After having just divided 4-4 on the PA case, which centered on the “independent legislature” constitutional issue, the Court might soon be faced with that issue yet again. The en banc 4th Circuit split yesterday on precisely this issue — along with a number of other important ones.

The NC Election Code permits absentee ballots to be received up to three days after Election Day. Ballots received later than that are not valid votes, under the Code. Following a lawsuit challenging this deadline, the NC Board of Elections entered into a consent decree in which it agreed to extend that deadline; under this decree, the Board agreed to treat ballots as valid votes if they were received up to nine days after Election Day.

That poses the constitutional question that split the 4th Circuit: did the Board violate the federal constitutional question by changing the deadline the legislature had enacted into law. In particular, did the Board violate Art. I and Art. II of the Constitution because those provisions give “the legislature” the power to regulate national elections and the manner of choosing presidential electors.

The “independent legislature” doctrine is now being litigated, or has been litigated, in several cases during this election cycle.

If the NC legislature takes this case to the Court now, by seeking a stay, the Court might decide it’s too late in the day to act on that issue now, in which case the Court might simply decline to change the status quo.

But one way or another, it now seems increasingly likely that the Court is going to end up addressing that issue, with all its implications, one day soon. That might be before the election, if the Court were to issue a stay, or after the election, when the Court would hear a case on the merits. But this issue is not going away.