NC Supreme Court could now decide who should win the election for a seat on the court

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.