- A federal judge has ordered the North Carolina State Board of Elections to proceed with a plan the state Supreme Court put forward to resolve an election dispute involving a seat on the high court.
- US Chief District Judge Richard Myers ordered the elections board to provide him additional information Tuesday. Myers ordered the board not to certify the election's results.
- Democrat Allison Riggs, an appointed incumbent justice, leads Republican Jefferson Griffin by 734 votes. Riggs asked Myers for an injunction that would have blocked her colleagues' plan for settling the election dispute.
A federal judge has ordered the North Carolina State Board of Elections to proceed with a plan the state Supreme Court set out for resolving an election dispute over a seat on the state’s high court. The federal order blocks election officials from certifying the race’s results.
US Chief District Judge Richard Myers issued two orders in the case Saturday. Myers responded to Justice Allison Riggs’ emergency motion Friday seeking an injunction against her colleagues’ plan.
Riggs, an appointed incumbent and the Democratic candidate in the 2024 election, leads Republican Jefferson Griffin, a state Appeals Court judge, by 734 votes out of more than 5.5 million ballots cast last fall. Griffin challenged more than 65,000 ballots cast in the race. A Jan. 7 order from Riggs’ colleagues has blocked the elections board from certifying her as the contest’s winner.
The state Supreme Court agreed unanimously Friday 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.
The judge also set new deadlines in the case “to facilitate prompt resolution of this matter.”
Each party can file an opening brief by April 21 with final briefs due April 28. Myers indicated he “intends to rule on the papers as soon as practicable,” rather than holding oral arguments.
In a second order, Myers set an April 15 deadline for the state elections board. The board “shall provide notice to the court of the scope of its remedial efforts, including the number of potentially affected voters and the counties in which those voters cast ballots.”
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 ballots belonging to overseas voters who provided no photo ID. He also spelled out 267 votes from “never residents.”
But Riggs’ lawyers and dissenting state Supreme Court Justice Anita Earls have raised questions about the numbers. Griffin’s original election protest included 1,409 overseas voters who cast ballots in Guilford County. Griffin expanded that number as the legal process continued. But his protests were limited to votes cast in large, Democratic-leaning counties.
“He does not challenge the more than 25,000 identically situated voters across the state who voted under the same preexisting rules, who are not required to clear additional hurdles to have their vote counted, in the same exact race for state Supreme Court,” Earls wrote Friday.
If Myers’ earlier numbers stand, more than 5,500 overseas voters who did not provide photo identification would get 30 days to provide ID information and have their ballots counted. Some 267 voters who never have lived in North Carolina would have their votes discarded.
Riggs filed an emergency motion Friday seeking an injunction from Myers. The injunction would have blocked the state Supreme Court ruling from taking effect.
“This Court is aware of the valid competing interests in this case the need for an expeditious resolution of an election that occurred more than five months ago and the importance of ensuring that only lawful votes are counted,” the state Supreme Court’s majority wrote Friday afternoon in a seven-page order signed by Justice Trey Allen. Four justices, all Republicans, backed the entire order.
Rather than accept a petition to take up the case, with a new set of written briefs and oral arguments, Friday’s order responded to an April 4 opinion from the state Court of Appeals. That court split 2-1 in spelling out a process for addressing each of three categories of voters Griffin had challenged.
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.”
“Under this court’s longstanding precedent, mistakes made by negligent election officials in registering citizens who are otherwise eligible to vote ‘will not deprive the [citizens] of [their] right to vote or render [their] vote[s] void after [they have] been cast,’” the court order explained.
“To the extent that the registrations of voters in the first category are incomplete, the Board is primarily, if not totally, responsible,” the Supreme Court majority agreed.
The elections board learned about the problems with voter registration in 2023 but “did nothing … to ensure that any past violations were remedied,” the order explained.
“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. Earls issued a 39-page partial dissent, which was more than five times as long as the order. Earls 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.” Among her concerns is the selective nature of voters Griffin challenged.
“For military and overseas ballot challenges, he only challenges one or some small number of North Carolina 100 hundred counties,” Earls wrote. “To give him the relief he requests, this Court is ordering the state to violate the voter rights to equal protection under our laws.”
The Democratic justice’s dissent also labeled the treatment of the “never resident” voters as a “due process violation in its most fundamental form.”
“[T]here was no way for voters to have complied with the majority’s new requirements at the time of the 2024 election,” Earls wrote. “The record suggests that it was not possible for some military and overseas voters to submit a photocopy of their identification if they wanted to, because they voted through an electronic system that did not have a mechanism to send that information. There was no way for inherited residents to indicate an intent to return to North Carolina, because the federal post card checkboxes that form the basis of Griffin’s challenge did not ask the question.”
“Just as cancelling the votes of more than 60,000 challenged voters based on alleged issues with their registrations is inappropriate, retroactively canceling the votes of any one of the voters in these other two categories based on their failure to satisfy a requirement they could not possibly meet is contrary to our precedent and fundamentally unfair,” she added.
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 Court of Appeals has since issued an opinion that gets key state law issues wrong, may implicate a host of federal law issues, and invites all the mischief I imagined in the early days of this case. By every measure, this is the most impactful election-related court decision our state has seen in decades. It cries out for our full review and for a decisive rejection of this sort of post hoc judicial tampering in election results.”
Dietz wanted the court to hold that North Carolina has a version of the federal “Purcell principle.” It would say “these claims are not justiciable in a backward-looking challenge to a past election.”
“Even if the federal courts ultimately reverse the Court of Appeals decision, … the door is open for losing candidates to try this sort of post-election meddling in state court in the future. We should not allow that,” he wrote.
“I would formally adopt a state analogue to Purcell one that has always been lurking in our precedent as part of our state election jurisprudence and uphold the decision of the State Board of Elections on that basis,” Dietz added.
The state elections board had rejected all of Griffin’s ballot challenges. A Wake County Superior Court judge upheld that decision in a series of Feb. 7 orders.
Judges John Tyson and Fred Gore supported the Appeals Court’s April 4 decision, though neither one is credited as author of the court’s opinion. Tyson and Gore are Republicans. 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.