In his effort to win a seat on the North Carolina Supreme Court, Republican Jefferson Griffin has shifted legal tactics and focused on trying to invalidate roughly 5,500 ballots cast by military personnel, their family members, and overseas voters. But Griffin's protest only covers ballots drawn from four heavily Democratic counties.
Griffin, a judge on the North Carolina Court of Appeals, is seeking to unseat Democratic Justice Allison Riggs, who leads in her race for re-election to the court by 734 votes — a gap confirmed by two recounts.
Griffin's election protests cover three categories of ballots. He's challenging:
- More than 60,000 ballots cast by early, in-person and absentee-by-mail voters he alleges are not properly registered
- A few hundred voters he claims never resided in the state, and
- A little more than 5,500 ballots cast by UOCAVA voters, who can be military personnel, their family members, or overseas voters.
Griffin's protest focuses on ballots from blue counties
In a legal brief filed by Griffin's attorneys with the state Supreme Court last week, Griffin asked the court to handle his claims one at a time and to start with the challenge to the more than 5,500 ballots cast by UOCAVA voters. He argues their ballots should be removed from the vote count because they did not provide photo ID.
This year marked the first major election where photo ID was required or in-person and absentee ballots.
As reported by ProPublica, Griffin cast a UOCAVA ballot in the 2020 elections as an officer in the North Carolina Army National Guard, but because of litigation over the state's photo ID requirement it wasn't in effect for the 2020 elections.
Griffin has asked the state Supreme Court to take up his claim on the photo ID issue first because, his brief indicated, if the court rules in his favor — and invalidates the 5,500 ballots challenged on this issue — it would result in his electoral victory and obviate the need to continue with the rest of his arguments.
Notably, the ballots Griffin is challenging on the photo ID issue were pulled from just four counties: Buncombe, Durham, Forsyth, and Guilford. These counties are among the most Democratic leaning in the state, all of them going for Kamala Harris by wide margins in the presidential race.
UOCAVA voters follow certain instructions and protocols when casting a ballot by mail or by a special online portal. Those instructions do not include a photo ID requirement, as is required for domestic civilian voters under state law.
North Carolina's photo ID law resides in Article 20, Chapter 163, of the general statutes. But rules governing military and overseas voters reside in Article 21A, known as the Uniform Military and Overseas Voters Act, which, the state elections board has reasoned, does not contain any photo ID requirement.
Also, the rules and instructions around casting a ballot as a UOCAVA voter — such as the Federal Write-In Absentee Ballot — do not contain any reference to a photo ID requirement.
Tellingly, when the bipartisan state elections board reviewed Griffin's protest on the UOCAVA photo ID issue, the vote to dismiss was unanimous, whereas the votes to dismiss on the other two protest issues fell along party lines, the board's three Democrats outvoting the two Republican members.
"In his latest court filings, Griffin has asked the NC Supreme Court to prioritize throwing out the ballots of active-duty members of the military, members of the foreign service, missionaries, and other overseas North Carolinian voters," Embry Owen, campaign manager for Allison Riggs, said in an email to WUNC. "But only those from four heavily Democratic counties."
"Let's be clear," Owen added, "Judge Griffin is not focused on election integrity or following the rules, he is solely focused on tossing ballots until he wins."
In an emailed response to WUNC, Griffin replied: "I can’t comment on pending litigation. It would be a violation of our code of judicial conduct for me to do so."
Griffin also wants the state Supreme Court to throw out more than 60,000 ballots over alleged incomplete voter registrations. According to his legal brief, the state elections board overstepped its statutory authority in the way it handled the application of federal elections law to state voting rules.
Specifically, Griffin has asked the state's high court to invalidate more than 60,000 ballots because over allegedly incomplete voter registrations. The issue is whether the voters provided a driver's license number or last four digits of their Social Security number upon registering and whether that issue alone should disqualify their ballots.
Both federal and state law provide for a voter to register — and cast a ballot — even if they do not have a driver's license number or Social Security number.
In a third category of claims, involving just a few hundred ballots, far less than the margin by which he trails Riggs, Griffin has alleged the state elections board improperly allowed people who never resided in North Carolina to vote, despite state law explicitly permitting such citizens to register and vote.
Griffin's protests treat some voters differently than others
"These voters thought they were doing the right thing, by and large," said Prof. Chris Cooper, who teaches political science at Western Carolina University.
"So, if we think about the UOCAVA voters whose votes are being challenged because they didn't send ID," Cooper continued. "Well, the State Board of Elections on their website says, 'You don't need to send an ID if you're a UOCAVA voter.'"
Cooper, who has conducted an analysis of data for voters whose ballots Griffin is challenging, called the GOP candidate's legal efforts 'extreme' and said they raise constitutional issues of equal protection.
The voters being challenged over alleged incomplete voter registrations, for example, "are only being challenged if they voted early or by mail," Cooper explained.
"So, if you had an incomplete registration information and you cast your vote on Election Day, you're not being challenged," Cooper said. "And your vote would not be challenged in any of the other dozens of elections you might have voted for in November of 2024, just this one."
It is unclear whether the North Carolina Supreme Court will be the judicial venue where this election dispute is resolved.
Griffin hopes it will be the solidly conservative state Supreme Court on which he is running to serve, arguing that is the proper venue to handle a dispute over an election for state office. The state's high court has blocked certification and instructed the parties to submit legal briefs ahead of oral arguments over Griffin's claims.
But the state elections board — joined by Riggs, the North Carolina Democratic Party, and some advocacy groups — has appealed to the U.S. Fourth Circuit Court of Appeals, arguing the election protests implicate federal laws — such as HAVA, UOCAVA, the National Voter Registration Act, and voting rights protections under the federal Constitution — and, thus, belong in the jurisdiction of federal courts.
The 4th Circuit has scheduled oral arguments for Jan. 27.
