Appeals Court orders new vote calculations in NC Supreme Court election dispute

A North Carolina Appeals Court panel has split, 2-1, in ordering state elections officials to recalculate vote totals in the disputed 2024 state Supreme Court election. The 103-page decision Friday responds to ballot challenges from Republican candidate Jefferson Griffin.

The Appeals Court majority reversed a Wake County trial judge who ruled against Griffin.

It’s not clear whether the court’s order will change the election’s outcome. Griffin, an Appeals Court judge, trails appointed incumbent Justice Allison Riggs, a Democrat, by 734 votes out of more than 5.5 million cast last fall. Griffin challenged more than 65,000 ballots from three separate categories of voters.

A Jan. 7 stay from Riggs’ state Supreme Court colleagues has blocked the State Board of Elections from declaring Riggs the winner. The case could head back to the state’s highest court with another appeal.

Judges John Tyson and Fred Gore supported the majority ruling, though neither one is credited as the author of the court’s opinion. Tyson and Gore are Republicans. Judge Tobias Hampson, a Democrat, dissented. The panel heard oral arguments in the case two weeks ago.

“The post-election protest process preserves the fundamental right to vote in free elections ‘on equal terms,’” according to the unsigned majority opinion. “This right is violated when ‘votes are not accurately counted [because] [unlawful] [ ] ballots are included in the election results.’ The inclusion of even one unlawful ballot in a vote total dilutes the lawful votes and ‘effectively “disenfranchises”’ lawful voters.”

Griffin challenged more than 60,000 ballots from voters whose registration records appeared to lack either a driver’s license number or the last four digits of a Social Security number. The Appeals Court opinion labels them “Incomplete Voter Registration” voters.

They are “not qualified as eligible voters in the 2024 election,” Tyson and Gore decided.

“Based on precedent from the Supreme Court of North Carolina, this Court could order that those voters are without a remedy to cure their incomplete registrations,” the majority opinion continued. “However, because the Board and the county boards did not comply with their statutory obligations to notify these voters who have ‘provide[d] enough information on the form to enable the county board to identify and contact the voter’ of the information defect in their registrations, we conclude these voters should be allowed a period of fifteen (15) business days after notice to cure their defective registrations.”

Appellate judges are sending the case back to a trial judge with instructions for the State Board of Elections. “Upon remand, the Board is instructed to immediately direct the county boards in all one hundred counties to expeditiously identify the challenged ‘Incomplete Voter Registration’ voters and notify said voters of their registration defects, to allow said voters fifteen (15) business days from the mailing of the notice to cure the defect, and upon verification to include in the count of this challenged election the votes of those voters who timely cure their registration defects and to omit from the final count the votes of those voters who fail to timely cure their registration defects.”

Griffin’s second category of challenged ballots involved more than 5,500 overseas voters who provided no photo identification. “[T]heir ballots have not been properly cast,” Tyson and Gore determined. “[T]his Court could order that those voters are without a remedy to cure their failure to comply with the photo ID requirement.”

Yet the General Assembly has labeled the lack of a photo ID with an election ballot a “curable deficiency,” according to the majority.

“Upon remand, the Board is instructed to immediately direct the county boards to expeditiously identify the military and overseas voters challenged under this protest and notify said voters of their failure to abide by the photo ID requirement or equivalent, to allow said voters fifteen (15) business days from the mailing of the notice to cure the defect, and upon verification, to include in the count of this challenged election the votes of those voters who timely cure their failure to abide by the photo ID requirement and to omit from the final count the votes of those voters who fail to timely cure their deficiencies,” Tyson and Gore ordered.

Griffin’s third category of challenged ballots involved 267 voters who never have lived in North Carolina. “[W]e conclude these purported voters are not eligible to vote in North Carolina, non-federal elections, and the votes cast by these purported voters are not to be included in the final count in the 2024 election.”

All of the challenged “Never Residents” votes would be removed from the statewide total.

The majority opinion took up 37 pages, while Hampson’s dissent extended to 66 pages.

“To be clear: on the Record before us, Petitioner has yet to identify a single voter — among the tens of thousands Petitioner challenges in this appeal — who was, in fact, ineligible to vote in the 2024 General Election under the statutes, rules, and regulations in place in November 2024 governing that election,” Hampson wrote. “Every single voter challenged by Petitioner in this appeal, both here and abroad, cast their absentee, early, or overseas ballot by following every instruction they were given to do so. Their ballots were accepted. Their ballots were counted. The results were canvassed.”

“None of these challenged voters was given any reason to believe their vote would not be counted on election day or included in the final tallies,” Hampson continued. “The diligent actions these voters undertook to exercise their sacred fundamental right to vote was, indeed, the same as every other similarly situated voter exercising their voting right in the very same election. Changing the rules by which these lawful voters took part in our electoral process after the election to discard their otherwise valid votes in an attempt to alter the outcome of only one race among many on the ballot is directly counter to law, equity, and the Constitution.”

An appeal could take the case to the full Appeals Court, where Republican judges outnumber Democrats, 11-3, with Griffin recused from the case.

Or the case could head back to the state Supreme Court, where Republicans hold a 5-1 majority with Riggs recused. In two earlier decisions in the case, Republican Justice Richard Dietz has dissented from the majority. The court voted 4-2 in those instances.

Court filings have suggested that parties in the case anticipate a possible 3-3 split among Supreme Court justices, which would leave the Appeals Court’s ruling as the final decision in the dispute.

The post Appeals Court orders new vote calculations in NC Supreme Court election dispute first appeared on Carolina Journal.