Griffin, two GOP Senate candidates support NC Supreme Court review of GOP election suit

North Carolina Supreme Court candidate Jefferson Griffin and two Republican state Senate candidates are urging the state’s high court to take a case pitting GOP groups against the State Board of Elections. The case challenges rules the state elections board is using for counting ballots from overseas voters.

Griffin and Senate candidates Ashlee Adams and Stacie McGinn filed paperwork Tuesday with the state’s highest court. All three are involved in recounts of apparent election losses to Democratic opponents. All three hope the state Supreme Court will take up the case Kivett v. North Carolina State Board of Elections.

The Republican National Committee and North Carolina Republican Party filed a motion on Nov. 1 asking the state Supreme Court to take the case. The state elections board and Democratic National Committee have asked the state’s high court to reject the case.

Lower courts have ruled against the Republicans.

Griffin, Adams, and McGinn seek the state Supreme Court’s permission to file an amicus, or friend-of-the-court, brief.

“Amici curiae have a very direct interest in the outcome of the petition pending before the Court,” the three Republican candidates’ lawyers wrote Tuesday. “Amici are candidates in the 2024 general election. The winners of their contests have not been certified because of irregularities in those elections. Amici have filed election protests for each of their races, which remain pending before the state and county election boards.”

“One of the key bases for the election protests is unlawful voting by people who have never lived in North Carolina,” the court filing continued. “That is also the key legal question before this Court. How this Court resolves that question may directly impact who wins each of these contests, given their slim margins.”

Griffin trailed appointed incumbent Democrat Allison Riggs by 722 votes out of more 5.5 million ballots cast in the 2024 election, according to unofficial state numbers subject to recount. In state Senate District 18, Adams trailed Democrat Terence Everitt by 134 votes. In Senate District 42, McGinn trailed Democrat Woodson Bradley by 204 votes.

“The amici curiae brief will benefit the Court as it considers the legality of nonresident voting in elections for state offices,” the candidates’ lawyers wrote. “The parties’ briefs before this Court have addressed the issue of non-resident voting in an abstract sense, before the 2024 general election. Amici are involved in actual litigation, post-election, where resolution of that question matters.”

“The parties’ briefs, especially the brief from the North Carolina Department of Justice, have suggested that the residency requirement in the North Carolina Constitution is unlawful under the United States Constitution. Amici’s brief, however, shows that this Court has already rejected that very argument,” the GOP candiates’ lawyers wrote, citing the 1979 case Lloyd v. Babb. “This Court’s precedent is critical to resolution of the question before it.”

Court rules called for a friend-of-the-court brief to be filed by Nov. 8, the candidates’ lawyers admitted. “However, at that time, amici had not filed their election protests and were not aware that the issue of non-resident voting was relevant to their electoral contests,” according to the court filing. “Indeed, amici did not file their election protests until 19 November 2024.”

“Given the sudden public interest in resolving the question of non-resident voting, and for good cause shown, Amici respectfully request that the Court permit the filing of the amicus brief at this time,” the GOP candidates’ lawyers wrote.

The RNC and NCGOP supported the three candidates’ request to file the brief. The DNC opposed the request as “untimely,” according to the court filing. The state elections board defendants “take no position on the motion.”

The state elections board and DNC filed separate documents on Nov. 4 asking the state Supreme Court to reject the case.

“Plaintiffs’ petition asks this Court to throw out the ballots of U.S. citizens who cast their votes in compliance with the Uniform Military and Overseas Voters Act (UMOVA), a state statute passed unanimously by our General Assembly in 2011,” lawyers representing the state elections board wrote. “Plaintiffs insist their challenge is limited to a small group of U.S. citizens who have never actually lived in the United States. But Plaintiffs’ legal argument cannot be so easily contained.”

“If Plaintiffs prevail on appeal, their constitutional claim threatens to strip untold numbers of voters — including military service members serving outside the State — of their right to participate fully in our State’s elections,” the elections board’s court filing continued. “This Court should reject Plaintiffs’ damaging request, just as the Court of Appeals did last week.”

DNC lawyers also asked the state Supreme Court to reject Republicans’ request.

“The Court of Appeals correctly denied a writ of supersedeas and accompanying mandatory injunction, recognizing that Petitioners’ extraordinary request (renewed here) suffers from a host of defects,” DNC lawyers wrote. “These include procedural infirmities, grossly inequitable timing, proximity to election day, and substantive deficiencies.”

“Moreover, the generalized, non-cognizable harm Petitioners claim they will suffer absent review is far outweighed by the significant harm to voting-age children of North Carolinians serving abroad in military and civilian capacities that the mandatory injunction Petitioners seek would inflict,” the Democratic court filing continued.

A trial judge and the state Appeals Court have ruled against the Republican National Committee, North Carolina Republican Party, and two individual plaintiffs.

GOP groups filed paperwork seeking an order blocking the lower courts’ decisions.

“Plaintiffs seek a simple but necessary solution to remedy an ongoing and increasingly dangerous threat to the integrity of North Carolina’s elections,” Republican lawyers wrote. “Evidence in the record makes clear that Defendants are allowing, in their own words, an ‘unknown’ number of overseas citizens who have never resided in North Carolina to register and vote in the state’s elections.”

“This is an unabashed violation of Article VI § 2 of the state Constitution,” the court filing continued. “Thus, Plaintiffs seek an order enjoining Defendants from counting these potentially illegal ballots and instead segregating and counting them as provisional ballots until the voter’s qualifications under all applicable and constitutional state and federal laws can be adequately established.”

“Because these ballots are readily identifiable and the harm easily remedied, Plaintiffs respectfully request emergency relief from this Court,” Republican lawyers wrote.

Republicans initially sought a ruling by Election Day.

An unnamed three-judge Appeals Court panel issued an Oct. 29 order denying GOP groups’ request for a writ of supersedeas. The writ would have blocked a lower court order favoring the elections board in the dispute. The same Appeals Court order dismissed motions for a temporary stay and an injunction.

Court rules call for the names of the participating judges to remain confidential for 90 days.

Wake County Superior Court Judge John Smith rejected an injunction in the case on Oct. 21.

The Republican National Committee and North Carolina Republican Party had sued the State Board of Elections over its interpretation of a more than decade-old state law.

“Plaintiffs contend North Carolina General Statute 163-258.2(1)(e) is being misinterpreted by the State Board of Elections so as permit the registration of non-residents to vote in violation of the United States Constitution and the North Carolina Constitution,” according to Smith’s court order. “The provision on which Plaintiffs focus is part of the Uniform Military and Overseas Voters Act.”

The act describes a “covered” voter as an overseas voter born outside the United States and, “except for a State residency requirement, otherwise satisfies this State’s voter eligibility requirements,” but only if “The last place where a parent or legal guardian of the voter was, or under this Article would have been, eligible to vote before leaving the United States is within this State” and “The voter has not previously registered to vote in any other state.”

“That statute has been on the books at least since 2011 as a bill adopted with bi-partisan support under Speaker of the House Thom Tillis and President pro tem of the Senate Walter Dalton; and has not been challenged until the filing of this complaint and motion,” Smith wrote. “Both the Plaintiffs and the Defendants have been involved in elections under the existing statute since its passage without complaint.”

Tillis, a Republican, is now a US senator for North Carolina. Dalton, a Democrat, was lieutenant governor at the time the law was passed.

“Plaintiffs have presented no substantial evidence of any instance where the harm that plaintiffs seek to prevent has ever ‘fraudulently’ occurred,” Smith added. “Plaintiffs have contended on the record in this hearing that subsection 163-258.2(1)(e) is facially constitutional. Although Plaintiffs have failed to present evidence of any actual occurrence, the court does infer that there may be persons who fall within the very narrow statutory exemption who may have registered and may have voted; but there is absolutely no evidence that any person has ever fraudulently claimed that exemption and actually voted in any North Carolina election.”

“Plaintiffs concede and the court finds that Plaintiffs have not presented any evidence of even a single specific instance of any registrant unlawfully availing themselves of the statutory provision,” Smith wrote.

“All of the factual evidence presented to this court shows that Defendants have not and will not knowingly allow a non-resident who does not fall within the statutory exception to register or vote in our state elections,” the judge added.

The post Griffin, two GOP Senate candidates support NC Supreme Court review of GOP election suit first appeared on Carolina Journal.