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U.S. Court of Appeals OKs North Carolina's extension to accept mail-in ballots
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U.S. Court of Appeals OKs North Carolina's extension to accept mail-in ballots

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Mailed-in ballots postmarked by 5 p.m. Nov. 3 — Election Day — should be accepted by the N.C. State Board of Elections until Nov. 12, according to a U.S. Court of Appeals ruling late Tuesday night.

The 4th U.S. Circuit Court of Appeals made the decision in a 12-3 vote just two weeks from Election Day.

"All ballots must still be mailed on or before Election Day," according to the ruling. "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.

"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 ruling continued. "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."

The N.C. Attorney General's Office and the N.C. State Board of Elections have been battling Republican lawmakers to extend the election's collection date due to delays with the U.S. Postal Service and the increased volume of people voting by mail because of the COVID-19 pandemic.

Attorney General Josh Stein announced the ruling on Twitter Tuesday night, calling it a "huge win."

"By a 12-3 margin, the Court rejects the Republican legislators' effort to disallow votes cast & mailed back on or before Election Day but received after 11/6," Stein wrote. "The 'simple and commonsense change' approved by the state court to extend the deadline 3 days to 9 days does not change voters' obligations — all ballots must still be mailed on or before Election Day. But it recognizes the reality of an overburdened postal service."

More than 2 million North Carolina voters have cast their ballots in the election so far, through mail-in ballots and early voting, The News & Observer reported Tuesday afternoon.

That includes more than 1.3 million people at early voting sites across the state and more than 655,800 mail-in ballots, according to the state elections board.

State and federal lawsuits

Behind the scenes, three of North Carolina's new voting rules have been on hold as one state and two federal lawsuits are being decided.

On Oct. 3, Wake County Superior Court Judge Bryan Collins accepted a settlement agreement that changed three of North Carolina's election rules.

The N.C. State Board of Elections unanimously approved the settlement that extended the deadline to accept mail-in ballots; allowed affidavits for ballot envelopes lacking witness signatures; and allowed mailed-in ballots to be dropped off at election offices and at early voting sites.

But Senate Leader Phil Berger and House Speaker Tim Moore accused the elections board and the attorney general's office of trying to usurp their constitutional authority by changing election rules through a "secretive" settlement agreement.

Last week, U.S. District Court Judge William Osteen stopped the board of elections from moving forward without witness signatures. But he said not have the authority to rule on the other provisions, leaving it in the hands of the U.S. Fourth Circuit Court of Appeals to decide.

That happened Tuesday night.

The federal appellate court decision puts an end to the lawsuits, unless the judges' decision is appealed to the Supreme Court.

That's what the three dissenting judges, J. Harvie Wilkinson, G. Steven Agee and Paul V. Niemeyer, urged the plaintiffs to do. The judges said there is a pattern of pre-election litigation that undoes the work of the state legislature and creates turmoil that undoes the public trust in the election.

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

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