Posted Oct 22nd 2020, 4:16 pm by Amy Howe
Two days after three judges on the US 4th Circuit Court of Appeals ordered them "to bring this case to the Supreme Court immediately," the Trump campaign and North Carolina Republicans did just that, asking the judges to extend it the court to block deadline for postal voting in that state up to nine days after the election. Timothy Moore, Republican spokesman for the state's House of Representatives, and Philip Berger, the senior Republican in the state's Senate, told judges to intervene immediately to stop an "unconstitutional takeover" and "avoid the specter of a by-election battle over the state Validity of ballot papers received in North Carolina during the Disputed Period. “A second submission by the Trump campaign and the Republican National Committee described the extension as an" extraordinary attempt by an unelected state electoral committee to rewrite the clear provisions of a June bill "passed by North Carolina lawmakers.
Moore and Berger asked the judges to intervene in a dispute that began this summer when the North Carolina Alliance for Retired Americans and several voters filed a lawsuit in a state court to challenge the state rule that postal ballot papers be issued within three days of being passed the day of the election – until November 6th. The challengers and the state electoral board have given consent to extend the deadline for postal ballot papers by six days to November 12, and the state court approved that agreement one month earlier.
Moore and Berger had stepped into the state case as defendants to argue that the state should meet the original deadline, but they also went to federal court where they tried to block the consent agreement from taking effect. Although a federal judge originally granted this motion, the additional six-day extension – the November 12th deadline – eventually came into effect.
Moore and Berger then went to the 4th Circuit, as did the Trump campaign and the RNC, which had also tried to stop the consent agreement being implemented in a federal court. With a vote of 12 to 3, the appeals court rejected their objection and allowed the extension to exist for nine days. Judge James Wynn stressed that all postal ballot papers had to be sent by election day and that state electoral procedures had previously allowed ballot papers to be counted as long as they were received within three days of election day. Wynn merely reiterated that the consent agreement extends this period from three to nine days.
Judge J. Harvie Wilkinson disagreed with the 4th Circle ruling in a statement, which was followed by two other judges. Wilkinson complained that federal courts and state electoral bodies were "turning on their heads" the established rules for elections set by state lawmakers and then claimed that their actions were the "new status quo" and could not be disrupted.
Both documents submitted to the Supreme Court on Thursday made similar arguments, telling the judges that the extension of the postal voting deadline violated the constitutional electoral clause, which mandates state legislators to determine when, where and how the federal elections will take place, as well as the non-discrimination clause of the Constitution by applying different rules depending on when voters cast their votes. Both filings also argued, as Moore and Berger put it, that election officials "disregard North Carolina voters and create significant confusion with their" informed consent "and ever-changing guidelines." However, seeking broader relief than Moore and Berger, the Trump campaign and the RNC asked the court to block not only the extension of the postal voting deadline but other changes in the state's electoral process, suggesting that the court will treat your application as such a request for review and issue a decision on the matter "as soon as possible".
Both inquiries go to Chief Justice John Roberts, who handles 4th circle emergencies. Roberts can respond to the request on his own or, as is more likely, forward it to the entire court after first requesting a response. Depending on the timing of the briefing, Supreme Court candidate Amy Coney Barrett could be on the case if – as expected – she is approved by the Senate next week.
To update: On Thursday afternoon, Roberts requested a response in both applications by Saturday, October 24th at 3 p.m. SUMMERTIME.
This post was originally published on Howe on the Court.
Trump Campaign, North Carolina Republicans Urge Judges To Stop Postal Vote Extension (Updated),
SCOTUSblog (October 22, 2020, 4:16 p.m.),