The minority judges said the extension – backed by a state court approving decree – threatened “chaos” and deprived North Carolina legislature of its constitutionally mandated role. The dissidents also made an unusual appeal to Berger and Moore to urgently bring the fight to the Supreme Court.
“This case offers the Supreme Court a clear opportunity to correct the repeal of a clear constitutional mandate and to give the federal election process a strong commitment to the rule of law. If the Board of Directors changes come into effect now, two weeks before the election and after half a million people in North Carolina have voted, it would create another unbearable mess, ”Judges J. Harvie Wilkinson and Steven Agee wrote in one Statement by Judge Paul Niemeyer.
“We urge plaintiffs to bring this case to the Supreme Court immediately. Not tomorrow. Not the next day. Now, ”added the dissenting judges.
The dissidents said that without a clear signal from the Supreme Court, a flurry of legal disputes could confuse the upcoming elections. Many of the cases are aimed at convincing state judges or law enforcement officials to extend election deadlines or waive requirements such as witness signatures due to the pandemic.
The dissenting judges argued that these moves usurped the power that the Constitution grants state lawmakers to set rules for federal elections in their states.
“Endless lawsuits have been filed to change the electoral rules established by state lawmakers,” the dissidents wrote. “This ubiquitous jockeying threatens to undermine public confidence in our elections. And the ongoing legal battles mock the Constitution’s express transfer of that power to state legislators. “
Two majority judges, James Wynn and Diana Motz, accused the dissenters of wildly exaggerating the implications of the extension of the ballot slip in question and of ignoring the Supreme Court’s precedents for electoral disputes.
“If you read the dissenting opinion … you might think the sky is falling,” Wynn wrote. “The change is merely an extension from three to nine days after election day so that a voting slip is received and counted on time. That’s all.”
Wynn noted that after doing twice for hurricanes in the past two years, the North Carolina electoral board is stepping in frequently to adjust deadlines for receiving ballots.
Wynn, a representative of President Barack Obama, also targeted dissenting attitudes by invoking the rhetoric of state rights rhetoric heard more often by conservatives. He also accused the dissenting judges of twisting a 2006 Supreme Court decision. Purcell v. GonzalezThis advises federal judges not to change last-minute election procedures at the last minute.
“Our colleagues justify Intervention by the federal court – one thing Purcell clearly Advice against – based on their own ideas of what the Supreme Court should have said in Purcell“Wynn wrote.” We cannot agree to such an extension of the powers of the federal court at the expense of states’ rights to regulate their own elections. That would be inappropriate legal activism. “
Wynn also said his dissenting colleagues’ claim that voters would be confused by the changes was unfounded in one case about the handling of ballot papers postmarked by election day.
“It is hard to imagine what chaos our colleagues here can possibly imagine,” he wrote. “The behavior of voters cannot be influenced one way or another by our choice. … The deadline extension only changes two things: more votes cast by post are counted than discarded due to post delays, and fewer voters have to take the risk of contracting the novel coronavirus by voting in person. Just a grotesquely puffy version of Purcell would consider this “voter confusion” or in any way harmful. “
On Monday, a stalled U.S. Supreme Court overturned a Pennsylvania Supreme Court decision extending the deadline for receiving ballots in that state to three days after election day. Four GOP-appointed judges blocked the order, but Justice John Roberts voted with the Supreme Court Liberals to deny a stay. The result kept the Pennsylvania Supreme Court decision in effect, at least for the time being.
Many of the legal arguments in the North Carolina case are similar, although the route through the state and federal courts has been more Byzantine.
The Supreme Court’s blockade on election-related issues could be lifted as early as Monday, when the Senate is expected to vote on President Donald Trump’s appointment of Judge Amy Coney Barrett to replace the post created by the death of Judge Ruth Bader Ginsburg last month occupy.
It is unclear what election-related emergency filings will be pending in the High Court when Barrett is sworn in next week, and whether they or the broader court will hesitate to intervene in the electoral process just days before the November 3rd vote.
An attorney for North Carolina GOP leaders who unsuccessfully petitioned the appellate court’s intervention, Berger and Moore, did not immediately respond to a message Tuesday night asking if lawmakers intended to appeal the dissidents’ proposal immediately to take up the Supreme Court.