The ongoing saga over the race for a North Carolina Supreme Court now resembles a pinball bouncing back and forth between two bumpers, in this case the Fourth Circuit Court of Appeals and the state's high court.
On Tuesday morning, the state board of elections appealed to the 4th Circuit, just a few hours after a federal district court judge granted Republican judicial candidate Jefferson Griffin's motion to remand his election protest to the state Supreme Court.
The elections board's federal appeal notwithstanding, the North Carolina Supreme Court's conservative majority issued a temporary stay blocking the state elections board from certifying Griffin's electoral loss to Democrat Allison Riggs, the incumbent justice he's trying to unseat.
Riggs has recused herself from hearing Griffin's case. Justice Anita Earls, the other Democrat on the solidly conservative state Supreme Court, dissented, objecting to the temporary stay because, she wrote, Griffin didn't meet the requisite legal standard "where there is no likelihood of success on the merits and the public interest requires that the Court not interfere with the ordinary course of democratic processes as set by statute and the state constitution."
Griffin, a judge on the North Carolina Court of Appeals, trails Riggs by 734 votes, a gap confirmed by two recounts.
But Griffin has been trying to have more than 60,000 ballots invalidated — and deducted from the vote count — over alleged irregularities, including purportedly incomplete voter registrations.
Last month, the five-member Democratic-majority state elections board held hearings and dismissed Griffin's protests due to a lack of evidence of actual voter ineligibility as well as inadequate notice to affected voters.
Then Griffin circumvented the typical state court appeals process and filed a writ of prohibition with the heavily conservative state Supreme Court asking the justices to block the elections board from certifying his electoral loss.
Attorneys for the elections board had the matter removed to federal district court because, they have argued, it raised questions of federal law and threatened to undermine U.S. Constitutional protections against disenfranchisement.
In most of the cases, Griffin has alleged the disputed ballots were cast by voters who did not properly register under North Carolina law. The issue has to do with voters who registered — many years and election cycles ago — using a form that predated the federal Help America Vote Act, or HAVA, of 2002. The pre-HAVA registration form did not clearly mandate registrants provide the last four digits of their Social Security number or their driver's license number.
Griffin's protests notwithstanding, neither state law nor HAVA makes having a Social Security number or a driver's license number a prerequisite for voting.
In cases where elections officials cannot confirm the last four digits of a voter's Social Security number or that person's driver's license number — often due to a clerical error — that voter must present a so-called HAVA document, such as a utility bill, when they first show up to vote.
And if a person registering to vote does not have a Social Security number or a driver's license number, HAVA provides that a state elections administration office must assign the voter a special identification number for the purposes or registering.
However, Griffin's attorneys countered that while state election law incorporates HAVA the GOP judicial candidate's case involves a state election and concerns interpretations of state, not federal, law.
Griffin has also protested the counting of hundreds of ballots submitted by some absentee military and overseas voters who did not provide photo identification, even though state administrative code, in accordance with federal law, explicitly excuses such overseas voters from that requirement.
Additionally, Griffin has alleged some ballots should be discarded because they were cast by ineligible voters who live overseas. These protests claim children of overseas voters — for example, missionaries and military personnel — who had never resided in North Carolina, should not have been allowed to vote, though such voters are eligible under state law, again, in line with federal laws protecting the voting rights of overseas citizens.
On Monday, Judge Richard E. Myers II, appointed to the federal bench by Donald Trump, ruled in Griffin's favor and remanded the case to the state Supreme Court "with due regard for state sovereignty and the independence of states to decide matters of substantial public concern."
Absent the stay, the state elections board was poised to certify the electoral outcome this Friday.
In its order halting certification, the state Supreme Court instructed Griffin's attorneys to file his brief arguing for invalidation of the disputed ballots by January 14 and the elections board must respond a week later.
