- North Carolina Supreme Court Justice Allison Riggs and groups working with Democratic operative Marc Elias' law firm are appealing a federal judge's recent ruling in the election dispute involving Riggs' job.
- The North Carolina Democratic Party filed an appeal in a related case.
- US Chief District Judge Richard Myers called on the State Board of Elections to proceed with a process the state Supreme Court set out Friday for resolving the election.
- The state Supreme Court plan called for state elections officials to discard hundreds of votes cast last fall by people who have never lived in North Carolina. Thousands of other ballots cast by overseas voters who did not provide photo identification would be subjected to a 30-day "cure" period.
North Carolina Supreme Court Justice Allison Riggs is asking the 4th US Circuit Court of Appeals to step into the election dispute involving Riggs’ job. Riggs filed a notice of appeal in the case Monday.
The VoteVets Action Fund, the North Carolina Alliance for Retired Americans, and two individual voters all working with Democratic operative Marc Elias’ law firm filed a separate appeal in the same case.
Meanwhile, the North Carolina Democratic Party filed a related appeal based on its own lawsuit in the election dispute.
Both appeals challenge one of US Chief District Judge Richard Myers’ orders Saturday in the case.
Myers called on the North Carolina State Board of Elections to proceed with a plan the state Supreme Court set out for resolving the election dispute. The federal order blocks election officials from certifying the race’s results.
Myers issued two orders Saturday. The first responded to Justice Allison Riggs’ emergency motion Friday seeking an injunction against her colleagues’ plan.
Riggs, an appointed incumbent and the Democratic candidate in the 2024 election, leads Republican Jefferson Griffin, a state Appeals Court judge, by 734 votes out of more than 5.5 million ballots cast last fall. Griffin challenged more than 65,000 ballots cast in the race. A Jan. 7 order from Riggs’ colleagues has blocked the elections board from certifying her as the contest’s winner.
The state Supreme Court agreed unanimously Friday 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 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.
The judge also set new deadlines in the case “to facilitate prompt resolution of this matter.”
Each party can file an opening brief by April 21 with final briefs due April 28. Myers indicated he “intends to rule on the papers as soon as practicable,” rather than holding oral arguments.
In a second order, Myers set a Tuesday deadline for the state elections board. The board “shall provide notice to the court of the scope of its remedial efforts, including the number of potentially affected voters and the counties in which those voters cast ballots.”
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 ballots belonging to overseas voters who provided no photo ID. He also spelled out 267 votes from “never residents.”
But Riggs’ lawyers and dissenting state Supreme Court Justice Anita Earls have raised questions about the numbers. Griffin’s original election protest included 1,409 overseas voters who cast ballots in Guilford County. Griffin expanded that number as the legal process continued. But his protests were limited to votes cast in large, Democratic-leaning counties.
“He does not challenge the more than 25,000 identically situated voters across the state who voted under the same preexisting rules, who are not required to clear additional hurdles to have their vote counted, in the same exact race for state Supreme Court,” Earls wrote Friday.
If Myers’ earlier numbers stand, more than 5,500 overseas voters who did not provide photo identification would get 30 days to provide ID information and have their ballots counted. Some 267 voters who never have lived in North Carolina would have their votes discarded.
Riggs filed an emergency motion Friday seeking an injunction from Myers. The injunction would have blocked the state Supreme Court ruling from taking effect.
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 in a series of Feb. 7 orders.
Judges John Tyson and Fred Gore supported the Appeals Court’s April 4 decision, though neither one is credited as author of the court’s opinion. Tyson and Gore are Republicans. 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.