Griffin’s attempt to invalidate 60,000 votes in NC Supreme Court Race ‘simply cannot be tolerated,’ elections official says

The North Carolina State Board of Elections on Wednesday rejected an attempt by the losing candidate in the State Supreme Court race to throw votes en masse.

The North Carolina State Board of Elections on Wednesday rejected challenges to more than 60,000 votes brought by the losing candidate in the close State Supreme Court race.

The board heard arguments from lawyers for both the incumbent Justice Allison Riggs, a Democrat, and for Jefferson Griffin, a Republican Appeals Court judge who trails Riggs by more than 730 votes, according to three separate counts of the vote.

Griffin filed challenges against the 60,000 ballots based on six categories, three of which the state board decided to hear. (The other three are being heard by each county board.)

“That someone could have been registered to vote, came to vote, and then had their vote discarded is anathema to the democratic system and simply cannot be tolerated,” Alan Hirsch, the BOE chair and a Democrat, said.

Most of the challenges are of voters whose driver’s license or partial social security number information aren’t included in a state registration database. But there are many reasons that those details could be missing from the database, and the vast majority of voters disenfranchised by such a culling would be lawfully registered voters.

The state board, which has three Democrats and two Republicans, split on party lines on the issues of the perceived incomplete registrations, with the Democrats rejecting the challenges and the Republicans voting that enough probable cause had been shown to warrant a second hearing. The Republican board members did NOT vote to discard the votes, but for a thorough and public look at each of the 60,000 ballots and to give those voters a chance to have their say.

The logistics of such a “curing” process for tens of thousands of voters AFTER the election, however, are staggering. And the Democrats sided with Riggs’ attorneys, who argued that despite the information that may have been missing on voter registrations, these voters had already had their identities and eligibility confirmed in the state’s multi-faceted pre-and post election checks. 

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Since these voters were clearly on the state’s list of registered voters and legally cast their vote, according to state and federal law, those votes must be accepted. This, the Board’s Democrats said, meant there was no need for a deeper dive.

“The election protests here violate a bedrock principle so basic you learn it in elementary school,” Ray Bennett, Riggs’ lawyer, told the board. “If you lose, you don’t try to change the rules so you can claim that you won.”

The board also split similarly on Griffin’s challenges to votes cast by adults who live overseas, but have parents who are North Carolina residents. (State statute also says these voters can vote. Griffin’s lawyers called the statute an unlawful loophole).

But the board unanimously rejected Griffin’s challenge to the validity of ballots of overseas military voters who didn’t provide a Voter ID. State law as written clearly says they don’t need to, the board ruled.

“Judge Griffin’s attack on these votes was an unprecedented attempt to overturn the verdict already delivered by North Carolinian voters: they chose Justice Allison Riggs to continue serving on the North Carolina Supreme Court,” Embry Owen, Riggs’ campaign manager, said in a statement after the ruling.  “We are grateful that the State Board of Elections made the right call and will stand strong in defending the will of North Carolinian voters.”

They added: “Judge Griffin must immediately concede.”

Griffin, however, is likely to appeal the ruling to state court, where it may ultimately end up before the North Carolina Supreme Court, which has a 5-2 Republican majority.

‘These are voters who followed the rules’

Craig Schauer, Griffin’s lawyer who led off the hearing, argued that the challenges were simply about fairness and ensuring that every legal ballot was counted. 

“We challenged registered Democrats, registered Republicans, and unaffiliated voters without any favoritism,” Schauer said. “We believe the law matters and that election laws should be enforced, and if you are ineligible to vote, your vote should not be counted regardless of your party affiliation.”

The problem, Riggs attorneys, courts, and now the board says, is that these 60,000 ballots ARE from eligible voters, and to throw them out in bulk without any evidence of a given voter’s ineligibility would be like throwing out the bathroom with the bath water. 

“These are voters who followed the rules in place at the time when they were registered and voted and who only found out after the election, and in some cases decades after they registered to vote, that a candidate in this election for the [state’s] highest court … was seeking to have their votes thrown out,” Bennett told the board.

“These voters are now at risk of losing their constitutional right to vote because they did not anticipate the changes in the rules that Judge Griffin is now pushing for in the post-election proceeding.” 

The board seemed to lean toward Bennett’s argument as among the main reasons they dismissed the challenges. 

“These people have voted in many prior elections,” Board member Jeff Carmon, a Democrat, said. “It’s nothing that they did wrong. They were on the rolls, they showed up with their voter ID. So I don’t see any irregularities.”

Siobhan O’Duffy Millen, another Democrat on the board, agreed.

“Just because we have perhaps a gap in the form,” she said, “that does not rise to the level of an irregularity or a violation or misconduct.”

Millen added: “And that’s really what a protest is supposed to concern.”

Though the Republican board members did not indicate they were in favor of casting out all 60,000 votes en masse, Griffin’s lawyers or state Republicans could misconstrue the board’s split vote, their mention of “probable cause,” or conflate their call for a deeper look with an openness to discard votes based on hearsay.

A potentially bitter road ahead

The disagreements between North Carolina Republicans and Democrats in the General Assembly and on the campaign trail are often heated and barbed with distrust, if not dislike. But the public disagreements on the state board, throughout countless public meetings over the last election season, have been almost cordial and suggest mutual respect. 

Their decisions are often unanimous, like the vote on the challenges to military voters and Voter ID.

“I regret that we did not have unanimity in the other matters that we discussed today. We all work hard to accomplish that as best we can,” Hirsh said. 

Stacy “Four” Eggers, a Republican, voiced his disagreement with his fellow board members several times, but in his final remarks thanked them, and highlighted the board’s attempts to remain bipartisan in spirit as well as construction. 

“Mr. Chairman, I appreciate the collegiality of my colleagues and also our ability to have dissenting votes respectfully,” Eggers said. 

But the board’s collegiality may not follow the dispute over these ballots through the rest of its journey through the legal process. 

The Chief Justice of the NC Supreme Court is Republican Paul Newby, who has been openly, and secretly, dismissive of Democratic Justices, including Justice Anita Earls, the other Democrat on the court. 

That North Carolina voters chose Riggs has been confirmed in multiple counts of the more than 5.7 million votes in this year’s election. But the final word will likely be with an increasingly partisan court that could invalidate tens of thousands of legal votes in an intervention with no clear precedent in modern elections.