Top NC court upholds 60K votes challenged by Griffin, leaves others in doubt

The North Carolina Supreme Court split 4-2 Friday afternoon in a decision designed to resolve the dispute over last fall’s high court election. A unanimous court agreed that more than 60,000 ballots cast by voters with incomplete voter registration records should count. But the fate of 5,700 other challenged ballots remains uncertain.

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.

Appointed incumbent Democrat Allison Riggs filed an emergency motion Friday seeking a federal court injunction blocking the state Supreme Court ruling from taking effect.

Riggs leads Republican Jefferson Griffin by 734 votes out of more than 5.5 million ballots cast in the Nov. 5 election. Griffin challenged more than 65,000 ballots. A Jan. 7 stay from Riggs’ Supreme Court colleagues had blocked the State Board of Elections from certifying Riggs as the winner.

“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 court’s majority wrote 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 order 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.”

“Under this court’s longstanding precedent, mistakes made by negligent election officials in registering citizens who are otherwise eligible to vote ‘will not deprive the [citizens] of [their] right to vote or render [their] vote[s] void after [they have] been cast,’” the court order explained.

“To the extent that the registrations of voters in the first category are incomplete, the Board is primarily, if not totally, responsible,” the Supreme Court majority agreed.

The elections board learned about the problems with voter registration in 2023 but “did nothing … to ensure that any past violations were remedied,” the order explained.

“The board’s inattention and failure to dutifully conform its conduct to the law’s requirements is deeply troubling,” the Supreme Court majority wrote. “Nevertheless, our precedent on this issue is clear. Because the responsibility for the technical defects in the voters’ registration rests with the Board and not the voters, the wholesale voiding of ballots cast by individuals who subsequently proved their identity to the Board by complying with the voter identification law would undermine the principle that ‘this is a government of the people, in which the will of the people — the majority — legally expressed, must govern.’”

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. Fellow Democratic Justice Anita 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.”

Earls labeled the decision a “judicial coup.” Among her concerns is the selective nature of voters Griffin challenged.

“For military and overseas ballot challenges, he only challenges one or some small number of North Carolina 100 hundred counties,” Earls wrote. “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. To give him the relief he requests, this Court is ordering the state to violate the voter rights to equal protection under our laws.”

The Democratic justice’s dissent also labels the treatment of the “never resident” voters as a “due process violation in its most fundamental form.”

“[T]here was no way for voters to have complied with the majority’s new requirements at the time of the 2024 election,” Earls wrote. “The record suggests that it was not possible for some military and overseas voters to submit a photocopy of their identification if they wanted to, because they voted through an electronic system that did not have a mechanism to send that information. There was no way for inherited residents to indicate an intent to return to North Carolina, because the federal post card checkboxes that form the basis of Griffin’s challenge did not ask the question.”

“Just as cancelling the votes of more than 60,000 challenged voters based on alleged issues with their registrations is inappropriate, retroactively canceling the votes of any one of the voters in these other two categories based on their failure to satisfy a requirement they could not possibly meet is contrary to our precedent and fundamentally unfair,” she added.

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.”

Dietz wanted the court to hold that North Carolina has a version of the federal “Purcell principle.” It would say “these claims are not justiciable in a backward-looking challenge to a past election.”

“Even if the federal courts ultimately reverse the Court of Appeals decision, … the door is open for losing candidates to try this sort of post-election meddling in state court in the future. We should not allow that,” he wrote.

“I would formally adopt a state analogue to Purcell one that has always been lurking in our precedent as part of our state election jurisprudence and uphold the decision of the State Board of Elections on that basis,” Dietz added.

Riggs filed paperwork in federal court Friday within hours of the Supreme Court’s decision. She asks Judge Richard Myers to take up federal issues unresolved by the state courts.

“The case now returns to this Court to consider whether Judge Griffin’s protests, as construed and limited under state law by the North Carolina courts, comply with federal law. They do not,” Riggs’ lawyers wrote. “Judge Griffin’s effort to change the election rules after the votes have been cast violates the Due Process Clause. And Judge Griffin’s selective targeting of military and overseas voters violates the Equal Protection Clause.”

“This Court should immediately enter an order staying enforcement of any remedy while
this Court considers those federal-law issues,” the court filing continued. “Specifically, the Court should maintain the status quo by entering an injunction that prohibits the parties — including Judge Griffin and the State Board — from taking any step to enforce or effectuate the state-law decision while these federal proceedings are pending. Any such efforts would be inconsistent with this Court’s order on remand, would threaten this Court’s jurisdiction, and would impose irreparable harm on Justice Riggs and the North Carolina voters.”

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.

The post Top NC court upholds 60K votes challenged by Griffin, leaves others in doubt first appeared on Carolina Journal.