Elections board urges federal judge to keep NC Supreme Court dispute, rule against Griffin

The North Carolina State Board of Elections is asking a federal judge to maintain oversight of Republican state Supreme Court candidate Jefferson Griffin’s lawsuit tied to the November election. The board also urges the judge to rule against Griffin’s request for an injunction.

US Chief District Judge Richard Myers had set a Wednesday deadline for the state elections board to respond to Griffin’s injunction request. Myers also ordered the board to “show cause” why the case should not return to state court.

Griffin is the petitioner in the case. He challenges more than 60,000 ballots in his race against appointed incumbent Democrat Allison Riggs. Riggs leads Griffin by 734 votes in an election that has not yet been certified.

“In this lawsuit, Petitioner makes an astonishing request: to change longstanding election rules after an election has already taken place and, by doing so, disenfranchise more than 60,000 voters — voters who followed the rules in place at the time of that election,” the elections board’s lawyers wrote Wednesday. “This requested relief confers jurisdiction on this Court several times over.”

“It squarely raises substantial federal questions under the United States Constitution, the Help America Vote Act, and other federal statutes,” the court filing continued. “Indeed, Petitioner himself asks for a judicial decree that his requested relief does not violate these statutes or the U.S. Constitution. Given this request, it is hard to envision a lawsuit that more squarely implicates federal law.”

“Federal jurisdiction is also proper because granting Petitioner’s requested relief would require the State Board of Elections to violate federal civil-rights laws,” the elections board’s lawyers argued. “Among other things, Petitioner seeks relief that would violate the National Voter Registration Act’s limits on how States may remove voters from the rolls.”

The elections board urges Myers to keep the case, or exercise jurisdiction, then deny Griffin’s requested injunction.

“Petitioner’s claims stand no chance of success on the merits,” the board’s lawyers wrote. “First of all, granting the requested relief would violate procedural due process, because Petitioner failed to give the challenged voters adequate notice. It would also violate federal civil-rights laws and the Fourteenth Amendment to change the rules of the election months after it has taken place — and thereby disenfranchise tens of thousands of lawful North Carolina voters.”

One day before the State Board of Elections’ court filing, former Democratic congressional leaders Tom Daschle and Richard Gephardt led a group of seven former congressmen urging Myers to reject Griffin’s request to send the case back to state court.

Myers set a Friday deadline for Griffin to reply to arguments from the elections board and other parties in the case. Riggs and activist groups tied to Democratic operative Marc Elias’ law form have intervened in the dispute.

Griffin filed a complaint on Dec. 18 asking North Carolina’s Supreme Court to block certification of the recent state Supreme Court election. The state elections board removed the case to federal court the following day. Griffin wants the case returned to the state court system.

Unless Griffin secures an injunction by Jan. 9, the elections board would certify the election the following day. Such a vote would “moot” Griffin’s legal challenge.

“Without a preliminary injunction, mootness will deprive the Court of jurisdiction to consider any of the issues presented in this matter,” Griffin’s lawyers wrote in support of their motion for an injunction. “A preliminary injunction, however, will simply stay the Board’s hand. … The Board will not be harmed by that injunction — indeed, North Carolina law contemplates delays in election certifications while judicial review is pending.”

“By contrast, Judge Griffin will be irreparably harmed absent the injunction: his protests will be mooted, and he will lose the election,” the court filing continued. “And preventing the Board’s certification from mooting Judge Griffin’s challenges to unlawful ballots will serve the important public interests in election integrity and the franchise, among others.”

Myers issued a Dec. 20 order denying Griffin’s request for a temporary restraining order in the case.

The same judge oversees a lawsuit the North Carolina Democratic Party filed on Dec. 6 dealing with the same ballot challenges Griffin addresses in his complaint. Griffin intervened as a defendant in that case.

Griffin’s complaint highlighted three categories of election protests: voters who registered without providing a driver’s license number or last four digits of a Social Security number, voters who never have lived in North Carolina, and overseas voters who did not provide photo identification.

“In response to these protests, the State Board and the opposing candidate, Justice Allison Riggs, have claimed that Judge Griffin is seeking a retroactive change in the election laws. That flatly mischaracterizes the timeline,” the court filing explained. “Our registration statutes required drivers license or social security numbers back in 2004. Our state constitution has imposed a residency requirement since 1776. And photo identification has been required for absentee voting since at least 2018. The laws that should have governed this election were, therefore, established long before this election. The State Board simply chose to break the law.”

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