Judge Says North Carolina Election Board Must Certify State Supreme Court Race

A federal judge has ordered an end to efforts by a conservative candidate for the North Carolina State Supreme Court to invalidate thousands of voters’ ballots in last year’s election, saying that his liberal opponent must be certified the winner of their race.

Conservative Judge Jefferson Griffin lost to incumbent Supreme Court Justice Allison Riggs in the statewide contest by just 734 votes. Griffin sought to invalidate the election outcome through various methods, including arguing that military and overseas absentee ballots, which do not require photo identification to cast, were illegal and thus should be discounted.

Griffin himself utilized military absentee ballots in both the 2019 and 2020 election cycles.

The case is novel because it seeks to allow a candidate to essentially change the rules of voting after an election takes place, requiring voters to prove themselves legitimate following a complaint over their voting method. Griffin had initially tried to disenfranchise around 65,000 voters.

Judge Richard Myers of the U.S. District Court for the Eastern District of North Carolina, a Trump appointee, ruled against Griffin’s efforts, saying that the North Carolina Board of Elections must formally declare Riggs the winner of the race.

“You establish the rules before the game. You don’t change them after the game is done,” Myers wrote in his opinion.

Myers noted that the case is about two issues: whether “the federal Constitution permits a state to alter the rules of an election after the fact and apply those changes retroactively to only a select group of voters,” and whether states may redefine classes of eligible voters “but offer no process to those who may have been misclassified as ineligible.”

“To this court, the answer to each of those questions is ‘no,'” Myers ruled, stating that previous orders by state courts allowing Griffin’s complaints to move forward “violate the equal protection and substantive due process rights of overseas military and civilian voters.”

Myers allowed Griffin’s legal team seven days to appeal his decision before it can be enforced. It’s not clear as of Tuesday morning whether Griffin will pursue the matter further.

In a statement celebrating the ruling, Riggs stated:

Today, we won. I’m proud to continue upholding the Constitution and the rule of law as North Carolina’s Supreme Court Justice.

Legal experts have decried the challenges from Griffin, noting that they could upend the entire country’s electoral processes if allowed to stand.

“It is pretty fair to say that the idea of disenfranchising voters after they have voted — for administrative errors where the voters were clearly legal voters — is an affront to basic principles of democracy and sets a dangerous precedent,” said Steven Greene, a political science professor at N.C. State University. “There seems to be real potential here for opening a Pandora’s Box nationwide where legitimate voters face the risk of being disenfranchised after the election.”

An analysis from Rick Hasen, a University of California, Los Angeles, law professor and frequent contributor to Election Law Blog, noted that an appeal from Griffin would prolong the case but wouldn’t have a strong likelihood of succeeding.

“I expect any appeal would be rejected. … The idea of retroactively changing the rules for which ballots should count — and applying those retroactive rules just selectively in places where the challenging candidate expects to gain relative votes — sure is unconstitutional in any election system that values the rule of law,” Hasen wrote. “The only surprise (and disappointment) here is that the North Carolina Supreme Court was willing to bless this attempted election subversion.”