- A three-judge North Carolina Court of Appeals panel heard more than 90 minutes or arguments Friday morning about state Supreme Court candidate Jefferson Griffin's attempt to throw out more than 65,000 ballots cast in the November election.
- Republican Judges John Tyson and Fred Gore and Democratic Judge Tobias Hampson will decide whether to uphold or reverse a trial judge's decision to reject Griffin's ballot challenges.
- Griffin trails Democrat Allison Riggs by 734 votes out of more than 5.5 million ballots cast in the Nov. 5 election. A Jan. 7 state Supreme Court stay has blocked the State Board of Elections from certifying Riggs as the winner.
A North Carolina Court of Appeals panel spent more than 90 minutes Friday morning listening to arguments related to state Supreme Court candidate Jefferson Griffin’s challenge of more than 65,000 ballots cast in last fall’s election.
Griffin, an Appeals Court judge, trails Democratic Justice Allison Riggs, an appointed incumbent, by 734 votes out of more than 5.5 million ballots cast in the Nov. 5 election. Recounts have confirmed Riggs’ lead. Yet a Jan. 7 stay issued by Riggs’ state Supreme Court colleagues has blocked the North Carolina State Board of Elections from certifying Riggs as the winner.
Appeals Court Judges John Tyson, Tobias Hampson, and Fred Gore will decide whether to uphold or reverse a trial judge’s rulings rejecting Griffin’s ballot challenges. Tyson and Gore are Republicans. Hampson is a Democrat.
“At bottom, this case is about whether the election was conducted in accord with the will of the people of North Carolina,” argued Craig Schauer, one of two lawyers appearing for Griffin. “According to the state board, it can conduct an election how it wants. It doesn’t matter if the board adopts rules that are inconsistent with state statutes or the state constitution because after an election is over, it’s too late to demand that the actual laws be enforced. But the General Assembly has rejected the board’s positions.”
Griffin used the General Assembly’s election protest procedure to identify ballots that never should have been cast, Schauer argued.
The Republican candidate challenges the State Board of Elections’ decision to count three types of ballots in the recent election: more than 60,000 votes cast by people whose voter registration records appeared to lack a driver’s license number or last four digits of a Social Security number, more than 5,500 overseas voters who provided no proof of photo identification, and 267 voters who have never lived in North Carolina.
“This case is not about changing laws after the election,” Schauer said. “It’s about enforcing the laws that were already on the books before the election.”
Hampson questioned the impact of Griffin’s legal argument on voters who followed state election rules. “How does it not impose a severe burden — the remedy you’re ultimately seeking — not impose a severe burden on the right to vote?” he asked.
A state version of the federal Purcell principle suggests that judges shouldn’t change election rules that were in place at the time of an election, Hampson added. “Principles of Purcell would say we don’t change the rules now,” he said. “If you want to challenge it prospectively, that’s one thing, but you can’t change the rules retroactively to discard the votes of otherwise eligible voters.”
“Our argument is not that you should change the rules today,” responded Troy Shelton, Griffin’s second lawyer. “Our argument is please enforce the rules that existed at the time. Those are the state constitution and the state statutes that existed at the time.”
Gore asked about the portion of Griffin’s challenge focusing on overseas voters who provided no photo ID. “Someone who’s in Sweden working doesn’t have to provide an ID versus someone who’s here in the United States or here in North Carolina that has to … provide ID. Is there an equal protection argument there?” he asked.
“This court should reject petitioner’s destabilizing request to cancel the votes of more than 60,000 innocent voters who did everything they were asked to cast a ballot in the November 2024 general election,” argued Nick Brod of the NC Justice Department, representing the state elections board.
“We should not be trying to change the rules of an election four months after it ended,” Brod said.
“All of the rules that are being challenged here were well-known far in advance of the November 2024 general election,” Brod added.
The bulk of Griffin’s challenges deal with voters whose registration records should have included either a driver’s license number or last four digits of a Social Security number, based on a 2004 law. Court records show that the state elections board used registration forms for a decade — up until late 2023 — that treated that requirement as optional.
“What explanation is there for the board not complying with that statute?” Tyson asked Brod.
Regardless of the elections board’s actions, court precedents suggest that judges should not throw out voters’ ballots in this case, Brod argued. “There is Supreme Court precedent going back to 1897 … that holds that you cannot cancel the ballot of an innocent voter because of an error that an election official made.”
Gore noted his concern that the elections board still has not corrected all voter registration records. “I’m troubled by that,” he said. “The fact that we haven’t been able to get it right up until this point, I see why we have this challenge to a certain degree.”
Griffin initially sued the State Board of Elections, but Riggs intervened in the case as a defendant.
“For more than 200 years, elections have proceeded in this country under a principle so basic that it is known on every elementary school playground: You cannot change the rules after the game has been played,” argued Ray Bennett, Riggs’ lawyer.
Griffin’s challenges “pose a risk to the stability and integrity of our elections in North Carolina,” Bennett added.
“It is time for this election to come to an end and for voters to know that their votes will count in this state if they follow the rules in place at the time of the election,” Bennett argued.
Tyson, Hampson, and Gore heard arguments one week after the Appeals Court announced it would not hold a rare “en banc” hearing of all 14 participating judges to consider the election dispute. Riggs had requested the en banc hearing. Griffin opposed the idea.
The Appeals Court issued an order explaining that just three of 14 participating judges voted to hold the “en banc” hearing. The order offered no details about which judges voted for or against the expanded hearing.
The 15-member Appeals Court typically hears cases in three-judge panels. Republicans outnumber Democrats, 12-3. Griffin is not participating in the case.
Wake County Superior Court Judge William Pittman issued three orders on Feb. 7 rejecting Griffin’s request to throw out 65,000 ballots in three separate voting categories. Griffin appealed Pittman’s rulings to the Appeals Court.
The dispute sits in the Appeals Court after the state Supreme Court decided on Feb. 20 to reject a request from the elections board, supported by Riggs, to bypass the state’s second-highest court.
Republicans hold a 5-2 majority at the state Supreme Court. Riggs has recused herself from the case, giving Republicans a 5-1 margin. Republican Justice Richard Dietz has split from the majority in two recent decisions involving the election dispute. Votes in both instances split the court, 4-2.
Riggs continues to serve on the Supreme Court during the legal dispute, while Griffin continues his work on the Appeals Court.