More than 61,000 voters challenged by NC Supreme Court candidate Jefferson Griffin have 15 business days to prove their eligibility, or have their ballots removed from the count in Griffin’s 2024 bid to unseat Justice Allison Riggs, according to a Friday ruling from a three-judge panel of the NC Court of Appeals. 

After all votes were tallied in November, the contest came down to 734 votes, with incumbent Riggs, a Democrat, in the lead. Soon thereafter, Griffin, a Republican Court of Appeals judge, asked for recounts and filed election protests. 

The recounts maintained Rigg’s lead, while the State Board of Elections dismissed the protests. 

Since then, Griffin’s legal challenges and countering lawsuits from Riggs have made their way through state and federal courts on their path to a delayed resolution while Riggs retains her seat. 

Friday, the most significant decision in the case came down from two Republican justices on the North Carolina Court of Appeals. In a 2-1 decision from the panel, the court declared that Griffin’s protests were valid.  

Incomplete voter registrations

The panel majority ruled that the largest portion of challenged voters, those who have “incomplete voter registrations” without a driver’s license or Social Security number included in their elections records, are ineligible to vote because they were not registered to vote correctly.

The blame lies squarely on the State Boards of Elections, which did not update voter registration form to make that information required in accordance with the federal Help America Vote Act, the panel majority opinion states. 

Once the issue was identified in 2023, the State Board issued a new registration form, but didn’t go back and contact registrants who didn’t list a driver’s license or Social Security number, or check a box saying they had neither to be assigned a unique identification number. 

Now, the appellate court panel says those voters are ineligible. The majority emphasized that the court has the right to remove ballots cast by these voters from the count, but is choosing not to do so immediately. 

Instead, they are returning the case to the Wake County Superior Court, and instructing them to tell the State Board to contact impacted voters to provide them an opportunity to fill in the missing information. If voters do so within 15 business days of notification, their votes will count. If not, they will be removed from the count for the Supreme Court race, but not other races. 

Overseas and military photo ID

The court panel ruled similarly on Griffin’s second protest, which challenged overseas and military voters who did not provide photo identification with their absentee ballots. 

During legal proceedings, the State Board has argued that under the state’s Uniform Military and Overseas Voters Act, overseas and military voters are exempt from the voter ID requirement. UMOVA is contained in a separate statute from the one including photo ID requirements, and the Board argued that was intentional. 

The appellate court panel disagreed. It ruled that the two statutes were intended to be read together, and that all voters are subject to the photo ID requirement. 

Again, implicated voters have 15 business days to provide photo identification or an exception form, or be removed from the count. 

In his dissent, Judge Toby Hampson, the loan Democrat on the panel, said providing time to fix these issues does not make up for the fact that impacted voters followed the rules available to them at the time. 

“The proposition that a significant portion of these 61,682 voters will receive notice and timely take curative measures is a fiction that does not disguise the act of mass disenfranchisement the majority’s decision represents,” Hampson wrote. 

Panel nixes ‘Never Residents’

North Carolina law includes an exception to the state constitution’s residency requirement for a small subset of voters labeled “Never Residents:” overseas U.S. citizens who were born outside the country and whose parents or legal guardians’ last residence was North Carolina. 

Friday, the appellate court ruled that statute ran afoul of the state Constitution, and voided the votes of Never Residents. 

Panel dissent and equal protection issues 

Hampson’s dissent had a few arguments that may be seen again in future litigation. 

First, he questioned the timing of Griffin’s protests. The statutes and Board interpretations that are being challenged have been in existence for several election cycles. 

The majority declared that eligibility is determined as of Election Day, Hampson noted. 

“Despite professing this basic tenet, the majority changes the rules of the 2024 election — and only for one race — months after election day,” he wrote. “It does so even though there is no actual showing or forecast that any challenged voter was not registered or otherwise unqualified to vote.”

Second, Hampson objected to which votes are being challenged. All protests include only early and absentee voters, since that was the information Griffin had available at the time he filed them.

Additionally, the overseas and military photo ID protest only includes Guilford County ballots. 

“Each of these voters is at risk of being disenfranchised while similarly-situated voters are not, simply because of the county in which they reside, when they cast their ballot, or their physical location,” Hampson wrote. 

What’s next after appeals panel? 

The appellate decision may be key in determining the ultimate outcome of the race. 

Riggs has already declared her intention to appeal the decision to the North Carolina Supreme Court, calling it a “deeply misinformed decision that threatens to disenfranchise more than 65,000 lawful voters and sets a dangerous precedent, allowing disappointed politicians to thwart the will of the people.”

However, if the North Carolina Supreme Court comes to a very possible 3-3 tie, the appellate court’s decision would be the one that stands. Either way, if the state high court fails to take the case or acts to leave the panel’s ruling in place, Riggs’ legal team has indicated it will likely return the case to the federal courts on equal protection grounds. 

The State Board also issued a statement saying that they would comply with the order, if it goes into effect.

“Regardless of the ultimate outcome of this ongoing legal dispute, any voter who is concerned that their voter registration information is incomplete or is not up to date should submit an updated voter registration form,” the statement read. 

Democratic National Committee Chair Ken Martin was less neutral. 

“This partisan decision has no legal basis and is an all-out assault on our democracy and the basic premise that voters decide who wins their elections, not the courts,” he said in a statement. “If upheld, this could allow politicians across the country to overturn the will of the people.”

While Griffin has stayed mum since November, North Carolina Republican Chairman Jason Simmons called the ruling a “victory for the rule of law and election integrity” in a social media post. 

“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,” he wrote. 

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