- The North Carolina State Board of Elections has asked the state Supreme Court to bypass the Court of Appeals in addressing an election dispute between Republican Jefferson Griffin and Democrat Allison Riggs.
- Without action from the high court, briefing at the Appeals Court would extend the case at least into early March.
- Riggs supports the elections board's request, according a court filing from state Solicitor General Ryan Park. Griffin opposes the measure.
The North Carolina State Board of Elections filed a petition Monday asking the state Supreme Court to take up the election dispute involving a seat on the state’s highest court. The petition asks the Supreme Court to bypass North Carolina’s Court of Appeals.
Without action from the high court, the appellate court’s schedule would extend the dispute at least into early March.
Appointed incumbent Democrat Allison Riggs leads Republican Jefferson Griffin, an Appeals Court judge, by 734 votes out of 5.5 million ballots cast statewide in the Nov. 5 election. Two recounts confirmed Riggs’ lead. But Griffin is asking the courts to order election officials to throw out 65,000 ballots.
Riggs supports the elections board’s bypass petition, according to the court filing. Griffin opposes the measure.
Wake County Superior Court Judge William Pittman rejected Griffin’s request on Feb. 7. Griffin filed notice of an appeal three days later. The case is on its way to the state Appeals Court.
Monday’s court filing asks the Supreme Court to take the case out of the Appeals Court’s hands. The elections board is considered the petitioner before the Supreme Court. Griffin is the respondent, and Riggs is an intervenor.
“Immediate review is appropriate because the subject matter of this appeal has significant public interest, the appeal involves legal principles of major significance, and delay in this Court’s review is likely to cause substantial harm,” wrote state Justice Department lawyers led by North Carolina Solicitor General Ryan Park.
The Supreme Court already has addressed the case once. Griffin filed a request with the high court on Dec. 18 to issue a writ of prohibition blocking the elections board from certifying Riggs as the election’s winner.
After a trip to federal court, the case returned to the state Supreme Court on Jan. 6. On the following day, the court voted, 4-2, to grant a temporary stay. On Jan. 22, the court denied Griffin’s request for a writ of prohibition, left the stay in place, and sent the case back to a trial court. Justices urged the Superior court to act expeditiously.
“In ruling on the writ of prohibition, moreover, a majority of the Justices of this Court described this case as essential to preserving the public’s trust and confidence in our elections,” Park wrote. “These observations were correct. In a case of this magnitude, the public interest would be served by prompt adjudication by this Court of the state-law issues that Respondent raises.”
The case also raises “significant” legal issues, the court filing indicated. “For example, this case raises the question whether, under state law, election rules may be retroactively changed to invalidate ballots that were cast in compliance with the rules in place at the time of the election, contrary to this Court’s decision in Pender County v. Bartlett,” a 2007 precedent, Park wrote. “That issue alone is significant under any definition of the word. And as this Court is aware, Respondent’s challenges raise other significant state-law issues as well.”
Delay in resolving the case “would cause substantial harm,” the court filing added. “Here, too, the parties agree,” Park wrote. “Respondent has emphasized ‘the need for an expeditious and final determination’ of this dispute. That need for prompt resolution is why he chose to file an original action in this Court. And even while dismissing the writ of prohibition, this Court ordered that this case proceed ‘expeditiously.’”
“That same need for prompt resolution of this case applies on appeal, now that Petitioner has followed the proper procedural channels for seeking judicial review of his protests,” Park wrote.
The elections board seeks action on its petition by March 3. Riggs supports the bypass petition and the expedited schedule, Park wrote.
Griffin opposes the idea. “Judge Griffin opposes the bypass petition, the Rule 2 motion, and the motion to expedite,” according to the court filing. “Judge Griffin intends to file responses to these requests, in the ordinary course, because the requests are prejudicial to Judge Griffin.”
“Judge Griffin is currently working under expedited deadlines at the Court of Appeals, for both the record on appeal and his opening brief at that Court,” the petition continued. “The State Board’s filings should be summarily denied without prejudice to refiling after the
record on appeal is docketed with the Court of Appeals.”
The Court of Appeals has 15 members and hears cases in three-judge panels. Republicans outnumber Democrats, 12-3. Without Griffin, Republicans still hold an 11-3 margin.
Republicans hold a 5-2 majority on the state Supreme Court. Without Riggs participating in the case, the majority is 5-1. One Republican, Justice Richard Dietz, voted against the original order granting Griffin a stay.
The Appeals Court issued an order Thursday spelling out a schedule for hearing the case. It calls for the court record to be finalized this week, with briefing to last through March 3. The schedule did not include oral arguments. It did not set a deadline for a decision.
Riggs continues to serve on the state Supreme Court while the legal dispute continues. Griffin also serves in his post on the Appeals Court.