In North Carolina, an Attempt to Overturn a Supreme Court Election

In a dispute that is attracting national attention, Jefferson Griffin, a Republican candidate for the North Carolina Supreme Court and judge on the state intermediate court, is seeking to invalidate more than 60,000 votes and overturn the electoral win of his opponent, Justice Allison Riggs.

The dispute stems from November’s state supreme court election, which Griffin lost by just 734 votes. The crux of Griffin’s argument is a claim that the state board of elections has been breaking state election law for decades by following an incorrect process for registering voters, including failing to require voters to provide a driver’s license or social security information and wrongfully allowing certain overseas and absentee ballots to be submitted without photo identification. 

Notably, Griffin does not claim voter fraud or dispute that voters followed the process presented to them by the board of elections. And with respect to overseas voters, Griffin has limited most of his objections to votes cast in certain heavily Democratic counties in the state. His argument is that the board of elections refused to fix illegal processes prior to the election and that as a result, people who failed to provide legally required information had cast ballots. Now the “chickens have come home to roost,” he argues, and those votes should not be counted. 

Riggs and the state board of elections respond that Griffin can’t throw out ballots cast by eligible voters who followed the rules as they existed at the time of the election. Voters are entitled to rely on the established election procedure, Riggs argues, and are protected in doing so by the U.S. Constitution’s Due Process Clause. (There are also disputes about what state and federal law actually requires with respect to North Carolina’s processes, as well as claims that many voters identified as having missing information actually provided those materials at the time they registered to vote.) 

The dispute has spurred multiple state and federal lawsuits, including ongoing litigation over whether Griffin’s state litigation should be removed to federal court. A federal district court judge declined to hear the case out of respect for state interests, under a principle called abstention. The judge’s order has been appealed and the U.S. Court of Appeals for the Fourth Circuit heard argument on Monday.

Griffin is seeking to undo what’s been a North Star in election law: You can’t change the rules of an election after the fact. Several justices on the North Carolina Supreme Court, however, have signaled openness to his claims. It’s a test for the judiciary that puts in stark relief the role that courts play in supporting — or eroding — democratic norms. A ruling in Griffin’s favor could also open the door to similar gamesmanship in other states. 

In an amicus brief filed with the Fourth Circuit last week, eight prominent scholars who study democratic backsliding characterized Griffin’s efforts as “no ordinary legal dispute” but rather a dramatic escalation of democratic backsliding in North Carolina. “If we saw this happening in another country, we would know what to call it,” the scholars observe: a break with democratic norms. They urged federal court intervention “to preserve democracy in North Carolina and counter the backsliding process.”

For its part, last week the North Carolina Supreme Court, which currently has a 5–2 Republican majority, rejected a petition by Griffin that the state high court bypass the lower courts to resolve his case in the first instance. (Riggs, a Democrat, is recused from hearing the case.) However, the court kept in place a stay barring the board of elections from certifying the election result. 

The court’s order, authored by Justice Trey Allen, a Republican, used language that may signal openness to Griffin’s claim, including characterizing Griffin as contesting “potentially illegal votes.” Three other Republican justices on the court wrote concurrences that, among other things, criticized those who have “chastised” Griffin. Griffin is not seeking to disenfranchise voters, they argue, and has a “right to ensure that only lawful votes are counted and that the result of the election is accurate.” 

On the other side, Justice Anita Earls, the only Democratic justice hearing the case, argued that the court should have dissolved its temporary stay against certifying the election. Responding to the court’s characterization of “potentially illegal votes,” she wrote, “we cannot overturn the results of an election on potentials.” Justice Richard Dietz, a Republican, also signaled skepticism toward Griffin’s claims, emphasizing that “the State Board of Elections complied with the election rules existing at the time of the election” and that Griffin’s claim is “not that the Board violated the existing rules, but that the rules themselves are either unlawful or unconstitutional.” Any shortcomings with those rules, Dietz argued, cannot be applied to an election that has already taken place. 

If the court ultimately divides 3–3, a distinct possibility, whatever ruling comes from the lower court will stand (absent a federal court ruling to the contrary). The state trial court is set to hold a hearing in the case on February 7.

Griffin’s case is about the outcome of an important state election, but it’s also about the role of courts — state and federal — in preserving democracy. We often talk about courts as limiting (or failing to limit) efforts by others to violate voting rights or undermine democracy. But here, the call is coming from inside the house. The North Carolina courts are being asked to retroactively throw out tens of thousands of votes and potentially overturn an election. The federal courts are being asked to intervene to protect voters’ federal due process rights. It’s a major test of our judicial system at a moment when many of our democratic institutions are showing great frailty.

Alicia Bannon is the director of the Judiciary Program at the Brennan Center for Justice and editor in chief for State Court Report.

Suggested Citation: Alicia Bannon, Will North Carolina overturn its supreme court election?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 30, 2024), https://statecourtreport.org/our-work/analysis-opinion/will-north-carolina-overturn-its-supreme-court-election