- The candidates in North Carolina's recent state Supreme Court election disagree about whether a state or federal court should resolve a legal dispute about the Nov. 5 election.
- Democrat candidate Allison Riggs, the North Carolina Democratic Party, the State Board of Elections, and activist groups working with Democratic operative Marc Elias' law firm filed briefs Wednesday with the 4th US Circuit Court of Appeals. They made the case for federal review of Republican candidate Jefferson Griffin's ballot challenges.
- Griffin argues that a state court should handle the dispute.
The two candidates in North Carolina’s recent Supreme Court election disagree about the proper forum for resolving a legal dispute involving the election. Republican Jefferson Griffin argues that the case belongs in state court. Democrat Allison Riggs counters that federal courts should settle the election fight.
Riggs and the North Carolina Democratic Party filed briefs Wednesday evening with the 4th US Circuit Court of Appeals. Both made the case for federal review of the election dispute.
The State Board of Elections and left-of-center activist groups working with Democratic operative Marc Elias’ law firm agree with Riggs and the state Democratic Party. They filed briefs after 11 p.m.
The 4th Circuit will hold oral arguments in the case on Jan. 27.
Riggs, the appointed incumbent, leads Griffin, a state appellate judge, by 734 votes out of 5.5 million ballots cast in the November election. Recounts have confirmed Riggs’ lead.
Griffin has been seeking a writ of prohibition from the state Supreme Court to block elections officials from counting more than 60,000 ballots Griffin has labeled “unlawful.”
The state’s high court issued a temporary stay on Jan. 7 blocking the elections board from certifying the election result. Griffin filed a brief Tuesday suggesting that the state Supreme Court focus its attention first on 5,509 ballots cast by overseas voters who provided no photo identification. His lawyers suggested that tossing those ballots would be likely to swing the election in Griffin’s favor.
Meanwhile, the parties in the case disagree about whether the case should return from North Carolina’s highest court to a federal courtroom.
Riggs’ brief Wednesday argued that the answer is yes.
“Ever since the results were tabulated, Judge Griffin has been trying to overturn those results by throwing out over 60,000 votes cast by eligible voters who did nothing wrong,” Riggs’ lawyers wrote.
“This case belongs in federal court, because federal law stands between Judge Griffin and the mass disenfranchisement he seeks,” Riggs’ brief added. “Judge Griffin is well aware of those federal obstacles; he filed this action directly in the N.C. Supreme Court on the mistaken belief that, by skipping the North Carolina trial and intermediate appellate courts, he could thwart federal jurisdiction. Judge Griffin got the law wrong.”
Griffin filed his complaint with the state Supreme Court on Dec. 18. The state elections board removed the case to a federal court the following day. US Chief District Judge Richard Myers sent the case back to the state court on Jan. 6.
“The district court’s decision fails to grapple with the nature of the claims at issue here,” Riggs’ lawyers wrote. “Judge Griffin is suing state officers for refusing to violate federal civil rights law. Congress guaranteed a federal forum for these types of claims, and the district court was not free to make its own policy choice about the desirability of federal court review.”
A friend-of-the-court brief Wednesday from the North Carolina Democratic Party supported Riggs’ argument.
“[F]ederal law prohibits the mass disenfranchisement that Judge Griffin seeks in order to undo the election for associate justice of the North Carolina Supreme Court that — as confirmed by multiple recounts — he lost to Justice Allison Riggs,” Democratic lawyers wrote. “In particular, granting Judge Griffin’s request that the NCSBE and North Carolina courts throw out the votes of more than 60,000 voters who followed the rules in place at the time of the election would violate both the National Voter Registration Act (‘NVRA’) and due-process rights guaranteed by the U.S. Constitution. Federal courts have an obligation to decide such issues when properly presented, as they were here.”
The State Board of Elections’ brief defended the board’s decision to move the case from state court to federal court. “Petitioner [Griffin] has failed to identify a single voter who is not a lawful voter — or even one who actually registered without following the law. Nor does he dispute that many of these voters have voted in North Carolina, without challenge or controversy, for decades,” the board’s lawyers wrote. “The North Carolina State Board of Elections refused to accede to Petitioner’s astonishing request to retroactively disenfranchise these voters, in part because doing so would violate numerous federal civil-
rights laws.”
The North Carolina Alliance for Retired Americans, VoteVets Action Fund, and three individual voters are working with the Elias Law Group. They have intervened in the case to support Riggs and the elections board.
“Griffin’s assault on a long-resolved election offends a constellation of federal rights, a conclusion that is inescapable on the record and from extensive briefing below,” the intervenors’ brief argued. The federal courts should deny Griffin’s request “under any number of independently-sufficient federal grounds.”
Griffin will have a chance to respond next week in the 4th Circuit before the Jan. 27 oral arguments in Richmond, Virginia. The State Board of Elections faces a Tuesday deadline to respond to Griffin’s state Supreme Court brief.