Durham County Board of Elections staff process absentee ballots in October 2020 at the agency's warehouse. Each blue bin holds ballots from a different precinct. The workers are removing ballots from absentee-by-mail envelopes and flatten them, to be scanned in batches later on. Jordan Wilkie / Carolina Public Press

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In a win for the N.C. State Board of Elections and voter advocacy groups, the U.S. Supreme Court decided in a 5-3 vote Wednesday not to take up the appeal challenging the deadline extension for accepting by-mail absentee ballots. 

Voters still need to have their absentee by-mail ballots in the mail and postmarked by Election Day or submit them in person by 5 p.m. on Election Day. The law is in place to prevent people from voting after they know any election results. 

Those mailed ballots now have until Nov. 12 to arrive. 

Josh Stein, North Carolina’s attorney general, called this a “huge win” that gives “certainty that every eligible vote will be counted.” 

The legal fight started Sept. 22, when the state board announced that it was going to settle a lawsuit in state court regarding rules around voting in this election.

One of those rules was extending the deadline by which county boards of election could accept absentee-by-mail ballots from three days after Election Day to nine days. 

Tim Moore, the state’s Speaker of the House, and Phil Berger, the leader of the state Senate, intervened in the lawsuit but were left out of the settlement negotiations. They opposed the settlement and challenged it both on appeal in state court and in a federal lawsuit

While state Democrats, like Stein, are celebrating the decision and Republicans like Berger have put out more subdued statements, the extension is likely to serve voters of both parties as well as unaffiliated voters. 

The partisan rancor comes into play because registered Democratic and unaffiliated voters are using vote-by-mail at higher rates, so the more absentee-by-mail ballots that are counted, the more it could benefit Democrats overall.  

It is not yet clear how many absentee-by-mail ballots will arrive during the extended deadline, but it is clear that the potential benefit to Democratic candidates is in the thousands of votes, at most, a relatively minuscule proportion of the overall votes cast. 

The presidential race between President Donald Trump and former Vice President Joe Biden is polling as a dead heat in North Carolina, and the Tar Heel State has both a recent and long history of very close races, so a few thousand votes could make a difference. 

In Berger’s press release, he referenced a second North Carolina lawsuit that has been appealed to the U.S. Supreme Court. That case is over the same issue, but it made its way through state courts and arrived later than the case that the Supreme Court ruled on today, which originated as a federal lawsuit. 

It is unlikely that the court will make a different decision in the second case, according to the analyses of two constitutional law professors. 

“They have the power to do that, but I can’t imagine them doing so,” Edward Foley, a law professor and director of the election law program at The Ohio State University, wrote in an email to Carolina Public Press. 

“If they had wanted to act, they presumably would have done so in the case coming from the Fourth Circuit.”

Joshua Douglas, law professor at the University of Kentucky, agreed, with one potential wrinkle. Justice Amy Coney Barrett did not participate in the 5-3 decision “because she didn’t have time to consider the briefing,” Douglas wrote. 

The court would still not have the votes to overturn the state court decisions, assuming that none of the justices flipped votes from one case to the next. 

According to the Supreme Court docket, the chief justice has not yet called for a response on the second North Carolina case, which is an indication that the court is not in a hurry to take it up. 

Justices John Roberts and Brett Kavanaugh joined with the three liberal justices on the court to deny the appeal. They did not issue an opinion explaining the decision. 

Justice Neil Gorsuch wrote a dissent, saying that taking up the case would be in line with the court’s recent decision in a Wisconsin elections case. He was joined by Justices Clarence Thomas and Samuel Alito.

With that, North Carolina and the nation face the calm before the storm.

North Carolina’s remaining appeal is the last remaining emergency election case on the Supreme Court’s docket.

For now.

Election Day is around the corner, and legal experts around the country expect another proliferation of lawsuits shortly thereafter.

Jordan Wilkie

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.

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