Jefferson Griffin’s Gambit For a State Supreme Court Seat

Update: On January 22, the state Supreme Court unanimously declined to decide Judge Jefferson Griffin’s case right now, instead remanding his election protests to the Wake County Superior Court.

The State Board of Elections received more than 1,300 public comments as it considered rules to implement new voter ID requirements in 2023. Most rehashed long-simmering debates over whether voter ID was racist or prevented fraud. Only a handful noticed a paragraph that exempted overseas and military voters. 

“If photo IDs are not required for military and overseas voters, they should not be required for citizens living in Chatham County who choose to vote by mail,” Susan J. Blalock commented on behalf of the Chatham County Democratic Party. 

“Military and overseas voters should not be exempt from providing voter ID,” wrote Joanne H. Empie, a Republican activist. “There is no justification for not including them. They all have a military ID and/or a valid passport to submit as ID.”

The comments didn’t raise any alarms. The state board’s five members—three Democrats and two Republicans—didn’t mention that paragraph before they unanimously approved temporary voter ID rules on June 27, 2023. Nor did it factor into the discussion when they voted along party lines to finalize the rules on February 15, 2024. 

No members of the state’s Rules Review Commission—all appointed by the Republican-led General Assembly—flagged it before signing off on the voter ID rules on March 27, 2024, according to meeting minutes. (Senate leader Phil Berger’s daughter, Ashley Snyder, heads the commission’s staff.) Lawyers for the state and national GOP hadn’t mentioned the exemption in a January 2024 letter proposing changes to the rules, nor did it feature in voluminous pre-election litigation, either. 

In short, few people seemed to care. 

Until, that is, Jefferson Griffin came up 734 votes short in his bid to become a North Carolina Supreme Court justice. In an election protest and court filings, Griffin, a Republican Court of Appeals judge, has argued that the ballots of 5,509 overseas and military voters should be tossed. If that happened, he believes he’d win. 

Griffin is probably right about that. All of those voters come from four overwhelmingly Democratic counties—Buncombe, Guilford, Forsyth, and Durham—that voted for his opponent, incumbent Justice Allison Riggs, by at least 15 percentage points. Griffin did not challenge the vast majority of overseas and military voters who cast ballots in North Carolina, according to state elections board records. 

Griffin declined to explain why he targeted only Democratic strongholds. His lawyer did not respond to questions. 

Griffin has also challenged the ballots of more than 60,000 absentee and early voters with incomplete registration information and 267 voters who have never lived in North Carolina. On January 7, the Republican-dominated state Supreme Court agreed to hear his case. 

In a brief filed last week, Griffin said the rule-makers had violated state law, and he argued there is precedent for disqualifying ballots. “This case presents a fundamental question: who decides our election Laws?” his lawyers wrote. “Is it the people and their elected representatives, or the unelected bureaucrats sitting on the State Board of Elections?” 

The State Board of Elections says it has followed the law. The board and others also point out that Griffin is asking the court to throw out thousands of votes not because voters did anything wrong, but because a candidate believes a state agency did. 

“You have a player who has lost the game and then is asking to change the rules of the game after the fact so that he might be able to win,” said Eliza Sweren-Becker, a senior counsel at the Brennan Center for Justice’s Democracy Program. 

A Wider Net

On election night, with votes still being counted, Griffin led Riggs by more than 10,000 votes. His victory would have given Republicans a 6-1 majority and diminished Democrats’ hopes of reclaiming the court in 2028. 

However, his lead ebbed over the next three weeks as county election officials counted provisional and absentee ballots. When all votes were canvassed, Riggs was ahead by 734 votes. Two recounts confirmed her lead. 

Griffin filed hundreds of protests in all 100 counties. He argued that 817 voters were ineligible because they were felons serving active sentences, had died before Election Day, or were not registered to vote. But county election boards had already discarded 329 of those votes, and they dismissed most of Griffin’s other challenges. The best Griffin could hope to gain was 189 votes. 

So Griffin cast a wider net, asking the state board to discount swaths of votes that he argued should not have been counted in the first place. After the state board dismissed his protest on December 11, Griffin asked the state Supreme Court to block the state board from certifying Riggs’ victory. 

On January 7, the court granted a temporary stay, saying justices needed time to consider Griffin’s case. One Republican, Richard Dietz, and the only other Democrat, Anita Earls, dissented. Riggs recused herself. It’s unclear when the court will issue its final decision. 

In court filings, Griffin laid out three legal strategies. One has drawn widespread media attention and become the focus of Democratic attacks. It also seems least likely to succeed.

Griffin asked the court to discard the 60,273 votes that he alleges came from people who were improperly registered in the past 20 years. Griffin does not allege that these voters committed fraud. Instead, he argues that incomplete registration information in the state’s database should nullify their votes. 

The law requires most voters to provide their driver’s license number or the last four digits of their Social Security number when they register. But the registration form the state used until last year didn’t specify that they had to include that information. According to Griffin, it’s missing from records of more than 60,000 early and absentee voters. (Election Day ballots cannot be traced back to individuals and challenged.)

The state board says there are legitimate reasons why a voter’s license or Social Security number might not show up in the database, including transcription errors. It also points out that all of these voters had to show an ID to vote. 

The board also changed the state’s registration form in January 2024 after a self-proclaimed “election denier” complained. But it refused to void existing registrations. In September, Republicans sued to remove these voters from the registration rolls. A federal judge declined to act before the election; the case is still pending. 

Even if the state Supreme Court agrees that the voters were illegally registered, tossing their votes would require the justices to overturn precedents that date back over a century. “Where a voter has registered, but the registration books show that he had not complied with all the minutiae of the registration law, his vote will not be rejected,” the court ruled in 1918. 

Griffin’s second gambit argues that the State Board of Elections violated the state constitution’s residency requirement by allowing 267 people to vote though they’ve never lived in North Carolina. These voters are U.S. citizens living abroad; their parents were registered in the state before they left the country. Elections officials say a state law passed in 2011—when Republicans controlled the General Assembly—gives them the right to vote here. 

“The State Board does not have the authority to declare an act of the General Assembly to be unconstitutional and thereby ignore it,” the elections board wrote in dismissing Griffin’s protest. 

Winning this point would still leave Griffin hundreds of votes behind. 

The Third Prong

In his most recent court filing, Griffin focused on the third prong of his attack—challenging the military and overseas voters who were not required to send a photocopy of their ID with their ballot. His position is simple. 

“It’s well known that photo identification is required for all voters, both those voting absentee ballots and those voting in person,” his lawyers told the state Supreme Court last week. “Yet the State Board [of Elections] decided not to require photo identification for absentee ballots cast by voters who live overseas. State law, however, doesn’t exempt overseas voters from the photo-identification requirement.”

But the elections board says that, actually, the law does exempt overseas voters. The 2011 law says that overseas and military voters have to provide their name, birthdate, and Social Security or driver’s license number, and attest in a form that the information is accurate. Further authentication “is not required” for these “covered voters,” the law says. 

That law was written before North Carolina voters overwhelmingly approved a voter ID constitutional amendment in 2018 and the General Assembly passed legislation codifying it later that year. (Because of litigation, the law didn’t take effect until 2023.) But the law didn’t specifically repeal the earlier statute governing overseas and military voters. 

Under the state board’s interpretation, the law requiring photocopies of IDs for absentee ballots covers “voted ballots under this section”—Article 20 of Chapter 163. The law governing overseas and military ballots, however, appears in Article 21A. 

“The General Assembly clearly did not intend for the State Board to pick and choose laws from one article and apply those laws to persons subject to the other article,” the elections board argued in dismissing Griffin’s protests. 

Griffin says the 2018 voter ID law preempts the earlier one, even if lawmakers didn’t strike the language. “If our legislature intended to exempt overseas absentee voters from the photo identification requirement, it would have said so explicitly,” his lawyers told the state Supreme Court. 

The state board first approved this rule 16 months before the November 2024 election. The General Assembly could have forced the elections board to change the rule, and Republicans could have sued to block it. They didn’t. 

In addition, while the two Republican members of the state elections board—Stacy Eggers IV and Kevin N. Lewis—supported Griffin’s protests of voters with incomplete registrations and those who had never lived in North Carolina, the board in December unanimously rejected his challenge to overseas and military ballots. 

In his brief last week, Griffin told the state Supreme Court that “5,509 such ballots were unlawfully cast.” Assuming the ballots were unlawful, that number is incomplete. 

Statewide, overseas and military voters cast 32,034 ballots. Their ballot instructions didn’t tell them to include a photocopy of their ID. 

Griffin chose not to challenge most of their votes. Instead, he targeted overseas and military voters in six counties, all of which voted for Riggs. So far, his attorneys told the state Supreme Court last week, officials in Durham, Guilford, Forsyth, and Buncombe counties have provided names—the 5,509 votes Griffin says are unlawful. (Court documents indicate that Cumberland and New Hanover counties have not yet responded.)

Griffin has not sought to invalidate votes from Republican-leaning counties.

Embry Owen, Riggs’ campaign manager, said Griffin was engaged in “a specific and targeted attempt to silence active-duty members of the military, civil servants who are serving overseas, people who are on the mission field, and other North Carolinians who are living and working overseas who are registered to vote in counties that lean heavily Democratic.” 

Griffin told The Assembly in an email that it “would be a violation of our Code of Judicial Conduct” to comment on pending litigation. 

Jurisdiction Battle 

The first stop in appealing a state elections board decision is usually the Wake County Superior Court, where the board is located. Griffin, however, went directly to the state Supreme Court, where he likely believed he’d receive a friendlier audience. 

Since claiming the majority in 2022, the court’s five Republican justices have made election-oriented decisions criticized by Democrats and good-government groups. In 2023, they overturned rulings from the court’s previous Democratic majority to uphold the voter ID law and enable the General Assembly to engage in partisan gerrymandering. 

In addition, Griffin has called Republican Chief Justice Paul Newby a “good friend and mentor.” Newby’s wife and the spouses of Republican justices Dietz and Tamara Barringer have donated a total of more than $21,000 to Griffin’s campaigns. Earls’ husband contributed more than $2,000 to Riggs’ campaign. (Newby did not respond to The Assembly’s question about whether his relationship with Griffin creates a conflict of interest. Barringer’s husband, Brent, is an investor in The Assembly.) 

Democrats and the State Board of Elections immediately tried to move the case to federal court, which can assume jurisdiction when there are questions involving federal law. On January 6, U.S. District Judge Richard Myers II, an appointee of President Donald Trump, decided federal law didn’t apply and sent the case back to the state Supreme Court. 

The next day, the state Supreme Court voted 4-2 to hear Griffin’s appeal. Republican Justice Trey Allen—potentially the decisive vote—urged people not to read too much into the court’s decision. 

“By allowing the motion, the Court has merely ensured that it will have adequate time to consider the arguments made by Judge Griffin,” Allen wrote. 

Earls fiercely objected. The state Supreme Court had twice before “rejected the proposition that a protest can be used to discount the ballots of eligible voters who did everything they were told to do to register to vote,” she wrote. “The timing of Griffin’s claims speaks volumes about their substance. By waiting until after the votes were cast and the results tallied, Griffin seeks to retroactively rewrite the rules of the election to tilt the playing field in his favor.”

Dietz sympathized with Griffin’s arguments and chastised the state elections board for “strained reasoning” in some of its decisions, but said the court shouldn’t intervene. 

“Permitting post-election litigation that seeks to rewrite our state’s election rules—and, as a result, remove the right to vote in an election from people who already lawfully voted under the existing rules—invites incredible mischief,” he wrote. 

But Griffin counters that 20 years ago, the state Supreme Court did just that. 

Ahead of the 2004 election, the state elections board said it would accept provisional ballots cast outside of voters’ assigned precincts as long as they voted in the correct county. Republican Bill Fletcher, who appeared to have narrowly lost the race for superintendent of public instruction, sued to have 11,000 provisional ballots thrown out, arguing that elections officials had exceeded their legal authority. 

Surprising many observers, the state Supreme Court agreed, saying it was “unfortunate” that the “statutorily unauthorized actions of the State Board of Elections denied thousands of citizens the right to vote on election day.”

Fletcher’s legal victory was short-lived, however. The Democratic-controlled General Assembly intervened, asserting that elections officials had properly interpreted lawmakers’ intent and that the state should not retroactively disenfranchise “at least 11,310 innocent voters who exercised their franchise in accordance with the good-faith instructions of elections officials.” The legislature also created a process for settling contested Council of State elections and declared Democrat June Atkinson the winner. 

Still, Griffin believes there is precedent for the state Supreme Court to disqualify ballots. 

The state elections board, meanwhile, has asked the U.S. Fourth Circuit Court of Appeals to take the case back from the state court, arguing that Griffin’s efforts to invalidate votes triggered federal civil rights protections. 

Griffin has argued that federal protections against voter purges shouldn’t matter. For one thing, he says, this is a state-level race. For another, he’s not trying to remove voters from the rolls; he just wants to discard their votes. 

“Indeed,” Griffin’s lawyers told the state Supreme Court, “his election protest challenges only the outcome of his election—it doesn’t even affect an ineligible voter’s vote in another race in 2024 elections, much less cause that voter to be removed from the voter rolls.”

The appeals court will only decide whether the case belongs in federal court, but that’s a key question. Fourth Circuit precedent generally “denies relief with regard to past elections” if the aggrieved parties didn’t complain before votes were cast. 

A Fourth Circuit panel is scheduled to hear oral arguments on January 27. Its decision will almost certainly be appealed to the U.S. Supreme Court. 

“This is an extraordinarily complex interaction between federal and state courts that is not typical and that creates some uncertainty about the path forward,” said Sweren-Becker of the Brennan Center. 

Fallout

After Griffin appealed to the state Supreme Court last month, Andrew Dunn, a political strategist who previously worked as a campaign spokesman for Republican former Lt. Gov. Dan Forest, issued a stark warning to conservatives. 

“If the Supreme Court sides with Griffin, the fallout will be immediate and brutal,” Dunn wrote on his blog, Longleaf Politics. “This isn’t just bad optics; it’s potentially a credibility-shattering disaster for the court, the party, and conservatism in North Carolina.”

As Dunn predicted, Griffin’s appeal—and the state Supreme Court’s willingness to indulge it—drew fierce denunciations. 

Writing in The New York Times, columnist Frank Bruni called Griffin’s case “especially insidious.” The policy director for Common Cause North Carolina, a good-government group, called it “dangerous for democracy.” Outgoing Democratic Gov. Roy Cooper said that if Griffin wins, “Voters in North Carolina will be unable to walk out of a voting booth ever again and feel confident that their vote will count.”

In The News & Observer, election lawyer Michael Crowell and former state GOP general counsel Marshall Hurley said Griffin was “appealing to court partisanship. If successful, he will have severely harmed both the election process and the judicial system.” 

Mitch Kokai, senior analyst for the conservative John Locke Foundation, said he doesn’t expect the state Supreme Court to toss tens of thousands of votes or declare Griffin the winner. That might be a bridge too far even for some diehard Republicans, he said. 

A more likely outcome is that the court will find that Griffin has raised some valid complaints and order the state elections board to review the challenged ballots. 

“Any ruling that in any way tilts toward Griffin is going to feed into Democrats’ feeling about the existing court,” Kokai said. “But an order that does not outright say Griffin wins but forces the State Board of Elections to do more work on the ballots, that’s the type of ruling conservatives could live with.”

If this saga ends with Griffin on the state Supreme Court, Dunn told The Assembly he thinks it will sour the GOP brand for the state’s growing ranks of unaffiliated voters. Republicans can argue that the Democrat-run state elections board mangled the election, but Democrats have a straightforward story to tell: Griffin is trying to steal a race he lost. 

“Whoever is able to explain their position in the most simple way tends to win,” Dunn said. 

Clarification: This article has been clarified and updated to include details about the legal battle that followed the 2004 superintendent of public instruction race.

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

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Michael Hewlett is a staff reporter at The Assembly. He was previously the legal affairs reporter at the Winston-Salem Journal. You can reach him at michael@theassemblync.com.