Parties in Griffin-Riggs dispute offer arguments to federal trial judge

The two candidates in North Carolina’s unresolved state Supreme Court race, the state elections board, and other interested parties in an ongoing legal dispute all faced a Monday deadline to submit opening briefs before a federal trial judge hearing the case.

Meanwhile, the elections board, Democratic candidate Allison Riggs, the Democratic Party, and left-of-center activist groups all urge the 4th US Circuit Court of Appeals to step into the dispute.

Without 4th Circuit intervention, US Chief District Judge Richard Myers will decide whether to block a process state courts spelled out for resolving the election between Riggs and Republican candidate Jefferson Griffin. As many as 5,700 of Griffin’s original 65,000 challenged ballots remain in dispute. The elections board has indicated it believes no more than 1,675 ballots could be affected.

Riggs leads Griffin by 734 votes out of more than 5.5 million ballots cast last fall. Because of Griffin’s ballot challenges, a state Supreme Court order issued Jan. 7 has blocked the elections board from certifying Riggs as the winner.

Griffin’s latest filing in Myers’ court criticized the “movants” in the case who ask Myers to block state courts from following their rulings in the case.

“Movants disagree with North Carolina courts about state law,” Griffin’s lawyers wrote. “They argue that North Carolina has changed the election rules after the election. But that’s not what the courts said. They held that the ‘plain language’ of the state constitution barred voters who had never resided in North Carolina from voting in state elections.  And the North Carolina Supreme Court found that the state election code required overseas voters to provide photo identification with their ballots. As part of its remedy, the court provided a 30-day cure period for those voters to fix the defect.”

The State Board of Elections disagreed, urging Myers to “bring this protracted and ill-conceived litigation to an end.”

“In this case, the North Carolina state courts have ruled on certain state-law claims and ordered the State Board of Elections to implement a remedial process that could result in altering the 2024 election results for a seat on the North Carolina Supreme Court,” the board’s lawyers wrote. “Now, this Court must decide whether those state-court orders comply with federal law. The Board respectfully submits that they do not.”

Riggs’s brief accused Griffin of refusing to abide by the election’s results.

“Rather than accept the people’s mandate, Judge Griffin launched a five-month litigation
campaign to overturn the results of the election,” Riggs’ lawyers wrote. “The goal of that campaign is a concept antithetical to a democratic electoral system: retroactive changes to the voting rules that will disenfranchise eligible voters. The challenged election rules have been applied, without controversy, for years.”

“They applied without controversy in this election without any challenge from Judge Griffin — until it became clear that he had not prevailed,” Riggs’ court filing continued.

It is “grossly unreasonable” to demand that voters prove their eligibility to vote more than five months after the election, wrote lawyers for the North Carolina Democratic Party.

“It is also illegal,” Democratic lawyers wrote. “Indeed, such post-election disenfranchisement of voters who cast their ballots in reliance on, and in compliance with, the state’s own election rules in place at the time, would brazenly violate federal law — particularly because Judge Griffin has strategically targeted only selected groups of voters (whom he assumes will skew Democratic), while sparing similarly situated voters who are not assumed to have the same leaning.”

“Specifically, the disenfranchisement would violate the Constitution three times over: imposing an undue burden on the right to vote, depriving people of that right without procedural due process, and violating equal protection by treating similarly situated voters differently for no good reason. And if more were needed, the post-hoc widespread deprivation of North Carolinians’ fundamental right to vote would also violate the National Voter Registration Act (NVRA), which bars states from last- minute (much less after-the-fact) mass denials of the franchise,” Democrats’ court filing continued.

The League of Women Voters of North Carolina and four individuals labeled the state courts’ action an “unconstitutional order” in a separate brief.

“Defendants will retroactively apply a new rule requiring some overseas and military voters to submit a copy of photo ID to have their ballots counted, the opposite of the rule in place during the election,” LWVNC’s lawyers wrote. “Defendants will then compound this unlawfulness by applying the retroactive changes only to the subset of voters whom Griffin challenged for partisan reasons. This deprivation of voters’ fundamental rights will occur despite voters having no predeprivation notice and opportunity to be heard, and unless voters complete an inevitably defective postdeprivation process. These actions transgress bedrock constitutional guarantees and must be enjoined.”

VoteVets Action Fund, the North Carolina Alliance for Retired Americans, and individual voters represented by Democratic operative Marc Elias’ law firm filed a motion for summary judgment that would end Griffin’s case.

“Over five months ago, millions of North Carolina voters cast their ballots in accordance
with longstanding and clear election rules,” the Elias clients argued. “Each of those voters had every reason to expect their vote would count. None could have foretold that — nearly half a year later — their ballots would be deemed invalid, all due to the ongoing crusade of one disaffected candidate — Judge Jefferson Griffin — to reverse his defeat at the ballot box. Worse yet, many of the targeted voters are serving in our military, and it is undisputed that all of them obeyed the rules as they existed on election day.”

State Democracy Defenders Fund, based in the nation’s capital, filed paperwork to submit an amicus, or friend-of-the-court, brief. The group features six former Republican members of Congress, a former Trump administration special counsel from 2017-18, and retired Harvard Law professor Laurence Tribe.

The group is “highly concerned about recent attempts to subvert free and fair elections, including in this case,” according to the brief. “Amici believe that invalidating ballots based on rules that are contrary to what was communicated to the voters during the election is patently unfair and undermines confidence in the democratic process. Amici also object to any attempt to cherry pick votes to be thrown out with an eye toward political gain.”

All parties will have a chance to respond to the initial briefs Friday and file final written arguments on April 28. Myers has signaled he plans to rule on the written court filings without holding oral arguments.

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 on April 11 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 April 4 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 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.