Trial court hearing scheduled Feb. 7 in NC Supreme Court dispute

Wake County’s top Superior Court judge has scheduled a Feb. 7 hearing in Republican state Supreme Court candidate Jefferson Griffin’s lawsuits against the State Board of Elections. Griffin challenges more than 65,000 ballots cast in his election against appointed incumbent Democrat Allison Riggs.

The order filed Saturday from Senior Resident Superior Court Judge Paul Ridgeway calls for Griffin to file a brief in the case by Wednesday. The elections board, Riggs, and “any party seeking to intervene” must file paperwork by Feb. 3. The hearing will follow four days later in Raleigh.

The state Supreme Court sent the case to the Wake County trial court on Jan. 22. A stay blocking certification of the election result remains in effect during the case.

Meanwhile, the 4th US Circuit Court of Appeals hears oral arguments in the same dispute Monday afternoon in Richmond, Virginia.

The state Supreme Court’s 5-1 decision prompted five justices to write separate opinions.

Griffin had filed a complaint on Dec. 18 directly with the state’s highest court. His request for a writ of prohibition against the State Board of Elections leapfrogged the normal judicial process. After moving to federal court, the case returned to the state Supreme Court on Jan. 6. On the following day, the court issued a temporary stay while Griffin, Riggs, and the elections board all filed written arguments for and against Griffin’s request.

The stay blocked the elections board from certifying Riggs as the winner of the Nov. 5 election. She leads Griffin by 734 votes out of more than 5.5 million ballots cast statewide.

“The Court on its own motion dismisses the petition for writ of prohibition so that the Superior Court of Wake County may proceed with the appeals that petitioner filed” in three separate lawsuits, according to the order signed by Justice Trey Allen. “Absent further action by this Court, the temporary stay allowed on 7 January 2025 shall remain in place until the Superior Court of Wake County has ruled on petitioner’s appeals and any appeals from its rulings have been exhausted. The Superior Court of Wake County is ordered to proceed expeditiously.”

Riggs took no part in the decision. The court’s other Democrat, Justice Anita Earls, agreed with the dismissal of Griffin’s pursuit of a writ of prohibition. Earls dissented from the decision to leave the temporary stay in place.

“The Court has effectively ordered a preliminary injunction to keep the State Board of Elections from certifying the 2024 contest for the Supreme Court,” Earls wrote. “Far from signaling that the ‘temporary stay should not be taken to mean that Judge Griffin will ultimately prevail on the merits,’  a preliminary injunction is awarded only where the party requesting it ‘is able to show likelihood of success on the merits of his case.’ The Court today apparently determines that Judge Griffin has met that standard and so the continued injunction is appropriate.”

Earls accused the court’s majority of opening a “Pandora’s Box.” “If any losing candidate can make any sort of argument about votes in the election, no matter how frivolous, and automatically receive a court-ordered stay on appeal, preventing the winning candidate from being certified, nothing stops litigious losers from preventing duly elected persons from taking office for months or longer,” she wrote. “Such a set-up incentivizes costly litigation of baseless claims for those candidates who can afford it, undermines confidence in our democratic system, and has no support in existing law.”

Chief Justice Paul Newby wrote one of four concurrences in the case. Newby defended Griffin’s actions in pursuing the election challenge.

“I write separately to emphasize that this case is not about deciding the outcome of an election. It is about preserving the public’s trust and confidence in our elections through the rule of law,” Newby wrote. “On the night of the election, petitioner led his opponent by almost 10,000 votes. Over the course of the next several days, his lead slowly dwindled, and he now trails his opponent by 734 votes out of the 5,540,090 total votes cast. That is a highly unusual course of events.”

“It is understandable that petitioner and many North Carolina voters are questioning how this could happen. Petitioner has a legal right to inquire into this outcome through the statutorily enacted procedures available to him,” Newby continued.

“There is nothing anti-democratic about filing an election protest,” he wrote. “The process was designed by the people’s representatives in the General Assembly as the lawful way to inquire into elections and is transparently set out in the General Statutes.”

“Moreover, any delay in the resolution of petitioner’s election protests was caused by the State Board,” Newby added, citing the elections board’s decision on multiple occasions to move the case from state court to federal court.

“Over a month has passed since petitioner filed his appeals in the Superior Court of Wake County. Yet no progress toward finality has been made because the State Board has sought to elude the superior court’s review. If the State Board is concerned about delaying the certification of this election, why does it seek to circumvent the statutory process for reviewing petitioner’s election protests?” Newby asked.

“There appear to be valid concerns that some of the State Board’s actions in this election may violate the law,” the chief justice added.

Fellow Justices Phil Berger Jr. and Tamara Barringer joined Newby’s concurrence. Both wrote separate concurring opinions.

“The underlying question is straightforward – one with a clear and evident answer,” Berger wrote. “Strip away politics and reality-optional hot takes, the question presented, at its core, is what should be done if it is determined that those charged with faithfully executing the law fail or otherwise decline to follow the law? Agencies, boards, and commissions operating outside the bounds of established rules is a familiar trope, as is sweeping bureaucratic incompetence and neglect under the rug.”

“But a merits-based resolution by this Court is not appropriate at this time because there is a procedure in place to resolve these claims in superior court,” he added.

Barringer endorsed Berger’s opinion and added her own.

“I write separately to suggest a more expeditious path to resolve, rather than further prolong, the judicial, legal, and political maze in which this dispute is now lodged,” Barringer wrote.

“[I]t is my view that this Court should ‘not hesitate to exercise’ its constitutional authority in this extraordinary and historic circumstance, because there is a need for ‘the expeditious administration of justice.’ My suggested better course of action would be for this Court to utilize its long-standing power in our State Constitution … to suspend the ordinary procedure, maintain the stay against further action by the administrative agency in question, and proceed to a decision on the merits,” she added.

“I do not see any need for this case, nor any party therein, to twist in the jurisprudential winds for the upcoming months before ultimately landing before this Court,” Barringer wrote. “Instead, the citizens of North Carolina deserve a fair and final resolution.”

Justice Richard Dietz’s separate concurrence distinguished Griffin’s case from one in which an election candidate accuses the elections board of violating existing rules when counting ballots.

“Here, by contrast, the State Board of Elections complied with the election rules existing at the time of the election,” Dietz wrote. “Judge Griffin’s argument is not that the Board
violated the existing rules, but that the rules themselves are either unlawful or unconstitutional.”

Dietz would reject Griffin’s arguments as violating a state version of the Purcell principle. That federal principle encourages courts not to change election rules during an election.

“I acknowledge that this Court has never recognized the version of the Purcell
principle described in Hendon [a 1983 state court precedent] and, until we do, our state courts are not bound to follow it. But I believe now is the time,” Dietz wrote.

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