Nearly six months after the North Carolina Supreme Court election took place, the contest still hasn’t been called and a winner still hasn’t been certified.
That’s almost entirely due to a barrage of litigation from Republican candidate Jefferson Griffin, who sued for more than 65,000 ballots to be thrown out after they had been cast, triggering a sprawling legal saga that is testing some of the most solid precedents of election law. The effort, if successful, could be more than enough to swing the results of the election, as Griffin currently trails Democratic incumbent Allison Riggs by roughly 700 votes.
But even if the push ultimately falls short, Griffin’s critics, who include members of both parties, say it could have long-lasting consequences and pave the way for more candidates to pursue challenges — no matter how legally questionable — to the results of elections decided by narrow margins.
“This is clearly an attempt to manipulate the law and the courts into changing an election result by changing the rules after the election has been held,” said Ann Webb, a policy director with the North Carolina chapter of Common Cause, a government watchdog group.
Griffin’s arguments, Webb said, “require the courts to say, ‘Yes, it’s OK to ask us to change the rules after the election is done.’ And that is where we really see something different and something scary, because there is nothing stopping other candidates from any party in the future from using that same strategy and pointing back to this case.”
In an interview, Riggs called Griffin’s legal approach “insidious” and warned that it would likely be mimicked if it is successful.
“It’s a North Carolina problem today, but it’s a Michigan and Arizona and Georgia problem tomorrow,” she said, referencing other closely divided battleground states.
Even some North Carolina Republicans have called for Griffin to throw in the towel.
“I wanted the Republican judge to win because his philosophy more aligns with me,” former GOP Gov. Pat McCrory told local news outlet ABC11 this week. “He was defeated.”
“You abide by the rules before the election. It’s like changing a penalty call after the Super Bowl is over. You don’t do that,” McCrory said, adding that voters “voted based upon the rule set.”
In addition, Republican-led groups are running ads in the state calling for Griffin to end his litigation.
A spokesperson for Griffin didn’t respond to questions from NBC News for this story.
In an email, North Carolina GOP spokesperson Matt Mercer accused Democrats of not being able to “make an argument on the merits of Judge Griffin’s case because they know following the law is not controversial.”
“If Democrats were being truthful, they’d simply admit they don’t actually care about honest elections and are only interested in partisan outcomes,” Mercer added. The North Carolina GOP partnered with Griffin in his original litigation in the state court system.
Months of litigation
Riggs, who was appointed to the state Supreme Court in 2023, emerged after Election Day last November narrowly ahead of Griffin, a state appeals court judge. A full machine recount as well as a partial hand recount of the race both showed Riggs leading Griffin by 734 votes out of 5.5 million ballots cast.
Griffin subsequently filed legal challenges, backed by the North Carolina GOP, across the state, alleging that more than 65,000 people had voted illegally. The claims focused on three categories of voters: voters who Griffin’s lawyers claimed didn’t have driver’s licenses or Social Security numbers on file in their voter registration records; overseas voters who haven’t lived in North Carolina; and overseas voters who failed to provide photo identification with their ballots.
A series of nuanced and complex court rulings have since followed from North Carolina state courts — including the Supreme Court, the bench that the winner of this election will join — and federal courts. (Griffin and Riggs have recused themselves from the matter when the issue came before the courts they serve on.)
The latest development came Tuesday, when a federal appeals court temporarily blocked North Carolina election officials from moving forward with a period that would allow thousands of military and overseas voters to “cure” their ballots after that had been ordered by the North Carolina Supreme Court.
In that decision earlier this month, the state Supreme Court ruled that about 60,000 of the votes in question cannot be thrown out, but that others could be if minor errors were not fixed, meaning those voters would be required to prove their eligibility to election officials.
Long-term ramifications
Critics of Griffin’s strategy say his arguments contradict several long-held precedents in election law — and regardless of whether they’re successful, they could be used in future attempts to overturn close races.
One such precedent is the notion that the rules of an election must be set before voting occurs, as Griffin is seeking to throw out thousands of ballots cast by voters who followed the letter of the law.
Griffin’s critics also note that only he is seeking to have the ballots thrown out, not any of the other Republican candidates who competed in statewide elections in November.
“Republicans are choosing to challenge voters who did nothing wrong,” North Carolina Democratic Party Chair Anderson Clayton said on a recent call with reporters. “If they truly believe that there’s been election malpractice, then why is every Republican not challenging the same election results that Jefferson Griffin is right now?”
Meanwhile, more than 200 judges, government officials, attorneys and legal professors — including some Republicans — signed a letter to Griffin last month stating, “The arguments you have advanced ask our judicial system to change the rules in place for the 2024 election after it has run its course.”
“If you succeed, tens of thousands of voters will lose their voice after they voted,” they wrote. “For the sake of our judicial system, we ask you to terminate your litigation now.”
In one of the latest filings from Griffin’s legal team in federal court, his attorneys rejected the argument that he wanted to change “the election rules after the election.”
“That’s not what the courts said. They held that the ‘plain language’ of the state constitution barred voters who had never resided in North Carolina from voting in state elections,” Griffin’s attorneys wrote. “And the North Carolina Supreme Court found that the state election code required overseas voters to provide photo identification with their ballots. As part of its remedy, the court provided a 30-day cure period for those voters to fix the defect.”
Griffin’s critics acknowledge the value of legal remedies following an election, but argue that he should have challenged the rules long before the election if he was concerned about them.
“It’s important to have an escape valve in the form of post-election [legal] challenges — if there are real mistakes, or if the law has been misapplied, or there is evidence of fraud,” said Webb, of Common Cause.
But in this case, she said, Republicans are “using the escape valve to bring a challenge against parts of the law that were there and available to be challenged any time over the past several years.”
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