The Docket: As The Supreme Court Race Turns

The state Supreme Court race between Democrat Allison Riggs and Jefferson Griffin won’t be settled anytime soon, even as both parties seek to speed things up.

On February 20, the state Supreme Court rejected 4-2 a request from Riggs and the State Board of Elections to bypass the Court of Appeals and have the state’s highest court tackle Griffin’s long-simmering efforts to toss more than 65,000 ballots from early and absentee voters he said had incomplete registration information, overseas voters who have never lived in North Carolina but are registered to vote here, and military and overseas voters who were exempted from the state’s voter ID law. Riggs recused herself.; Democratic Justice Anita Earls and Republican Justice Richard Dietz dissented.

Griffin had appealed a ruling from Wake County Special Superior Court Judge William Pittman that dismissed his election protests. Griffin opposed bypassing the Court of Appeals, and made clear why. While other Republican justices have expressed some sympathy toward Griffin’s complaints, Justice Trey Allen has not, making him a critical vote. The chance for a 3-3 tie is high, and a tie would uphold the lower court’s ruling. Griffin feared he would lose if the state Supreme Court deadlocks now.

“If this Court grants review now, it risks adjudicating these disputes as a six-member panel—a structure vulnerable to deadlock, which could trigger default affirmance of the Superior Court’s cursory order,” Griffin’s attorneys wrote.

It’s the exact opposite position Griffin took two months ago. In December, the State Board of Elections dismissed his protests. But instead of the normal process of appealing to Wake Superior Court, Griffin asked the state’s highest court to intervene, block certification, and overturn the election. Critics argued Griffin wanted a friendlier audience with the court’s Republican majority. Four Republican justices did issue a temporary stay in early January and ordered the parties to file expedited briefs. Earls and Dietz dissented in that ruling as well.

Then on January 22, before the justices could consider the final briefs, the state Supreme Court dismissed Griffin’s so-called writ of prohibition and told him he needed to file his appeal in Wake County’s superior court. The dismissal, however, didn’t come without indications that some Republican justices were sympathetic to Griffin’s cause.

Chief Justice Paul Newby called it “highly unusual” that Griffin was ahead on election night but saw his lead shrivel when all the votes were counted. It’s not clear if Newby was trying to imply fraud or vote-counting improprieties, but it’s not unusual for absentee and provisional ballots to shift leads in a close race.

Newby also scolded critics for accusing Griffin of trying to “disenfranchise” voters and said that his complaints were “valid” and could affect the election’s outcome. Justice Phil Berger Jr. said the case’s “straightforward” question has a “clear and evident answer.” “Agencies, boards, and commissions operating outside the bounds of established rules is a familiar trope, as is sweeping bureaucratic incompetence and neglect under the rug,” he wrote. (Last week, Berger’s father, Senate Leader Phil Berger Sr. questioned Griffin’s efforts to remove voters for incomplete registration.)

Republican Justice Tamara Barringer reluctantly concurred with the majority, saying she would have preferred the state Supreme Court decide the case now, rather than letting it “twist in the jurisprudential winds.”

But in last week’s order, Barringer dramatically changed her tune, arguing that the “circumstances have changed.” She said that Pittman’s “barebones orders” don’t provide enough for the state Supreme Court to properly rule now. “Given the

complexity and quantity of the issues presented in this case, this Court and our State

will benefit from a well-reasoned, thoughtful, and deliberative analysis by the Court

of Appeals,” she wrote. (Disclosure: Barringer’s husband, Brent Barringer, is an Assembly investor.)

In her dissent, Earls wondered why some of her colleagues and Griffin had changed their minds about expeditiously settling the matter. She argued that the state Supreme Court should take over the case to avoid any more delays. “The failure to do so is harmful to the parties seeking finality and to the public who voted three months ago,” Earls wrote.

As it stands now, it will likely be months before the only uncertified race in the country approaches some sort of finality.

—Michael Hewlett

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Dear John

Rep. Joe John, a Wake County Democrat who served as both a judge and lawmaker before his death last month, spent years advocating for a return to non-partisan judicial elections.

A fervent advocate of an independent judiciary, John tried to persuade fellow lawmakers that putting partisan labels on the ballots for judicial candidates had injected too much politics in the system and was eroding the perception of impartiality. The 85-year-old statesman died just days after resigning from office due to a terminal cancer diagnosis. Now Democrats in the state Senate and House are keeping his ambition alive.

Democrats Sen. Lisa Grafstein, of Wake County, and Rep. Marcia Morey, of Durham, both lawyers, introduced the “Judge Joe John Nonpartisan Judicial Elections Act.” Both mentioned the yet-to-be-certified state Supreme Court race and the mounting public protests about the challenged votes as a reason to try to restore public trust in the justice system.

Thirty-seven lawmakers have signed onto the House version of the bill and 12 to its Senate companion. Moorey wrote on X that it would “stop the current partisan fiasco of our undeclared N.C. Supreme Court race.”

The bill, which so far has no Republican endorsers, would mean judicial candidates no longer compete in partisan primaries and would be listed on ballots without a party label. The bill also would reinstate a public financing system, once lauded by independent judiciary advocates. Candidates could rely less on campaign funds from attorneys or businesses that might come before the bench and be more buffered from undue influence by political parties with deep campaign war chests.

Grafstein and Morey told The Assembly they had little hope the bill would gain much traction in the Republican-led General Assembly. Even so, they said they thought it was important to continue John’s effort.

North Carolina had partisan judicial elections for much of the past century, but shifted to non-partisan races through a multistep process that began in the late 1990s and ended in 2002. As part of that shift to non-partisan elections, state lawmakers in a previously Democratic-controlled legislature approved public funding for appeals court and Supreme Court candidates in 2004.

A Republican-led General Assembly did away with that program in 2013, and started a multi-year shift to partisan judicial races in 2015. The change has yielded strong Republican majorities on the state Court of Appeals (12-3) and state Supreme Court (5-2).

—Anne Blythe

Cut to the Quick

Two journalists who’ve been fighting trespassing charges and criminal convictions related to a protest they covered in an Asheville city park more than three years ago hit a roadblock last week.

Matilda Bliss and Melissa Coit, journalists who were covering a protest for the Asheville Blade on Christmas Day in 2021, appealed to the state Court of Appeals last year, contending that the Buncombe County Superior Court judge who oversaw their trial gave erroneous instructions to the jury that convicted them.

They also argued that the judges at the trial court level erred in concluding that the First Amendment did not protect the reporters’ right to record and report on the Asheville Police Department’s response to a protest in a public park.

On February 19, a three-judge state Court of Appeals panel rejected their appeal seemingly over a paperwork error rather than the merit of their arguments. Bliss and Coit were charged with a misdemeanor that was heard first in Buncombe County district court, where they were convicted. They then appealed their case to Superior Court, where a trial was held.

The Court of Appeals panel said in its ruling that because there was no “supporting documentation” before them of Bliss and Coit being tried and convicted in district court, they were “unable to verify jurisdiction” and dismissed the appeal.

“The cold record before us lacks the necessary information for us to discern whether the superior court had jurisdiction,” Republican Judge Jeff Carpenter wrote for the unanimous panel that included Republican judges Julee Flood and Michael Stading.

While state law requires that a court reporter “make a true, complete, and accurate record of all statements from the bench and all other proceedings” in Superior Court, there is no such requirement for district court criminal trials unless they are Class H or I felonies, which include assault by strangulation, possession of stolen goods, car break-ins, marijuan possession and other crimes that can result in incarceration.

There is opportunity to add to the appeals court record and ask for a reconsideration of the case or appeal the decision to the state Supreme Court. On Monday, attorneys for the reporters were reviewing their options.

Bliss and Coit were at Asheville’s Ashton Park at 10:30 p.m. on December 25, 2021 as protesters gathered to show opposition to the police clearing a homeless camp from the public property.

When officers ordered dispersal of the crowd after the park’s 10 p.m. curfew, Bliss and Coit remained and told police they were journalists, and according to court documents, did not interfere with the law enforcement operation. Nonetheless, the two were arrested and charged with second-degree trespass, an action that brought widespread media attention especially among press freedom advocates.

The charges and convictions also led the journalists and the Asheville Blade, which describes itself as “leftist local news co-op focusing on in-depth investigative journalism,” to file a lawsuit in federal court last December against the city of Asheville, the police chief, and officers involved in the incident. The suit contends that the reporters’ arrests were unlawful and their rights to news gathering, free speech, and equal protection were violated. They also allege that Bliss, whose phone was seized by police and held for 25 days without a search warrant, was subjected to an illegal seizure.

While the federal lawsuit includes many of the same arguments made in the state appeals process, it goes further and chronicles health and financial stresses suffered by the reporters and Blade in the aftermath. In their requests for unspecified monetary relief, the news organization and journalists seek injunctions to block the city and police chief from:

Arresting, approving, or directing the arrests of Bliss, Coit and other Blade journalists “solely because they remain on public property for the purpose of recording police activity and/or news gathering.”
Failing to provide adequate training to city police officers “on the rights of journalists to record and report on police activities, including in the specific context of policing at public protests.”

—Anne Blythe

The Docket: As The Supreme Court Race Turns

Dear John

Cut to the Quick

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