Justice Allison Riggs, the Democratic candidate, prevailed over her Republican opponent, Jefferson Griffin, by 734 votes in last November’s race for a seat on the North Carolina Supreme Court. Griffin refused to concede and launched a series of legal challenges before the State Board of Elections, which rejected them.
North Carolina is what I’ve previously described as a “laboratory for oligarchy.” Thanks to extreme partisan gerrymanders after the 2010 midterms, state Republican lawmakers have given themselves a near-permanent majority in the general assembly and a heavy advantage in congressional races. If Republicans are able to effectively steal a state Supreme Court seat, it will be the death knell for self-government in the Tar Heel State—and a model for the GOP to follow in other purple states.
Griffin’s lawsuit also targeted tens of thousands of ballots cast by North Carolinians who did not provide their full driver’s license or Social Security information on their voter registration form. While North Carolina has required state officials to collect that information under state law since 2004, the State Board of Elections and other state officials failed to do so on a consistent basis. Riggs and her allies have noted that the Griffin campaign has failed to identify a single ballot cast by a voter who would otherwise be ineligible to vote.
The State Board of Elections rejected Griffin’s claims, and two recounts affirmed Riggs’s victory. Griffin nonetheless won a crucial early legal victory when he persuaded the North Carolina Supreme Court to block state officials from certifying Riggs’s victory while his legal challenges go forward. (Riggs remains seated on the court, but she has recused herself from the election cases.)
On April 4, a three-judge panel on the North Carolina Court of Appeals sided with Griffin. (He is a member of that court but has not taken part in the cases.) The two Republican judges on the panel effectively threw out roughly 67,000 votes that Griffin had challenged, but instructed state election officials to “expeditiously identify” those affected and give those voters 15 business days to “cure” their ballots by providing voter ID.
Judge Toby Hampson dissented at length from the court’s decision, noting that Griffin had not shown that any actually ineligible voters had cast ballots. “To accept [Griffin’s] indiscriminate efforts to call into doubt the votes of tens of thousands of otherwise eligible voters, without showing any challenged voter was disqualified under existing law from voting is to elevate speculation and surmise over evidence and reason,” he wrote.
On appeal, the state Supreme Court last week rejected the Court of Appeals’ shotgun approach. It declined to toss out the roughly 60,000 ballots cast by voters with incomplete applications, which amounted to the bulk of the ballots that were challenged by Griffin. All six members of the court agreed that those votes should be counted.
Earls, the sole participating Democratic justice on the court, objected in strong terms to the court’s decision in her dissent. She criticized the majority for its hasty decision “without debate or discussion” in open court. And even if the court’s actions do not change the outcome, she noted that the court’s intervention means that “the precedent for the complete disruption of the election process by losing candidates has been set.”
Dietz, the sole dissenting Republican justice, also lamented his colleagues’ actions. He considered some of Griffin’s claims to be legitimate and that state election officials had flawed in carrying out the duties but said these issues would not receive their proper consideration thanks to the court’s “post hoc judicial tampering in election results.” He reiterated his fears that the court’s intervention will “fuel an already troubling decline in public faith in our elections,” adding, “I expected that, when the time came, our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law. I was wrong.”
Even the state Supreme Court’s decision is not the end of the legal battle: Riggs has vowed to fight on in the federal courts. It is also possible that she will nonetheless prevail in the vote tally even after the curing process is carried out. But the template and precedent has now been set in North Carolina, one of the nation’s swing states, for surgically targeted partisan challenges to election laws and practices after the votes have been counted. If courts in other states allow for similar “mischief” in future elections, it will further hasten the decline of American democracy.
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