- The election dispute between state Supreme Court candidates Jefferson Griffin and Allison Riggs would extend into March if the case stays with the North Carolina Court of Appeals.
- The state's second-highest court issued an order Thursday compressing the timeline for considering the election dispute. Briefing would last through March 3.
- The State Board of Elections, with support from Riggs, hopes to bypass the Appeals Court and have the case resolved by the state Supreme Court.
The North Carolina Court of Appeals has ordered an expedited timeline for resolving the election dispute between state Supreme Court candidates Jefferson Griffin and Allison Riggs. Even with a compressed timeline, the case would extend into March.
The Appeals Court issued its briefing schedule in an order late Thursday afternoon. Meanwhile, the State Board of Elections, supported by Riggs, hopes to bypass North Carolina’s second-highest court and have the matter resolved by the State Supreme Court.
Griffin filed a request Tuesday for an expedited Appeals Court review. Under his plan, briefing for the appellate court would have been complete by Feb. 25. The state elections board and Riggs agreed to a compressed timeline. They objected to giving Griffin more time than the other parties to prepare his briefs.
Under Thursday’s order, issued by a unanimous unnamed three-judge appellate panel, Griffin would file an initial brief by Feb. 24. The elections board and Riggs would respond by Feb. 27, with Griffin submitting final written arguments by March 3.
The timeline does not indicate whether the Appeals Court would follow up briefing with oral arguments.
The North Carolina State Board of Elections confirmed in a court filing late Wednesday that it planned to ask the state Supreme Court to bypass the Court of Appeals in addressing the dispute. Riggs filed a separate court document Thursday morning supporting that plan.
Riggs, an appointed incumbent, leads Griffin by 734 votes out of 5.5 million ballots cast statewide by Nov. 5. Two recounts confirmed Riggs’ lead. Yet Griffin challenges more than 65,000 ballots cast in the election. A state Supreme Court stay initially granted on Jan. 7 has blocked the elections board from certifying Riggs as the winner.
After trips to the state Supreme Court, a federal trial court, and the 4th US Circuit Court of Appeals, the dispute headed to Wake County Superior Court to address the merits of Griffin’s ballot challenges. Superior Court Judge William Pittman held a hearing on Feb. 7, then issued three orders by the end of that day rejecting each of Griffin’s three categories of ballot protests.
The case now sits with the Appeals Court, where Griffin serves as a judge. That 15-member court hears cases in three-judge panels. Republicans outnumber Democrats, 12-3. Griffin would not take part as a judge in any Appeals Court proceeding in the case.
The elections board will ask for the case to return to the state Supreme Court before the Appeals Court takes any action. Republicans outnumber Democrats, 5-2, on the high court. Riggs has not participated in any state Supreme Court decisions involving the case.
“The State Board agrees that it is in the interests of justice for this matter to be resolved expeditiously,” the board’s lawyers wrote in an Appeal Court filing. “To that end, and in light of the significant interests involved, the Board intends to file a petition for discretionary review with the Supreme Court before determination of the cause by this Court pursuant to N.C.G.S. § 7A-31(b), commonly referred to as a bypass petition. The Board also intends to seek expedited resolution of the petition.”
“With respect to the Board’s bypass petition, Justice Riggs agrees with the Board that a bypass petition in accordance with N.C. Gen. Stat. § 7A-31(b) is warranted here to accelerate the timeline to final resolution, to minimize the already significant burden of this dispute on judicial and taxpayer resources, and to address the significant interests involved here that all agree warrant ultimate resolution by the Supreme Court,” Riggs’ lawyers wrote.
All parties in the case agreed that three lawsuits representing three types of ballot challenge could be consolidated into one appeal. The Appeals Court order Thursday consolidate the three cases.
One-page orders from Pittman in each case upheld the State Board of Elections’ December decision rejecting three different groups of ballot protests.
“The Court concludes as a matter of law that the Board’s decision was not in violation of constitutional provisions, was not in excess of statutory authority or jurisdiction of the agency, was made upon lawful procedure, and was not affected by other error of law,” Pittman wrote.
The state Supreme Court voted 4-2 last month to grant the initial stay in the case. Four state Supreme Court Republicans supported the stay. Republican Justice Richard Dietz and Democratic Justice Anita Earls voted against the stay. Riggs took no part in the decision.
Last week’s Superior Court hearing took place after the 4th US Circuit Court of Appeals refused to grant requests from Riggs and the elections board to have the case returned to federal court. A unanimous 4th Circuit panel agreed on Feb. 4 that US Chief District Judge Richard Myers had the authority to abstain from hearing the case.
Yet the 4th Circuit ruling opened the door for the case’s possible return to federal court. Citing a US Supreme Court precedent in a case called Pullman, appellate judges ruled that Myers must address any federal legal issues that remain once state courts have ruled on all state law issues in Griffin’s ballot challenges.
Both Riggs and the elections board filed notice of an “England reservation.” That legal maneuver signaled their intent to return the case to Myers’ court if state courts rule against the elections board and Riggs.
Griffin is pursuing three categories of ballot challenges. The largest category of more than 60,000 ballots involves voters whose registration records appear to lack a required driver’s license number or last four digits of a Social Security number. Griffin also challenges more than 5,500 ballots from overseas voters who provided no photo identification. He targets 267 “never residents,” people permitted to cast ballots in North Carolina elections despite never living in the state.
A Riggs victory would lead to no change in state Supreme Court’s current 5-2 partisan split favoring Republicans. A win for Griffin would boost Republicans’ majority to 6-1.
Riggs continues to serve on the state high court as it hears oral arguments and makes rulings in different legal disputes. Griffin serves in his role as a state Appeals Court judge as the court battle continues.