Riggs seeks earliest possible oral argument in NC Supreme Court election dispute

North Carolina Supreme Court Justice Allison Riggs is asking her colleagues to schedule oral arguments as early as possible in her election dispute with opponent Jefferson Griffin. Riggs’ request would place the election case in front of other disputes the high court is scheduled to consider starting Feb. 11.

Riggs would not sit on the bench during arguments or take part in the decision about the case affecting her court seat.

The 4th US Circuit Court of Appeals has scheduled oral arguments for Jan. 27 in the same case. The state Supreme Court has scheduled no arguments. It has set a Friday deadline for the last written briefs in the case.

Riggs cites three reasons in a Tuesday court filing for scheduling state oral arguments “during a peremptory setting.” That means the case would move in front of others already scheduled for oral arguments next month.

“First, this case is unusual in that this Court and the Fourth Circuit are exercising simultaneous jurisdiction while expediting their respective proceedings,” Riggs’ lawyers wrote. “As of now, the Fourth Circuit cannot know when (or whether) this Court intends to hold oral argument. By scheduling that argument now, this Court will minimize the risk of miscommunication between the parties and courts. And by holding oral argument, this Court will ensure that it has the most up-to-date information on which to make its decision.”

“Second, this case is also unusual because it involves a dispute between two sitting judges who ran against each other in a partisan election,” the court filing continued. Riggs, a Democrat, is an appointed incumbent sitting on the state Supreme Court. Griffin, a Republican, is a sitting state Appeals Court judge.

Riggs leads Griffin by 734 votes in an election that has not yet been certified. Griffin challenges more than 60,000 ballots cast in the election. Court filings suggest Griffin believes throwing out those ballots would swing the election in his favor.

The state Supreme Court voted 4-2 to grant Griffin a stay on Jan. 7. The stay blocked the State Board of Elections from moving forward with plans to certify Riggs as the winner three days later.

The stay arrived one day after US Chief District Judge Richard Myers returned the case from his federal court to the state court system. The 4th Circuit is considering appeals from Riggs, the elections board, the North Carolina Democratic Party, and left-of-center activist groups working with Democratic operative Marc Elias’ law firm to bring the case back to federal court.

“Given the enormous public interest in that dispute — and to avoid any risk that the Court’s decision could be misunderstood via a partisan lens — oral argument is critical to bolstering public confidence in the fairness and integrity of our judicial system,” Riggs’ lawyers wrote to her state Supreme Court colleagues. “Oral argument will allow the public to witness how the justices of this Court and the parties before it engage with the legal issues and arguments presented.”

“Third, oral argument will aid the Court and the parties in understanding what exactly Judge Griffin is requesting,” the court filing continued. “In his Petition, Judge Griffin asks the Court to address all three categories of protests at issue.  But in his opening brief, Judge Griffin now asks the Court to phase its handling of the three categories, beginning with his challenge to military and overseas citizen voters.”

“Justice Riggs has serious concerns about that new approach,” her lawyers added. “Oral argument will ensure that the Court and parties have clarity about the relief requested.”

Griffin asked the state Supreme Court last week to employ a phased approach to his ballot challenges. He focused first on 5,509 overseas voters who cast ballots without providing proof of photo identification. If removing those ballots fails to swing the election totals in his favor, he suggests moving next to 267 overseas voters who cast ballots despite never living in North Carolina. Only after the court addresses those two categories would Griffin ask justices to address more than 60,000 voters who registered to vote without providing driver’s license numbers or the last four digits of a Social Security number.

The state elections board “does not object” to Riggs’ request for oral arguments. Groups working Elias “consent” to holding arguments. Griffin “intends to respond” to the request, Riggs’ lawyers wrote.

Among other developments in the case Tuesday:

A group called Restoring Integrity and Trust in Elections, founded by George W. Bush administration senior adviser Karl Rove, filed paperwork to submit a friend-of-the-court brief in the case. Phillip Strach, who regularly represents Republican groups in North Carolina election disputes, filed the document for RITE.

The group targets the state elections board’s “unlawful position permitting individuals who never resided in North Carolina to vote in state elections,” according to its court filing.

The group believes Griffin’s “requested relief is necessary to prevent a direct violation of the North Carolina Constitution which would dilute the votes of the state’s lawfully-registered voters,” the court filing added. “While it should be easy for our eligible military and overseas voters to vote, that does not extend to individuals who are ineligible to vote, and it should not lead to ignoring crucial verification requirements.”

The state elections board’s “interpretation of state law to permit those who have never resided in North Carolina to vote in North Carolina’s elections is plainly unconstitutional,” RITE lawyers argued.

“Permitting [the elections board’s] position to stand and count such plainly unconstitutional votes significantly undermines trust in elections,” RITE lawyers wrote. “In effect, the … practice of permitting Never Resident voting gives those voters a way to tip the scale in close contests in North Carolina despite having never resided there. Fortunately, [the board] can easily identify the Never Resident votes and prevent them from diluting the lawfully-cast votes in North Carolina’s state elections.”

The post Riggs seeks earliest possible oral argument in NC Supreme Court election dispute first appeared on Carolina Journal.