NC Supreme Court stalls Jefferson Griffin’s effort to overturn his election loss, but hints at a long road ahead

Though there is still no resolution in sight, there have been several developments in a case that has garnered national attention, strained electoral precedent, and opened the door for future losing candidates to sneak into office.

It’s been more than two months since the losing candidate in last year’s North Carolina Supreme Court race, Jefferson Griffin, filed a lawsuit asking that same court to help him overturn his loss by throwing out the ballots of 60,000 voters who all sides agree did nothing wrong.

The winning candidate in that race, incumbent Justice Allison Riggs, filed a brief on Tuesday asking the court to speed the process up a bit.  On Wednesday, the court issued a ruling that will slow it down even more. 

The court ruled unanimously that Griffin improperly attempted to bypass a lower court when he petitioned the issue directly to them, and ordered the case sent to the Wake County Superior Court, which, by law, should have gotten first crack.

And now, a case that has dragged well into the new year has no end in sight.  

“While I agree with the North Carolina Supreme Court’s decision yesterday to dismiss Judge Griffin’s inappropriate request for a writ of prohibition, I am disappointed that the door has been opened to dragging this out for so long,” Riggs said through a campaign statement on Thursday.

“Voters elected me to continue serving on the North Carolina Supreme Court 79 days ago, and my election is the last uncertified race in the country.”

Though there is still no resolution, there have been several developments in a case that has increasingly garnered national attention, strains electoral precedent, and could allow a partisan court to overrule voters, opening the door for future losing candidates to sneak into office through questionable lawsuits. 

Here’s a run down of what you may have missed over the last couple of weeks.

A quick recap

Griffin lost to Riggs by 734 votes, a tally confirmed by three counts of the vote. He led Riggs by thousands of votes on Election Night, but that total didn’t include tens and tens of thousands of provisional ballots and ballots sent by mail, because state law prohibits election officials from counting those ballots until polls close on Election Night. 

Soon after those votes were counted and the count showed Riggs surpassing Griffin, he filed a lawsuit saying that 60,000 votes should not have been counted because those voters’  registration files had incomplete information in a state database, even though there are lots of valid reasons why that may be be the case. Legal precedent also says voters can’t be removed close to an election over paperwork-related issues and Griffin’s team has yet to produce a single voter who is actually ineligible. The vast majority of these contested voters have been voting without issue for years and had to show their voter ID before voting.

Griffin asked the state supreme court, which has a large Republican majority and where Griffin’s “friend and mentor” is the chief justice, to hear the case immediately. Riggs and the North Carolina Board of Elections, which dismissed Griffin’s protests on party lines, sought to move the case to federal court, arguing that fundamental questions in the case dealt with federal voting laws. 

A federal judge appointed during President Donald Trump’s first term rejected this argument and sent it back to state court. Riggs appealed this ruling, and a federal appeals court is set to hear the question of jurisdiction on Monday, Jan. 27.

So not only is the case dragging, it’s snagged in a jumble of competing court systems, but none of the legal complexities change the central question, Riggs’ team says.

“It’s changing the rules of the game after the game has ended,” Riggs told Cardinal & Pine in an interview last month. “If you change an election rule going forward, at least in theory, voters will have some notice and be able to comply.”

If Griffin is successful, these voters, who did everything they were supposed to do, will have no recourse to make sure their vote in this race counts. 

“That doesn’t comport with any just elementary level notion of fairness,” Riggs said. “This is not something that should be normalized or accepted.”

In her request for the NC Supreme Court to move quickly, Riggs’ lawyers warned of what ruling in Griffin’s favor would mean.

“If Judge Griffin succeeds, the implications are staggering,”  her legal team wrote in a filing. 

“Rather than suing before an election to challenge rules they do not believe are valid, candidates will have an incentive to say nothing and wait to see if they win. Then if they lose, they will drag out elections through litigation for months—to keep throwing out votes until they win.”

They added: “Never again will a voter in North Carolina be able to walk out of a voting booth knowing that his or her vote will count, and the court system will be flooded with lawsuits after every election seeking to challenge votes all over the State.”

A lightning-round 

Here is a bullet point list of other key updates in the case:

• ‘That’s so many names’ — Voting rights advocates stood in the cold outside the state supreme court last week to try to read the names of each of the 60,000 voters Griffin wants to invalidate. Organizers booked a permit from 6 a.m. to midnight, because an AI app told them that’s how long it would take. They soon realized it would take more than 50 hours, even doubling up on the reading. They started at 6 a.m. and ended at 11 p.m.. They were only about three-quarters of the way through the names

“That’s so many names,” Kate Barr of the Can’t Win Victory Fund, the event organizer, said soon after she’d read the final names of the night. 

“It’s shocking how many human beings are being disenfranchised, how many human beings are being denied their voice,” she said. 

• After scrutiny, Griffin shifts his focus — As the names were being read out loud, Griffin amended his lawsuit to say that if the Supreme Court wanted to wait on throwing out the 60,000 votes he challenged and instead focus first on a smaller subset of challenged votes, he’d be fine with that. In fact, he said, they could just throw out enough voters for him to win, and they could stop with the rest. 

Among the votes challenged in this narrower focus, are military service members who voted from overseas, but did not provide a voter ID. State law requires voters to show an ID, but the BOE exempted overseas voters from this requirement in its election plan, citing a vagary in state law, and the Republican-controlled General Assembly signed off on that plan months before the election without raising any objections. These voters did what election officials told them to do.

But, as analyses by ProPublica and Bryan Anderson, a freelance reporter, show, Griffin is not asking the court to throw out ALL of the military members who voted this way, he’s asking the court to throw out only the ballots of overseas military voters from some heavily Democratic counties who voted this way, and NOT the votes of military servicemembers from Republican counties who voted this way. 

Griffin is also not asking that these voters be removed from the voter rolls, he’s just asking that the court force election officials to throw out their votes, and he’s not asking the court to throw out these votes in ALL the 2024 races, he’s just asking the court to throw them out in his race, and then order a new count so that he can win. 

“If the re-tabulation results in a lead change,” Griffin’s lawyers wrote in the latest filing, “then there is nothing left to do. The Court need not consider the other protests, because they would not change the outcome back in favor of Justice Riggs.

• Republican justices tip their hand — Riggs has recused herself from the case, and one Republican on the court, Justice Richard Dietz, has already written that it is too late for Griffin to be raising these issues, joining the other Democrat on the court, Justice Anita Earls, in arguing in separate dissents that the court should never have accepted the case in the first place. 

But while the court’s ruling sending it back to a lower court this week was unanimous, separate filings by three Republican justices show there is little doubt that they will rule in Griffin’s favor when it inevitably returns, on appeal, to the state’s highest court. That sets up a likely 3-2 framework and leaves tJustice Trey Allen, a Republican, as the potential hinge vote.

Allen, who voted to take the case and delay certification of Riggs’ victory, also wrote a separate opinion when the ruling was announced, warning the public not to conflate accepting a case with agreeing with it. 

“I write separately to stress that the Court’s order granting Judge Griffin’s motion for temporary stay should not be taken to mean that Judge Griffin will ultimately prevail on the merits,” Allen wrote.

If the final vote is 3-3, the case would fall back to whatever the most recent lower court ruled. 

So strap in. The road gets narrow and rocky from here. 

• Unusual allies — As Anderson recently pointed out on X, the outcry against Griffin’s approach and the scope of his protests have united folks who have seldom, if ever, agreed on politics. Democrats and voting rights groups have assailed Griffin everywhere from protests in Raleigh to the US House floor, but several conservative commentators, including a full on election denier, have also derided Griffin as a “sore loser,” who would destroy the court’s credibility if his case is successful.

Carol Snow, a NC far-right advocate who has made several of the same arguments about the voter rolls before the election and suggested the state board of election should be prosecuted for their handling of things, wrote recently on X that “The remedy Griffin is requesting is an embarrassment to the Republican Party.” 

She wrote: “If the R-held Supreme Court goes along with Griffin’s “hey, just toss the overseas ballots with no photo ID and if I win THAT WAY, then let’s forget about those other categories of ballots because magically I know my lead would increase” nonsense, I think changing my party affiliation to UNA is looking pretty darned good.”

The conservative institutions Carolina Journal and Longleaf Politics also strongly criticized Griffin’s approach.

“If the Supreme Court sides with Griffin,” Andrew Dunn, wrote last month, “the fallout will be immediate and brutal.”

Dunn is a frequent critic of Democrats and a strong critic of state elections officials. But Griffin’s case, he said, is dangerous, not just for election integrity but for the Republican party. 

“This isn’t just bad optics; it’s potentially a credibility-shattering disaster for the court, the party, and conservatism in North Carolina. Overnight, this becomes a national story about Republicans ‘stealing’ a Supreme Court seat,” he wrote. “The allegation would be impossible to defend against.”

• Griffin has twice voted by overseas ballot — Griffin, a member of the North Carolina National Guard, voted by military absentee ballot in 2019 and 2020, ProPublica reported this week, targeting voters who voted in “the same manner” he did. 

There are some apples and oranges at play here, as the Voter ID requirement Griffin is focused on was not in effect in those elections. But the military voters Griffin is targeting this year, just like Griffin did previously, followed the rules as they were presented to them at the time, ticking every box, crossing every t, and dotting every i election officials asked of them.

Bobby Jones, the president of Veterans for Responsible Leadership, a bipartisan group that opposes far-right governance, said in an interview this month that targeting military voters is particularly insidious because they are less likely to complain. 

“I would love to say that I’m shocked, but I’m not because the United States military, we are trained to not have a voice politically. We fight to be apolitical. So if that was one of my absentee votes that was being debated right now, I’m not going to say anything. I’m still on active duty, right?” Jones said.

“And your buddy there knows that, he knows there’s not going to be a cry from military families outraged about it, and he knows he’s going to get minimal pushback from the actual people submitting the votes.”

Jones, who served as a commander in the Navy in the wake of the Sept. 11 attacks, is based in Georgia, but his in-laws live in North Carolina, a state well-represented among the organization’s some 5,000 members.

Griffin, he said, should know better.

“He lost,” Jones said. “It’s evident that the man lost.”