Jefferson Griffin’s Gambit Scores a Win

Jefferson Griffin’s gambit for a state Supreme Court seat has worked, for now. 

In a 2-1 ruling last week, the North Carolina Court of Appeals stopped short of giving Griffin everything he wanted, which is to throw out more than 65,000 legally cast ballots in hopes of ensuring his victory. But the court rejected more than 200 ballots and put the onus on other voters Griffin has challenged to “cure” their ballots within 15 business days of getting official notice from elections officials or risk having them tossed. 

And though this legal battle has already dragged on for nearly five months, the latest decision does not mark the end. Democratic incumbent Supreme Court Justice Allison Riggs and the State Board of Elections have filed notice of appeal to the state Supreme Court, whose Republican members have already shown some sympathy to Griffin’s cause. On Monday, the Supreme Court temporarily stayed the Court of Appeals’ decision. 

Riggs has recused herself, leaving four Republicans and one Democrat, Anita Earls. Richard Dietz has opposed Griffin’s efforts in previous rulings, leaving a possibility of a 3-3 tie that would uphold the Court of Appeals decision. If Riggs and the elections board lose at the state Supreme Court level, they can still go to federal court–which means there’s a chance that the only still-uncertified race in the country could ultimately be decided by the U.S. Supreme Court. 

Griffin, a Republican Court of Appeals judge, is 734 votes short in his bid to join the state Supreme Court, a tally that has withstood two recounts. Griffin wants to toss more than 65,000 ballots, representing three categories of voters: 60,273 from people he claims provided incomplete voter registration information; another 5,509 mail-in absentee ballots from military and overseas voters who were not required to provide photo ID; and 267 ballots from overseas voters who never lived in North Carolina, but whose parents were registered to vote before they left the country. 

Griffin isn’t arguing that these voters did anything wrong; he’s arguing that their ballots should be disqualified because he believes state elections officials broke the law by counting them. 

Friday’s opinion was issued per curiam, meaning the author is publicly unknown. But the two Republican judges who heard the case were John Tyson and Fred Gore. The third judge, Democratic Judge Toby Hampson, authored a dissent calling the majority’s proposed remedy to give challenged voters 15 days to “cure” their ballots a “fiction that does not disguise the act of mass disenfranchisement the majority’s decision represents.” 

Denise Carman, a 59-year-old Chatham County resident, is on the list of the 60,273 voters with incomplete registration forms. She said she has already filled out a new form through the county elections board that includes the information Griffin’s legal team contends is missing. (It’s unclear how many other affected voters have already tried to update their registration forms.) 

Carman was in Florida with her sick mother in January when she found out from a friend her vote was being challenged. She was in disbelief. After all, she works at her local precinct on election days because she considers it her civic duty and thought she was well-versed in the process. “Fun fact,” Carman told The Assembly. “I am the chief judge for my local precinct.”

A rush of anger soon followed. “Honestly, it upset me a lot,”she said. As she ranted in the Florida hospital room, her mother, who has since died, asked Carman what she was going to do about it. “I thought to myself, I’m going to find a way I can sue these people,” she said Friday.

And she did. She is one of the voters who teamed up with the Southern Coalition for Social Justice to file an amicus brief in the Griffin case.

The decision of the Court of Appeals majority assumes that every one of the 60,273 voters in question did not provide county elections officials with a driver’s license number or the last four digits of their Social Security number. State law allows people to be registered with a unique identifying number assigned by the elections board. 

The Court of Appeals majority assumes that in the absence of any of that information, these voters are not “lawfully registered to vote in North Carolina elections.” 

However, state elections officials have said those broad assumptions about ballots missing information are incorrect. The state board has said there are legitimate reasons why a voter’s license or Social Security number might not show up in the database, including transcription errors. In an affidavit, state elections board general counsel Paul Cox said he asked staffers to create a list of voters who met two criteria: their records showed incomplete voter registration information, and they voted early in the 2024 elections. That came to 62,027 voters. 

Cox found that in 28,803 cases, the voters did provide the required information on their registration forms, but when elections officials tried to validate the numbers through DMV and Social Security databases, there wasn’t an exact match. That could be due to a variety of reasons, including a change in name. Nonetheless, because there wasn’t an exact match, elections officials removed the driver’s license and Social Security numbers from the voter’s record in the database, Cox said. 

Judges Tyson and Gore concluded that the votes of military and overseas voters who sent in a mail-in absentee ballot without a photo ID should be tossed as well. They argue that State Board of Elections rules don’t trump state law requiring everyone to show photo ID when they cast a ballot, and that the General Assembly did not anticipate that certain people would be excluded when voters approved a photo ID constitutional amendment in 2018. 

A 2011 law said that all overseas and military voters needed to cast a ballot was to provide their name, birthdate, and Social Security number or driver’s license number, and to attest in a form that the information is accurate. Further authentication “is not required” for these “covered voters” under that law.

Because of litigation, the 2018 law didn’t take effect until 2023. It also didn’t specifically repeal the earlier statute governing overseas and military voters, so the State Board of Elections determined that those voters didn’t have to show photo ID to cast absentee ballots. 

When the State Board of Elections considered first temporary rules and later permanent rules about the photo ID requirement, few people flagged the rules’ exemption for military and overseas voters. No members of the Rules Review Commission—all appointed by the Republican-led General Assembly—-flagged the exemption either. And it didn’t feature in litigation before the November 2024 election. 

Tyson and Gore still contend that those voters should have been required to provide a photo ID. By the court’s logic, that should apply to all 32,034 military and overseas voters who cast ballots in the state Supreme Court race. But Griffin has only challenged 5,509 voters in four Democratic-leaning counties—Forsyth, Durham, Buncombe, and Guilford. Griffin’s legal team has said they had sought data from six counties from the state elections board but only received the information from the four. 

Finally, the Republican judges agreed that the 267 so-called “never residents” should not have been allowed to vote in North Carolina because they’ve never lived here. But elections officials say a state law passed in 2011—when Republicans controlled the General Assembly—allows them to vote. Tyson and Gore said those votes should be thrown out because there is no way those voters can “cure” their ballots since they cannot establish residency in North Carolina.  

In a sharply worded dissent, Hampson said Griffin has failed to provide evidence that any voter he has challenged did something wrong or was otherwise ineligible to vote. 

“Changing the rules by which these lawful voters took part in our electoral process after the election to discard their otherwise valid votes in an attempt to alter the outcome of only one race among many on the ballot is directly counter to law, equity, and the Constitution,” he wrote. 

The reaction to the ruling has been swift, with Gov. Josh Stein and others issuing condemnations. 

“Changing the rules after the election to throw out the votes of tens of thousands of North Carolinians who followed all of the rules is a travesty,” Stein said on X. “Jefferson Griffin’s neverending legal assault is undermining people’s faith in elections and the courts. He lost and should concede.”

The elections board issued a statement late Friday afternoon in an effort to provide voters information on what’s next: “The court’s decision is not yet in effect and is likely to be appealed. If the court’s decision does go into effect, the State Board of Elections will provide instructions to affected voters on how to comply with the court’s decision.”

Riggs announced quickly that she would appeal “this deeply misinformed decision.”

Griffin didn’t personally issue a statement, but the Jefferson Griffin Committee, his campaign, called the ruling a “win for the citizens of North Carolina.” 

The N.C. Republican Party issued a statement describing the ruling as “vindicating.” “This decision and order finally holds the N.C. State Board of Elections accountable for their actions and confirms every legal vote will be counted in this contest,” it read. “For months, Judge Griffin and the NCGOP have endured baseless attacks and incendiary rhetoric in this matter. Throughout this time, our position has been consistent: when the debate is about the merits, Judge Griffin will prevail in his election integrity concerns.”

But many voters, such as Carrie Conley, 41, are in uncertain waters. Conley is one of the overseas voters who found out through an Instagram account that her vote is being challenged. Someone sent her the list in January after she commented under a post that she was a “military slash overseas voter,” adding that her “name better not be on the list.” 

“I was just sitting on the sofa one night, and I went and checked, and I looked at my husband, and I said, ‘Holy moly, my name’s on this list,’” Conley told The Assembly in a video call from Italy, where her husband is stationed while serving in the U.S. Army. “My husband can attest. I am quite passionate about someone trying to take my vote away.”

Conley grew up in North Carolina and is registered to vote in Guilford County, as she has been her entire adult life. Last fall, she voted with an absentee ballot that she filled out through the state board of elections online portal for military and overseas citizens outside the United States that requires voters to provide a Social Security number and click a button attesting that they are who they say they are. No one mentioned at any point, she said, that a copy of her ID was needed.

 “I would be OK if he was trying to amend the law for future elections, doing it in the right way of course,” she said of Griffin. “I don’t understand how he’s been able to say, ‘They didn’t provide ID’ when … the amendment says that I don’t have to, and nowhere in this process has the Guilford County Board of Elections stated that I need to do this. 

“If it were stated that I needed to do it, I would have absolutely done it,” she added. “I hate to use the word ‘steal,’ but it seems to me like a person who’s bitter that they lost trying to change the rules.”

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.