Federal judge rejects stay of weekend order in Griffin-Riggs election dispute

A federal judge refused Tuesday to grant a stay of his recent orders in multiple lawsuits linked to a dispute over last fall’s state Supreme Court election.

US Chief District Judge Richard Myers issued orders Saturday that called on the North Carolina State Board of Elections to proceed with a ballot “curing” process spelled out by a state Supreme Court order issued Friday. The order places roughly 5,700 ballots in question from the November election.

Democrat Allison Riggs, an appointed incumbent, leads Republican Jefferson Griffin by 734 votes out of more than 5.5 million ballots cast last fall. But Griffin challenged more than 65,000 ballots as “unlawful.”

A Jan.7 stay from Riggs’ state Supreme Court colleagues has blocked the elections board from certifying Riggs as the winner. Friday’s state Supreme Court order ensured that more than 60,000 ballots challenged by Griffin will count in the final certification.

Riggs, activist groups working with Democratic operative Marc Elias’ law firm, and plaintiffs working with League of Women Voters of North Carolina all filed emergency motions with Myers.

“All three motions request a stay of the portion of Text Orders entered by this court on April 12 and April 14 that direct the North Carolina State Board of Elections ‘to proceed in accordance with the North Carolina Court of Appeals opinion … as modified by the North Carolina Supreme Court,’” Myers wrote Tuesday. “That portion of the court’s Text Orders, though framed in mandatory terms, did nothing more than decline to interfere (on an expedited basis and without the benefit of briefing) with the initiation of a remedial process ordered by the North Carolina Court of Appeals and North Carolina Supreme Court.”

“Thus, to the extent the parties seek a stay of the court’s inaction, that is, its decision not to enjoin the Board of Elections from complying with the North Carolina Court of Appeals’ order, that request is denied as improper,” Myers wrote. “What the parties actually seek is reconsideration of the court’s denial of their requests for temporary restraining orders. The correct avenue for that form of relief is a motion for reconsideration or direct appeal, if one is available.”

“This court now clarifies that the only mandatory portion of its April 12 and April 14 Text Orders is the language prohibiting the Board of Elections from certifying the results of election pending further order of this court,” Myers added. “This court has made no order altering or modifying the cure process, which is now proceeding pursuant to the North Carolina Court of Appeals’ order, as modified by the North Carolina Supreme Court.”

Myers rejected the requests for mandatory injunctions in the case.

“The court does not find that initiation of a cure process ordered by the North Carolina Court of Appeals and North Carolina Supreme Court, on its own, constitutes a form of irreparable harm because that process cannot result in ‘massive ex post disenfranchisement,’ unless the Board of Elections takes further action at the conclusion of that process,” Myers wrote. “And the court has expressly prohibited the Board of Elections from certifying the results of the election until the federal constitutional issues in these consolidated matters have been resolved.”

Riggs, the Elias plaintiffs, the LWVNC plaintiffs, and the North Carolina Democratic Party all have asked the 4th US Circuit Court of Appeals to block Myers’ ruling.

The state Supreme Court agreed unanimously Friday to reject Griffin’s challenge of more than 60,000 ballots cast by people who appeared to have incomplete voter registration records.

The court split, 4-2, on two other sets of ballot challenges. Justices upheld the state Appeals Court’s decision to throw out votes from voters who never have lived in North Carolina. The Supreme Court also endorsed the Appeals Court’s plan to give overseas voters time to provide evidence of photo identification to have their ballots counted.

The Appeals Court had ordered elections officials to give overseas voters 15 business days to complete that task. The state Supreme Court extended that window to 30 calendar days.

“Defendant North Carolina State Board of Elections is ORDERED to proceed in accordance with the North Carolina Court of Appeals opinion, as modified by the North Carolina Supreme Court in its April 11 Order, but SHALL NOT certify the results of the election, pending further order of this court,” Myers wrote Sarurday.

The judge also set new deadlines in the case “to facilitate prompt resolution of this matter.”

Each party can file an opening brief by April 21 with final briefs due April 28. Myers indicated he “intends to rule on the papers as soon as practicable,” rather than holding oral arguments.

In a second order, Myers said the state elections board “shall provide notice to the court of the scope of its remedial efforts, including the number of potentially affected voters and the counties in which those voters cast ballots.”

The total number of ballots affected by Griffin’s protests has been unclear as the process has moved forward. In an earlier stage of the case, Myers identified more than 5,500 ballots belonging to overseas voters who provided no photo ID. He also spelled out 267 votes from “never residents.”

But Riggs’ lawyers and dissenting state Supreme Court Justice Anita Earls have raised questions about the numbers. Griffin’s original election protest included 1,409 overseas voters who cast ballots in Guilford County. Griffin expanded that number as the legal process continued. But his protests were limited to votes cast in large, Democratic-leaning counties.

“He does not challenge the more than 25,000 identically situated voters across the state who voted under the same preexisting rules, who are not required to clear additional hurdles to have their vote counted, in the same exact race for state Supreme Court,” Earls wrote Friday.

If Myers’ earlier numbers stand, more than 5,500 overseas voters who did not provide photo identification would get 30 days to provide ID information and have their ballots counted. Some 267 voters who never have lived in North Carolina would have their votes discarded. Media reports in recent days suggested that multiple voters labeled as “never residents” actually have lived in North Carolina.

The state Supreme Court’s decision modified a 2-1 ruling on April 4 from the North Carolina Court of Appeals.

The Appeals Court would have given more than 60,000 voters with incomplete voter registration information 15 days to verify their information and have their votes counted. The Supreme Court took up that issue “for the limited purpose of reversing the decision of the Court of Appeals.”

“The board’s inattention and failure to dutifully conform its conduct to the law’s requirements is deeply troubling,” the Supreme Court majority wrote. “Nevertheless, our precedent on this issue is clear. Because the responsibility for the technical defects in the voters’ registration rests with the Board and not the voters, the wholesale voiding of ballots cast by individuals who subsequently proved their identity to the Board by complying with the voter identification law would undermine the principle that ‘this is a government of the people, in which the will of the people — the majority — legally expressed, must govern.’”

The Appeals Court also would have granted 15 days for overseas voters to provide photo ID and have their votes counted. The Supreme Court addressed the issue “for the limited purpose of expanding the period to cure deficiencies arising from lack of photo identification or its equivalent from fifteen business days to thirty calendar days after the mailing of notice.”

Appellate judges called on state elections officials to discard votes cast by people who never have lived in North Carolina. “[T]he Court of Appeals held that allowing individuals to vote in our state’s non-federal elections who have never been domiciled or resided in North Carolina or expressed an intent to live in North Carolina violated the plain language of Article VI, Section 2(1) of the North Carolina Constitution,” according to the Supreme Court order. The high court did not alter that decision.

Riggs was recused from the case. Justice Anita Earls, a fellow Democrat, agreed with the decision to count more than 60,000 ballots challenged based on incomplete voter registration. She criticized the rest of the majority’s opinion.

“The majority is blatantly changing the rules of an election that has already happened and applying that change retroactively to only some voters, understanding that it will change the outcome of a democratic election,” Earls wrote. “That decision is unlawful for many reasons, including because: 1) it is inconsistent with this Court’s longstanding precedent, 2) contrary to equitable principles that require parties to bring their claims in a timely manner, 3) contrary to equal protection concerns, 4) violative of due process requirements, and 5) contrary to state constitutional provisions vesting the right to elect judges in the qualified voters of this state, not the judge’s colleagues.”

Earls labeled the decision a “judicial coup.”

Justice Richard Dietz, a Republican, also issued a partial dissent. “I expected that, when the time came, our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law.”

“I was wrong,” Dietz wrote.

The state elections board had rejected all of Griffin’s ballot challenges. A Wake County Superior Court judge upheld the board’s decision in a series of Feb. 7 orders.

Appeals Court Judges John Tyson and Fred Gore, both Republicans, supported the court’s April 4 decision. Judge Tobias Hampson, a Democrat, dissented.

Riggs continues to serve on the state Supreme Court during the legal battle. Griffin continues to serve on the Appeals Court.

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