North Carolina Mail-In Ballot Receipt Extension Upheld by Federal Court

October 21, 2020 Updated: October 21, 2020

A federal appeals court ruled on Oct. 20 to uphold a deadline extension in North Carolina for the receipt and counting of absentee ballots to nine days from three.

The 4th Circuit Court of Appeals denied injunctive relief, pending appeal, in a lawsuit that was brought by Republican legislative leaders seeking to reimpose a three-day window after Election Day for receiving and counting mail-in ballots, which the State Board of Elections last month agreed to expand to nine days.

“The deadline extension only changes two things: more votes cast by mail will be counted rather than discarded because of mail delays, and fewer voters will have to risk contracting the novel coronavirus by voting in person,” Judge James Wynn wrote in a 45-page opinion (pdf).

Ballots cast by mail must still be postmarked on or before Election Day to be counted, with the North Carolina Board of Elections saying in an earlier statement that “this ensures that no ballots cast after Election Day may be counted. It maintains the postmark requirement in statute and ensures that lawful votes cast by Election Day are counted, even if there are postal delays, which the U.S. Postal Service alerted the State about by a letter in August.”

The elections board was presumably referring to a letter circulated to numerous states by the Postal Service warning about possible incompatibilities between standard mail delivery schedules and state laws about absentee voting.

State Senate leader Phil Berger and North Carolina House of Representatives Speaker Tim Moore, both Republicans, were among those to file a suit against the State Board of Elections (pdf) over the extension.

In a dissenting opinion to the 12–3 majority ruling, two judges wrote that the decision “allowing the Board’s changes to go into effect now, two weeks before the election and after half a million people have voted in North Carolina, would cause yet further intolerable chaos.”

Dissenting Judges J. Harvie Wilkinson and Steven Agee, who were joined in their opinion by Judge Paul Niemeyer, wrote: “We urge plaintiffs to take this case up to the Supreme Court immediately. Not tomorrow. Not the next day. Now.”

Two judges in the majority accused the dissenting judges of exaggeration.

“Regarding the dissenting opinion of our colleagues Judge Wilkinson and Judge Agee, one might think the sky is falling. Missing from their lengthy opinion is a recognition of the narrowness of the issue before us,” Judges James Wynn and Diana Motz wrote.

“Importantly, the only issue we must now decide is Plaintiffs’ request for an emergency injunction pending appeal regarding a single aspect of the procedures that the district court below refused to enjoin: an extension of the deadline for the receipt of mail-in ballots. All ballots must still be mailed on or before Election Day.

“The change is simply an extension from three to nine days after Election Day for a timely ballot to be received and counted. That is all.”

Appeals courts have blocked mail-in ballot deadline extensions in Georgia, Michigan, and Wisconsin.

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