Judges on the Fourth Circuit Court of Appeals this week grappled with the merits of a jurisdictional dispute that could bring an end to the now months-long fight over North Carolina's Supreme Court race.
The three-judge panel heard oral argument in North Carolina Supreme Court Justice Allison Riggs' appeal of a federal district court decision to send the election protests from her November opponent, Judge Jefferson Griffin, back to the state's GOP-led Supreme Court for consideration. Riggs leads Griffin in the race by just 734 votes, her victory confirmed by two recounts.
Monday's oral argument revolved largely around what the Fourth Circuit judges described as "complicated" procedural issues as the judges mulled precedent for federal removal, how to respect state court orders and what justified a federal court hearing the case at all. As the panel peppered counsel for each party with questions on in-the-weeds technical matters, how it might ultimately rule on the matter remained unclear.
Chris Shenton, senior counsel for voting rights for the Southern Coalition for Social Justice, told Salon that the panel showed both a "sincere skepticism" that Griffin's arguments were right and a "genuine concern" over whether they could actually grant Riggs relief, should they even want to.
"That explains the tension and grappling the court was doing yesterday and why there wasn't a clear answer coming out of yesterday," Shenton, who was in attendance, said in a phone interview.
Appellate Judge Jefferson Griffin asked the North Carolina Supreme Court in December to compel the state Board of Elections to throw out more than 60,000 votes he alleges are invalid because voters did not provide some identification information on their registration applications. The state Supreme Court unanimously dismissed the case last week and remanded it back to the Wake County Superior Court, ordering it to consider the case on an expedited basis. It also left in place the stay on election certification it granted earlier this month.
After Griffin first filed his election protests in the North Carolina Supreme Court in December, the state election board — which had rejected those protests — sought to have the case removed to federal court. The district court, however, rejected that request earlier this month and sent the case back to the state Supreme Court. Riggs, who recused herself from the case and intervened as a defendant, appealed that decision, leading to Monday's oral argument before the Fourth Circuit.
Riggs and the state Board of Elections asked that the court reverse the lower court ruling and move the case back into federal court, arguing that Griffin's request for the board to throw out votes would be asking it to disenfranchise voters in violation of the National Voter Registration Act, the Voting Rights Act and the equal protection clause of the Constitution. During oral argument, Riggs' counsel also asked that the court rule quickly.
"This case belongs in federal court, because federal law stands between Judge Griffin and the mass disenfranchisement he seeks," Riggs argued in her opening brief. "Judge Griffin is well aware of those federal obstacles; he filed this action directly in the N.C. Supreme Court on the mistaken belief that, by skipping the North Carolina trial and intermediate appellate courts, he could thwart federal jurisdiction."
Griffin, however, asked the Fourth Circuit to affirm the lower court's ruling to remand the case back to state court, accusing the North Carolina Board of Elections of attempting "to delay things even more" by appealing to have the case handled in federal court.
Part of what makes the case before the Fourth Circuit so complex is the North Carolina Supreme Court's dismissal. In hearing arguments from the appellants, the judges focused heavily on what remedy they could even provide Riggs and the state board should they rule to move the case back into federal court.
"Assume everything you're saying is correct — we get the case back from the Supreme Court of North Carolina. We have a case in which a writ of prohibition was filed," Circuit Judge Paul Niemeyer, a President George H.W. Bush appointee, said to counsel for the state Board of Elections. "The North Carolina Supreme Court dismissed it. What do we do with it? Do we review the Supreme Court motion to dismiss the prohibition writ?"
Niemeyer also questioned whether the federal court had the power to reverse the state court rulings, emphasizing the legitimacy of the order the North Carolina Supreme Court made last week.
"If the state court legitimately has it, we have to respect its orders," he said. "There's a lot of comity here between a state and a federal court, and even on a federal issue, we have to respect state court rulings."
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While questioning lawyers for Griffin, the judges focused more intently on the merits of his argument for affirming the district court's decision. The panel appeared skeptical of the arguments that the district court's refusal to take on the case was appropriate and of Griffin's conception of federal removal.
"Seems to me, if somebody contends that the action by the Supreme Court of North Carolina is null and void because it should have been in federal court, they can appeal the North Carolina Supreme Court to the Supreme Court of the United States," Niemeyer said to Griffin's counsel at one point.
Shenton noted that the stakes of Griffin's petitions for North Carolina voters had been left out of Monday's oral argument.
"It's always frustrating to me, as someone who swims in these waters, when these legal issues obscure the substantive right that is underlying all of them, which is people cast a ballot for their preferred candidates in a way that is core to American governance and American democracy, and that's being obscured by whether or not abstention doctrines are appropriate," he said.
In his election protests, Griffin argued that the North Carolina Board of Elections erroneously and unlawfully counted 60,000 votes from voters he says did not provide driver's license or social security numbers when registering to vote. He also argues the same of another 5,509 absentee votes he claims are invalid because overseas voters, including military personnel, failed to provide photo identification. Tossing those votes, he argues, will deliver him a win.
The Wake County Superior Court, in accordance with the state Supreme Court's order last week, will begin hearing the case on Feb. 7.
Shenton said that the Fourth Circuit has three basic paths it could take in ruling on the matter. It could order the case to proceed exclusively in federal court; determine that the remand to state court was appropriate and allow it to proceed exclusively in state court for now; or order parallel proceedings to continue in both state and federal court.
No matter what the ruling ultimately is, however, it'll be the next step in the case rather than the final step, he said.
"Suffice to say that there is no simple way out of all of this right now," he said. "It's a complicated issue, and it's ... a fractured proceeding right now. The Fourth Circuit can add some clarity to that — I think they will — but that clarity won't necessarily come with simplicity."
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