Some N.C. Supreme Court Republicans Seem Willing to Overturn Griffin’s Defeat

Update: The Docket has more on what happened at the Fourth Circuit U.S. Court of Appeals on January 27.

On January 22, the North Carolina Supreme Court unanimously declined to overturn Jefferson Griffin’s failed bid for a seat on the high court—for now. While the justices remanded the case to Wake County’s superior court, it could return to the Supreme Court later this year.  

Several justices indicated that they’ll be willing to indulge Griffin’s requests if it does. 

Griffin, a Republican Court of Appeals judge, trails Democratic incumbent Justice Allison Riggs by 734 votes. But as The Assembly reported, Griffin wants to throw out more than 65,000 ballots from early and absentee voters he says had incomplete registration information, absentee 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.

Griffin has not argued that these voters did anything wrong. Rather, he claims that State Board of Elections rules that allowed them to vote are illegal, which should nullify their ballots. The elections board denies that its rules violated state law. 

In December, the Board of Elections rejected Griffin’s protests, dismissing his legal rationale and arguing that it would be unfair to change the rules after the election. 

Griffin asked the state Supreme Court to block the board from certifying the contest, bypassing a normal process that would have required him to first make his case in Wake County, where the elections board is located. Critics argued that Griffin was seeking a friendlier audience with the high court’s Republican majority; he has called Chief Justice Paul Newby a “good friend and mentor,” and the spouses of both Newby and Republican Justices Tamara Barringer and Richard Dietz have collectively donated more than $21,000 to Griffin’s campaigns. (Barringer’s husband, Brent Barringer, is also an Assembly investor.) 

Four Republican justices obliged, issuing a temporary stay in early January and ordering the parties to file expedited briefs. Democrat Anita Earls and Republican Richard Dietz dissented. Riggs recused herself. 

“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,” Dietz wrote. 

Griffin filed his brief on January 14. Riggs responded on January 21. The next day—likely before the justices could consider Riggs’ arguments—the state Supreme Court dismissed Griffin’s request for a so-called writ of prohibition and pointed him toward Wake County’s superior court. 

Earls found the decision’s timing curious. 

“The Court apparently determined that [Griffin’s] request for extraordinary relief was improper after ordering expedited briefing … two weeks ago,” she wrote in a separate opinion attached to the court’s order. “This Court has since received over 700 pages of briefing in this matter, nearly half of which was submitted yesterday by 11:59 pm. Yet today the Court determined that ‘the issues before the Court are fully developed’ and ready for resolution.”

Earls found it more troubling that her Republican colleagues kept the stay in place—which, according to state law, indicates that “the petitioner is likely to prevail”—and, she believed, signaled to lower courts their desired outcome. 

“The Order reiterates that the petitioner has identified ‘potentially illegal votes’ while citing case law to suggest that a constitutional violation will result from ‘unlawful votes’ diluting other ballots,” Earls wrote. “I do not join in that signal. We cannot overturn the results of an election on potentials.”

The order, written by Republican Justice Trey Allen, indeed noted that counting “ineligible” ballots could negate an election. Newby’s concurring opinion went further. 

The chief justice called it “highly unusual” that Griffin was ahead on election night but fell behind when all the votes were counted. It’s unclear whether Newby meant to raise the possibility of fraud or vote-counting improprieties—which Griffin has not alleged—but it’s not unusual for late absentee and provisional ballots to shift leads in close elections. 

Newby’s comments “show a complete lack of understanding of how elections are conducted,” said Gerry Cohen, a Wake County Board of Elections member and former General Assembly special counsel. 

Newby also chided Griffin’s critics for accusing him of trying to “disenfranchise” voters. He called Griffin’s complaints “valid” and said they “may affect the outcome of the election.” Barringer and Justice Phil Berger Jr. cosigned. 

In his own concurrence, Berger 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. Barringer cosigned. 

Separately, Barringer said she would have preferred for the Supreme Court to decide the case now, rather than letting it “twist in the jurisprudential winds.” After all, regardless of what the superior court decides, the Supreme Court gets the last word. 

But with Riggs recusing herself, the Supreme Court could deadlock. The justices appear to be leaning toward a 3-3 split or a 4-2 decision in Griffin’s favor, depending on where Allen lands. 

By law, a split Supreme Court leaves in place the decision of the immediate lower court. Usually, that’s the Court of Appeals, where Republicans control 12 of 15 seats. But if Griffin loses in the superior court and appeals, Riggs might ask the state Supreme Court to bypass the appeals court and decide the case directly, Cohen said. If the Supreme Court agrees and deadlocks, the superior court’s ruling would stand. (The underlying legal and constitutional disputes would remain unsettled.)  

The state courts’ partisan makeup is likely one reason Riggs and the State Board of Elections want to move the case to federal court, which can assume jurisdiction if there are questions of federal law. 

In early January, U.S. District Judge Richard Myers II, an appointee of President Donald Trump, declined to take the case. Riggs and the state board appealed to the Fourth Circuit Court of Appeals, arguing that granting Griffin’s “astonishing request to retroactively disenfranchise” voters “would violate numerous federal civil rights laws,” including the Voting Rights Act of 1965 and the National Voter Registration Act of 1993. 

In their filing, the board points out that Griffin is challenging early and absentee voters with incomplete registrations, but not those who voted on Election Day with the same deficiencies. (Election Day ballots cannot be traced back to individuals and challenged.) That violates the Equal Protection Clause of the 14th Amendment, the state board says. 

The same logic could also apply to military and overseas voters who did not present a photo ID, since Griffin wants to disqualify 5,509 of these ballots from four heavily Democratic counties, but not more than 26,000 others from the other 96 counties. (As political scientist Chris Cooper pointed out, 92 percent of these contested voters cast their ballots through a portal that did not provide a way to submit a photo ID even if they wanted to.)

Oral arguments are scheduled for Monday. 

After the state Supreme Court sent his case to the Wake County Superior Court on Wednesday, however, Griffin’s attorneys asked the Fourth Circuit to postpone the hearing and assess “the impact of this new order on the merits of this appeal and the Court’s jurisdiction.”

Riggs’ attorneys said the opposite was true. They told the Fourth Circuit that the state Supreme Court’s ruling “clears the way for this Court to act and bolsters the case for expedited consideration. … The [state] Supreme Court’s first sitting is now less than three weeks away (on February 11). All agree that the parties and public have a strong interest in finality before that first sitting. Only this Court is placed to provide it.”

As of Friday afternoon, Monday’s oral arguments still appeared on the Fourth Circuit’s calendar. 

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

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