Griffin officially asks 4th Circuit to dismiss appeal from elections board, Riggs

Republican state Supreme Court candidate Jefferson Griffin filed paperwork late Friday afternoon officially asking a federal Appeals Court to dismiss appeals from the State Board of Elections and Democrat Allison Riggs.

The elections board and Riggs want the 4th US Circuit Court of Appeals to overturn a federal trial judge’s Jan. 6 decision to send Griffin’s election challenge from federal court back to state court, where it was originally filed.

North Carolina’s highest state court issued a Jan. 7 order called a stay blocking the elections board from certifying Riggs as the winner of the Nov. 5 election. She leads Griffin by 734 votes out of 5.5 million ballots cast statewide. Yet Griffin is challenging more than 65,000 ballots. He argues that they are “unlawful.”

The state Supreme Court followed up on Jan. 22 with an order rejecting Griffin’s request for a writ of prohibition against the elections board. The high court instead agreed to send Griffin’s case to a trial judge. His ballot challenges are proceeding now in Wake County Superior Court.

“This appeal became moot when the Supreme Court of North Carolina dismissed the petition for a writ of prohibition underlying this appeal,” Griffin’s lawyers wrote Friday. “Questions about the district court’s remand order are now purely academic because the petition that was remanded to state court has been fully resolved. Having been dismissed, the petition is no longer pending in the Supreme Court. It cannot be returned to federal court.”

While the case proceeds in state court, the Jan. 7 stay remains in effect.

“The stay preventing the Board from mooting Judge Griffin’s petitions for judicial review does not change the analysis,” Griffin’s lawyers wrote. “The Supreme Court’s authority to enter that stay did not depend on the remand order at issue in this appeal and would not be affected by any ruling in this appeal.”

“The North Carolina Constitution gives the Supreme Court broad authority to oversee the separate litigation concerning the petitions for judicial review pending in the Superior Court of Wake County. Put simply, a stay pending resolution of the petitions for judicial review (the subject of a separate appeal) does nothing to revive the already-dismissed petition for a writ of prohibition (the subject of this appeal).”

Griffin’s motion to dismiss the 4th Circuit appeal arrived four days after the court heard oral arguments in the case.

A three-judge panel spent 90 minutes Monday afternoon listening to arguments about the proper venue for resolving Griffin’s case.

Appellate Judges Paul Niemeyer, Marvin Quattlebaum, and Toby Heytens must decide whether US Chief District Judge Richard Myers made a mistake on Jan. 6 when he sent the case from federal court back to state court, where Griffin originally filed suit on Dec. 18. The state elections board had removed the case from state court to federal court the following day.

If appellate judges agree that Myers should have kept the case, they must decide how he should proceed moving forward.

“Judge Griffin’s extraordinary request to retroactively change longstanding election rules, and thereby disenfranchise more than 60,000 North Carolina voters, should confront the federal civil rights laws in a federal forum as Congress intended,” argued Nick Brod, representing the State Board of Elections.

Griffin’s arguments “are just fundamentally inconsistent with the federal-state balance that Congress struck” when writing the law allowing for cases to be moved from state court to federal court, Brod added.

For Niemeyer, appointed by former President George H.W. Bush, it was unclear what a 4th Circuit order would call on Myers and the state Supreme Court to do. 

“If we grant all your relief, what do we tell the Supreme Court of North Carolina?” Niemeyer asked Brod. “Or what do we order the District Court [Myers] to tell them?”

Heytens, appointed by former President Joe Biden, offered one possible response. “Assume for the sake of argument we were to think the District Court was wrong in remanding the case,” he said. “Isn’t the immediate outcome the District Court has jurisdiction over this case? Now what the North Carolina courts choose to do or will do or won’t do … we would just be telling the District Court, ‘You were wrong when you dismissed this case. You should go again. You should keep going.’”

Niemeyer emphasized Griffin’s focus on potential violations of the state law and constitution, rather than federal law. “Griffin brought this case under three North Carolina provisions challenging the vote count,” he said. “Everything else is fallout from that.”

Sam Hartzell, representing Riggs, argued that federal law has to play a role in resolving the election dispute. “They can’t get from here to there — throwing out votes — without a court reckoning with the federal constitutional issues. That … is why the [state] Supreme Court’s order here can’t be controlling.”

It’s a “stretch,” Niemeyer argued, to argue that claims brought under state law should be resolved in a federal court. “The only claim here was made under the North Carolina statutes. Now the implications under the federal Constitution have to be mighty strong to say those statutes are unconstitutional, or I don’t know what you make them.”

Will Thompson, representing Griffin, argued that the state Supreme Court mooted the entire 4th Circuit case when it rejected Griffin’s request for a writ of prohibition.

Thompson urged the 4th Circuit to do nothing that would remove the state Supreme Court’s temporary stay.

“If this court somehow ordered the District Court to vacate the stay that is the only thing protecting the North Carolina Supreme Court’s appellate jurisdiction over the Wake County case, I think that would be a serious federalism affront,” Thompson said.

Part of Monday’s debate centered on Myers’ speedy return of the case from his court to the state Supreme Court on Jan. 6. Myers’ letter handing the case back to state court officials arrived before the state elections board could secure a 4th Circuit order blocking the transfer.

“So our jurisdiction on the court ebbs and flows based on how with it the District Court clerk of court is,” said Quattlebaum, appointed by President Trump. “That seems kind of weird to me.”

“Why does that just not nullify the congressionally created right to appeal a District Court’s remand order,” Heytens added several minutes later. “Because all the District Court’s got to do is get it in the mail really fast.”

Hartzell asked for an Appeals Court decision by Feb. 7. “It’s important not to lose sight of the fact that Justice Riggs’ victory as we stand here today is the last uncertified race in this country because of the stay of certification in this case,” he said. “All agree that the parties’ and public interest is served by speed here.”

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