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.

Republican judicial candidate Jefferson Griffin is getting the audience he wanted for his claim that 60,000 ballots should be invalidated in his electoral loss to Democrat Allison Riggs. A federal district court judge has remanded Griffin’s election protest to the heavily conservative state Supreme Court, the same court Griffin is trying to join.

After the general election and two recounts — a statewide machine recount and a partial hand-to-eye recount of ballots from randomly selected early voting sites and Election Day precincts in each county — Allison Riggs, the Democratic incumbent, holds a 734-vote lead over Griffin.

The vote count notwithstanding, Griffin, a judge on the North Carolina Court of Appeals, has fought to throw out more than 60,000 ballots for alleged irregularities despite lacking evidence of any actual voter ineligibility.

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 — some of them 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.

Griffin has also protested the counting 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.

After the state elections board dismissed Griffin’s ballot protests due to a lack of evidence of improper voting and a failure to provide affected voters with adequate notice, the Republican candidate filed a writ of prohibition directly with the state Supreme Court.

Griffin circumvented the typical state court appeals process and asked the high court to block the elections board from certifying his electoral loss.

Attorneys for the state elections board had the case removed to federal court because, they argued, it raised federal questions about HAVA and other U.S. Constitutional voting rights protections.

But attorneys for Griffin disagreed and argued in their briefs to Judge E. Richard Myers II of the U.S. District Court for the Eastern District of North Carolina that the matter at hand concerned an election for state office and unsettled questions of state, not federal, law.

Those arguments carried the day with Myers, a Donald Trump appointee, who, on Monday evening, remanded the case back to the North Carolina Supreme Court.

“Should a federal tribunal resolve such a dispute?” asked Judge Myers in his order, referring to the Griffin’s claims the disputed ballots should be invalidated.

“This court, with due regard for state sovereignty and the independence of states to decide matters of substantial public concern, thinks not,” Myers wrote, answering his own question.

The fact that North Carolina’s registration statute refers to, and aligns with, HAVA, did not sway Myers that the Griffin protests belong in federal court.

“Because Griffin’s first challenge does not require resort to HAVA,” Myers wrote in this order, referring to Griffin’s protests over allegedly incomplete voter registrations, “it does not necessarily raise a question of federal law.”

The challenges to overseas voters who never resided in North Carolina and military and overseas voters who did not provide photo IDs also only require interpretations of state law, according to Myers.

The state elections board was poised to certify the results of the election by Friday barring a court’s intervention. Judge Myers’s order could be appealed to the Fourth Circuit Court of Appeals.

The general counsel for the state elections board said his office is reviewing Myers’ order.

The North Carolina Supreme Court might soon get to decide who should win the election for one of its own seats, potentially giving the court’s Republican majority a chance to expand the party’s control over the judiciary.

The lawsuit had been in federal court, where judges at multiple levels have already rejected the legal theory behind the lawsuit seeking to change the results of 2024’s state Supreme Court election. But on Monday a federal judge sent it back down to the state Supreme Court.

In the 2024 elections, incumbent Democratic Justice Allison Riggs appeared to have held off Republican challenger Jefferson Griffin, with multiple recounts confirming the initial results that showed her winning by slightly more than 700 votes — a sliver of the more than 5 million votes cast in the race. But state elections officials haven’t made the victory official yet, due to a series of challenges launched by Griffin’s campaign and the North Carolina Republican Party. Griffin and the state GOP are seeking to throw out the ballots of more than 60,000 North Carolinians who voted last year, largely over registration concerns.

The complaint primarily revolves around people for whom a driver’s license number or Social Security number isn’t listed in a state database, with Republicans raising questions of whether state officials can verify that those voters are who they say they are. Democrats say the argument is moot because, in order to vote last year, North Carolina voters had to show a photo identification card, such as a driver’s license. If they lacked ID at the polls, they had to provide their Social Security number. Anyone who didn’t never had their vote counted in the first place.

Republicans tried using the argument before and during the 2024 elections in an attempt to block affected people from being allowed to vote. Those legal theories were rejected by the State Board of Elections, by a federal district court judge and also by a federal appellate court. So the voters in question were allowed to cast ballots.

Now Griffin says their ballots should be thrown out after the fact, predicting in court filings that doing so could propel him to victory and expand Republicans’ majority on the Supreme Court from a 5-2 to a 6-1 advantage.

State vs. federal court

Griffin’s post-election efforts were rejected by the State Board of Elections in a series of votes, with the election board’s Democratic majority voting that his claims were baseless and Republican members siding with Griffin.

Griffin, who remains a judge on the Court of Appeals while the case is pending, lodged five types of complaints, which also included a smaller number of overseas voters he doesn’t think should’ve been allowed to vote. One of the complaints was rejected unanimously, the others were rejected on 3-2 party-line votes.

State law says Griffin should’ve then appealed the election board’s decision in Wake County by taking the case to trial. He skipped that process and went straight to the Republican-led Supreme Court, seeking a ruling in his favor. Riggs’ campaign said that’s because Griffin has no evidence and would be exposed at trial. Griffin said it’s because he wants to speed things along since the election is already two months in the past.

In one of the previous cases ruled on during the election, federal Judge Richard Myers shot down the Republican Party’s efforts to stop the voters in question from voting. His ruling was later upheld by the U.S. Court of Appeals for the Fourth Circuit, which further added that the legal arguments involved could only be heard in federal court, not state court.

The State Board of Elections moved Griffin’s post-election lawsuit into federal court, citing that precedent. The case went back to Myers, a Republican appointed by Donald Trump, who on Monday ruled that it shouldn’t be heard in federal court and that the North Carolina Supreme Court should decide.

The State Board of Elections could still appeal that decision. So, too, could Riggs, who has since intervened in the lawsuit. If the case ends up being heard in state court, however, Riggs won’t be able to defend her election results. She has already recused herself from taking part in any potential case over her election.

Spokespeople for Riggs and the elections board each said Monday they were still reviewing the order and had no immediate comment.

Political ramifications

A loss by Riggs would make it more difficult, though not impossible, for Democrats to flip back control of the Supreme Court before 2030 when there will be a new U.S. Census, followed by a new round of political redistricting.

In 2022, a Democratic majority on the court ruled that Republican lawmakers’ 2020 redistricting plans were unconstitutionally gerrymandered. But Republicans took control of the court in 2023 and immediately moved to undo that ruling and allow GOP lawmakers to gerrymander for political gain. They ruled state courts aren’t allowed to rule on partisan gerrymandering cases.

That 2023 ruling allowed Republicans to flip three of North Carolina’s seats in the U.S. House of Representatives in the 2024 elections — in which Republicans won a 220-215 majority in the U.S. House. If those three seats hadn’t flipped, Democrats would control the U.S. House by a 218-217 margin instead.