The US Court of Appeals for the Fourth Circuit on Tuesday maintained North Carolina’s mail-in ballot deadline extension. The Fourth Circuit heard arguments en banc, and in a 12-3 vote, refused to stay the deadline extension. The ballot extension allows for mail-in ballots received nine days past the election to be counted. However, these ballots must be postmarked before or after Election Day.
In an opinion authored by Judge James Wynn, the court criticized arguments that the mail-in deadline extension affects the votes cast on Election Day:
Reading 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. 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. Implementation of that simple, commonsense change was delayed by judicial intervention. … Yet North Carolina voters deserve clarity on whether they must rely on an overburdened Post Office to deliver their ballots within three days after Election Day. The need for clarity has become even more urgent in the last week, as in-person early voting started in North Carolina on October 15 and will end on October 31.
Despite the majority decision, the dissenting judges strongly opposed the court’s decision. Judge Paul Niemeyer criticized the court’s readiness to hear the issue en banc:
This case was originally assigned to a panel, but the work of the panel was hastily preempted by an en banc vote requested by the panel’s dissenter after the panel majority had shared its views but before those views could be published. To be sure, an en banc hearing may be requested at anytime. But the traditional practice of this court is for the assigned panel to hear a case and publish its opinion before the court considers whether to rehear the case en banc. Once in a rare while, the court has elected instead to hear a case en banc before consideration by a panel on the ground that the extraordinary importance of the matter justifies the participation of the entire court. But here, neither course was followed. The panel considered the case assigned to it and promptly exchanged votes on the outcome. Finding that he had been outvoted, the dissenting judge immediately initiated an en banc vote before the panel could even circulate its views to the entire court, let alone to the public. This departure from our traditional process strikes me as needlessly divisive — even considering the matter’s time sensitive nature. I am saddened to see it, especially on a court that has taken such pride in its collegiality.
This decision is one among many across the country to determine mail-in ballot deadlines for the upcoming election. On Monday, the US Supreme Court denied a petition to block the Pennsylvania Supreme Court’s decision to uphold a three-day extension for mail-in ballots. Last week, the US Court of Appeals for the Ninth Circuit denied the Navajo Tribe’s request to extend the Arizona mail-in ballot deadline. A federal appeals court also reversed Indiana’s ballot extension last week.