- Republican state Supreme Court candidate Jefferson Griffin objects to Democratic candidate Allison Riggs' request that the full state Appeals Court hear Griffin's ballot challenges tied to the recent election.
- Griffin also opposes Riggs' motion for Judge Tom Murry's recusal from the case. Murry's campaign committee contributed $5,000 to Griffin's legal defense fund.
- The case sits with the Appeals Court after a Wake County Superior Court judge rejected Griffin's challenge of more than 65,000 ballots cast in last fall's election.
Republican state Supreme Court candidate Jefferson Griffin opposes Democrat Allison Riggs’s proposal for the full state Appeals Court to hear Griffin’s case challenging more than 65,000 ballots cast in the Nov. 5 election. Griffin also opposes Riggs’ request that one appellate judge not take part in the case at all.
Riggs, an appointed incumbent, leads Griffin by 734 votes out of more than 5.5 million ballots cast in last fall’s election. Two recounts have confirmed Riggs’ lead. A Jan. 7 stay from North Carolina’s highest court has blocked the 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 ballots the Republican candidate has labeled “illegal.” The case sits now with the state Court of Appeals, where Griffin serves as a judge.
Even without Griffin’s participation, Republicans outnumber Democrats, 11-3, on the state’s second-highest court. The Appeals Court typically hears cases in three-judge panels. Yet Riggs has requested a rare “en banc” hearing involving the full court.
Riggs also filed a 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 filed a document Thursday objecting to Riggs’ recusal request. “First, unless the Court grants en banc review in this appeal, the recusal motion is premature,” Griffin’s lawyers wrote. “Although the motion targets Judge Murry, the identity of the panel to decide this case has not been announced, and there is currently no reason to believe that Judge Murry will be on the panel.”
“Nor does the motion explain why it would be necessary for Judge Murry to recuse from voting on the motion to hear the appeal en banc, which is purely procedural,” the court filing continued.
Riggs’ recusal motion “does not offer sufficient grounds” for Murry’s recusal, Griffin’s lawyers added. The motion cited Canon 7 of the North Carolina Code of Judicial Conduct, which deals with judge’s political activities.
“The motion accuses Judge Murry of violating Canon 7(B)(3) because his political campaign contributed to Judge Griffin’s legal expense fund,” the court filing continued. “Canon 7(B)(3), however, does not appear to require a judge to recuse himself for making political contributions. Moreover, it is unclear whether a campaign’s contribution to a legal expense fund — which is a unique creature of Article 22M of Chapter 163 of the General Statutes, and not Article 22A (which governs campaign contributions) — constitutes a prohibited contribution.”
In a separate filing, Griffin 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 filed her motions on Feb. 25 seeking the en banc review and Murry’s recusal. The State Board of Elections “does not object” to a hearing by the full Appeals Court, Riggs’ lawyers wrote.
The case 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.