The North Carolina Supreme Court dismissed an appellate court judge’s legal effort to overturn his electoral defeat on Wednesday, allowing the election protests to proceed in the trial court.
Republican Court of Appeals Judge Jefferson Griffin, the court said, improperly bypassed state law holding that election result challenges must begin in the Wake County Superior Court. The state Supreme Court, however, allowed the temporary pause on election certification to stand.
The court’s five Republicans concurred in full, while the bench’s lone Democrat partially dissented. Three GOP justices also signaled an embrace of Griffin’s argument that the North Carolina Board of Elections erroneously and unlawfully counted tens of thousands of invalid votes.
Griffin trails incumbent Justice Allison Riggs, a Democrat, in the state’s Supreme Court race by just 734 votes. In his election petition, he asked the North Carolina Supreme Court to force the state Board of Elections to throw out more than 60,000 votes cast by voters he says are ineligible because they either did not provide driver’s license or social security numbers on their voter registration applications, failed to include photo IDs with their absentee ballots or never physically resided in North Carolina. Tossing those votes would deliver him a victory.
The North Carolina Board of Elections denied Griffin’s election protests on the same grounds in mid-December, prompting his suit. Riggs, who has removed herself from the case and since intervened as a defendant, argues that Griffin’s ask threatens to disenfranchise thousands of eligible North Carolina voters after the election has occurred.
Riggs said in a statement Thursday that, while she agreed with the court’s decision, she is “disappointed” that it has opened the door to prolong the matter.
“Voters elected me to continue serving on the North Carolina Supreme Court 79 days ago, and my election is the last uncertified race in the country,” she said. “I will continue to make sure that the more than 65,000 voters who Griffin seeks to disenfranchise have their voices heard. No matter how long it takes, I will not stop doing what is right.”
In its Wednesday order, the court suggested it is broadly in agreement with Griffin’s arguments, citing previous legal precedent that held that allowing unlawful votes to be counted alongside lawful ballots “effectively ‘disenfranchises'” voters who cast legal ballots.
Chief Justice Paul Newby, a Republican, defended Griffin’s election protests in a concurring opinion. He rejected critics’ claims that the appellate judge’s request was anti-democratic.
“It is understandable that petitioner and many North Carolina voters are questioning how this could happen,” Newby wrote, describing it as “highly unusual” that Griffin’s 10,000 vote lead on election night was transformed into a 734 vote deficit by the end of the week. “Petitioner has a legal right to inquire into this outcome through the statutorily enacted procedures available to him.”
Winning an election by such a thin margin in North Carolina is not unprecedented, even in state Supreme Court races. Newby himself was declared the victor of North Carolina’s 2020 Supreme Court race by just 401 votes cast out of nearly 5.4 million, following two recounts — one machine and one hand-to-eye — according to the state Board of Elections. His opponent, then-Chief Justice Cheri Beasley, a Democrat, conceded the election as the second recount neared completion, and the Election Board certified the result in mid-December of that year.
Two other Republican justices, Phil Berger Jr. and Tamara Barringer, joined Newby in his concurrence Wednesday and submitted concurring opinions themselves. Barringer argued that the court should suspend the ordinary procedure of passing election protests through lower courts and instead proceed to a decision on the merits.
In her partial dissent, Justice Anita Earls noted her disagreement with the state’s decision to maintain the temporary pause on election certification. Griffin, she said, did not satisfy the requirement that he “show likelihood of success on the merits of his case” to warrant granting the injunction. She further rebuked what she called the court’s “signal” of its “preferred outcome.”
“I do not join in that signal,” she said. “We cannot overturn the results of an election on potentials.”
Republican Justice Richard Dietz also submitted a concurring opinion, holding that Griffin’s petition should be barred because it seeks to discard ballots from people who lawfully voted under the rules in place at the time of the election, which would violate election law principle described in a 1983 federal case.
“I acknowledge that this Court has never recognized the version of the Purcell principle described in [Hendon v. North Carolina State Board of Elections] and, until we do, our state courts are not bound to follow it,” he said. “But I believe now is the time.”
Dietz dissented in the court’s decision earlier this month to block election certification on the same grounds.
Griffin filed election protests in the Wake County Superior with the same claims shortly after filing suit in the state Supreme Court last month. That court can now proceed in considering his claims. Wednesday’s order has also made Riggs’ request for oral argument in the case moot.
The Fourth Circuit Court of Appeals is also considering the case following an appeal from Riggs. It will hear oral argument on Jan. 27.
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