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Ballot extensions in 2 key states survive Supreme Court, but Pa. fight not over
Oct 29 2020
Ballots that arrive several days late in the pivotal battlegrounds of Pennsylvania and North Carolina will get counted. But whether all those votes will actually count in the contest for president is still not sure.
That's the main takeaway from back-to-back rulings Wednesday from the Supreme Court. They were likely the last important voting decisions before an Election Day where the ground rules have been whipsawed as never before by partisan litigation fueled by a pandemic.
<p>The Pennsylvania case remains in legal limbo. That because all the court did was say it wasn't going to fully reconsider the three-day grace period before the voting stops — but that it might afterward.</p><p>It made that decision after the state promised to to instruct local boards of elections to segregate all the mailed votes that arrive after the polls close Tuesday but before the end of the workday Friday — making it logistically possible to remove that part of the tabulation later, potentially changing the outcome in a tossup state with 20 electoral votes. (As of Thursday, 1 million requested absentee ballots in the state had not yet been returned, while 2.1 million had.) </p><p>The nine-day extension that North Carolina has granted for ballots postmarked as late as Tuesday was locked down by the court, however — so the presidential race could be up in the air until Nov. 12 or longer if the state's 15 electoral votes prove decisive. (The state says 600,000 of its requested mailed ballots have not come back.)</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Justice Amy Coney Barrett, on the bench only a day, did not participate in either case because, the court said, she had not had time to get up to speed on the disputes.</p><p>The non-legalistic bases of both are the same. People are voting absentee in unprecedented numbers to avoid possible coronavirus exposure at their polling places. Democrats have spent months pushing for more leniency in the distribution and counting rules for mailed ballots. And Republicans have fought them at almost every turn, arguing with hardly any evidence that such relaxations will sully American democracy with cheating.</p><p>The Pennsylvania extension was ordered by the state Supreme Court, based on the belief that the state Constitution required the easements to protect voting rights in light of Covid-19 and pervasive Postal Service delays. The Supreme Court <a href="https://thefulcrum.us/pennsylvania-election" target="_self">first upheld </a>that decision on a 4-4 tie last week. Chief Justice John Roberts joined the court's three liberals, later explaining his position that state courts are free to interpret their own state constitutions in voting cases.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>The state Republican Party tried again, and on Wednesday only three of the most conservative justices said they wanted to decide the case in the week before Election Day and will ask their colleagues to pick it up afterward: Samuel Alito, Clarence Thomas and Neil Gorsuch. </p><p>The same three also dissented from the North Carolina decision, which was unsigned and had no majority opinion. It <a href="https://thefulcrum.us/nc-vote-by-mail" target="_self">upheld a federal appeals court</a>, which ruled 12-3 last week that the state Board of Elections could extend the deadline under its authority to change voting rules during emergencies. (It's done the same thing after hurricanes in two recent election years.)</p><p>Where the court takes election law next is a bit unclear.</p><p>Alito declared that, by not finalizing the Pennsylvania fight, the election will be "conducted under a cloud" and the court has "needlessly created conditions that could lead to serious postelection problems."</p><p>He also reiterated his view that the federal Constitution gives state legislatures exclusive authority to make the rules for their congressional and presidential elections.</p><p>That echoed a concurring opinion issued on Monday by Justice Brett Kavanaugh when <a href="https://thefulcrum.us/voting/vote-by-mail-wisconsin" target="_self">the court struck down</a> an absentee ballot extension in another battleground, Wisconsin, that had been ordered by a federal judge. His opinion has alarmed some legal scholars and democracy reformers because it pointed to the Supreme Court's decisions in cases culminating in Bush v. Gore. That 5-4 ruling, which settled the disputed 2000 results in Florida and handed the presidency to George W. Bush, has been ridiculed ever since as both legally flawed and motivated by raw partisanship.</p>
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A million and a half North Carolinians have already cast ballots in person.
Extended deadline for N.C. mailed votes survives, but what about those signatures?
Oct 21 2020
The rules for voting by mail in North Carolina just got a bit clearer, and a bit easier. But plenty remains up in the air, 13 days before the voting stops, in one of the seven states on course to decide the presidency.
The state will accept ballots arriving as many as nine days late so long as they're postmarked by Election Day, a federal appeals court ruled 12-3 on Tuesday, a lopsided victory for Democrats and voting rights advocates in which all three judges President Trump named to the he 4th Circuit Court of Appeals ruled against his interests.
But the three dissenting judges urged the Republicans to take their arguments to the Supreme Court, so the dispute may not be over. And federal and state courts are continuing to consider other lawsuits — about contested signatures on absentee ballots and whether poll watchers may observe vote-by-mail tabulation — that could also delay definitive election results for weeks beyond Election Day.
<p>Trump carried the state's 15 electoral votes by 3 percentage points last time, a bigger margin than a handful of his other wins, but polling shows him in a statistical dead heat with former Vice President Joe Biden. GOP Sen. Thom Tillis has become an underdog in his bid for a second term, however.</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>After a week of early voting, 1.5 million North Carolinians have cast ballots in person and almost 700,000 have returned absentee envelopes, both records in the state for this stage in the election. But almost 1 percent of the mail ballots have been rejected or put in limbo, mainly because of questions about the signatures.</p><p>The 4th Circuit declined to stop the state from accepting delayed-in-the-mail ballots up to Nov. 12. The state Board of Elections agreed to do so last month <a href="https://thefulcrum.us/voting/absentee-ballot-lawsuits" target="_self">to settle a lawsuit</a> by voting rights advocates. At that point the GOP leaders in the General Assembly sued, arguing the decision belonged to the Legislature. </p><p>They judges bought an argument similar to the one the Supreme Court accepted this week when it <a href="https://thefulcrum.us/pennsylvania-election" target="_self">allowed a deadline extension</a> in an even bigger purple state, Pennsylvania: The change was a fair response to the surge in voting by mail brought on by the coronavirus pandemic and the recent problems with the Postal Service.</p><p>"Everyone must submit their ballot by the same date. The extension merely allows more lawfully cast ballots to be counted, in the event there are any delays precipitated by an avalanche of mail-in ballots," Judge James Wynn wrote in the opinion. The majority also noted that altering things now would violate a principle the Supreme Court has cited several times this year, which is that federal judges should not make last-minute changes in state election procedures.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>The dissenters, all nominees of GOP presidents, said the extension "would cause yet further intolerable chaos" and urged the Republicans to appeal to the high court "immediately. Not tomorrow. Not the next day. Now."</p><p>By the time the court gets such an appeal, Judge Amy Coney Barrett seems certain to have joined the bench. She is on course to be confirmed Monday, positioning her to prevent a potential repeat of the 4-4 deadlock in the Pennsylvania case.</p><p>Meanwhile, several thousand ballots already turned in have been in a state of suspended animation because of several lawsuits about "curing," which is when voters are told about problems with their submissions and given a shot at fixing things.</p><p>The system lurched ahead a bit this week, when the Board of Elections and Attorney General Josh Stein instructed election officials to follow a complicated process: People will be permitted to correct the ballots they've turned in if they did not sign their envelopes, did so in the wrong way or didn't submit the right information about the witness they were required to find.</p><p>But things will be tougher for people who forgot to get a witness or whose envelopes were not sealed when they arrived at election offices. They will be asked if they would like to be sent a fresh ballot for a total do-over.</p><p>The next challenge for this system is a lawsuit by the state GOP demanding permission to deploy operatives to county boards of elections so they can watch the processing of absentee ballots — and challenge envelopes they think are fishy but the county inspectors are fine with. A ruling in favor of the Republicans could tie up the tabulation statewide even beyond the new Nov. 12 deadline for ballot arrivals.</p>
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