Wake Judge Dismisses Jefferson Griffin’s Election Challenge 

Wake County Special Superior Court Judge William Pittman rejected Jefferson Griffin’s attempt to overturn his 734-vote loss to Justice Allison Riggs in last year’s state Supreme Court race on Friday, ruling that the State Board of Elections had not erred when it dismissed his challenge in December. 

The decision followed arguments earlier in the day. Griffin, who declined to comment after the hearing, is certain to appeal. 

Griffin, a Republican judge on the Court of Appeals, asked the court to toss more than 65,000 votes he argues should not have been counted. He contends that the elections board improperly counted the ballots of some voters who did not provide a driver’s license or Social Security number when they registered, military and overseas voters who were not required to provide photo identification, and overseas voters who have never lived in North Carolina but whose American parents had resided here. 

The State Board of Elections maintains that it followed the law–and Griffin is trying to change the rules after the game is over. 

After the elections board dismissed Griffin’s protests, the case ping-ponged between state and federal courts. On January 22, the state Supreme Court denied Griffin’s request to directly intervene—though four Republican justices kept in place a stay forbidding the elections board from certifying the incumbent Democrat’s victory. 

That ruling sent the case to Wake County’s superior court, where state law says election challenges should begin. Friday’s hearing kicked off what is likely to be a months-long process of hearings and appeals in state and federal courts. 

Both sides’ arguments were mostly familiar to anyone who has followed the case. Griffin’s attorneys said that the elections board had violated the law when it administered last year’s election—meaning that even if voters followed the board’s rules when they cast their ballots, their votes could still be invalidated. They argued that a 2005 state Supreme Court precedent allows the court to throw out votes after the election. 

Attorneys for Riggs and the elections board countered that Griffin was “fishing around” for technicalities to disenfranchise thousands of voters.

“To listen to my friends on the other side, you would think that this was an anodyne routine election protest process, and that this sort of thing happens all the time,” said Raymond Bennett, Riggs’ attorney. “The reality is that this is unprecedented. … What we have left are three en masse challenges to large groups of voters for which there is no evidence of misconduct or fraud.”

Bennett and elections board attorney Terence Steed defended the board’s rules. But they pointed out that even if the judge bought Griffin’s claim that the rules were illegal, Griffin only raised these issues after he lost. 

“You can’t gamble on an election, see that you’ve lost, then after you lose, try to undo the result by changing the rules,” Bennett said. “Now that’s exactly what’s happening with each of these three protests.” 

The 2005 case was different, they argued. The court only agreed to throw out votes because the state board had been vague about its rules before the election, depriving candidates of the ability to challenge them. That wasn’t the case here. 

Griffin “had clear notice that these were the rules that were going to apply. Everybody knew that this was the way things were going to work,” Bennett said. 

The attorneys also noted that Griffin was challenging only early and absentee voters with incomplete information, not Election Day voters, and only military and overseas voters from four Democratic-leaning counties, not the other 96. Throwing out some voters but not others in the same situation would violate the 14th Amendment’s Equal Protection Clause, they said.  

Griffin’s attorneys said they targeted some voters for logistical reasons and blamed the elections board for not being more cooperative in getting them voter records. 

“The reality is the protests were brought in the manner they were because that’s the way we were able to file them,” said Craig Schauer, Griffin’s lawyer. “Some individuals in certain counties were identified because we were able to get that information from the state board. Others were not, and therefore they find themselves in different situations.”

The biggest twist came a few days before the hearing, when the state board filed an affidavit that said that of the more than 62,000 voters Griffin claims never provided a driver’s license or Social Security number when they registered, at least 29,971 actually had. 

There were several legitimate reasons voters’ registrations could be incomplete in the state database, the affidavit said. Many amounted to clerical errors.  

Schauer accused the state board of misleading them before filing that affidavit.

“They gave us data that showed that 60,000 people voted by absentee ballot and provisional ballot without providing the information required,” he said. “Now, on Monday, they file an affidavit that, for the first time, says, ‘Well, it turns out 30,000 additional people apparently have numbers, and we didn’t tell you this.’ Your Honor, I just have to say that it’s impossible to assess the integrity of an election if the agency that manages the election isn’t forthcoming with information necessary to determine the accuracy of the election results.”

Sneed, the elections board’s attorney, said Griffin merely asked for the names of people with missing database information, which is what he received. “It is quite the leap to go from a database entry issue to disenfranchising voters,” Sneed said. 

In court filings, the elections board argued that if a judge ruled that Griffin was right on the law, the election shouldn’t be overturned. Instead, the board said he needed to challenge all 65,000 voters individually and “provide challenged voters an opportunity to address any deficiencies that this Court identifies before their voters are discarded.”

In the months to come, the case will almost certainly come back to the state Supreme Court, where at least three Republican justices have signaled sympathy for Griffin’s claims. But even if the state Supreme Court rules for Griffin, it won’t be over. Federal courts still have jurisdiction over numerous federal voting rights issues that are potentially at play in the litigation. 

Pittman’s decision, in other words, is just another step on a long, long road. 

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

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