N.C. Supreme Court (Sort of) Rules for Allison Riggs

After months of legal wrangling, Republican justices were not willing to disenfranchise 67,000 voters to help Jefferson Griffin overturn his loss in last year’s North Carolina Supreme Court election. 

Instead, on Friday afternoon, four justices ruled that at least 267 votes should be thrown out and put about 5,000 more on thin ice. Two justices—Republican Richard Dietz and Democrat Anita Earls—partially dissented. The incumbent who defeated Griffin, Democrat Allison Riggs, recused herself. 

Friday’s ruling was probably the best Riggs could have hoped for from her colleagues. And she’s almost certain to appeal in federal court, where Griffin’s arguments will likely be met with skepticism. 

Griffin, who lost to Riggs by 734 votes, asked the courts to toss the ballots of three categories of voters: About 60,000 early and absentee voters he alleged had incomplete voter registration information; about 5,000 military and overseas voters from some overwhelmingly Democratic counties who were not required to provide an ID; and more than 200 overseas voters who never lived in North Carolina but whose parents were registered here before they left the country. 

Last week, Griffin won a key victory at the Court of Appeals, where he is currently a sitting judge. A Republican majority panel discarded the so-called never-resident votes and gave the other two tranches of voters 15 days to rectify their alleged infirmities. Democrats panicked. Tracking down more than 60,000 voters that quickly—some of whom might have moved—would be a herculean task. Because early voters generally lean Democratic and the overseas voters Griffin targeted were from blue counties, their votes would almost certainly cost Riggs the election. 

Riggs appealed to the state Supreme Court, but justices there had seemed inclined to indulge Griffin. In December, four Republicans blocked the N.C. State Board of Elections from certifying Riggs’ victory, and in January, three of them signaled that they were sympathetic to Griffin. So Friday’s ruling, without additional oral arguments, came as something of a surprise—and for Democrats, a partial relief. 

In a brief opinion written by Justice Trey Allen, the court said the 60,000 ballots from voters with incomplete registrations should stay. The state’s case law made clear that registration errors “will not deprive the [citizens] of [their] right to vote or render [their] [vote]s void,” Allen wrote. And, he pointed out, all of them had presented an ID to vote, so there was no allegation of fraud. 

Allen and Republicans Paul Newby, Phil Berger Jr., and Tamara Barringer agreed with the Court of Appeals on the other two tranches of voters, but extended the deadline for military and overseas voters to provide an ID from 15 to 30 days. They did not provide a rationale or explain why they believed the election board’s decision to allow these voters to cast their ballots without an ID—which was approved by the legislature-appointed Rules Review Commission and not challenged by any party or candidate before the election—was wrong. 

As Earls pointed out in her partial dissent, they also did not specify how many overseas voters were affected. Griffin initially targeted Guilford County, then tried to expand his challenge to three other blue counties. 

“Possibly at least 2,000 to 7,000 votes … are now presumed to be fraudulent unless they can prove otherwise within 30 calendar days,” Earls wrote. “The vote of an overseas or military voter who is registered in Wake County and who voted pursuant to the laws applicable at the time is counted. However, the vote of an overseas or military voter who is registered in Guilford County is presumed to be fraudulent and will not count unless that voter provides proof of their identity within thirty business days. Explaining how that is fair, just, or consistent with fundamental legal principles is impossible, so the majority does not try.”

Dietz also criticized the majority’s decision, though he said he thought it was logical to require overseas voters to provide ID. “But implementing that voter ID requirement consistent with [federal law] would require careful planning by state election staff, likely with input from federal officials. It is not something that can be retroactively enacted by judicial edict.”

The majority also said little about its reasons for agreeing with the Court of Appeals that allowing never-residents to vote is unconstitutional. These voters have been allowed to cast ballots under a 2011 statute unanimously passed by the Republican-controlled General Assembly—a law that’s now been in effect for more than 40 elections. No one objected until the Republican National Committee sued shortly before the 2024 election. 

Dietz wrote in his partial dissent that the never-resident issue is “legitimate,” but he viewed the majority’s decision as problematic. In his view, it’s not clear whether the right votes were being purged, and now there’s no chance to “clarify the uncertainty.” 

Dietz, who has repeatedly called for the court to reject Griffin’s challenge, also said his colleagues should not have ruled without hearing arguments. 

“The Court of Appeals has since issued an opinion that gets key state law issues wrong, may implicate a host of federal law issues, and invites all the mischief I imagined in the early days of this case,” Dietz wrote. “By every measure, this is the most impactful election-related court decision our state has seen in decades. It cries out for our full review and for a decisive rejection of this sort of post hoc judicial tampering in election results.”

Dietz hinted that he expected federal courts might intervene. But even if that happens, “the door is open for losing candidates to try this sort of post-election meddling in state court in the future. We should not allow that.”

There are several potential federal issues. The ruling might run afoul of a federal law governing military and overseas voters. A decision that affects voters in some counties but not others could violate equal protection rules. Federal courts also have longstanding precedents forbidding states from changing voting rules just before—or, presumably, after—an election. 

Indeed, Riggs immediately announced that she would file a federal appeal. “I’m the proud daughter of a 30-year military veteran who was deployed overseas, and it is unacceptable that the Court is choosing to selectively disenfranchise North Carolinians serving our country, here and overseas,” Riggs said in a statement. 

Jeffrey Billman reports on politics and the law for The Assembly. Email him at jeffrey@theassemblync.com.

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