North Carolina’s top court cleared the way for some voters’ ballots in a contested state Supreme Court race to be tossed months after the election, opening a path for Republican Jefferson Griffin to potentially overturn an apparent narrow loss.
However, the extraordinary decision from the Republican-controlled court — which drew angry rebukes from Democrats and a sitting GOP justice in the state — still may see more litigation in federal court.
Griffin, a state appellate judge, has for months been challenging his apparent loss to incumbent Democratic Justice Allison Riggs in November, in which Griffin finished fewer than 1,000 votes behind. But after his loss, Griffin argued that roughly 65,000 votes in the state were improperly cast and should be thrown out.
Griffin argued three categories of votes should be tossed: Voters who were registered to vote with incomplete voter registration data; military and overseas voters who did not meet the state’s voter ID requirements; and overseas voters who have never lived in the state or expressed an intent to do so, a small category of voters who are generally family members of expats or service members.
Tossing out wide swaths of ballots after the election would be a near-unprecedented decision that voting rights groups, Democrats and even some Republicans condemned as violating voters’ due process rights and changing the rules of an election after it has already been run.
The court currently has a 5-2 GOP majority, and Riggs recused from the case.
A state appellate court last week ruled that all three categories of votes were at risk of being disqualified. The majority opinion significantly narrowed that, but Griffin may still be able to have enough votes thrown out to change the results.
The state’s high court ruled Friday that most of those ballots — coming from roughly 60,000 voters with incomplete registration data, which could include missing driver’s license numbers or Social Security numbers — should still be counted for this election, placing the blame on the state board of elections.
But the court’s order has the latter two categories of voters at risk. The court ruled that military and overseas voters who didn’t meet the identification requirement must prove their identity within 30 days — known as a “cure process” — or their votes could be invalidated, while affirming the lower court order that “never residents” ballots, which amount to a couple hundred votes, should be disqualified.
Friday’s majority decision elicited scathing dissents from two of the court’s justices — Anita Earls, the lone Democrat who participated in the case, and Republican Justice Richard Dietz.
“I expected that, when the time came, our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law. I was wrong,” Dietz wrote. “By every measure, this is the most impactful election-related court decision our state has seen in decades.”
It is not immediately clear how many voters now must go through the cure process. Griffin initially challenged voters in particular Democratic-heavy areas, but the court’s opinion Friday does not address statewide results.
“As a result of the action taken by this Court in this matter, the vote of an overseas or military voter who is registered in Wake County and who voted pursuant to the laws applicable at the time is counted. However, the vote of an overseas or military voter who is registered in Guilford County is presumed to be fraudulent,” Earls wrote of the voters who now must cure their ballots. “Explaining how that is fair, just, or consistent with fundamental legal principles is impossible, so the majority does not try.”
The state Democratic Party has already pledged to fight the ruling in federal court, saying the decision sets a dangerous precedent that could fundamentally challenge the trust in elections in the state or even across the country.
“Everyone needs to understand how deeply dangerous this is,” the party wrote in a release. “Elections must mean something — but if this precedent holds, any candidate who doesn’t like losing will litigate American democracy into the ground.”
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