Griffin opposes 4th Circuit intervention in NC Supreme Court election dispute

Republican state Supreme Court candidate Jefferson Griffin urges the 4th US Circuit Court of Appeals to stay out of the latest stage in his legal dispute with state election officials and Democratic candidate Allison Riggs.

The North Carolina State Board of Elections takes the opposite position. The board supports a 4th Circuit injunction blocking a lower court’s decision in the case.

Griffin filed paperwork Monday afternoon explaining why he believes the 4th Circuit should reject requests from Riggs, the state Democratic Party, and left-of-center groups to intervene in the case.

Riggs, an appointed incumbent, leads Griffin by 734 votes out of more than 5.5 million ballots cast last fall. But Griffin continues to challenge thousands of votes in the race. A Jan. 7 stay from the state Supreme Court has blocked the state elections board from certifying Riggs as the winner.

US Chief District Judge Richard Myers issued an April 12 order allowing state courts to proceed with a process that could affect 1,675 to 5,700 ballots in the Supreme Court race.

Multiple appeals ask the 4th Circuit to block Myers’ decision. Riggs and the other seeking 4th Circuit action are considered “movants” in the case.

“Movants appeal a non-appealable temporary restraining order that the district court partially granted,” Griffin’s lawyers wrote Monday. “If the posture is extraordinary, the merits are more extraordinary still: Movants seek to enjoin enforcement of a judgment of the North Carolina Supreme Court applying state law to a state election dispute. ‘Had the framers wished the federal judiciary to umpire election contests, they could have so provided.’ But ‘[o]ur constitution does not contemplate that the federal judiciary routinely will pass judgment on particular elections’ for ‘state’ office.”

The 4th Circuit “lacks jurisdiction” in the case until Myers issues a further ruling, Griffin’s lawyers added.

The state elections board filed a court document responding to multiple requests for 4th Circuit intervention in the case.

“The district court below prohibited the Board from certifying the election results but otherwise declined to stop the Board from implementing a remedial process to identify the challenged voters, provide some of them with notice and an opportunity to cure, and identify ballots with votes that may be cancelled,” the board’s lawyers wrote.

“The Board is working diligently to implement this process and will continue to do so unless and until a court directs otherwise,” the court filing continued. “But bound as it is by federal law, the Board agrees that this Court should enter an injunction pending appeal that prohibits the Board’s implementation of the remedial process that the state courts have ordered.”

“The remedial process ordered by the state courts violates settled principles of federal constitutional law in multiple ways,” the elections board argued.

“Implementing this remedial process now will also cause irreparable harm and run counter to the public interest,” the court filing added. “The Board and the county boards will be forced to invest time, money, and resources to identify and notify voters — efforts that will prove unnecessary if a court later concludes that the process violates federal law. Moreover, ordering the Board to notify voters that their votes could be discarded — before a decision on whether such notice is legally permissible — is a recipe for voter confusion and public distrust of the election process.”

Riggs filed paperwork on April 16 with the 4th Circuit. She seeks a court order that would block a ballot “cure” process ordered by state courts.

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 is asking the 4th Circuit to step into the case. She wants federal courts to block the rest of Griffin’s ballot challenges.

“Two months ago, this Court exercised its discretion to abstain from deciding the federal issues in this case while the North Carolina courts resolved unsettled questions of state law,” Riggs’ lawyers wrote in a 4th Circuit filing. “The North Carolina courts used the opportunity to issue the ‘most impactful election-related court decision our state has seen in decades.’”

“That decision permits a losing candidate to bring a post-election lawsuit intended to overturn the results by retroactively disenfranchising voters,” the court filing continued. “Rather than obviate the need for federal court review, the North Carolina courts endorsed a state-law remedy that ‘cries out’ for ‘a decisive rejection of this sort of post hoc judicial tampering in election results.’”

“This stay and injunction are necessary to ensure that this Court has time to ‘address the federal constitutional and other federal issues the Board raised in removing the case,’” Riggs’ lawyers wrote. “To allow the state-law remedy to go into effect while those federal-law issues remain unresolved would be inconsistent with the U.S. Constitution and this Court’s mandate.”

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 court does not find that initiation of a cure process ordered by the North Carolina Court of Appeals and North Carolina Supreme Court, on its own, constitutes a form of irreparable harm because that process cannot result in ‘massive ex post disenfranchisement,’ unless the Board of Elections takes further action at the conclusion of that process,” Myers wrote. “And the court has expressly prohibited the Board of Elections from certifying the results of the election until the federal constitutional issues in these consolidated matters have been resolved.”

The state Supreme Court agreed unanimously 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.