Democracy’s Fate Depends on Both State and Federal Courts

Matthew Segal is co-director of the American Civil Liberties Union (ACLU) State Supreme Court Initiative, which filed an amicus curiae brief in Griffin v. North Carolina Board of Elections in the North Carolina Court of Appeals. The ACLU’s Voting Rights Project also submitted a brief to the Fourth Circuit in related federal litigation. The ACLU of North Carolina signed on to both briefs.

In a democracy, voters are supposed to choose their representatives, not the other way around. Representatives, in this case, include elected state judges. Yet, for six months, that basic principle was under attack in North Carolina. Although that attack has come to an end, the courts’ handling of it contains important lessons for when, inevitably, democracy is challenged this way in other states.

In a contentious election last November for the state’s highest court, incumbent Justice Allison Riggs, a Democrat, won a close but decisive 734-vote victory against Judge Jefferson Griffin, a Republican who sits on the state court of appeals. But the story didn’t end there. Griffin filed a lawsuit asking the state judiciary to scrap over 60,000 ballots.

Griffin’s lawsuit took aim at North Carolinians who did nothing wrong, but who instead followed the instructions of election officials. Griffin principally alleged that the North Carolina Board of Elections accepted voter registrations without requiring voters to supply driver’s licenses or the last four digits of their social security numbers, and that it separately allowed overseas voters to cast military and absentee ballots without supplying photo ID. He argued that ballots cast by voters in these categories should be thrown out.

Fortunately, on May 5, a federal court rejected his efforts, and Griffin chose to concede rather than appeal. While the end of this litigation is welcome, its existence revealed an important truth: When democracy is under attack, both state and federal courts must come to its defense.

For starters, before the federal court ruled against Griffin, the North Carolina Supreme Court had done so in part, by holding that the largest category of disputed votes — involving allegedly incorrect voter registrations — must count. The state court pointed to more than 100 years of precedent protecting voters from having their votes nullified due to erroneous government instructions. Under these cases, as an ACLU brief had explained, once election officials allow someone to register and vote, their vote “will not be rejected.”

Those decisions are consistent with an important principle of state constitutional law. Like many state constitutions, the North Carolina Constitution vests all political power with the people. This “popular sovereignty” provision is no mere platitude. As explained in a treatise co-authored by North Carolina Chief Justice Paul Newby, it reflects “revolutionary faith” in the people. It would be bizarre, then, if the people’s sovereign choices, as expressed in their votes, could be negated simply because one branch of government (the judiciary) says another branch (the executive) misled them.

Yet, surprisingly, the North Carolina Supreme Court did not apply this principle to the overseas ballots. Those voters, too, had relied on the board’s instructions. But the state court held that those voters would have their ballots discarded unless they provided photo ID within 30 days of receiving notice from the board.

Then the federal district court stepped in. It held, for two reasons, that discarding ballots challenged by Griffin would violate the U.S. Constitution.

First, the federal court held that the Due Process Clause of the U.S. Constitution protected all voters who “cast ballots in reliance on previously established rules,” no matter whether those rules pertained to registering or to voting. While the North Carolina Supreme Court had held that the overseas voters were not entitled to have their votes count if they had not supplied photo ID, the federal court concluded that, if anything, those voters were especially worthy of protection because, for 90 percent of them, the voting systems did not even allow them to submit photo ID.

Second, the federal court held that the North Carolina Supreme Court’s decision violated the Equal Protection Clause of the U.S. Constitution by requiring only some, rather than all, overseas voters to take additional steps to salvage their votes. By requiring photo ID only from voters in counties where Griffin filed challenges — rather than every county in the state — the federal court explained, the state court had unfairly treated them more harshly than other voters.

These overlapping but distinct court decisions — one federal and one state — contain important lessons about federalism and our democracy. Standing alone, neither decision fully protected North Carolina’s voters from disenfranchisement. The state decision saved 60,000 ballots but left others at risk. Although the federal court announced protections for all challenged ballots, Griffin could have appealed that decision.

That’s how federalism is supposed to work. Our system of government does not presume that any court, state or federal, is perfect. Instead, by balancing power between state and federal institutions, federalism increases the odds that at least one court will step up to protect fundamental rights and liberties.

As more and more of our democracy comes under attack, that federalist system is increasingly vital. In Griffin’s lawsuit, to be sure, the federal court took a broader approach to federal rights than the state court took to state rights. But in the next case, in another state, the roles might reverse. A federal court might say that challenged voters have no recourse, while a state court, perhaps relying on an interpretation of a popular sovereignty provision in its own constitution, might announce sweeping voter protections.

The stakes are high. If a case like Griffin’s succeeds elsewhere — and especially if it overturns an election result — the damage to our democracy would be severe. It will take all our courts, state and federal alike, to keep that from happening.

Suggested Citation: Matthew Segal, Democracy’s Fate Depends on Both State and Federal Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 12, 2025), https://statecourtreport.org/our-work/analysis-opinion/democracys-fate-depends-both-state-and-federal-courts