Griffin Takes His Case to His Court of Appeals Colleagues

On Friday, three N.C. Court of Appeals judges heard Jefferson Griffin’s case for why they should discard 65,000 votes from last year’s state Supreme Court election—the only 2024 race in the country not yet certified. By now, Griffin’s arguments in the long-running dispute are familiar. 

When the votes were counted, Griffin, a Republican Court of Appeals judge, was 734 votes behind Democrat Allison Riggs. But if the courts invalidate the votes Griffin says were illegally cast, he believes he’ll win. 

Specifically, he’s challenging three categories of voters: absentee and early voters who allegedly did not provide their driver’s license or Social Security numbers when they registered, as required by law; military and overseas voters from a few Democratic-leaning counties who weren’t required to provide photo identification when they voted; and a small group of overseas voters who have never lived in North Carolina but whose parents lived here. 

Riggs, the incumbent, has argued that Griffin is trying to retroactively change the rules. Both Riggs and the State Board of Elections have pointed out that nobody challenged the elections board’s rule exempting military and overseas voters from photo ID requirements before the election. Similarly, the state law allowing children of North Carolina ex-pats to vote was unanimously passed by a Republican-led General Assembly in 2011.  

The state elections board has also said that clerical errors account for many of the missing numbers in the registration database, and all of the voters with missing registration information had to present an ID to vote in November. 

While the arguments haven’t changed, the people hearing them have—and Griffin’s fortunes have often shifted with them. The elections board, with a 3-2 Democratic majority, dismissed Griffin’s challenge in December. He appealed to the Republican-dominated state Supreme Court, which kept his hopes alive, sparking outcries from voting rights advocates. Riggs tried to move the case to federal court, but a district judge appointed by President Donald Trump sent it back to state court, a win for Griffin. A Republican-majority appellate panel also declined to take the case but suggested it might intervene later. 

In February, a Democratic superior court judge in Wake County rejected Griffin’s challenge, which put it before the state Court of Appeals panel. (The court met Friday morning in a rare virtual hearing, possibly in an attempt to avoid a large crowd. About 800 people watched live on the court’s YouTube channel.) 

The state’s appeals court has a 12-3 Republican majority—Democrats haven’t won a Court of Appeals election since 2018—including Griffin. Chief Judge Chris Dillon appointed two Republicans and one Democrat to hear arguments. (Dillon became chief judge last year after his predecessor, Donna Stroud, angered Republicans on the state Supreme Court by hiring a Democrat as clerk of court.) 

At the hearing, a pattern reemerged. 

Toby Hampson, the Democrat, was skeptical of Griffin’s attorneys’ claims that they weren’t trying to rewrite election rules after the fact. After Craig Schauer, one of Griffin’s lawyers, told the court that “the right to vote is not absolute” and said Griffin’s challenges did not place a “severe burden” on voters, Hampson sounded incredulous. 

“How does the remedy you’re ultimately seeking not impose a severe burden on the right to vote?” he asked. 

But at least one Republican, John Tyson, seemed sympathetic to Griffin. He asked several questions that indicated that he thought the elections board had violated the law. He also noted that in James v. Bartlett, a 2005 case Griffin’s lawyers frequently cited, the state Supreme Court was willing to toss 11,000 votes because of an elections board error. 

Fred Gore, the panel’s other Republican, chastised the elections board for having so many data errors but appeared less willing to discard votes. A former National Guardsman who served in Iraq, he also seemed uncomfortable with disenfranchising military ballots. (Gore, the appeals court’s only Black judge, ran as part of a Republican slate with Griffin in 2020.) He asked Griffin’s and Riggs’ attorneys to reconcile the James decision with other precedents that discourage courts from disrupting elections. 

Griffin’s lawyers said the other cases don’t matter. Riggs’ lawyers said James is different; in that case, the elections board didn’t specify the rules before the election, so candidates couldn’t challenge them. They also pointed out that state precedents dating back more than a century said voters shouldn’t be punished for minor registration errors. 

It’s unclear when the appeals court will rule. Whenever it comes, the decision will almost certainly be appealed to the state Supreme Court. Still, the judges’ ruling could prove decisive. 

If the Supreme Court deadlocks, the Court of Appeals’ decision will stand—and that looks possible. Two justices, Democrat Anita Earls and Republican Richard Dietz, have objected to Griffin’s election challenge. Republican Justices Paul Newby, Phil Berger Jr., and Tamara Barringer have indicated that they think Griffin has a point. Riggs is recusing herself. 

That leaves Justice Trey Allen. If he sides with Earls and Dietz, the court will split 3-3 and defer to the Court of Appeals. 

But even if Griffin wins in state court, that won’t be the end. Riggs will appeal once more to the federal courts, arguing that the state violated voters’ constitutional rights by canceling their ballots. 

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

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