Another loss tonight in the Supreme Court for those who believe, as the Constitution requires, that state legislatures and not state bureaucrats or other elected officials make the rules for federal elections.

The U.S. Supreme Court has denied an emergency injunction seeking to restore North Carolina’s statutory requirement that mail-in ballots be received within three days after election day, and rejecting the 6-day extension (so 9 days total) imposed by state election officials.

The only dissents noted were from Thomas, Gorsuch, and Alito. Barrett did not participate.

From the Order:

The application for injunctive relief presented to THECHIEF JUSTICE and by him referred to the Court is denied. JUSTICE BARRETT took no part in the consideration or decision of this application.

JUSTICE THOMAS would grant the application.

JUSTICE GORSUCH, with whom JUSTICE ALITO joins, dissenting from denial of application for injunctive relief.

This summer, the General Assembly of North Carolina adopted new election laws expressly designed to address the challenges COVID posed to a fast-approaching election. Among other things, the General Assembly reduced the witness requirement for absentee ballots from two witnesses to one, N. C. Sess. Laws 2020–17 §1.(a); freed up more individuals to staff polling centers, §1. b); created a mechanism to allow voters to track their ballots, §3.(a); enabled voters to request absentee ballots online, §7.(a); and increased funding to ensure the State’s in-person and absentee voting infrastructure could withstand “the coronavirus pandemic,” §11.1(a)–(f ). At the same time, the General Assembly judged it appropriate to retain certain other existing election rules, like the State’s deadline for the receipt of absentee ballots. Accordingly, under state law, absentee ballots must be postmarked on or before election day, and they must be received “not later than three days after” election day. N. C. Gen. Stat. Ann. §163–231(b)(2)b (2019).

Despite the General Assembly’s considered judgment about the appropriate response to COVID, other state actors—including the State Board of Elections—recently chose to issue their own additional and supplemental set of amendments to state election laws. Relevant here, they purported to extend the absentee ballot receipt deadline by six days, up to November 12….

In the Fourth Circuit, Judges Wilkinson, Agee, and Niemeyer thoughtfully explained the Board’s constitutional overreach and the broader problems with last-minute election-law-writing-by-lawsuit. As they observed, efforts like these not only offend the Elections Clause’s textual commitment of responsibility for election lawmaking to state and federal legislators, they do damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures. Such last-minute changes by largely unaccountable bodies, too, invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results.


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