Election certification in a razor-thin race between Republican Court of Appeals Judge Jefferson Griffin and state Supreme Court Justice Allison Riggs, a Democrat, had been scheduled for Friday. But that’s apparently not going to happen.
The N.C. Supreme Court issued a temporary stay Tuesday afternoon, barring the State Board of Elections from certifying the election until the court decides on the merits of Griffin’s election protests.
Riggs, a current member of the court, recused herself from the decision while Justice Anita Earls dissented. Riggs and Earls are currently the only Democrats on the state high court.
The parties will file legal briefings throughout January. Then, if a federal court does not take over the case, the state Supreme Court will hear it and decide whether certain groups of voters may be removed from the count.
Before Tuesday’s court order, time was running out for Griffin.
If the court did not block the election certification in his race to unseat Riggs before Friday, his election protests would have effectively been over. If no court had ordered the State Board not to certify the election before Friday, Griffin would no longer have any available remedy if he were to win in further court rulings.
On election night, Griffin seemed like the electoral victor. But Riggs caught up and then overtook him during the post-election canvass, when provisional ballots and a subset of absentee ballots were counted. After two recounts, Riggs remained ahead by several hundred votes.
But Griffin also filed a series of election protests calling into question the eligibility of various groups of voters. In all, the protests implicated about 60,000 individuals who cast ballots in the 2024 general election. Which candidate each of those ballots supported remains unknown.
Upon the State Board of Elections’ dismissal of these protests, Griffin appealed their decision to the North Carolina Supreme Court. He asked the court to postpone election certification in his race until a court could rule on the case’s merits — whether the voters identified in his protests should be removed from the count.
The State Board moved the case to a federal district court, arguing that the protests involved federal law.
On Monday, U.S. District Court Judge Richard E. Myers II disagreed, and returned the case to the North Carolina Supreme Court out of “regard for state sovereignty and the independence of states to decide matters of substantial public concern.”
Griffin quickly re-filed his request to halt election certification in the North Carolina Supreme Court, while the State Board appealed Myers’ decision to the U.S. Court of Appeals.
The state Supreme Court issued its order to block election certification Tuesday afternoon. If the U.S. Court of Appeals overrules Myers’ decision and brings the case back up to federal court, the temporary election certification block will remain in place until the case is resolved or a judge acts to lift it.
How did case get to NC Supreme Court?
Griffin’s lawsuit involved several protest grounds.
First, he argued that voters who did not provide a driver’s license number or the last four digits of their Social Security numbers at the time of registration, if they had either, are not eligible to vote because they registered improperly.
Second, he argued that a state law that allows overseas U.S. citizens who have never lived in North Carolina, but have ties through their parents or legal guardian’s last place of residence, to vote violates the state’s Constitution’s residency requirement for state and local elections.
Third, he argued that a State Board rule allowing overseas voters to cast ballots without providing photo identification conflicts with state law.
Voters who fell into one or more of these categories should be removed from the count, since the State Board broke the law by allowing their ballots to be counted, Griffin’s suit argues.
Griffin first took these issues to the State Board, which ruled against him, mostly along party lines.
A majority of the State Board argued that voters followed the rules available to them at the time of voting, and that it would be a violation of due process and equal protection of the law to remove them after the election.
A board majority also decided that Griffin did not sufficiently meet the requirement to notify all impacted voters. His team sent a postcard to voters stating that their vote “may” have been impacted by one or more protests, with a QR code that linked to the North Carolina Republican Party website where most protests were available to search through.
The board later dismissed several other factual protest grounds referred to them by county boards of election on voter notification grounds. They involved voters who died between the time of casting their ballot and Election Day, voters who were identified as potential felons and voters who failed mail verification tests.
County boards found that most of these identified voters had already been removed from the rolls during the canvass period or were ruled as eligible. The final number of voters that remained in question was not enough to flip the race, the State Board determined, and so it dismissed the protests.
Griffin appealed the State Board’s first decision. The proper avenue for appeal was the Wake County Superior Court, but Griffin skipped several steps and went straight to the North Carolina Supreme Court with his plea. The court has a 5-2 Republican majority.
He explained in the appeal that he worried if he had gone to the trial court first, the State Board would remove the case to federal court, and he would have to have it remanded back to the state courts. All this would take too long to resolve, Griffin suggested. The State Board moved the case to federal court anyways.
Monday, Myers remanded it back to the state Supreme Court.
While some of the contested state laws deal with federal laws, like the Help America Vote Act and the National Voter Registration Act, Myers said in his order, “to the extent North Carolina election law for state and local elections mirrors or parallels federal law, that symmetry is state-created, not federal.”
The protests also deal with several areas of unsettled state law, he wrote.
The state Supreme Court is better tasked with deciding whether those who registered without a driver’s license number or Social Security number are eligible to vote in state elections, whether state law allowing those who have not lived in the state to vote contradicts the state Constitution, and whether the state’s voter ID law applies to overseas absentee ballots, Myers said.
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