- The North Carolina State Board of Elections and Democratic Supreme Court candidate Allison Riggs have signaled plans to take an election dispute back to federal court if they lose the state court level.
- The board and Riggs both oppose Republican candidate Jefferson Griffin's attempt to throw out 65,000 ballots from the Nov. 5 election.
- In separate court documents, the board and Riggs filed notice of an "England reservation" that would allow them to return the case to a federal court if Griffin wins at the state court level.
The North Carolina State Board of Elections and state Supreme Court Justice Allison Riggs plan to take a ballot dispute back to federal court if they lose at the state court level. The board and Riggs both filed court documents Thursday confirming their plans to return to federal court if state courts rule in favor of Riggs’ opponent, Jefferson Griffin.
A state Superior Court hearing is scheduled Friday in Raleigh in Griffin’s challenge of more than 65,000 ballots in his recent election against Riggs. Riggs leads Griffin by 734 votes out of 5.5 million ballots cast by Nov. 5. A state Supreme Court stay issued on Jan. 7 blocks the elections board from certifying Riggs as the winner.
Riggs, a Democrat, is an appointed incumbent state Supreme Court justice. She has not participated in the state high court’s consideration of the case. Griffin, a Republican, is a state Court of Appeals judge.
Griffin argues that the targeted ballots are “unlawful.” His court filings suggest removing those ballots would swing the election result in his favor.
The elections board and Riggs filed separate documents Thursday making an “England reservation” in the case. Based on a 1964 US Supreme Court precedent, the England reservation allows a party in a legal dispute to return to federal court once a state court addresses state law issues.
“Justice Riggs intends, should the state courts hold against her on questions of state law, to return to the Eastern District of North Carolina for disposition of her federal contentions,” Riggs’ lawyers wrote.
“For the avoidance of doubt, Justice Riggs’ federal contentions include those identified in the Fourth Circuit’s Opinion: that granting Judge Griffin the relief he seeks would ‘violate federal civil rights law, including the Help America Vote Act, the National Voter Registration Act, the Voting Rights Act, the Civil Rights Act, the Uniformed and Overseas Citizens Absentee Voting Act, and the Fourteenth Amendment to the United States Constitution,” the court filing continued.
Thursday’s court filings responded to the 4th US Circuit Court of Appeals’ decision Tuesday to allow the election dispute to proceed in state court. A unanimous three-judge panel rejected requests from Riggs and the elections board to move the case immediately from state court to federal court.
Yet the 4th Circuit panel ordered US Chief District Judge Richard Myers to modify his Jan. 6 order returning the case from federal court to state court. Myers decided to abstain from hearing the case, citing a federal court precedent called Burford. Appellate judges ruled that Myers’ decision should have relied on a different precedent called Pullman.
The Pullman abstention requires Myers to retain jurisdiction over federal issues in the dispute, even as state courts address state law issues tied to Griffin’s ballot challenges.
The North Carolina Supreme Court returns to the bench to hear oral arguments on Tuesday. Barring a final resolution of the legal dispute, Riggs will remain on the bench and will be able to take part in arguments and rule on cases. Griffin also remains on the Appeals Court bench.