Moore v. Circosta ( 2020 )

Cite as: 592 U. S. ____ (2020) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
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No. 20A72
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TIMOTHY K. MOORE, ET AL. v. DAMON CIRCOSTA,
CHAIR, STATE BOARD OF ELECTIONS, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[October 28, 2020]
The application for injunctive relief presented to THE
CHIEF JUSTICE and by him referred to the Court is denied.
JUSTICE BARRETT took no part in the consideration or deci-
sion of this application.
JUSTICE THOMAS would grant the application.
JUSTICE GORSUCH, with whom JUSTICE ALITO joins, dis-
senting from denial of application for injunctive relief.
This summer, the General Assembly of North Carolina
adopted new election laws expressly designed to address
the challenges COVID posed to a fast-approaching election.
Among other things, the General Assembly reduced the wit-
ness requirement for absentee ballots from two witnesses
to one, N. C. Sess. Laws 2020–17 §1.(a); freed up more indi-
viduals to staff polling centers, §1.(b); created a mechanism
to allow voters to track their ballots, §3.(a); enabled voters
to request absentee ballots online, §7.(a); and increased
funding to ensure the State’s in-person and absentee voting
infrastructure could withstand “the coronavirus pandemic,”
§11.1(a)–(f ). At the same time, the General Assembly
judged it appropriate to retain certain other existing elec-
tion rules, like the State’s deadline for the receipt of absen-
tee ballots. Accordingly, under state law, absentee ballots
must be postmarked on or before election day, and they
must be received “not later than three days after” election
2 MOORE v. CIRCOSTA
GORSUCH, J., dissenting
day. N. C. Gen. Stat. Ann. §163–231(b)(2)b (2019).
Despite the General Assembly’s considered judgment
about the appropriate response to COVID, other state
actors—including the State Board of Elections—recently
chose to issue their own additional and supplemental set of
amendments to state election laws. Relevant here, they
purported to extend the absentee ballot receipt deadline by
six days, up to November 12.
That last part should sound familiar. Just days ago, this
Court rejected a similar effort to rewrite a state legisla-
ture’s election deadlines. Wisconsin (like North Carolina)
has a ballot receipt deadline enshrined in statute. All the
same, a federal district court decided to order Wisconsin to
extend its deadline by six days. The Seventh Circuit stayed
that ruling, and we agreed with its disposition. For many
of the same reasons I believe that decision was correct, I
believe we should stay the Board’s action here. See Demo-
cratic National Committee v. Wisconsin State Legislature,
592 U. S. ___, ___ (2020) (GORSUCH, J., concurring). In
some respects, this case may be even more egregious, given
that a state court and the Board worked together to over-
ride a carefully tailored legislative response to COVID. In-
deed, the president pro tempore of the North Carolina Sen-
ate and the speaker of its House of Representatives have
intervened on behalf of the General Assembly to oppose re-
visions to its work.
The parties before us all acknowledge that, under the
Federal Constitution, only the state “Legislature” and
“Congress” may prescribe “[t]he Times, Places and Manner
of holding Elections.” Art. I, §4, cl. 1. Everyone agrees, too,
that the North Carolina Constitution expressly vests all
legislative power in the General Assembly, not the Board or
anyone else. N. C. Const., Art. II, §1; cf. N. C. Const., Art.
I, §6. So we need not go rifling through state law to under-
stand the Board’s permissible role in (re)writing election
laws. All we need to know about its authority to override
Cite as: 592 U. S. ____ (2020) 3
GORSUCH, J., dissenting
state election laws is plain from the Federal and State Con-
stitutions.
Besides, even assuming the North Carolina General As-
sembly could delegate its Elections Clause authority to
other officials, its representatives contend before us that it
has not authorized the deadline extension here, and under-
standably so. State law provides the Board with supervi-
sory authority over elections. N. C. Gen. Stat. Ann. §163–
22(a). But that authority permits the Board to prescribe
regulations only if “they do not conflict” with state statutory
law. Ibid. State law also furnishes the Board with power
to fashion interim rules. §163–22.2. But that power too is
circumscribed, triggered when a state statute has been (or
likely would be) invalidated by a court. That doesn’t sound
like a blank check to the Board allowing it to rewrite the
election code in any and all consent decrees it may wish to
enter. Finally, state law confers upon the Board certain
emergency powers. §163–27.1. But, relevant for our pur-
poses, the Board may exercise those powers only when
three conditions are met: (1) “the normal schedule for the
election is disrupted” (2) by a “natural disaster” and (3) pro-
vided that the Board’s actions do not “unnecessar[ily] con-
flict” with statutory law. Ibid. There is no ground for think-
ing that the election “schedule” has been “disrupted”: North
Carolina stands fully equipped to conduct its election on
November 3. Nor is COVID like the “natural disasters” the
Board has pointed to in the past (e.g., hurricanes or power
outages) that can disrupt the mechanics of running an elec-
tion, especially given that the General Assembly has long
known about the pandemic’s challenges and expressly pre-
pared for them. Finally, the change the Board adopted was
deemed “unnecessary” by the General Assembly when it re-
tained the statutory ballot receipt deadline after consider-
ing COVID’s impact on election processes. Any single one
of these three problems is enough to sink the Board’s action.
4 MOORE v. CIRCOSTA
GORSUCH, J., dissenting
In the Fourth Circuit, Judges Wilkinson, Agee, and Nie-
meyer thoughtfully explained the Board’s constitutional
overreach and the broader problems with last-minute elec-
tion-law-writing-by-lawsuit. As they observed, efforts like
these not only offend the Elections Clause’s textual commit-
ment of responsibility for election lawmaking to state and
federal legislators, they do damage to faith in the written
Constitution as law, to the power of the people to oversee
their own government, and to the authority of legislatures.
Such last-minute changes by largely unaccountable bodies,
too, invite confusion, risk altering election outcomes, and in
the process threaten voter confidence in the results. Wise
v. Circosta, ___ F. 3d ___, ___ (CA4 2020) (en banc) (Wil-
kinson and Agee, joined by Niemeyer, JJ., dissenting). Re-
spectfully, for all these reasons I would grant the applica-
tion to stay the Board’s action.