North Carolina Supreme Court ruling boosts Republican efforts to overturn November election loss

The North Carolina Supreme Court on Thursday rejected the state Board of Election's request to bypass the North Carolina Court of Appeals and review Appellate Court Judge Jefferson Griffin's legal effort to toss out tens of thousands of votes cast in the state's November Supreme Court race. 

Four of the Republican-majority court's justices concurred, while two justices — one Republican and the lone Democrat considering the case — dissented. In a concurring opinion, Republican Justice Trey Allen argued that the Wake County Superior Court, which heard arguments in the case earlier this month, had not adequately explained its same-day ruling upholding the Board of Election's decision to count the votes Griffin challenged.

"Perhaps influenced by this Court’s order directing it to move expeditiously, the superior court simply ruled against Judge Griffin without explaining why, in its view, his claims should be denied," Allen said. "Consequently, if we were to take this case now, we would do so in the absence of any meaningful examination of those claims by a lower court."

Given the significance of the case, he added, the court would benefit from a "well-reasoned and thorough evaluation of the parties' arguments" from the appeals court.

The decision to keep the case in the North Carolina Court of Appeals further extends the months-long legal battle over the Republican judge's loss to incumbent Supreme Court Justice Allison Riggs, a Democrat whose 734-vote victory has been twice confirmed by recounts. Riggs has recused herself from the case.

Griffin sued the state Election Board in December, asking the Supreme Court to force the board to toss more than 65,000 votes he claims are invalid after it earlier denied his election challenges. Griffin argues the votes shouldn't be counted either because voters had incomplete voter registrations, overseas ballots lacked necessary photo identification or they were cast by voters who had never physically resided in the state. Tossing those votes, he argues, will overturn his loss. 

In court, however, attorneys for Griffin have not shown that any of the contested voters would have actually been ineligible. 

The state Supreme Court last month blocked certification of the election and later sent the case back to the Wake County Superior Court, whose ruling Griffin quickly appealed. Both Riggs and Griffin have recused themselves from the case as it appeared before their respective courts. 

In a statement following Thursday's decision, Riggs said she would continue to fight to have her November victory acknowledged.

"No matter how long this drags out, I will continue to defend our state and federal Constitutions and North Carolinians’ fundamental freedoms," Riggs said. "As constitutional officers, judges must respect the will of voters. My commitment to upholding the rule of law is why voters elected me to keep my seat more than 3 months ago.”

The Griffin campaign did not immediately respond to a request for comment. 

In a brief ahead of the North Carolina Supreme Court's decision, Griffin had urged the court to reject the state Election Board's petition for discretionary review, arguing that the request is a "stark reversal of the Board's own arguments."

"The Board successfully opposed Judge Griffin’s earlier petition by insisting that election disputes must follow the 'ordinary course of judicial proceedings,'" a lawyer for Griffin wrote. "Now, having won that battle, the Board urges this Court to leapfrog the very process it demanded."

In her Thursday dissent, Democratic Justice Anita Earls, who has consistently criticized the court's decisions in the case, noted that state law does not require an appeal from the trial court to first go through the North Carolina Court of Appeals before the state Supreme Court hears it. The high court's failure to take up the case, she argued, harms both the involved parties and North Carolinian voters.

"Further delay at this stage continues to erode trust in our elections and calls into question the ability of the legal system to guarantee that fundamental principles of democracy are capable of being recognized and enforced by a fair and impartial judiciary," she wrote.

Earls also admonished Griffin over his opposition to the discretionary review request, specifically his assertion that the six-member court could deadlock on the decision and leave the Wake County Superior Court's decision as the final ruling in the matter. 

"In other words, he asks us not to hear the case because he might lose," Earls said. "Such outcome-determined reasoning has no place in a court committed to the rule of law."

Riggs and the North Carolina Board of Elections previously attempted to remove the case to federal court, arguing that tossing the votes of thousands of North Carolinians violated federal law. The Fourth Circuit Court of Appeals ruled that the case should be litigated in state court first but allowed for any outstanding federal matters to be resolved in federal court. 

The case will now proceed in the North Carolina Court of Appeals on an expedited schedule, with an appeal to the state Supreme Court likely.