Federal Appeals Court sets Jan. 27 oral argument in NC Supreme Court election dispute

The 4th US Circuit Court of Appeals will hold oral arguments on Jan. 27 in the election dispute involving a seat on North Carolina’s Supreme Court. A court order Friday afternoon set the hearing in response to Democrat Allison Riggs’ request to expedite the case’s timeline.

Appellate judges did not respond to the State Board of Elections’ request for a stay in the case. “The court defers all other motions pending oral argument,” according to the court order.

Parties will submit briefs on Jan. 15 and Jan. 22 before the hearing five days later in Richmond, Virginia.

The hearing will take place after briefing is complete on Jan. 24 in the North Carolina Supreme Court’s consideration of Republican candidate Jefferson Griffin’s complaint against the elections board. Griffin seeks a writ of prohibition to block the board from counting more than 60,000 ballots in the Nov. 5 election.

The state’s highest court voted 4-2 earlier this week to issue a stay blocking certification of Riggs as the winner in the election against Griffin. Riggs leads Griffin by 734 votes out of more than 5.5 million ballots cast. The stay stopped the elections board from certifying the race Friday.

The State Board of Elections urged the 4th Circuit earlier this week to reverse a federal trial judge’s decision to send the election dispute back to the North Carolina Supreme Court. Griffin, a state appellate judge, opposed the board’s request.

“Respondent-Appellant North Carolina State Board of Elections asks this Court to administratively stay an event that has already happened,” Griffin’s lawyers wrote Wednesday. “Two days ago, on January 6, the district court remanded these federal actions to the North Carolina state courts, where Petitioner-Appellee Judge Jefferson Griffin originally brought them. The district court below consummated and effectuated that remand through the issuance of a formal order and accompanying letter. At that very moment, the federal district court lost — and the North Carolina courts reacquired — jurisdiction.”

The North Carolina Supreme Court voted, 4-2, Tuesday to block the election’s certification. The state’s high court set up a briefing schedule in the case that lasts through Jan. 24.

“As these developments demonstrate, this [Appeals] Court can no more stay the remand order below than it can stay publication of yesterday’s New York Times,” Griffin’s lawyers wrote Wednesday.

“Simply put, an administrative stay cannot stop an event that has already occurred, and it certainly cannot order a district court to ask the Supreme Court of North Carolina to return a case that has already been remanded and subjected to new orders from the state court,” the court filing continued. “Here, the relevant decision has already ‘go[ne] into effect.’ Indeed, it went into effect the moment the district court issued its judgment and official notifications.”

Riggs filed a separate motion Wednesday asking the 4th Circuit to expedite its decision. The Appeals Court’s original timeline for the case called for briefs extending into March.

“In the November 2024 general election, the North Carolina voters chose Intervenor-Defendant Allison Riggs for the N.C. Supreme Court Associate Justice term that began on January 1, 2025. It is a week into that term, and she has not yet received her certificate of election. While Justice Riggs is the incumbent and thus ‘holds over’ in her current role until that certificate issues, Plaintiff Jefferson Griffin is calling Justice Riggs an ‘improperly elected official’ and questioning her right to ‘exercise the duties of her office,’” Riggs’ lawyers wrote.

“Judge Griffin’s rhetoric — and his efforts to throw out over 60,000 votes through a retroactive change in the voting laws that Defendant State Board of Elections found ‘would violate substantive due process protections under the U.S. Constitution’ — threaten to undermine public confidence in our elections. The voters are entitled to know that their votes matter; that the candidates they choose will assume the offices the voters chose them for, and that their votes cannot be thrown out by disappointed candidates seeking to retroactively gerrymander a win,” Riggs’ court filing continued.

Riggs seeks a final decision from the 4th Circuit by Feb. 11, “when the N.C. Supreme Court will first sit for the 2025 term.”

Griffin responded to Riggs’ request Wednesday afternoon.

“Justice Riggs’s motion to expedite insists that this dispute must be resolved swiftly — but the most efficient way to achieve a swift (and just) final outcome is to allow the Supreme Court of North Carolina to decide the weighty and complex issues of state law at the heart of this case, without impediment or distraction,” Griffin’s lawyers wrote. “The Supreme Court has given every indication that it will do so.”

“There is no need to divert the parties from that process — and delay resolution of this case — through parallel expedited briefing in this Court on federal procedural issues unrelated to the merits of Judge Griffin’s state-law claims,” the court filing continued.

Griffin filed a Dec. 18 complaint with the state Supreme Court seeking a writ of prohibition. He seeks to block the state elections board from counting ballots in three categories: roughly 60,000 voters who did not provide a driver’s license number or the last four digits of a Social Security number when they registered to vote, 267 voters who have never lived in North Carolina, and 5,500 voters who cast ballots from overseas without providing photo identification. The state elections board rejected Griffin’s election protests for each of those categories.

The State Board of Elections removed the case from state court to federal court on Dec. 19. The case remained in Myers’ courtroom until Monday evening, when Myers decided to abstain from addressing Griffin’s complaint. Myers sent the case back to the state Supreme Court.