Elections board asks 4th Circuit to order Myers to take back NC Supreme Court dispute

The North Carolina State Board of Elections is asking a federal Appeals Court to order a federal trial judge to take back a case involving a dispute over the state’s recent state Supreme Court election. The case sits now with North Carolina’s Supreme Court, which blocked certification of the election through a temporary stay Tuesday.

In a court filing Tuesday at the 4th US Circuit Court of Appeals in Richmond, Virginia, the North Carolina elections board sought a stay that would block US Chief District Judge Richard Myers’ decision Monday to remove the case from the federal court system and return it to the state’s top court.

Myers’ ruling paved the way for the state Supreme Court’s 5-1 decision to block certification of the election result. Without a court order, the elections board had been scheduled to certify appointed incumbent Democrat Allison Riggs as the winner in the election against Republican Jefferson Griffin. Griffin is challenging more than 60,000 ballots cast in the election as “unlawful.”

The elections board criticized Myers for deciding to abstain from ruling on Griffin’s election challenge. The board had removed Griffin’s case from state court to federal court one day after Griffin filed his initial complaint on Dec. 18.

“It would defeat entirely the point of the civil-rights removal statute for federal courts to abstain from deciding cases where a state officer has refused to take actions that would violate federal civil rights laws,” elections board lawyers wrote. “Indeed, it is precisely a case like this one — where a party seeks to retroactively disenfranchise tens of thousands of eligible voters, in violation of multiple federal civil-rights laws — where the federal courts’ ‘virtually unflagging’ obligation to exercise their federal subject-matter jurisdiction is most urgent.”

“Because the district court has already returned this case to state court, this Court should preserve the Board’s right to appeal by exercising the Court’s supervisory power over the district court and directing it to ‘retrieve the action forthwith from the state court,’” the elections board’s court filing continued.

The 4th Circuit has set a noon Wednesday deadline for Griffin to respond to the request for a temporary stay. He faces a noon deadline on Jan. 14 to respond to the elections board’s request for a stay that would last through the length of its appeal of Myers’ ruling.

Appeals Court filings arrived within hours of the state Supreme Court issuing its own stay Tuesday in the election dispute. North Carolina’s highest court blocked the State Board of Elections from certifying Riggs as the winner of the Nov. 5 election.

The state Supreme Court split, 5-1, in reaching its decision. The court’s five Republicans agreed to grant the stay. Democratic Justice Anita Earls dissented. Riggs was recused from the vote.

Griffin had asked Monday evening for the stay. Without a court order, the elections board was scheduled to certify the election result on Friday. Riggs leads Griffin by 734 votes out of more than 5.5 million ballots cast. Griffin had argued in court filings that certification would have “mooted” his challenges against more than 60,000 ballots statewide. Griffin seeks an order called a writ of prohibition that would block the elections board from counting ballots he has labeled “unlawful.”

“On 6 January 2025, the United States District Court for the Eastern District of North Carolina remanded the matter to this Court,” according to the state Supreme Court order signed by Justice Trey Allen. “Even though we received notice from the Board of Elections of its appeal of the order from the United States District Court for the Eastern District of North Carolina, in the absence of a stay from federal court, this matter should be addressed expeditiously because it concerns certification of an election.”

“Therefore, petitioner’s motion for temporary stay is allowed,” the order continued.

The state Supreme Court, “upon its own motion,” set an “expedited” briefing schedule for the case.  Griffin must file his opening brief by Jan. 14. The elections board must respond by Jan. 21, and Griffin can reply to the board’s arguments by Jan. 24.

Earls dissented “on the grounds that the standard for a temporary stay has not been met here, where there is no likelihood of success on the merits and the public interest requires that the Court not interfere with the ordinary course of democratic processes as set by statute and the state constitution.”

Griffin had filed paperwork with the state Supreme Court Monday evening after Myers sent the case back to that court from his federal courtroom.

“Now that the case is back in this Court, an immediate stay is necessary,” Griffin’s lawyers wrote to North Carolina’s highest state court.

“To date, the State Board has taken every step possible to prevent our state courts from deciding the state-law questions that Judge Griffin has raised. Judge Griffin anticipates that the Board will continue to do so unless it is stopped. Not five hours after the remand order was entered on 6 January 2025, the Board had already filed a notice of appeal, and will no doubt seek to have this Court enjoined from proceeding, despite the unprecedented nature of the Board’s arguments,” the court filing continued.

“Without an immediate stay of certification by the Board — one issued as early as possible — the Board is likely to find new obstacles that procedurally bar any court from reaching the merits of Judge Griffin’s election protests. While Judge Griffin continues to clear the procedural obstacles thrown up by the Board, the Board will press toward certifying the election. An immediate stay is necessary to protect this Court’s certain jurisdiction to consider the petition for a writ of prohibition,” Griffin’s lawyers wrote.

Griffin filed paperwork on Dec. 18 asking the state Supreme Court to issue a writ of prohibition to block certification of the election result. The state board removed the case to federal court the following day.

The case sat in Myers’ court until his ruling Monday evening.

“In this removed state action, a sitting state court judge seeks a writ of prohibition (a form of judicial relief authorized by the state constitution) from the state supreme court that would enjoin the state board of elections from counting votes for a state election contest that were cast by voters in a manner allegedly inconsistent with state law,” Myers wrote in a 27-page order. “Should a federal tribunal resolve such a dispute? This court, with due regard for state sovereignty and the independence of states to decide matters of substantial public concern, thinks not.”

Myers “abstains from deciding Griffin’s motion” and “remands this matter to North Carolina’s Supreme Court,” the order explained.

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