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After six months of high-stakes legal drama, Jefferson Griffin’s concession last Wednesday seemed anticlimactic. By that point, he had few cards left to play.
Two days earlier, U.S. District Judge Richard Myers II, an appointee of President Donald Trump, forcefully rejected Griffin’s attempt to discard thousands of votes and overturn his narrow defeat in the 2024 North Carolina Supreme Court race, saying he would not “change the rules of the game after it had been played.” Myers ordered the State Board of Elections to certify Democratic incumbent Allison Riggs the winner.
Griffin, a Republican judge on the state Court of Appeals, could have appealed. But after failing to persuade the conservative Myers, he was unlikely to do better with the liberal-leaning U.S. Court of Appeals for the Fourth Circuit. Instead, he folded.
In posts on X, the state Republican Party applauded Griffin for bringing to light “serious election integrity issues” despite being the target of “vicious attacks, smears, and lies.” Democrats and voting-rights advocates, meanwhile, claimed victory over what they described as Griffin’s self-serving effort to undermine the legitimacy of the state’s elections.
But Griffin’s challenge did more than rekindle long-simmering partisan debates over election administration. It also raised questions about the credibility of the state’s judiciary. Republicans on the state Court of Appeals and Supreme Court indulged arguments that would have disenfranchised thousands of eligible voters while overlooking the glaring constitutional defects that formed the basis of Myers’ 68-page decision.
“This is not what I would say is a hard case of complicated facts or law,” said attorney John Paredes of Protect Democracy, which filed a class-action lawsuit on behalf of some of the voters Griffin targeted. “And yet we saw the [Court of Appeals] and the Supreme Court ruling, basically along party lines, in such a way that ultimately a federal judge who happened to be appointed by President Trump ruled violated constitutional rights. Now, what does that tell us about the state courts?”
Some Republicans have voiced concerns about the political havoc Griffin might leave in his wake.
“Over the past decade, Republican candidates built a reputation as serious-minded referees—judges who applied the law without twisting it to fit their worldview,” Andrew Dunn, a former Republican operative, wrote in a News & Observer column. “Griffin’s case undermined that image, handing Democrats a powerful talking point.”
In interviews with The Assembly, several analysts warned that Griffin’s ultimate legacy might be voters losing faith in the judiciary.
“That’s something that really worries me going forward,” said Marcus Gadson, a constitutional law professor at Campbell University in Raleigh. “Frankly, I don’t think that we can afford for our court system to be seen as another partisan institution. If you look at most of our partisan institutions in the country, they’re very unpopular. People are losing trust in those institutions.”
‘Targeted Disenfranchisement’
In December, after recounts found Riggs ahead by 734 votes, Griffin asked the state Board of Elections to throw out more than 65,000 ballots, most of them on a technicality.
He claimed that about 60,000 early and absentee voters had not provided a required driver’s license or Social Security number when they registered. (The State Elections Board later said many missing numbers were the result of clerical errors.) Griffin didn’t allege that any of these voters were ineligible or had committed fraud, and all had presented an ID to vote.
Griffin also sought to disqualify the ballots of several hundred “never residents”—adult children of former North Carolina residents who allegedly checked a box saying they’d never lived in North Carolina. In 2011, the Republican-led General Assembly unanimously passed a law giving them the right to vote in state elections. It went unchallenged for 43 consecutive statewide elections. But Griffin wanted the statute declared unconstitutional and their votes discarded. As The Assembly later reported, dozens of “never residents” were wrongly categorized.
“This is not what I would say is a hard case of complicated facts or law.”
John Paredes, Protect Democracy
Finally, Griffin challenged the ballots of more than 5,500 military and overseas voters who did not show an ID when they voted. That’s because in February 2024, the state elections board exempted these voters from the state’s voter ID requirement, citing the 2011 law that governed overseas voting. No one objected. But after Griffin lost, he argued that the voter ID law that took effect in 2023 superseded the 2011 statute, though the General Assembly never repealed it.
Griffin challenged overseas voters only from four overwhelmingly Democratic counties, not from the entire state. His lawyers said that only those counties provided lists of voters to target. But Gerry Cohen, a former legislative general counsel who is now a Democratic member of the Wake County Board of Elections, questions that explanation.
Cohen told The Assembly that three days after the election, Griffin could have downloaded a file from the state elections board’s website containing the names of about 30,000 overseas voters who used the board’s online portal—more than 90 percent of all overseas voters.
“That wouldn’t have been targeting just Democratic counties,” Cohen said. “It would have been very simple to do.”
The state elections board rejected Griffin’s protests. Under state law, candidates normally appeal the board’s decisions to the Wake County Superior Court. But Griffin skipped directly to the N.C. Supreme Court, where Republicans hold a 5-2 majority. (Riggs, one of the two Democrats, would recuse herself.) Griffin had called the Republican chief justice, Paul Newby, his “good friend and mentor.” Newby’s wife, along with the spouses of Republican justices Tamara Barringer and Richard Dietz, had donated more than $21,000 to Griffin’s campaigns.
In January, the court agreed to hear Griffin’s case. Of the Republican justices, only Dietz objected. “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.
Two weeks later, the justices abruptly reversed course, remanding the case to Wake County Superior Court. In concurring opinions attached to the order, Newby, Barringer, and Phil Berger Jr. signaled sympathy for Griffin’s arguments. Newby questioned how Griffin’s election night lead dwindled in the days that followed.
“That is a highly unusual course of events,” he wrote. “It is understandable that [Griffin] and many North Carolina voters are questioning how this could happen.”
In fact, it’s not uncommon for leads to shift in close races as late absentee, provisional, and some overseas votes are tallied—which Newby should know. In 2020, he narrowly led then-Chief Justice Cheri Beasley on election night, only to see Beasley claim the lead a few days later, before Newby ultimately won by 401 votes.
Superior Court Judge William Pittman, a Democrat, quickly dismissed Griffin’s challenges after a one-day hearing. Griffin pleaded his case to the N.C. Court of Appeals. The two Republicans on the three-judge panel, John Tyson and Fred Gore, ruled in Griffin’s favor on April 4. They threw out the votes of alleged “never residents” and gave overseas voters and those missing registration information 15 business days to “cure” the deficiencies.
“That is a highly unusual course of events. It is understandable that [Griffin] and many North Carolina voters are questioning how this could happen.”
Chief Justice Paul Newby
The decision—which neither judge signed—largely avoided constitutional questions of due process and equal protection. Judge Toby Hampson’s fiery dissent, which ran twice as long as the majority’s opinion, did not.
“Each of these voters is at risk of being disenfranchised while similarly situated voters are not,” Hampson wrote. “The type of targeted disenfranchisement represented by these challenges not only engenders distrust in our electoral processes but also discourages participation in voting—a fundamental underpinning of our democratic system.”
On April 11, the N.C. Supreme Court partially ruled for Griffin, though the Republican justices excised the most politically toxic piece of the Court of Appeals’ decision. In a sparse six-page order, the court said the 60,000 voters with allegedly incomplete information would have their ballots counted, reasoning that they had shown an ID, and that was good enough.
But the overseas ballots would be disqualified unless voters provided an ID within 30 days—no easy feat, considering many of them would be nearly impossible to notify. They also said the “never resident” ballots would be tossed, and those voters wouldn’t have a chance to challenge their designation. The words “equal protection” or “due process” don’t appear in the majority’s opinion.
Republican justices Newby, Barringer, Berger, and Trey Allen voted for the order, which was written by Allen; Dietz and Democratic Justice Anita Earls opposed it.
Had the case ended there, Allen’s order would likely have made Griffin a Supreme Court justice. Instead, Riggs took the case to federal court, where Myers proved less willing to retroactively disenfranchise thousands of voters.
‘Eviscerates’
Myers probably wasn’t Democrats’ first choice to hear Riggs’ appeal.
All four district judges in the Eastern District of North Carolina were appointed by Republican presidents. But Myers, the district’s chief judge, was its only Trump appointee, tapped in 2019 to fill the country’s oldest judicial vacancy.
A Jamaican-born former prosecutor and UNC-Chapel Hill School of Law professor (and, long ago, a reporter for the Wilmington StarNews), Myers had impeccable credentials. He was also unassailably conservative—a member of the Federalist Society, the National Rifle Association, and the evangelical Christian Legal Society.
That made Democrats nervous. His early decisions didn’t ease their anxieties. In January, Myers rejected Riggs’ first request for federal courts to intervene. Then, as he considered Riggs’ appeal of the N.C. Supreme Court’s order, Myers said he would allow the State Elections Board to proceed with “curing” allegedly defective ballots, which critics said would sow confusion. (The Fourth Circuit reversed him on that issue.)
Myers’ decision last week pointedly declined to criticize state judges. But experts told The Assembly they read his opinion as a direct repudiation.
“Myers, in his opinion, says, ‘Well, I’m not faulting the state courts. They were just deciding state law issues,’” said Michael Crowell, an expert on constitutional law and voting rights and a former associate director of the UNC-Chapel Hill School of Government. “In fact, his opinion just eviscerates what the state courts did.”
At points, Myers’ ruling seems almost incredulous, as if he can’t fathom how North Carolina’s courts failed to notice the flashing neon lights pointing to constitutional flaws in Griffin’s arguments. The state courts, he said repeatedly, can interpret state election laws as they please. But they cannot “alter the rules of an election after the fact and apply those changes retroactively to only a select group of voters.”
Myers pointed out that this was settled law. In Bush v. Gore, the hotly contested 2000 case that made George W. Bush president, the U.S. Supreme Court ruled that states could not treat voters differently. In the Bush case, that meant that Florida could not recount disputed ballots from a handful of counties using different standards.
That principle applied to the N.C. Supreme Court’s requirement that overseas voters in some counties, but not all, retroactively provide an ID to have their ballots counted.
“When the underlying basis for a protest is a rule that applies statewide, a geographically selective protest raises equal protection concerns and the specter of post-election mischief,” Myers wrote.
Long-established precedent also required Griffin to object to the military and overseas voter ID rule before the election. “The federal courts of appeals uniformly look askance at post-election challenges that contest conditions existing prior to the election,” Myers explained.
These overseas voters relied on the guidance of the state elections board. They couldn’t anticipate that state courts would later disagree with the board’s interpretation of state law and jeopardize their ballots. That violated their right to due process, Myers wrote.
Similarly, Myers was bothered by the state courts’ rejection of “never resident” ballots without offering them a chance to contest their designation. The evidence showed that more than 10 percent of the alleged “never residents” were miscategorized, Myers pointed out. “Judge Griffin makes no attempt to counter that evidence.”
Yet Griffin—and the state courts—wanted their ballots invalidated without giving them “an opportunity to be heard.” That placed an “unconstitutional burden” on their right to vote, Myers determined.
Some of these issues could potentially be ameliorated, Myers wrote. Griffin could have protested the ballots of all overseas and military voters. The state could give wrongly identified “never residents” an opportunity to appeal. But nothing could address the fundamental problem: fairness.
A long-standing doctrine bars federal courts from changing rules just before an election. That doctrine “surely forbids retroactive tinkering,” Myers wrote.
“That principle will be familiar to anyone who has played a sport or board game,” he continued. “You establish the rules before the game. You don’t change them after the game is done.”
‘Erode Confidence’
Analysts said that Myers’ ruling will likely shut down future attempts by North Carolina politicians to rewrite election laws after votes are cast. Put simply, the federal court said in no uncertain terms that it won’t tolerate state judges invalidating eligible voters’ ballots.
“I would like to hope that something good will come of this,” said Marshall Hurley, an election lawyer who used to represent the state Republican Party. “The final word is from Judge Myers, and it’s resoundingly supportive of the voting rights of North Carolina voters. Maybe that’s going to be what people remember—and maybe a strong reminder to our state courts of where our priorities should be in this area of the law.”
That doesn’t mean Griffin’s challenge won’t have long-term effects, however.
“It’s extremely dangerous, especially now in this atmosphere where, thanks to Donald Trump, many millions of people believe that our elections are regularly rigged and stolen, despite all reliable evidence on the contrary,” said Richard L. Hasen, an election law expert and director of the Safeguarding Democracy Project at the UCLA School of Law. “That creates an atmosphere where more people are willing to tolerate judicial decisions that would overturn elections.”
“You establish the rules before the game. You don’t change them after the game is done.”
U.S. District Judge Richard Myers II
Over the last decade, Republicans have frequently battled the Democratic-controlled State Board of Elections—including in court—accusing it of twisting the rules and ignoring the law. But that probably won’t be an issue any longer.
On May 7, Republicans claimed control of the elections board, after the General Assembly passed a law in a lame-duck session last year transferring control of the board from the governor (a Democrat) to the state auditor (a Republican, and now the only state auditor in the country who runs elections).
The auditor, the Trump-endorsed Dave Boliek, appointed former Civitas Institute leader Francis De Luca and former state Sen. Bob Rucho to the elections board. At Civitas, De Luca pushed to end same-day registration and shorten early voting, among other restrictions. Rucho led gerrymandering efforts in the General Assembly; he’s the named plaintiff in Rucho v. Common Cause, the U.S. Supreme Court case that blessed partisan gerrymandering.
The new Republican-led board immediately fired director Karen Brinson Bell, then adjourned without allowing her to give a farewell speech. She told the meeting’s remaining attendees: “I hope we return to a time when those who lose elections concede defeat rather than trying to tear down the entire election system and erode voter confidence.”
Republicans, who had not controlled the board since 2016, argued that voter confidence was already eroded. “Restoring confidence in the State Board of Elections will take time, but we are hopeful in the new direction that began today,” NCGOP chairman Jason Simmons said in a statement.
Gov. Josh Stein had sued to block the change. On April 23, a bipartisan panel of Wake County judges ruled 2-1 that the law was unconstitutional. In a 16-page decision, they found that the law violated both the “plain text of the Constitution” and “binding Supreme Court precedent.”
On April 30, a three-judge Court of Appeals panel issued a one-page order allowing the law to take effect. The judges didn’t reveal their names, hear oral arguments, or provide a rationale. Without an upcoming election or cause for urgency, that struck some observers as unusual, Crowell said. It fed speculation that the Court of Appeals—where Republicans control 12 of 15 seats—hoped the state elections board, which had aligned with Riggs, would switch sides in the Griffin case. (Myers ruled before the new board was sworn in.)
“Coming on top of the Griffin case, it further tarnishes the court, the reputation of the courts,” Crowell said.
‘A Double Hit’
Since Newby became chief justice in 2021, the state’s court system has been battered by accusations of politicization. Newby put Republican operatives into key positions, and his dissents grew increasingly strident as the court’s Democratic majority issued far-reaching party-line decisions.
When Republicans claimed the court’s majority following the 2022 elections, they promptly overturned several recent precedents, including reinstating a voter ID law and greenlighting legislative gerrymandering. North Carolina Democrats have made it a priority to take back the Supreme Court before the next round of redistricting, which will follow the 2030 elections. To do so, they’ll need Justice Anita Earls to win in 2026, then prevail in at least two of the five Republican-held seats on the ballot in 2028 and 2030.
Given their track record, that’s a tall order. Including Riggs’ victory, Democrats have gone 1-for-18 in statewide judicial elections since 2020.
Partisanship isn’t new to North Carolina’s judicial elections, nor has it been one-sided.
After Republicans swept Supreme Court races in 1998 and 2000, the Democratic-led General Assembly made statewide judicial elections nonpartisan. In 2016, after Republicans claimed the legislature, they added party labels to Court of Appeals races, then to the Supreme Court in 2018—becoming the first state in a century to make nonpartisan high court elections partisan.
For Republicans, that chance has proven strategic. Voters typically know little about judicial candidates, so elections often reflect the electorate’s partisan divide. That usually gives Republicans a slight advantage. Republicans won the three Court of Appeals races last year by between 2 and 4.5 percentage points. Griffin was the first Republican to lose a statewide judicial race since 2018.
But supporters point out that many voters skip nonpartisan elections. And having nonpartisan contests wouldn’t stop parties from rallying behind and spending millions of dollars on candidates, as this year’s contentious Wisconsin Supreme Court race illustrated.
Critics counter that having partisan judges primes the public to view judges through a partisan lens.
“Partisan elections are the worst kind of elections, because they send the message to the voters that this must be important,” said Crowell. “If it’s important in choosing them, it must be important in the decisions they make.”
Alternatives have shortcomings, added Gadson, the Campbell University professor. But “the way we’re doing things now is just tailor-made to sow distrust in our judiciary.”
State courts’ actions in the Griffin case exacerbated that distrust, analysts told The Assembly. They also undermined trust in elections by suggesting that Riggs’ victory was illegitimate, said Hasen, the UCLA professor.
“It’s a double hit to the system,” he said. “People will rightly look at the state Supreme Court as a more partisan institution, one that is willing to break democratic norms to achieve political ends. And it also makes people think that our election system is being run in a way that is either unfair or is full of fraud.”
Disclosure: Brent Barringer, the husband of state Supreme Court Justice Tamara Barringer, is an investor in The Assembly.
Jeffrey Billman reports on politics and the law for The Assembly. Email him at jeffrey@theassemblync.com.