Riggs, elections board seek stay in NC Supreme Court dispute with Griffin

North Carolina Supreme Court Justice Allison Riggs and the State Board of Elections filed paperwork Monday seeking a stay in the election dispute involving Riggs’ Supreme Court seat.

Riggs’ opponent in the 2024 Supreme Court election, Jefferson Griffin, does not oppose a temporary stay, according to new court filings.

Riggs and the elections board hope to block a ruling Friday from the North Carolina Court of Appeals. In a 2-1 decision, the Appeals Court ordered the elections board to take steps that would lead to recalculation of the votes in Riggs’ contest against Griffin.

Without action from the Supreme Court, the case would head back to a trial judge by the end of the day Monday. The judge would then send the dispute back to the elections board.

The Democrat Riggs leads the Republican Griffin by 734 votes out of more than 5.5 million ballots cast statewide. A Jan. 7 stay from Riggs’ Supreme Court colleagues has blocked the elections board from certifying Riggs as the winner. Griffin, an Appeals Court judge, has challenged more than 65,000 ballots cast last fall.

“Before Friday afternoon, all assumed at least this much: once the Court of Appeals ruled on Judge Griffin’s appeal, this Court would have an opportunity to weigh in on the critically important issues of North Carolina law presented in this hotly contested election for a seat on the State’s highest court,” Riggs’ lawyers wrote. “But unless this Court immediately stays the mandate, the Court of Appeals’ opinion threatens to foreclose this Court’s meaningful review of udge Griffin’s protests and to launch an unprecedented state-wide cure effort five months after the election.”

“Judge Griffin did not request this cure process,” Riggs’ lawyers added. “And the Court of Appeals cites no precedent — from any court in North Carolina or elsewhere — to support such an initiative nearly half a year after an election. Worse, the Court of Appeals’ ruling is destined to disenfranchise thousands of North Carolinians, denying them due process and equal protection under North Carolina law.

“If the cure process proceeds, it should be after this Court has had an opportunity to consider the weighty issues presented in this appeal, and to evaluate the novel remedy proposed by the Court of Appeals before it is too late to make any changes,” the motion continued.

State government lawyers led by Solicitor General Ryan Park requested a stay on behalf of the elections board.

“The Court of Appeals ordered the State Board and county boards of elections to carry out a complex remedial process to implement its order,” according to the court filing. “Absent a stay, the Board and all 100 counties will soon be required to begin implementing the decision below, even while this Court considers the Board’s request to review that decision.”

“The Board respectfully submits that doing so will cause considerable confusion, hardship, and inefficiency,” state government lawyers wrote.

Along with the request for a stay, Riggs and the elections board also seek an order called a writ of supersedeas that would block the Appeals Court’s decision. Riggs and the elections board have filed separate petitions seeking state Supreme Court review of the case.

An Appeals Court panel split, 2-1, on Friday in ordering state elections officials to recalculate vote totals in the disputed 2024 state Supreme Court election. The 103-page decision responded to Griffin’s ballot challenges.

The Appeals Court majority reversed a Wake County trial judge who ruled against Griffin.

Judges John Tyson and Fred Gore supported the decision, though neither one is credited as author of the court’s opinion. Tyson and Gore are Republicans. Judge Tobias Hampson, a Democrat, dissented. The panel heard oral arguments in the case on March 21.

“The post-election protest process preserves the fundamental right to vote in free elections ‘on equal terms,’” according to the unsigned majority opinion. “This right is violated when ‘votes are not accurately counted [because] [unlawful] [ ] ballots are included in the election results.’ The inclusion of even one unlawful ballot in a vote total dilutes the lawful votes and ‘effectively “disenfranchises”’ lawful voters.”

Griffin challenged more than 60,000 ballots from voters whose registration records appeared to lack either a driver’s license number or the last four digits of a Social Security number. The Appeals Court opinion labels them “Incomplete Voter Registration” voters.

They are “not qualified as eligible voters in the 2024 election,” Tyson and Gore decided.

“Based on precedent from the Supreme Court of North Carolina, this Court could order that those voters are without a remedy to cure their incomplete registrations,” the majority opinion continued. “However, because the Board and the county boards did not comply with their statutory obligations to notify these voters who have ‘provide[d] enough information on the form to enable the county board to identify and contact the voter’ of the information defect in their registrations, we conclude these voters should be allowed a period of fifteen (15) business days after notice to cure their defective registrations.”

Appellate judges are sending the case back to a trial judge with instructions for the State Board of Elections. “Upon remand, the Board is instructed to immediately direct the county boards in all one hundred counties to expeditiously identify the challenged ‘Incomplete Voter Registration’ voters and notify said voters of their registration defects, to allow said voters fifteen (15) business days from the mailing of the notice to cure the defect, and upon verification to include in the count of this challenged election the votes of those voters who timely cure their registration defects and to omit from the final count the votes of those voters who fail to timely cure their registration defects.”

Griffin’s second category of challenged ballots involved more than 5,500 overseas voters who provided no photo identification. “[T]heir ballots have not been properly cast,” Tyson and Gore determined. “[T]his Court could order that those voters are without a remedy to cure their failure to comply with the photo ID requirement.”

Yet the General Assembly has labeled the lack of a photo ID with an election ballot a “curable deficiency,” according to the majority.

“Upon remand, the Board is instructed to immediately direct the county boards to expeditiously identify the military and overseas voters challenged under this protest and notify said voters of their failure to abide by the photo ID requirement or equivalent, to allow said voters fifteen (15) business days from the mailing of the notice to cure the defect, and upon verification, to include in the count of this challenged election the votes of those voters who timely cure their failure to abide by the photo ID requirement and to omit from the final count the votes of those voters who fail to timely cure their deficiencies,” Tyson and Gore ordered.

Griffin’s third category of challenged ballots involved 267 voters who never have lived in North Carolina. “[W]e conclude these purported voters are not eligible to vote in North Carolina, non-federal elections, and the votes cast by these purported voters are not to be included in the final count in the 2024 election.”

All of the challenged “Never Residents” votes would be removed from the statewide total.

The majority opinion took up 37 pages, while Hampson’s dissent extended to 66 pages.

“To be clear: on the Record before us, Petitioner has yet to identify a single voter — among the tens of thousands Petitioner challenges in this appeal — who was, in fact, ineligible to vote in the 2024 General Election under the statutes, rules, and regulations in place in November 2024 governing that election,” Hampson wrote. “Every single voter challenged by Petitioner in this appeal, both here and abroad, cast their absentee, early, or overseas ballot by following every instruction they were given to do so. Their ballots were accepted. Their ballots were counted. The results were canvassed.”

“None of these challenged voters was given any reason to believe their vote would not be counted on election day or included in the final tallies,” Hampson continued. “The diligent actions these voters undertook to exercise their sacred fundamental right to vote was, indeed, the same as every other similarly situated voter exercising their voting right in the very same election. Changing the rules by which these lawful voters took part in our electoral process after the election to discard their otherwise valid votes in an attempt to alter the outcome of only one race among many on the ballot is directly counter to law, equity, and the Constitution.”

Republicans hold a 5-2 majority on the state Supreme Court. With Riggs recused from the case, the GOP majority is 5-1. In two earlier decisions in the case, Republican Justice Richard Dietz dissented from the majority. The court voted 4-2 in those instances.

Court filings have suggested that parties in the case anticipate a possible 3-3 split among Supreme Court justices, which would leave the Appeals Court’s ruling as the final decision in the dispute.

Riggs, an appointed incumbent, continues to serve on the state Supreme Court during the legal battle. Griffin continues to serve as a judge on the Appeals Court.

The post Riggs, elections board seek stay in NC Supreme Court dispute with Griffin first appeared on Carolina Journal.