Nearly six months after Election Day, North Carolina's election for a seat on the state Supreme Court remains the last uncertified race in the country.
Democratic incumbent Justice Allison Riggs leads Republican Appeals Court Judge Jefferson Griffin by 734 votes. Two recounts confirmed Riggs lead, but a lawsuit filed by Griffin to throw out thousands of votes remains unresolved.
WUNC's Will Michaels spoke with Mac McCorkle, public policy professor at Duke University and former Democratic political consultant, about the latest in the race.
This conversation has been lightly edited for brevity and clarity.
In December, shortly after the election and just as Judge Griffin was beginning to make his case, you told the New York Times, "the question is, can Republicans take what's going on here and turn it into a semi-legitimate case?" Have they turned it into a semi-legitimate case?
"No. There is concern in the Republican ranks that this may be a bridge too far. I could be wrong, but they had the desertion of (NC Supreme Court) Justice Dietz. Dietz was the first thing that popped up."
The Supreme Court Justice Richard Dietz, who is also a Republican who dissented in the ruling that allowed some votes to be thrown out.
"And he has the simple view that you can't go back and throw out votes when people did nothing wrong for the vote. Another sign is former Governor (Pat) McCrory coming out publicly saying this is just wrong. The main question in this enduring drama, the next chapter, the next installment, is: what does the federal court do? The federal court is trying to move that very quickly, and we'll know something about that next week."
Just to bring everything up to date, Judge Griffin initially asked for about 65,000 votes to be thrown out. The state Supreme Court came back and said no, but we will require overseas voters who did not show a photo ID when they cast an absentee ballot to prove their eligibility.
The state board of elections, then a Democratic controlled state board of elections, interpreted that to say that it was only applying to about 1,600 votes from Guilford County. This week, Republican State Auditor Dave Boliek has exercised his newly given right to appoint members of the state board of elections, and he did this week appoint a Republican majority. How do you think that that's going to change things?
"Well, it could. It certainly gives Republicans a new advantage. At some point, votes actually have to be counted and certified or disapproved. The question is, how much can a federal court stomach saying it's OK for this to happen retroactively and for it to happen only in a certain county and only in a certain race? I think we're going to see some activity of the federal judge limiting what the state can do here on equal protection grounds. That's what my guess is. We're going to see a new change come next week."
I don't know of anything this remarkable — insofar as a race not being certified — since Bush v. Gore. So I wonder where you put this case in the historic context, and if this race is overturned, what it means for elections going forward?
"To answer the last question, it could create a retroactive authority or power that seems unprecedented. Now I don't know all my history here. There might be some analogy. If I were Griffin, I would have already brought it out. I'm not clear exactly on state law, but there's a possibility that anybody who lost could say, 'No, wait a second. Now I'm challenging,' and I don't know if there's a statute of limitations there, so this could just continue to go on, and at some point it's got to end, but I don't know when."
