The ongoing saga over the race for a North Carolina Supreme Court seat is in the hands of the Fourth Circuit Court of Appeals, for now.
On Tuesday morning, the state board of elections appealed to the 4th Circuit, just a few hours after a federal district court judge granted Republican judicial candidate Jefferson Griffin’s motion to remand his election protest lawsuit to the state Supreme Court.
Griffin, a judge on the North Carolina Court of Appeals, trails Democratic incumbent Allison Riggs by 734 votes, a gap confirmed by two recounts. But Griffin has been trying to have more than 60,000 ballots invalidated — and deducted from the vote count — over alleged irregularities, including purportedly incomplete voter registrations.
Last month, the five-member Democratic-majority state elections board held hearings and dismissed Griffin’s protests due to a lack of evidence of actual voter ineligibility as well as inadequate notice to affected voters.
Then Griffin circumvented the typical state court appeals process and filed a writ of prohibition with the heavily conservative state Supreme Court asking the justices to block the elections board from certifying his electoral loss.
Attorneys for the elections board had the matter removed to federal district court because, they have argued, it raised questions of federal law and threatened to undermine U.S. Constitutional protections against disenfranchisement.
In most of the cases, Griffin has alleged the disputed ballots were cast by voters who did not properly register under North Carolina law. The issue has to do with voters who registered — many years and election cycles ago — using a form that predated the federal Help America Vote Act, or HAVA, of 2002. The pre-HAVA registration form did not clearly mandate registrants provide the last four digits of their Social Security number or their driver’s license number.
Griffin’s protests notwithstanding, neither state law nor HAVA makes having a Social Security number or a driver’s license number a prerequisite for voting.
In cases where elections officials cannot confirm the last four digits of a voter’s Social Security number or that person’s driver’s license number — often due to a clerical error — that voter must present a so-called HAVA document, such as a utility bill, when they first show up to vote.
And if a person registering to vote does not have a Social Security number or a driver’s license number, HAVA provides that a state elections administration office must assign the voter a special identification number for the purposes or registering.
However, Griffin’s attorneys countered that while state election law incorporates HAVA the GOP judicial candidate’s case involves a state election and concerns interpretations of state, not federal, law.
Griffin has also protested the counting of hundreds of ballots submitted by some absentee military and overseas voters who did not provide photo identification, even though state administrative code, in accordance with federal law, explicitly excuses such overseas voters from that requirement.
Additionally, Griffin has alleged some ballots should be discarded because they were cast by ineligible voters who live overseas. These protests claim children of overseas voters — for example, missionaries and military personnel — who had never resided in North Carolina, should not have been allowed to vote, though such voters are eligible under state law, again, in line with federal laws protecting the voting rights of overseas citizens.
On Monday, Judge Richard E. Myers II, appointed to the federal bench by Donald Trump, ruled in Griffin’s favor and remanded the case to the state Supreme Court “with due regard for state sovereignty and the independence of states to decide matters of substantial public concern.”
Now that the elections board – along with other advocacy groups intervening in the matter – has appealed that remand order, it will be up to the Fourth Circuit Court of Appeals whether this matter is resolved at the state or federal level.
As for the electoral contest between Justice Riggs and Judge Griffin, the state elections board is poised to certify the results Friday barring court intervention.
