WASHINGTON _The U.S. Supreme Court has settled North Carolina's election rules with only five days left before the election.
The justices ruled Thursday that they would not interfere with the settlement agreement decided in Wake County Superior Court that allows the North Carolina Board of Elections to collect mailed-in ballots through Nov. 12 as long as the ballot is postmarked by Nov. 3. The previous deadline for ballots to be received by local boards was Nov. 6, as set by state law.
The decision comes less than 24 hours after the U.S. Supreme Court accepted the deadline extension in response to two different cases. The two orders entered Wednesday night left only the case decided Thursday still pending in the courts.
In both decisions, the Supreme Court declined to overturn the lower court rulings in a 5-3 vote.
In both cases Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch cast the minority votes.
New Justice Amy Coney Barrett did not participate in the consideration or decision in any of the cases.
The central issue in the case was whether the State Board of Elections had the authority to change the deadline for accepting mail-in ballots without action from the legislature.
The Democratic-controlled state board, in a unanimous bipartisan agreement to settle a lawsuit, extended the deadline for receiving ballots to Nov. 12.
Concerns about U.S. Postal Service delivery delays drove the decision, as far more voters decide to vote by mail during the coronavirus pandemic. The deadline to request an absentee by-mail ballot was Tuesday.
As of Thursday morning, 849,000 mailed-in ballots had already been received, in addition to more than 3 million early in-person votes.
In the last case before the Supreme Court, House Speaker Tim Moore and Senate Leader Phil Berger had asked the justices to suspend the three-part settlement agreement accepted in Wake County Superior Court.
On Oct. 2, Wake County Judge Bryan Collins accepted the agreement that addressed how long the Board of Elections could accept mailed-in ballots, whether a witness signature was needed and where those ballots could be dropped off.
The board had already agreed to revert back to North Carolina election rules for the latter two issues.
But lawmakers and the board hadn't agreed on how long mailed-in ballots should be accepted after the election. Voting began on Sept. 4, and by the time the settlement agreement had been accepted voters already had cast 319,000 absentee ballots.
The U.S. Constitution gives authority to the General Assembly to set election rules. In response to the coronavirus, legislators made some changes to the rules for this fall's election.
North Carolina election laws gives a three-day grace period that allows election boards to accept absentee ballots through 5 p.m. Nov. 6, if they are postmarked by Election Day.
Berger and Moore argued that the election board's settlement agreement usurped their authority by extending the acceptance through 5 p.m. Nov. 12.
In their argument filed Tuesday, Moore and Berger's lawyers said that "unelected state bureaucrats" teamed up with state court plaintiffs to change election rules that lawmakers had set.
"To add to the audacity of this action, Respondents are likely to tell this Court that it is simply too late to correct their unlawful behavior given the closeness of election day," court documents stated.
Not everyone who requests an absentee by-mail ballot ends up using it. Voters who request one can still vote early in-person or on Election Day. But they cannot vote more than once. Early in-person voting ends Saturday at 3 p.m.
North Carolina is far from alone in its disputes over extending mail-in voting in 2020, as concerns about the coronavirus pandemic, slow mail delivery and intense interest in the election have created a near-perfect storm.
The Supreme Court ruled 5-3 on Monday night that Wisconsin could not extend its deadline for accepting mail ballots to past Election Day.
Meanwhile, last week, in a 4-4 decision, the court failed to block a decision by the Pennsylvania Supreme Court to allow ballots received up to three days after Election Day to be counted.
Chief Justice John Roberts explained why he opposed a deadline extension in Wisconsin but approved one in Pennsylvania.
"While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes," Roberts wrote.
"Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin."
Justices Thomas, Alito and Gorsuch dissented in Wednesday's ruling in the North Carolina case. Gorsuch mentioned the Wisconsin case and wrote "in some respects, this case may be even more egregious, given that a state court and the Board worked together to override a carefully tailored legislative response to COVID-19.
"Indeed, the president pro tempore of the North Carolina Senate and the speaker of its House of Representatives have intervened on behalf of the General Assembly to oppose revisions to its work."
Stein said Wednesday's decision was "huge" and ensured that every mail-in vote will count, even in a pandemic.
"Voters must postmark their ballots by Election Day but now have certainty their vote will be counted," Stein tweeted. "Let's Vote!"
