- The North Carolina Court of Appeals will not hold a rare "en banc" hearing of the full court to consider the election dispute involving a seat on the state Supreme Court.
- A three-judge panel with two Republican judges and one Democratic colleague will hear the case in an online hearing on March 21.
- Supreme Court Justice Allison Riggs, an appointed incumbent and the Democratic candidate in the Nov. 5 election, had requested the full Appeals Court hearing. Republican candidate Jefferson Griffin, an Appeals Court judge, opposed Riggs' request.
The full North Carolina Court of Appeals will not hear the election dispute involving a seat on the state Supreme Court. Instead a three-judge panel with two Republicans and one Democrat will consider the case on March 21.
The Appeals Court issued an order Friday explaining that just three of 14 participating judges voted to hold a rare “en banc” hearing. Supreme Court Justice Allison Riggs had requested the full hearing. Riggs, an appointed incumbent, was the Democratic candidate in the Nov. 5 election.
Republican candidate Jefferson Griffin, an Appeals Court judge, is challenging more than 65,000 ballots cast in the election. Griffin had opposed a hearing from the full Appeals Court.
Appellate Judges John Tyson, Tobias Hampson, and Fred Gore will hear the case in an online hearing at 10 a.m. March 21. Tyson and Gore are Republicans. Hampson is a Democrat.
The 15-member Appeals Court typically hears cases in three-judge panels.
Friday’s order offered no details about which judges voted for the en banc review. Republicans outnumber Democrats, 12-3, on the Appeals Court. Griffin did not take part in the vote, the court order confirmed.
Riggs leads Griffin 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.
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.
In a March 6 filing, Griffin explained why he opposed Riggs’ request for the full Appeals Court to hear the case now.
“As Appellate Rule 31.1 states, en banc hearings are ‘not favored.’ This case is no exception. Justice Riggs’ motion for initial en banc hearing should be denied,” Griffin’s lawyers wrote.
Griffin focused on the fact that Pittman’s orders offered no analysis of the decision to reject the ballot challenges.
“Initial en banc hearing does not make sense given the absence of a reasoned opinion from the superior court,” Griffin’s lawyers wrote. “[T]here are 31 issues presented in this case. There may be a time for en banc rehearing after a panel decision on those issues, and the en banc Court could decide to narrow the issues that the full Court will reconsider to ensure expeditious review. But 31 issues does not meet the required standard that the questions in the case be ‘concisely stated.’”
The number of issues “could extend the time needed for and overwhelm en banc review,” Griffin’s lawyers added. If multiple judges decide to issue opinions in the case, “review would be slower, not faster, than a panel decision.”
“[T]here’s also the chance that initial en banc hearing would deprive Judge Griffin of his first shot at meaningful appellate review,” the court filing continued. “With Judge Griffin recused, the en banc court would have an even number of judges, which could lead to deadlocking.”
“It’s not even clear what would happen at that point. Would the superior court’s decision be automatically affirmed? Or would the case be referred back to a three-member panel for initial decision? Regardless, there’s no need to invite that kind of procedural chaos in a case of such public importance,” Griffin’s lawyers wrote.
Riggs’s Feb. 25 court filing explained her request for a hearing by the full Appeals Court.
“While en banc hearing ‘is not favored,’ it is appropriate when ‘the case involves a question of exceptional importance that must be concisely stated,’” Riggs’s lawyers wrote. “This appeal meets that standard, and it merits initial en banc consideration for three reasons.”
“First, the issues presented are important. As Chief Justice Newby put it in related proceedings, this case ‘is about preserving the public’s trust and confidence in our elections through the rule of law,’” Riggs’ motion explained.
“Second, initial hearing en banc is consistent with the Supreme Court’s instruction ‘to proceed expeditiously,’” Riggs’ lawyers added. “If this appeal is decided by a panel of this Court, the disappointed party or parties will have the right to seek rehearing en banc. Any such request will cause further delay even if the full Court denies that request.”
“Third, as Judge Griffin highlighted, the prospect of deadlock in the Supreme Court means that this Court’s opinion could stand as the final adjudication of the important state-law issues presented here,” Riggs’ lawyers wrote. “This potential for deadlock reinforces the importance of thorough review and a concise articulation of state law by the full Court, rather than from a three-judge panel.”
“And because no party knows how this Court will resolve those state-law issues, this request for initial en banc consideration does not risk the type of ‘outcome-determined reasoning’ that ‘has no place in a court committed to the rule of law,’” the motion continued.
The State Board of Elections did not object to an en banc hearing, Riggs’ lawyers wrote.
Riggs filed a separate Feb 25 motion seeking the recusal of Judge Tom Murry, a Republican. Murry’s campaign committee contributed $5,000 to the legal defense fund supporting Griffin’s election challenge. Griffin opposed the recusal request. A separate order Friday dismissed Riggs’ motion as moot since Murry is not hearing the case.
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.
Griffin 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.
Riggs continues to serve on the Supreme Court during the legal dispute, while Griffin continues his work on the Appeals Court.