The North Carolina Supreme Court may soon determine how to resolve the last uncertified statewide race in the nation. The GOP candidate for a seat on that court is asking the justices to invalidate more than 60,000 ballots, thereby turning around his apparent electoral loss.
Republican Jefferson Griffin, a judge on the North Carolina Court of Appeals, has petitioned the state's high court to cancel thousands of votes over alleged irregularities. He currently trails incumbent Democratic Justice Allison Riggs by 734 votes, a gap confirmed by two recounts.
Griffin persuaded the court to block certification of the race and to entertain his arguments that the North Carolina State Board of Elections violated state law in allowing the protested ballots to be cast.
The state Supreme Court has now received briefs from the parties and, after Friday's deadline for Griffin's attorneys to file a final reply brief, will schedule oral arguments on the matter. Justice Riggs has recused herself.
Both sides claim to be fighting for election integrity
To Griffin, it's a matter of protecting the interests of voters who cast ballots in the legally prescribed manner. To the state elections board, Riggs, and others intervening in the case against Griffin, it's a matter of safeguarding the integrity of an election and voters' equal protection rights.
Griffin has filed protests over ballots in three categories. Most of them — more than 60,000 — were cast by people that he says are not properly registered to vote in North Carolina.
Griffin is also trying to invalidate more than 5,500 UOCAVA ballots — ballots from voters covered by the Uniformed and Overseas Citizens Absentee Voting Act — because they did not provide photo ID.
And Griffin has alleged a few hundred ballots should be discounted because they were cast by overseas citizens who never resided in the state, even though state law explicitly establishes their eligibility.
"To be clear, Judge Griffin is not asking this Court to pick a winner and loser in this election," the GOP candidate's attorneys wrote in their brief. "Rather, Judge Griffin merely asks this Court to correct the State Board’s legal errors, vacate its decision, and instruct the Board to re-tabulate the vote count in accordance with law."
Griffin once cast the kind of ballot he's protesting
In his protest against 5,509 UOCAVA ballots cast by military and overseas voters, Griffin has focused solely on such ballots drawn from four of the state's most-Democratic leaning, urban counties: Buncombe, Durham, Forsyth, and Guilford.
"Judge Griffin’s disappointment in losing an election cannot be allowed to disenfranchise voters, including active-duty service members serving our country overseas," said Justice Riggs' campaign manager, Embry Owen, in a statement issued to the news media.
Riggs and Democrats have slammed Griffin for his effort to invalidate the UOCAVA ballots, especially because he cast such ballots when deployed with the North Carolina Army National Guard in 2019 and 2020, as reported by ProPublica.
North Carolina's photo ID requirement wasn't in effect then, due to litigation. The requirement went into effect in 2023 but last year's general election was the first major cycle for which North Carolina's general electorate had to present photo ID.
However, neither federal nor state law requires photo ID for military and overseas absentee voters. Accordingly, the state elections board adopted an administrative rule providing for that exemption.
The rule was unanimously approved last March by the North Carolina Rules Review Commission, a body whose members were picked by the Republican leaders of the state House and Senate.
Counting the challenged ballots, according to Griffin and his GOP supporters, will result in disenfranchising voters who cast lawful ballots.
"Once again Democrats have shown they are more interested in outcomes than what the law says," North Carolina Republican Party Spokesman Matt Mercer told WUNC in an email. "The [state Board of Elections] has failed to enforce the law and Judge Griffin is taking this matter seriously to preserve election integrity in our state."
Griffin's tactics called 'extreme'
But the state elections board and Griffin's other opponents argue that it's the Republican candidate's legal efforts that will result in disenfranchising voters, and in violating their equal protections under the state and federal constitutions.
Just as he is restricting his ballot protest over the photo ID issue to UOCAVA ballots drawn from four blue counties, Griffin's challenge to ballots over allegedly incomplete registrations applies only to ones cast by early and mail-in voters.
"So, if you had an incomplete registration information and you cast your vote on Election Day, you're not being challenged," said professor Chris Cooper, who teaches political science at Western Carolina University. "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."
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.
Since the 2002 passage of the Help America Vote Act, or HAVA, state and federal law have required registrants to provide identification numbers — either a driver's license number or last four digits of their Social Security number — if they have one.
Until a correction last year, the voter registration form used by the state elections board did not clearly indicate one of those ID numbers was required. Griffin and Republicans have seized on that as evidence there could be some unlawful voters, though no evidence of actual voter ineligibility has been presented.
However, as noted in the legal brief filed by the state elections board's attorneys, federal and state law allow for situations where a voter's registration record might not have either a driver's license number of last four digits of their SSN.
Cooper added that Griffin's protests are troubling — "from a 'small d,' democratic perspective" — because the voters he's challenging acted in accordance with the law and rules as laid out for them by the state elections board, and the challenges are coming after their votes have been cast.
Griffin has repeatedly declined comment on the pending litigation.
Meanwhile, the state elections board is simultaneously fighting to have litigation over the disputed race handled in federal court. The U.S. Fourth Circuit has scheduled oral arguments over federal jurisdiction for Jan. 27.