Lawyers on both sides of North Carolina’s absentee-ballot legal dispute could spend much of their weekend working. Filings in the case are due to U.S. Chief Justice John Roberts by 3 p.m. Saturday.
In a pair of similar cases, Republican state legislative leaders, President Trump’s re-election campaign, the Republican National Committee, and voters all have asked Roberts and his Supreme Court colleagues to take up the dispute.
The main issue for consideration is whether N.C. elections officials will count absentee ballots received by mail between Nov. 7 and Nov. 12. Republicans argue that counting those ballots would amount to changing state election rules after hundreds of thousands of ballots have been cast.
State law requires officials to count only those ballots received by mail through Nov. 6, three days after election day. But a lawsuit settlement accepted in a state Superior Court Oct. 2 would extend the deadline for receipt of mailed-in ballots by six days.
Republicans have labeled the settlement a collusive deal among a Democrat-dominated state elections board, a Democratic state attorney general, and plaintiffs represented by Marc Elias, national Democrats’ point man for lawsuits challenging election rules.
Top GOP legislators also have noted that the Democratic state judge who endorsed the Oct. 2 settlement is the same judge, Bryan Collins, who accepted a legal argument in 2019 that characterized Republican lawmakers as “usurpers.”
Both the N.C. Court of Appeals and the 4th U.S. Circuit Court of Appeals have permitted the deal to move forward. Republicans are appealing the 4th Circuit’s ruling to Roberts, who is designated to hear emergency appeals from that circuit.
The chief justice can address the request on his own or refer it to his colleagues. The nation’s highest court has been busy with election-related rulings in recent days. Justices ruled 5-3 Wednesday night that the state of Alabama could restore its ban on curbside voting. A lawsuit had challenged that ban.
Parties asking the Supreme Court to block the counting of mailed-in ballots received after Nov. 6 in North Carolina are relying on a 4th Circuit dissent. Three Appeals Court judges argued that the lawsuit settlement amounted to the state elections board upending voting rules after ballots had been cast, then trying to claim that the new rules represented a “status quo” that courts should not disturb. Those judges had urged an immediate appeal to the Supreme Court to resolve the dispute.
The mailed-in absentee ballot extension represented one of three items within the lawsuit settlement that generated complaints from Republican legislators. A second issue, regarding a witness requirement for mailed-in ballots, appears to have been resolved by other litigation. In a separate case, a federal District Court judge blocked the elections board from counting any mailed-in ballots that lacked a witness’s signature.
The third issue involved the potential use of anonymous, unstaffed boxes at election sites for collection of absentee ballots. The disputed lawsuit settlement would have permitted those boxes. After raising initial objections to them, Republican legislators dropped their focus on that issue.
But a court filing in one of the two cases before Roberts asks the Supreme Court to reject all of the election changes linked to the controversial Oct. 2 settlement.
Beyond Saturday’s 3 p.m. deadline for written filings in the case, the chief justice has set no timeline for a ruling.