- Republican state Supreme Court candidate Jefferson Griffin offered written arguments Monday to the North Carolina Court of Appeals in his election dispute with Democrat Allison Riggs.
- Riggs and the State Board of Elections face a Thursday deadline to respond to Griffin's arguments.
- The case sits with North Carolina's second-highest court after the state Supreme Court voted 4-2 on Feb. 20 to reject a bypass petition from the state elections board.
Republican state Supreme Court candidate Jefferson Griffin explained to the North Carolina Court of Appeals Monday his case challenging more than 65,000 ballots cast in the Nov. 5 election.
Griffin, who sits on the Appeals Court, is asking state courts to throw out challenged ballots. Removing the ballots could flip the result of Griffin’s Supreme Court race against the appointed incumbent Democrat, Justice Allison Riggs. Riggs leads the race by 734 votes, a result confirmed by two recounts.
A state Supreme Court stay initially granted to Griffin on Jan. 7 has blocked the State Board of Elections from certifying Riggs as the winner.
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.
With Griffin sitting out the Appeals Court’s consideration of the case, Republican judges outnumber Democrats, 11-3. The Appeals Court hears cases in three-judge panels.
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.
“The State Board is an administrative agency that has broken the law for decades, while refusing to correct its errors,” Griffin’s lawyers wrote in a brief filed Monday. “At bottom, this case presents a fundamental question: who decides our election laws? Is it the people and their elected representatives, or the unelected bureaucrats sitting on the State Board of Elections?”
“If the Board gets its way, then it is the real sovereign here,” Griffin’s court filing continued. “It can ignore the election statutes and constitutional provisions, while administering an election however it wants.”
Griffin “seeks to restore the supremacy of the democratic process and the preeminence of the rule of law,” his lawyers wrote. His election protests “challenge the State Board’s lawless administration of his electoral contest.”
“In response to Judge Griffin’s protests, the State Board and the opposing candidate, Justice Allison Riggs, have claimed that Judge Griffin is seeking a retroactive change in the election laws,” Griffin’s lawyers wrote. “That flatly mischaracterizes the timeline. Our registration statutes have required drivers license or social security numbers since 2004. Our state constitution has imposed a residency requirement since 1776. Photo identification has been required for absentee voting since at least 2018.”
“The laws that should have governed this election were, therefore, established long before this election. The State Board simply chose to break the law,” Griffin’s brief added.
“But the State Board of Elections is no super-legislature. It doesn’t get to ignore state statutes or rewrite the state constitution. Rather, the Board was required to discount votes that were cast in violation of state law,” Griffin’s lawyers wrote.
“Like the Supreme Court explained twenty years ago, in an identical situation, ‘[t]o permit unlawful votes to be counted along with lawful ballots in contested elections effectively “disenfranchises” those voters who cast legal ballots, at least where the counting of unlawful votes determines an election’s outcome,’” the court filing continued.
Under a compressed Appeals Court timeline, the state elections board and Riggs face a Thursday deadline to respond to Griffin’s arguments. Griffin can file a final written brief on March 3. The Appeals Court has not yet scheduled oral arguments in the case.
Wake County Superior Court Judge William Pittman rejected all three sets of Griffin’s ballot challenges on Feb. 7. After Griffin appealed Pittman’s decision to the Court of Appeals, the elections board sought a bypass petition from the Supreme Court.
The high court rejected that request, 4-2, with Dietz joining Democratic Justice Anita Earls in dissent.
Riggs continues to serve on the Supreme Court during the legal dispute, while Griffin continues his work on the Appeals Court.