League of Women Voters files class-action suit linked to Griffin-Riggs election dispute

The League of Women Voters of North Carolina filed a federal class-action lawsuit Monday morning aiming to protect military and overseas votes cast in last fall’s state Supreme Court election. Some of those votes could be dropped from the final tally under a court order issued Friday.

“This case seeks to avert an unprecedented effort to change the results of a statewide election by discarding up to 5,509 votes from military and overseas voters five months after their votes were cast, confirmed, and counted,” according to the suit filed by LWVNC and four individuals. “Those voters, drawn from a selectively targeted subset of four counties, did everything election officials told them to do to successfully vote in 2024. But their vote in one race is in jeopardy because the losing candidate has completed his campaign to force state election officials to retroactively invalidate their votes. The need for federal court intervention to prevent such a grave subversion of the democratic process is urgent.”

The ballots covered in the lawsuit are tied to military and overseas voters who did not provide evidence of photo identification.

“Under the rules applicable at the time of the 2024 election — as codified in state statute and an explicit [North Carolina State Board of Elections] administrative rule — these voters did not, and indeed could not, submit a copy of their photo ID when voting absentee,” the lawsuit argued. “Months after the election, the state supreme court changed course, concluding that these voters did in fact need to submit a copy of their photo ID.”

“The application of that change in election rules prospectively is not at issue in this case. What is at issue is the NCSBE’s retroactive application of this rule to voters in the 2024 elections, who could not possibly have complied with a requirement that, at the time, did not exist. As a result, the NCSBE will disenfranchise these voters, invalidate the results of the … election, and disregard North Carolinians’ choice for a seat on their state’s highest court,” the complaint added.

“The U.S. Constitution prohibits North Carolina from retroactively applying novel election rules articulated months after the 2024 election to arbitrarily disenfranchise eligible, qualified voters like Plaintiffs,” the lawsuit continued.

Plaintiffs in the League of Women Voters’ suit filed notice of their complaint with US Chief District Judge Richard Myers. He issued orders Saturday calling for the state elections board to move forward with the process spelled out Friday by the state Supreme Court in dealing with the disputed high court election.

Myers issued two orders in the case Saturday. He responded to Justice Allison Riggs’ emergency motion Friday seeking an injunction against her colleagues’ plan.

Riggs, an appointed incumbent and the Democratic candidate in the 2024 election, leads Republican Jefferson Griffin, a state Appeals Court judge, by 734 votes out of more than 5.5 million ballots cast last fall. Griffin challenged more than 65,000 ballots cast in the race. A Jan. 7 order from Riggs’ colleagues has blocked the elections board from certifying her as the contest’s winner.

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 Saturday.

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 set an April 15 deadline for the state elections board. The 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.

Riggs filed an emergency motion Friday seeking an injunction from Myers. The injunction would have blocked the state Supreme Court ruling from taking effect.

“This Court is aware of the valid competing interests in this case the need for an expeditious resolution of an election that occurred more than five months ago and the importance of ensuring that only lawful votes are counted,” the state Supreme Court’s majority wrote Friday afternoon in a seven-page order signed by Justice Trey Allen. Four justices, all Republicans, backed the entire order.

Rather than accept a petition to take up the case, with a new set of written briefs and oral arguments, Friday’s order responded to an April 4 opinion from the state Court of Appeals. That court split 2-1 in spelling out a process for addressing each of three categories of voters Griffin had challenged.

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 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. Earls issued a 39-page partial dissent, which was more than five times as long as the order. Earls 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.”

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 Court of Appeals has since issued an opinion that gets key state law issues wrong, may implicate a host of federal law issues, and invites all the mischief I imagined in the early days of this case. By every measure, this is the most impactful election-related court decision our state has seen in decades. It cries out for our full review and for a decisive rejection of this sort of post hoc judicial tampering in election results.”

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

Judges John Tyson and Fred Gore supported the Appeals Court’s April 4 decision, though neither one is credited as author of the court’s opinion. Tyson and Gore are Republicans. 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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