If you loved the hit 2000 drama Bush v. Gore, then keep your TV sets tuned, as they say. That’s the upshot from two orders Wednesday by the Supreme Court. The Justices declined—at least for now—to save the ballot deadlines created by Legislatures in North Carolina and Pennsylvania. In doing so, the High Court set the stage for a potential legal opera worse than the Florida recount.
Start with the perplexing result in North Carolina. State law says absentee votes must arrive by Nov. 6. After a progressive group sued in state court, the North Carolina Board of Elections agreed in a settlement that votes mailed on time would count through Nov. 12. On the surface, this looks similar to the recent case in Wisconsin, where a federal judge bumped the ballot deadline by six days. On Monday the Justices voted 5-3 to halt that Wisconsin order.
The North Carolina case in some ways “may be even more egregious,” Justice Neil Gorsuch wrote Wednesday in a dissent, joined by Justice Samuel Alito. Over the summer, with the pandemic in mind, the state Legislature added funding for election infrastructure and acted to let voters request an absentee ballot online. Lawmakers did not touch the Nov. 6 deadline. Yet a judge and the Board of Elections “worked together,” Justice Gorsuch said, “to override a carefully tailored legislative response to COVID.”
Justice Clarence Thomas also wanted to halt the deadline extension, making for three votes. Justice Amy Coney Barrett, who took the judicial oath on Tuesday, did not participate. Chief Justice John Roberts perhaps preferred to let the state courts, the state board, and the state Legislature work it out. Justice Brett Kavanaugh presumably sided with the Chief, but the order doesn’t say why.