A Republican candidate's fight in state and federal courts to throw out more than 60,000 ballots in his race for a seat on the North Carolina Supreme Court is part of a larger GOP effort that "spells trouble for democracy," according to the state's former chief executive.
Roy Cooper just finished his second term as governor of North Carolina. For many of his eight years in that office, Cooper fought off attempts by the Republican-led legislature to seize control of elections administration.
And now his successor, Democrat Josh Stein, is suing to block yet another GOP grab at executive authority.
"And this is just simply another attempt for them to control elections in this state," Cooper said on a video call with reporters on Monday.
Cooper joined Anderson Clayton, chairwoman of the North Carolina Democratic Party and Jaime Harrison, chairman of the Democratic National Committee, on Monday's call to criticize the GOP legal battles over the state Supreme Court race.
State Supreme Court fight is 'bigger than just one race'
Immediately following Cooper's defeat of former Gov. Pat McCrory in a tight race in 2016, GOP legislators drafted a bill to reconstitute the state elections board, giving lawmakers more say over appointments to that body.
Eventually, the state Supreme Court, with a majority of Democratic justices, declared that law to be a violation of the state constitution's separation of powers. That decision restored the previous law, under which the bipartisan state elections board has five appointed members, the majority from the sitting governor's party.
After yet another attempt to change the makeup of the elections board — an attempt again thrown out as unconstitutional by a state trial court last year — lawmakers came up with a new plan.
In November, after Stein won the governor's race over GOP Lt. Gov. Mark Robinson, Republican legislators crafted a sweeping bill — part of which directed relief funds to western North Carolina areas recovering from Hurricane Helene — that kept authority over the state elections board within the executive branch. But it shifted oversight from the governor's office to the state auditor, a post that Republican Dave Boliek had just won.
Senate President Pro Tem Phil Berger defended the move
as a means toward making elections administration in North Carolina less politically slanted.
Berger said the legislature has tried in the past to “have balance on the board that is responsible for counting votes and making decisions about elections." Previous changes to the board have been blocked by courts.
The senate leader was talking about a GOP-backed law — overturned in state court last year — that would have changed the number of members on state and county elections boards from five to eight. And instead of being appointed by the governor, state and local elections board members would have been appointed by legislative leaders from the majority and minority parties.
However, in situations where the even-member boards deadlocked on issues like picking an elections director or board chair, the decision would have gone to the full, Republican-controlled, legislature.
The legal battle over that law is now moot because of the new Republican-crafted elections law. But when the earlier measure was making its way through the state court system, North Carolina Supreme Court Justice Phil Berger Jr. denied Democrats' requests that he recuse himself from hearings in the matter.
Berger Jr. is one of the high court's five conservative justices and the son of the senate leader, one of the named defendants in lawsuits aimed at blocking the GOP election laws.
In the earlier case, Justice Berger deferred to his colleagues on the court in response to calls for his recusal. The court's conservative majority outvoted the court's two Democrats and decided the younger Berger did not need to recuse himself in the matter.
As for the new law on elections administration currently being challenged in court, Senator Berger said, “We felt that the auditor's office was a place that that would work, would be a place where it would function appropriately.”
In late November, Cooper, while still in office, vetoed the newest elections-related law, which included other GOP power moves over executive offices held by Democrats, but Republicans used their veto-proof majority in a lame-duck session to override that veto.
Provisions of the law are now being challenged in court by the Stein administration.
Clayton, the state Democratic Party chairwoman, told reporters yesterday the GOP power grabs cannot be separated from Republican judicial candidate Jefferson Griffin's attempts to persuade the solidly conservative North Carolina Supreme Court to side with him on his election protests.
"What we're talking about today," Clayton said, "is bigger than just one race in North Carolina."
"We're talking about a calculated effort by a sitting judge to throw out votes and reject the results of a fair and free election," she added.
Griffin is 'fighting for the rule of law'
Following the November election and two recounts, Griffin, a judge on the North Carolina Court of Appeals, still trailed incumbent Democrat Allison Riggs by 734 votes for an associate justice seat on the high court.
But Griffin has challenged more than 60,000 ballots, arguing they should be invalidated because they were cast by ineligible voters.
In most of his protests, Griffin has alleged the voters who cast ballots were not properly registered under state law.
When these voters registered, they used 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.
That issue was first raised in 2023 by an election integrity crusader named Carol Snow, who filed a complaint with the North Carolina State Board of Elections over the pre-HAVA registration form. The board agreed that the form violated HAVA's requirement that registrants provide either the last four digits of their Social Security number or a driver's license number, and the registration form was updated.
But the bipartisan board unanimously rejected Snow's request that they reach out to individual voters who had registered with the pre-HAVA form.
Republicans have seized on that decision by the state elections board in their calls for elections reform — and used it as a basis for elections-related litigation and to justify Griffin's attempts to reverse apparent defeat in the state Supreme Court race.
"The systemic issues have not been refuted or resolved despite Democrats' best efforts to convince the people of North Carolina they are," said North Carolina Republican Party spokesman Matt Mercer, in an email responding to WUNC.
"They cannot explain way the failures of the State Board of Elections," Mercer added, referring to the board's response to Snow's complaint. "Judge Griffin is fighting for the rule of law and state statutes to be followed."
The North Carolina GOP and the Republican National Committee used the issue raised by Snow as the basis for a lawsuit filed in August aimed at purging 225,000 voters from the rolls over allegedly incomplete registrations.
In October, a federal district court judge appointed by Donald Trump dismissed the GOP claims. That same judge, Richard Myers II, is involved in Griffin's current election protests.
Griffin's protests are now in state and federal courts
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. A voter whose registration data does not contain one of those numbers would just be asked to provide a HAVA ID, a document such as a utility bill, when they first show up to vote after registering.
And now, with a state photo ID requirement, voters casting ballots in person or by mail must provide identification or fill out exception forms with the requested data that get reviewed and verified by local elections boards.
In fewer instances, Griffin has challenged ballots cast by military and overseas citizens who did not provide photo ID with their absentee votes, even though state law excuses them from doing so. And Griffin has challenged a far fewer number of ballots cast by overseas citizens who never resided in North Carolina, despite state law explicitly saying such citizens are eligible to vote.
The state elections board would have certified the judicial race last Friday but was blocked from doing so by the North Carolina Supreme Court.
Last week, the state's high court granted Griffin's request to issue a stay on certification — and to consider his ballot protests — in a 4-2 vote.
Riggs recused herself from the matter, since she's a candidate in the contested race. Justice Anita Earls, the high court's only other Democrat, dissented in the order granting the stay.
One of the court's five Republican justices, Richard Dietz, also dissented, writing that Griffin's petition "is, in effect, post-election litigation that seeks to remove the legal right to vote from people who lawfully voted under the laws and regulations that existed during the voting process."
Another conservative justice, Trey Allen, wrote that issuing the stay should not be read as an indication that Griffin, the GOP candidate, will prevail on the merits in his effort to have the disputed ballots tossed.
Meanwhile, the state elections board, joined by Riggs and some advocacy groups, appealed to the U.S. 4th Circuit Court of Appeals because of the election protests' implications for federal law and federal constitutional protections for voting.
The 4th Circuit has scheduled oral arguments for Jan. 27 on whether the federal courts should retain jurisdiction over the case.
