulate elections to states as a whole, but only to the state’s legislative branch,” their brief asserts.
A famous case in which the Supreme Court addressed this particular notion was 20 years ago, in Bush v. Gore. It wasn’t the rationale the court majority used in putting an end to the Florida recount of the 2000 presidential race. But three conservative justices — William Rehnquist, Clarence Thomas and Antonin Scalia — wrote an opinion endorsing it.
The same argument surfaced in a 2014 dissent in a case that originated in Arizona: “ … the Court has said this before. As we put it nearly a century ago, ‘Legislature’ was ‘not a term of uncertain meaning when incorporated into the Constitution.’ … ‘What it meant when adopted it still means for the purpose of interpretation.’ … ‘A “Legislature” is the representative body which (makes) the laws of the people.’” That dissent was written by Chief Justice Roberts.
In the Monday ruling on the Wisconsin case, justices Brett Kavanaugh and Neil Gorsuch took a similar tack. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote.
Justice Elena Kagan raised an objection, noting that Kavanaugh at one point decries federal intervention but then “calls for more federal court involvement in ‘reviewing state-court decisions about state (election) law.’ ”
If, in the realm of federal elections, “legislature” means just the body of lawmakers and nothing else, and if those lawmakers are free of any constraints save the U.S. Constitution, it means that virtually any lawsuit over the way federal elections are run could end up before the Supreme Court.
Opening the door?
Rick Su, a law professor at UNC Chapel Hill, sees the North Carolina lawsuit and its kin as “the opening of a door,” and he’s disturbed by what might lie on the other side. “Is the Supreme Court going to determine the outcome of every election?”
One peculiarity of American law is that the U.S. Constitution does not include an express guarantee of each citizen’s right to vote. That right is only implied — for instance in the amendments that make it illegal to withhold the vote based on gender or race.
State constitutions, including North Carolina’s, do explicitly confer the right to vote. For that reason, legal scholars see state courts as a better venue for those who seek to protect or expand voting rights.
In that context, Douglas said, he found the Supreme Court’s tie vote in the Pennsylvania case disturbing. By leaving the door open for other cases that would undercut states’ authority, he said, it presents “a threat to judicial protections for the right to vote.”
Su, however, sees an even bigger and more generalized threat. The more the legal challenges pile up and the more it appears that courts are choosing the winners, the harder it will be for people to trust our elections, he said. “That’s the problem. That’s my biggest concern.”
Nevertheless, even if the current appeal fails, the legal theory it rests on may be with us for some time.
“It’s likely that we’ll see it again,” Douglas said.