Top NC court rejects request to take Griffin/Riggs election dispute now

The North Carolina Supreme Court has rejected the State Board of Elections’ request to take over a legal dispute involving the election between Republican Jefferson Griffin and Democrat Allison Riggs. By a 4-2 vote Thursday, the high court agreed to leave the case with the state Court of Appeals.

Griffin, a state Appeals Court judge, is challenging appointed Supreme Court incumbent Riggs. Griffin trails Riggs by 734 votes, but he is asking courts to throw out 65,000 ballots cast in the Nov. 5 election.

Wake County Superior Court Judge William Pittman rejected Griffin’s ballot challenges on Feb. 7. Griffin appealed Pittman’s decision to the Court of Appeals. The elections board, with support from Riggs, asked this week for the state Supreme Court to bypass the Appeals Court and resolve the legal dispute. Griffin opposed that request.

The elections board is considered the respondent in the case.

“Respondent’s Petition for Discretionary Review Prior to Determination by the North Carolina Court of Appeals is denied,” according to the order signed by Justice Trey Allen.

Republicans outnumber Democrats, 5-2, on the state’s highest court. With Riggs recused from the case, the GOP majority stands at 5-1. Four Republican justices supported Thursday’s decision. Justice Richard Dietz, a Republican, and Justice Anita Earls, a Democrat, dissented.

Two members of the four-vote majority wrote concurring opinions explaining their decision.

“Having voted in last year’s Supreme Court race, the citizens of North Carolina understandably want to see the rightful winner of the election certified as soon as possible,” Allen wrote. “For this reason, it might make sense to bypass the Court of Appeals pursuant to N.C.G.S. § 7A-31(b) if the superior court had provided us with a careful analysis of the factual and legal issues presented by this case.”

“The three nearly identical one-page orders entered by the superior court do not meet this standard,” Allen continued. “Perhaps influenced by this Court’s order directing it to move expeditiously, the superior court simply ruled against Judge Griffin without explaining why, in its view, his claims should be denied.”

“Consequently, if we were to take this case now, we would do so in the absence of any meaningful examination of those claims by a lower court,” Allen added. “Given the significance of this case and the complexity of the issues raised, I think that this Court could benefit from a well-reasoned and thorough evaluation of the parties’ arguments. I therefore believe that we should follow the ordinary process of appellate review — albeit at an accelerated pace — and allow the Court of Appeals to hear this case.”

Justice Tamara Barringer’s concurring opinion supported Allen’s concerns “regarding the barebones orders entered by the superior court only a few hours after hearing extensive arguments from multiple parties and counsel.”

Barringer “reluctantly” supported the state Supreme Court’s Jan. 22 decision to send the case back to Superior Court. Barringer had expressed interest in addressing Griffin’s ballot challenges directly. “Now, the circumstances have changed,” she wrote Thursday.

The Appeals Court’s timeline “will propel this case at an extraordinary speed,” Barringer wrote. “Allowing the normal order of the appellate process will bring this case before this Court in relatively short order. Given the complexity and quantity of the issues presented in this case, this Court and our State will benefit from a well-reasoned, thoughtful, and deliberative analysis by the Court of Appeals.”

Riggs continues to serve on the Supreme Court during the legal dispute, while Griffin continues his work on the Appeals Court.

“I am mindful that this Court has been able to fulfill its role in our judicial system despite the uncertainty of an uncertified election looming over our State,” Barringer wrote. “Even with the political and personal attacks being publicly promoted almost every day by many groups and individuals including, sadly, even some of the litigants in this case, this Court has continued to efficiently and effectively conduct its affairs.”

Earls dissented. “There is strong justification for this Court to expeditiously address, with transparency, the significant issues in this case that go to the heart of what democracy requires under the state Constitution,” she wrote. “Judge Jefferson Griffin’s opposition to the bypass petition begins by asserting that this Court should not hear this case because, as a Court of six members, we might split 3-3 leaving the lower court’s ruling as the final ruling in the case.”

“In other words, he asks us not to hear the case because he might lose,” Earls wrote. “Such outcome-determined reasoning has no place in a court committed to the rule of law.”

In addition to criticizing Griffin, Earls’ dissent quoted Barringer’s January commentary about resolving the case quickly.

“Members of the Court now voting to deny the Board’s petition objected just weeks ago to having this matter ‘twist in the jurisprudential winds for the upcoming months before ultimately landing before this Court for the requisite de novo review,’” Earls wrote.

“Our Court is equally as capable as the Court of Appeals to resolve the disputed state law issues, including whether ‘retroactively invalidating votes that were cast consistent with the laws and regulations that existed during the voting process would be fundamentally unfair under state law,’” Earls added.

Earls mentioned the Jan. 7 state Supreme Court stay that has blocked the elections board from certifying Riggs as the election’s winner.

“[W]e ought to resume jurisdiction in this appeal over the last uncertified statewide race in the country,” she wrote. “The failure to do so is harmful to the parties seeking finality and to the public who voted over three months ago.”

“Further delay at this stage continues to erode trust in our elections and calls into question the ability of the legal system to guarantee that fundamental principles of democracy are capable of being recognized and enforced by a fair and impartial judiciary,” Earls added.

The state Appeals Court has set out an expedited schedule that would extend written briefing in the case into early March.

North Carolina’s second-highest court has 15 members who hear cases in three-judge panels. With Griffin not taking part in the case, Republicans outnumber Democrats, 11-3.

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