Federal Appeals Court grants stay to Riggs, Democrats in NC election dispute

A federal Appeals Court panel split 2-1 Tuesday in granting a stay and injunction requested by Democratic state Supreme Court Justice Allison Riggs in the election dispute involving her high court seat.

The panel issued three nearly identical orders responding to appeals filed by Riggs, the North Carolina Democratic Party, and the League of Women Voters of North Carolina.

Each appeal challenged  US Chief District Judge Richard Myers’ decision to allow a state court “cure” process to move forward for resolving 1,675 or more disputed ballots in last fall’s election.

Now that process is on hold as Myers considers legal arguments from Riggs, Democrats, left-of-center activist groups, the State Board of Elections, and Republican candidate Jefferson Griffin.

Riggs, an appointed incumbent, leads Griffin by 734 votes out of more than 5.5 million ballots cast last November. Griffin challenged more than 65,000 votes. Most of those votes will count in the final tally, but 1,675 to 5,700 ballots remain in question.

“Recognizing that the district court has not yet had the opportunity to exercise its jurisdiction … and address Riggs’ motion for preliminary injunction based on her federal constitutional claims, we grant her motion for a stay,” wrote Appeals Court Judge Paul Niemeyer. “In furtherance of federal jurisdiction, we enjoin the North Carolina State Board of Elections from mailing any notice to any potentially affected voter pending the district court’s resolution of Riggs’ motion for a preliminary injunction.”

Judge Toby Heytens joined Niemeyer’s opinion. President George HW Bush appointed Niemeyer. President Joe Biden appointed Heytens.

Judge Marvin Quattlebaum, appointed by President Donald Trump, dissented from Tuesday’s decision.

“In the orders that are the subject of this appeal, the district court enjoined the North Carolina State Board of Elections from certifying the results of the election for the North Carolina Supreme Court Justice seat pending further order of the district court,” Quattlebaum wrote. “It also set an extremely expedited briefing schedule for any remaining federal issues in the challenges to the election. The district court declined to enjoin the Board from implementing the cure process ordered by the North Carolina Supreme Court reasoning that the cure process would not cause irreparable harm since the Board had been ordered not to certify the election results.”

 “The district court called its order a temporary restraining order,” Quattlebaum added. “What’s more, the order bears the hallmarks of a temporary restraining order. Thus, I do not believe we have jurisdiction to consider the motion for stay and injunction pending appeal.”

“And even if we have jurisdiction, the district court preserved its ability to resolve any remaining federal issues by ordering the Board not to certify the election results,” he added. “It also set a very quick process for resolving any federal claims. At the same time, the court minimized any interference with state court litigation about a state election. I find no error in the district court’s handling of all these competing issues on a very compressed time frame. I certainly find no abuse of discretion.”

Quattlebaum’s dissent “should not be construed as endorsing the views of any party,” he explained. “It merely indicates that it is not yet appropriate for this court to weigh in.”

Griffin had urged the 4th Circuit Monday to reject the request for a stay and injunction. The state elections board supported the request to put the state court’s “cure” process on hold.

Griffin, a state Appeals Court judge, has been pursuing ballot challenges involving more than 65,000 voters in last fall’s election. More than 60,000 of those ballots are no longer in jeopardy. The state Supreme Court agreed on April 11 that voters with incomplete registration records would have their ballots counted.

Remaining ballot challenges could target 5,700 voters, though the elections board indicated that it expects to address no more than 1,675 challenged ballots. If the board’s number stands, it’s less likely that Griffin would see the vote margin swing enough for him to overtake Riggs in the final tally.

Riggs wants federal courts to block the rest of Griffin’s ballot challenges.

Myers refused last week to grant a stay of his recent orders in multiple lawsuits linked to the state Supreme Court election dispute. He also rejected requests for an injunction.

The state Supreme Court agreed unanimously on April 11 to reject Griffin’s challenge of more than 60,000 ballots cast by people who appeared to have incomplete voter registration records. The court split, 4-2, on two other sets of ballot challenges.

Justices upheld the state Appeals Court’s decision to throw out votes from voters who never have lived in North Carolina. The Supreme Court also endorsed the Appeals Court’s plan to give overseas voters time to provide evidence of photo identification to have their ballots counted.

The Appeals Court had ordered elections officials to give overseas voters 15 business days to complete that task. The state Supreme Court extended that window to 30 calendar days.

“Defendant North Carolina State Board of Elections is ORDERED to proceed in accordance with the North Carolina Court of Appeals opinion, as modified by the North Carolina Supreme Court in its April 11 Order, but SHALL NOT certify the results of the election, pending further order of this court,” Myers wrote on April 12.

The federal trial judge called for opening briefs Monday and final briefs on April 28 from all parties in the case. He indicated he plans no oral arguments and “intends to rule on the papers as soon as practicable.”

The total number of ballots affected by Griffin’s protests has been unclear as the process has moved forward. In an earlier stage of the case, Myers identified more than 5,500 challenged ballots belonging to overseas voters who provided no photo ID. He also spelled out 267 votes from “never residents.” The State Board of Elections believes the total number of ballots affected by state court orders is no larger than 1,675.

The state Supreme Court’s decision modified a 2-1 ruling on April 4 from the North Carolina Court of Appeals.

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.”

“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. Justice Anita Earls, a fellow Democrat, 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.”

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 state elections board had rejected all of Griffin’s ballot challenges. A Wake County Superior Court judge upheld the board’s decision and ruled against Griffin in a series of Feb. 7 orders.

Appeals Court Judges John Tyson and Fred Gore, both Republicans, supported that court’s April 4 decision favoring Griffin. 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.