North Carolina Appeals Court Judge Jefferson Griffin's legal effort to contest his electoral loss in the state's tight Supreme Court race, in which he trails incumbent Justice Allison Riggs by just over 700 votes, threatens to upend the already contentious state of democracy in North Carolina — and puts the entire nation at further risk of democratic erosion, legal experts say.
Griffin, a Republican, is asking the North Carolina Supreme Court to force the state Election Board to throw out thousands of ballots he alleges are invalid, in part, because voters' registrations did not include driver's licenses and social security numbers — a move that would undoubtedly hand him a victory in the race. His lawsuit, coupled with parallel legal challenges from the Republican National Committee, has garnered national attention as Democrats and other critics raise alarm about the potential disenfranchisement of North Carolina voters.
While election challenges in close races are not unusual, Griffin's is different, Rick Hasen, director of UCLA Law's Safeguarding Democracy Project, told Salon.
"It seeks to disenfranchise tens of thousands of voters after an election based upon questionable interpretations of state law after the issues were not aggressively litigated before the election," he said. "It’s especially troublesome that the state Supreme Court may be the one deciding the composition of one of its own members."
Riggs won the race by a slim, 734 vote margin in November out of more than 5 million votes cast, which is not unprecedented in a North Carolina Supreme Court race. Two recounts — one machine and one partially by hand — confirmed that victory.
Griffin unsuccessfully protested his loss before the North Carolina Board of Elections in December, making the same arguments: that the board had erroneously counted the ballots of voters he claimed were ineligible. A week later, he filed the lawsuit seeking a temporary pause on the election's certification and for the state Supreme Court to compel the board to toss out those votes.
In his petition before the court, which Riggs has recused herself from, Griffin argued that more than 60,000 votes the state Board of Elections counted were from ineligible voters who either had incomplete voter registrations, failed to include valid photo identification with overseas ballots or were never residents of North Carolina. In cases of incomplete registration applications, voters did not provide or were not asked to provide the necessary identification information.
In a brief filed Tuesday, Griffin urged the court to focus, in particular, on 5,509 votes cast by overseas voters who did not include photo identification and to postpone consideration of the other issues he raised. Tossing out those ballots alone would deliver him a win.
Marc Elias, an elections attorney and founder of Democracy Docket, explained in an interview that Griffin's challenge hinges on an old North Carolina law that requires voters to include their driver's license number or the last four digits of their social security number when they register to vote. Tossing the ballots of 60,000 people who filled out a form prepared by the state that did not request that information and were only informed of the discrepancy after the recent election would satisfy both Griffin's desire to win the race and the RNC's aim of having legal precedent to challenge future elections, he argued.
"I think that that is not just about winning this race, but it is about setting a precedent because there is no instance in recent history where a court has ordered the retroactive disenfranchisement of tens of thousands of votes," Elias said.
He added that these legal challenges operate as a "little bit below the radar way" to attempt to "achieve that so in 2026 and 2028, when we're dealing with higher profile federal elections, they can say, 'Oh, what do you mean this is unusual? Look what happened in North Carolina.'"
Anne Tindall, a special counsel for nonpartisan watchdog Protect Democracy who leads their work in North Carolina, said Griffin's effort is also punishing voters for what is, in many cases, the state's clerical error.
"We tell people that if you follow the rules, your vote counts, and this effort is really going hard after that basic precept of democracy," she told Salon in a phone interview. "What kind of message are we sending if someone can arbitrarily, with fact-free allegations, take away your vote after you've followed all the rules?"
Tindall, who filed an amicus brief in the case on behalf of the League of Women Voters of North Carolina and six North Carolinians who were included on the list of voters alleged to have invalid registrations, said one of those North Carolinians recently received a copy of her voter registration application, which showed she had provided her social security number.
Tindall added that Griffin initially side-stepping North Carolina law by first filing his protest with the state Supreme Court, which has a Republican majority, instead of in the trial court for fact-finding demonstrates that the "last thing he appears to want is a real examination of the facts because, the fact is, he hasn't found anything justifying throwing out all of these votes."
Last week, the North Carolina Supreme Court decided to block certification of the election, writing in an amended order that the ruling does not amount to an endorsement of Griffin's claims but was necessary to allow them enough time to hear the case on an expedited schedule. Two justices, one Democrat and one Republican, dissented. In his dissent, Republican Justice Richard Dietz warned of the potential harm to the integrity of the state's elections in Griffin seeking to strip North Carolinians' right to vote after the vote has already taken place.
Griffin's case is now before both the state Supreme Court and the Fourth Circuit Court of Appeals as Riggs and the North Carolina Democratic Party appeal a federal court's decision to return the case to the state Supreme Court. The North Carolina Supreme Court is reviewing briefs from Griffin and the election board, and the Fourth Circuit will hear arguments in the case on Jan. 27.
In a brief filed to the Fourth Circuit on Wednesday, Riggs argued the case should remain in federal court because "federal law stands between Judge Griffin and the mass disenfranchisement he seeks." She accused Griffin of skipping North Carolina trial and appellate courts to essentially "thwart federal jurisdiction."
Ciara Torres-Spelliscy, a Stetson University professor of constitutional law and election law, said that Griffin's challenge reflects two "problematic" trends set in motion by President-elect Donald Trump's legal efforts to overturn his electoral defeat in 2020: the effort to disenfranchise voters en masse and Republican losers of an election being "particularly apt to cry foul when nothing went wrong in their electoral loss." Another example, Torres-Spellsicy pointed out, was Republican gubernatorial candidate Kari Lake's repeated efforts to overturn her 2020 in Arizona.
"This is a troubling trend if only one political party will accept electoral losses gracefully," she told Salon. "North Carolina has been a hotbed for conflicts over elections because it is a swing state and how courts rule about North Carolina election administration can have a big impact on not just local races, but who controls Congress or the White House in the future."
Tindall argued that Griffin's challenge is simply laying a "roadmap for stealing an election" that builds on Americans growing distrust in its electoral systems — and nothing confines it to North Carolina if he's successful.
"That's what this is about: casting enough doubt on our election processes to open a window to take a seat on the court that they didn't win," she added. "And at a time when faith in our elections has been really under assault for years, this is that cynicism coming to life, and it will only encourage more attempts."
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