By Rick Henderson, Carolina Journal News Service

RALEIGH — North Carolina’s deadline for accepting mail-in absentee ballots in this year’s election finally may be settled at the venue state conservative leaders wanted: the U.S. Supreme Court.

The 4th U.S. Circuit Court of Appeals issued a convoluted opinion the justices must reverse, state legislative leaders and dissenting appeals court judges say. A 12-3 majority of the Appeals Court ruled Tuesday, Oct. 20, that the State Board of Elections could set the deadline for accepting and counting mail ballots at nine days after this year’s election, rather than the three-day window written in state law. To reach this conclusion, critics say, the Appeals Court misread the Supreme Court’s guidance. The full, 15-judge circuit also had to overrule a three-member panel of its own judges to reach its conclusion.

“Our country is now plagued by a proliferation of pre-election litigation that creates confusion and turmoil and that threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves,” the dissenting judges said. The majority “has encouraged others to regard state statutes as little more than advisory and for pre-election litigants fair game.”

The Appeals Court ruled on three lawsuits contesting the elections board’s actions on mailed absentee ballots. Two were filed against the board by voters and Republican groups. A third was filed against the board by a union-backed group represented by Democratic legal heavyweight Marc Elias. U.S. District Court Judge William Osteen heard all three.

A deal worked out in a closed session between Elias’ clients, Democratic Attorney General Josh Stein, and the Democrat-dominated elections board would have weakened state law’s election integrity protections in three ways. First, the deal extended the deadline to count mail-in ballots from three days to nine. Second, the deal would have removed a requirement for mailed absentee ballots to be signed by a witness. Third, it would allow local elections boards to count ballots left in unmanned boxes.

Last week, Osteen said the witness requirement should stand, but he didn’t rule on the other two issues. Meanwhile, state elections board director Karen Brinson Bell said votes dropped in unmanned boxes wouldn’t be counted.

The deadline for counting ballots after the polls close isn’t settled. Mail-in ballots must be postmarked no later than Nov. 3.

The Appeals Court was asked whether the elections board could change absentee ballot rules without the legislature’s approval — the Democrats’ wish — even though the rules would modify a law passed and signed into law earlier this year. That law expanded access to absentee voting because of concerns about the COVID-19 pandemic. Even if the elections board could change the rules, could it do so as voters were casting ballots?

Judge James Wynn, writing for the majority, said yes. Citing the Supreme Court’s 2006 Purcell principle, Wynn and his colleagues said the Republican-led lawsuits, rather than the elections board, were trying to change election rules in the middle of an election.

But dissenting Judges Harvie Wilkinson, Steven Agee, and Paul Niemeyer said Wynn was turning Purcell on its head. The law passed by the General Assembly was the status quo. The elections board was trying to move the goalposts — in fact, the deal was OK’d by a state judge after hundreds of thousands of absentee ballots had been cast.

The dissenters said the General Assembly had a point. Ballots cast before the elections board’s deal was imposed would be treated differently than those cast after it. This fact constituted a violation of the Equal Protection Clause in the 14th Amendment.

“According to the dissent, 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,” said Senate leader Phil Berger, R-Rockingham.

The dissenters also agreed with Republicans that the elections board had no power to make rules without the General Assembly’s consent.

“We urge plaintiffs to take this case up to the Supreme Court immediately,” the dissenters wrote. “Not tomorrow. Not the next day. Now.”