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Appeals court lets North Carolina keep absentee deadline extension

Posted October 20, 2020 11:00 p.m. EDT
Updated October 22, 2020 1:16 p.m. EDT

— North Carolina can accept absentee ballots that are postmarked by Election Day for more than a week afterward, a federal appeals court ruled Tuesday.

The 4th U.S. Circuit Court of Appeals declined to block an extension for accepting the ballots that was announced in late September. The State Board of Elections decided then that absentee ballots could be accepted until Nov. 12 as long as they were mailed by Election Day, lengthening the timeframe from three to nine days. The change was made as part of a legal settlement with voting rights advocates.

State and national Republican leaders went to court to fight the deadline extension. But the federal appeals court denied their emergency request to block the change.

Sen. Phil Berger, president pro tem of the North Carolina Senate, said lawmakers plan to appeal the ruling to the U.S. Supreme Court.

Update: That appeal was filed Thursday, October 22, 2020, and is available online here.

The court’s majority opinion notes that ballots must still be postmarked by Election Day to be counted. The opinion says that “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.”

The opinion also noted that if the court forced the state to shorten the deadline, it would violate a legal principle that limits how federal courts intervene in ballot rules close to an election.

The ruling was decided 12-3. All 15 of the court's active judges participated, rather than a smaller panel, in a sign of the case's importance.

Berger, R-Rockingham, said in a statement that a three-judge panel of the appellate court appeared to have blocked the extension before the lone dissenting judge called for an en banc hearing of the full 4th Circuit court.

"We actually won our appeal until one judge on the panel pursued a procedurally suspect scheme to overturn our victory before it could be become public. The veteran judges who dissented are right to question whether the court undermines its legitimacy with such antics," Berger said.

Last week, a judge in a lower federal court ruled the state couldn't accept absentee ballots that lacked a witness signature, forcing them to rewrite some procedures for handling mail-in votes. But he declined to intervene on the deadline for accepting absentee ballots.

Republicans, including state legislative leaders and lawyers for President Donald Trump's campaign, then asked the 4th Circuit to step in.

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