- An amended order from the North Carolina Supreme Court indicates that Republican Justice Richard Dietz dissented from the 4-2 decision to block certification of the recent election to the state's highest court.
- The initial order suggested that the vote had been 5-1, with only Democratic Justice Anita Earls dissenting.
- Republican candidate Jefferson Griffin seeks a writ of prohibition from the state Supreme Court that would block the State Board of Elections from counting more than 60,000 challenged ballots.
The North Carolina Supreme Court has amended its order blocking certification of the recent election to the state’s highest court. The amended order shows that the vote to grant Republican candidate Jefferson Griffin a temporary stay was 4-2, not 5-1.
Republican Justice Richard Dietz joined Democratic Justice Anita Earls in dissent.
When the Supreme Court issued its original order in the case Tuesday afternoon, there was no indication that Dietz had voted against his four Republican colleagues. Yet the original order included the warning: “Further dissents or concurrences, if any, will be filed through an Amended Order.”
Justice Trey Allen, who signed the original order, added a one-paragraph concurrence in the new 18-page amended order.
“I write separately to stress that the Court’s order granting Judge Griffin’s motion for temporary stay should not be taken to mean that Judge Griffin will ultimately prevail on the merits,” Allen wrote. “It seems necessary to make this point because the opinions filed by my dissenting colleagues could give the opposite impression to readers unfamiliar with the intricacies of appellate procedure. By allowing the motion, the Court has merely ensured that it will have adequate time to consider the arguments made by Judge Griffin in his petition for writ of prohibition. As Judge Griffin himself concedes in his filings with this Court, in the absence of a stay, the State Board of Elections will certify the election, thereby rendering his protests moot.”
Without a court order, the State Board of Elections had been scheduled Friday to certify appointed incumbent Democrat Allison Riggs as the winner of the election against Griffin. Riggs leads Griffin by 734 votes out of 5.5 million ballots cast statewide. Griffin challenges more than 60,000 ballots he has described as “unlawful.”
Earls, who had initially dissented with a single sentence, expanded her arguments to eight pages.
“I dissent on the grounds that the standard for a temporary stay has not been met here, where there is no likelihood of success on the merits and the public interest requires that the Court not interfere with the ordinary course of democratic processes as set by statute and the State Constitution,” Earls wrote. “Petitioner Judge Jefferson Griffin’s motion for a temporary stay is procedurally improper, as he has failed to follow the lawful process for appealing a final decision on an election protest, instead rushing to the very Court on which he seeks membership for validation of his extraordinary legal arguments.”
“Moreover, even if the filing were procedurally proper, his motion for a temporary stay should be denied because he has failed to meet the standard for granting preliminary relief,” Earls added. “Simply put, the laws and the Constitution of this State provide for the proper execution of the will of the voters following an election, with the issuance of a certificate of election duly following the procedures set by law. Free and fair elections demand nothing less, and there is a substantial public interest served by following the rule of law.”
“For this Court to intervene in an unprecedented way to stop that process, where there is no underlying merit to the contention that some 60,000 citizens who registered to vote and voted should have their votes thrown out, there must be a strong showing of the likelihood of success on the merits. There is no such showing here,” Earls wrote.
Dietz offered a separate dissent.
“I would deny the petition and dismiss the stay request under our state’s corollary to a federal election doctrine known as the ‘Purcell principle,’” he wrote. “The Purcell principle recognizes that, as elections draw near, judicial intervention becomes inappropriate because it can damage the integrity of the election process.”
“In my view, the challenges raised in this petition strike at the very heart of our state’s Purcell principle,” Dietz added. “The petition is, in effect, post-election litigation that seeks to remove the legal right to vote from people who lawfully voted under the laws and regulations that existed during the voting process. The harm this type of post-election legal challenge could inflict on the integrity of our elections is precisely what the Purcell principle is designed to avoid.”
While dissenting, Dietz addressed the three types of ballots Griffin has challenged from the Nov. 5 election.
For the 60,000 ballots challenged because voters’ registration records included no driver’s license number or last four digits of a Social Security number, “this portion of the argument is almost certainly meritless,” Dietz wrote.
Yet the “crux” of Griffin’s arguments “are two state law arguments that appear to me quite likely to be meritorious,” Dietz wrote.
“First, the State Board of Elections decided to permit people living in foreign countries to vote in our state elections although these people (1) have never stepped foot in North Carolina and (2) informed the State Board of Elections that they have no intent to ever reside in our state. This decision by the Board appears to me to be quite plainly unconstitutional. Only residents of North Carolina can vote in our state elections,” Dietz explained.
“Second, the State Board of Elections decided that people living in foreign countries who want to vote in our state elections do not need to comply with our State’s voter ID law, although all voters living in North Carolina must do so,” Dietz added.
“Suffice it to say that this decision — which appears to rely on the bizarre view that voter ID is a means of ‘authenticating’ a ballot, not identifying the human being who is voting — does not appear consistent with the text of the applicable state laws,” he wrote.
“Moreover, the Board’s decision is obviously inconsistent with the law’s intent,” Dietz wrote. “One does not need a law degree to understand that people claiming to be registered North Carolina voters while mailing in absentee ballots from a foreign country are among the key groups of people that the General Assembly (and we the people in our state constitution) intended to be subject to our voter ID law.”
Voters in those two categories make up more than 5,700 of Griffin’s ballot challenges.
“Having said all this, these two decisions by the State Board of Elections were not made in the context of Judge Griffin’s election. They are contained in election rules already in effect when Judge Griffin’s election took place,” Dietz wrote.
“Thus, in my view, these potential legal errors by the Board could have been — and should have been — addressed in litigation long before people went to the polls in November,” he added.
“This is the genesis of our state’s Purcell principle. Because of the chaos that can emerge from repeated court-compelled changes to how we administer elections, at some point the rules governing an election must be locked in,” Dietz argued.
“In sum, I would hold that the relief sought in the petition for a writ of prohibition comes too late,” he wrote. “Although these challenges to our state’s election laws and regulations might be meritorious, they are not ones that can change the rules of an election after the voters of our state already went to the polls and voted.”
“Permitting post-election litigation that seeks to rewrite our state’s election rules — and, as a result, remove the right to vote in an election from people who already lawfully voted under the existing rules — invites incredible mischief. It will lead to doubts about the finality of vote counts following an election, encourage novel legal challenges that greatly delay certification of the results, and fuel an already troubling decline in public faith in our elections,” Dietz concluded.
The court’s majority disagreed. “[T]his matter should be addressed expeditiously because it concerns certification of an election,” according to the high court’s order.
The state Supreme Court, “upon its own motion,” set an “expedited” briefing schedule for the case. Griffin must file his opening brief by Jan. 14. The elections board must respond by Jan. 21, and Griffin can reply to the board’s arguments by Jan. 24.
The 4th US Circuit Court of Appeals might also step into the dispute. The State Board of Elections has asked the 4th Circuit to reverse a federal judge’s decision Monday to send the case back to the state Supreme Court.