WASHINGTON — North Carolina voters will have a few extra days for their ballots to reach election officials and still be counted after the U.S. Supreme Court declined to intervene Wednesday night.
The new deadline is Nov. 12, though ballots must still be postmarked on or before Nov. 3, Election Day. The previous deadline for ballots to be received by local boards was Nov. 6.
New Justice Amy Coney Barrett was not part of the 5-3 decision announced Wednesday night.
The central issue in the North Carolina case was whether the State Board of Elections had the authority to change the deadline without action from the Legislature.
State law says ballots received on or before Nov. 6 will be counted. The Democratic-controlled state board, in a settlement agreement for a lawsuit, extended the deadline for receiving ballots to Nov. 12. Concerns about postal service delivery delays drove the decision, as far more voters turn to voting by mail during the coronavirus pandemic.
The deadline to request an absentee by-mail ballot was Tuesday.
More than 3.6 million North Carolina voters already had cast their ballot as of Wednesday morning, according to the state board of elections. More than 1.45 million voters requested absentee by-mail ballots and more than half (over 819,363) had returned them as of Wednesday morning.
Not everyone who requests an absentee by-mail ballot ends up using it. Voters who request one can still vote early in-person or on Election Day. But they cannot vote more than once. Early in-person voting ends Saturday at 3 p.m. Eastern time.
State and national Republicans filed appeals to the Supreme Court on Oct. 22 to reverse the state board's decision.
The 4th U.S. Circuit Court of Appeals permitted the Nov. 12 deadline on Oct. 27.
The North Carolina Supreme Court on Monday rejected a request from Republican legislative leaders to block an extension of the deadline. The decision mirrors a similar order from the North Carolina Court of Appeals last week.
Those state court decisions could likewise end up in the U.S. Supreme Court.
North Carolina is far from alone in its disputes over extensions to mail voting in 2020, as concerns about the coronavirus pandemic, slow mail delivery and intense interest in the election have created a near-perfect storm.
The Supreme Court ruled 5-3 on Monday night that Wisconsin could not extend its deadline for accepting mail ballots to past Election Day. Last week, the court, in a 4-4 decision, failed to block a decision by the Pennsylvania Supreme Court to allow ballots received up to three days after Election Day to be counted.
Chief Justice John Roberts explained why he opposed a deadline extension in Wisconsin but approved one in Pennsylvania.
"While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes," Roberts wrote.
"Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin."
The debate over North Carolina's mailed-in absentee ballots began this summer when a state and two federal lawsuits challenged North Carolina's election laws. Concerns over the election stem from whether people could safely vote in a global pandemic.
But a decision on those challenges bounced back and forth between the state and federal courts after Wake County Superior Court Judge Bryan Collins accepted a settlement agreement that changed the election rules as voting was already underway.
There are two main points of contention in the settlement. One allowed an extra six days for the Board of Elections to collect ballots that were postmarked by Election Day. The other allowed the board to accept ballots without a witness signature if a voter signed an affidavit that they had cast the vote.
Both of these changes went against current election rules in North Carolina. And House Speaker Tim Moore and Senate leader Phil Berger said that despite being part of the lawsuit, they were not included in the settlement negotiations.
A federal judge intervened and put a temporary restraining order on the Board of Elections from moving forward with the agreement.
Days later, U.S. District Court Judge William Osteen ruled that the Board of Elections could not collect ballots without a witness signature. The North Carolina Board of Elections agreed to Osteen's ruling, making further court action a moot point.
But one question still lingered: how long could the mailed-in ballots be accepted after the election?
Berger, Moore and several others have asked the U.S. Supreme Court to make a final ruling.
"The question now before the U.S. Supreme Court is whether an unelected state panel should be able to change election laws after voting has already started," Berger said in a news release.
Attorney General Josh Stein, a Democrat, recently defended the change, noting slowdowns in the delivery of mail and the coronavirus pandemic.
"It's a disgrace that Republicans are trying to block eligible voters from having their votes counted," Stein said in a written statement. "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."
