Appellate judges will not force NC Supreme Court election dispute to return to federal court

The 4th US Circuit Court of Appeals has rejected the North Carolina State Board of Elections’ request to move a dispute over the recent state Supreme Court election back to federal court. A three-judge panel refused Tuesday to reverse a federal trial judge’s decision last month to send the case back to state court.

That means a state order remains in place blocking the certification of Democrat Allison Riggs as the race’s winner. Riggs leads Republican Jefferson Griffin by 734 votes out of 5.5 million ballots cast in the Nov. 5 election. Griffin is challenging more than 65,000 votes as “unlawful.”

A Wake County Superior Court judge is scheduled to a hold a hearing Friday to address Griffin’s ballot challenges. The elections board and Riggs oppose Griffin in the legal dispute.

Tuesday’s unanimous unsigned 4th Circuit opinion will require US Chief District Judge Richard Myers to take up any federal issues remaining in the case once North Carolina courts have resolved state issues. Myers had decided on Jan. 6 to abstain from hearing the case. He remanded the dispute to the state Supreme Court.

Appellate judges agreed that the state Supreme Court’s Jan. 22 decision to reject Griffin’s request for a writ of prohibition against the elections board “renders moot the appeals of the district court’s order abstaining from exercising jurisdiction and remanding the case.”

“Here, the Board asked us to reverse the district court and direct it to retrieve the case from the Supreme Court of North Carolina,” according to the 4th Circuit order. “Because the Supreme Court of North Carolina has dismissed the case the Board asks us to retrieve, we cannot grant the relief the Board requests. Accordingly, those appeals are dismissed as moot. And all remaining motions pending in those consolidated cases are denied as moot.”

As for Myers’ decision in a separate case to send the actual ballot challenges back to state court, “we affirm but modify.”

Myers had cited a 1943 US Supreme Court precedent called Burford to justify his decision not to hear Griffin’s ballot challenges in federal court. Appellate judges agreed that a 1941 US Supreme Court precedent called Pullman offered a “more appropriate theory” to support Myers’ decision.

“[F]ederal courts have discretion to refrain from resolving a case pending in federal court that involves state law claims and potential federal constitutional issues if the resolution of those unsettled questions of state law could obviate the need to address the federal issues,” the 4th Circuit order explained. “However, under Pullman abstention, the federal court retains jurisdiction of the federal constitutional claims while the state court issues are addressed in state court.”

“Applying the requirements of Pullman abstention, the state law issues involved in the case removed from the Superior Court of Wake County are unsettled. The parties advance diametrically opposed interpretations of the North Carolina statutes that are the subject of Griffin’s challenges. And neither provide authority from North Carolina appellate courts making the resolution of that conflict about those state law issues abundantly clear,” appellate judges wrote.

“What’s more, the resolution of those issues of North Carolina law could avoid the need to address the federal constitutional and other federal issues the [elections] Board raised in removing the case. For example, if the Board prevails in Wake County on the state law issues, the resolution of the federal claims may not be necessary,” the 4th Circuit order continued.

Now Myers must “expressly retain jurisdiction of the federal issues identified in the Board’s notice of removal should those issues remain after the resolution of the state court proceedings, including any appeals.”

Judges Paul Niemeyer, Marvin Quattlebaum, and Toby Heytens issued the ruling. Republican presidents appointed Niemeyer and Quattlebaum. A Democratic president appointed Heytenes.

The panel heard oral arguments in the dispute on Jan. 27.

Tuesday’s 4th Circuit decision should clear the way for a hearing scheduled Friday in Wake County Superior Court. Decisions about Griffin’s ballot challenges in that court proceeding could move through the North Carolina Court of Appeals and Supreme Court.

If the appeals involve federal issues, the case could return to Myers.

The post Appellate judges will not force NC Supreme Court election dispute to return to federal court first appeared on Carolina Journal.

 

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