Honest Elections Project backs Griffin at 4th Circuit

The right-of-center Honest Elections Project is backing Republican state Supreme Court candidate Jefferson Griffin at the 4th US Circuit Court of Appeals. The group filed a brief Wednesday supporting Griffin’s argument that his election dispute belongs in a North Carolina courtroom rather than federal court.

The 4th Circuit will hold oral arguments in the case Monday in Richmond, Virginia.

Both North Carolina’s highest court and the 4th Circuit are considering Griffin’s legal complaint against the State Board of Elections. Democratic candidate Allison Riggs has intervened in the case supporting the elections board.

Riggs, the appointed incumbent, leads Griffin, a state Appeals Court judge, by 734 votes out of 5.5 million ballots cast statewide in the Nov. 5 election. State election officials have yet to certify Riggs as the winner. Griffin challenges more than 65,000 ballots cast in the election.

While the state Supreme Court considers Griffin’s request for a writ of prohibition blocking the elections board from counting challenged ballots, the 4th Circuit is dealing with requests from the elections board and Riggs to limit the legal action to a federal courtroom. Riggs and the elections board want the federal Appeals Court to reverse a federal trial judge’s Jan. 6 ruling that the case belonged to the North Carolina court system.

“It is curious that a case like this presenting no federal issues would end up in federal court,” wrote Jason Torchinsky, the Washington-based lawyer representing the Honest Elections Project. “Even stranger, it is surprising that this case would be appealed to the Fourth Circuit after a federal district court thoroughly evaluated the underlying issues and found that remand to the North Carolina Supreme Court was warranted.”

Torchinsky’s brief rejected arguments from Riggs and the elections board that a federal court should hear the case because of its link to the federal National Voter Registration Act. “The NVRA has no application to this case, whether as a claim or as a legitimate defense,” Torchinsky wrote.

The NVRA applies only to federal elections, not to a state election like the Supreme Court contest pitting Griffin against Riggs, the brief argued.

“Clearly, the NVRA operates against a background principle of reserved State power over election administration,” Torchinsky wrote. “Indeed, the limited scope of the NVRA is not attributable to any failure by Congress to legislate to the outer limits of its constitutional authority, but instead due to inherent constitutional constraints on congressional power over state elections.”

The Honest Elections Project’s brief arrived on the same day that Griffin faced a deadline to submit his own 4th Circuit brief.  

Riggs, the state elections board, the North Carolina Democratic Party, and left-of-center activist groups working with Democratic operative Marc Elias’ law firm all filed briefs on Jan. 15 urging the 4th Circuit to return the case to a federal courtroom. They seek a reversal of US Chief District Judge Richard Myers’ decision not to consider the election dispute.

Myers sent the case to the state Supreme Court on Jan. 6. That court issued a temporary stay the following day blocking the elections board from certifying Riggs as the election’s winner.

As legal arguments proceed in the 4th Circuit, the same legal combatants are filing competing briefs with the state Supreme Court. Riggs asked her colleagues this week to schedule oral arguments in the case. She asked for a “peremptory setting,” meaning the arguments would take place before other cases already scheduled. Justices have cases scheduled for arguments from Feb. 11 through Feb. 20.

Griffin faces a Friday deadline to file the final written arguments with the state Supreme Court.

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