A North Carolina Court Decision Could Overturn a 2024 State Supreme Court Election

UPDATE: On April 11, the North Carolina Supreme Court issued an order reversing the appeals court in part and affirming it in part. Overruling the appellate court, the supreme court concluded that voters with allegedly incomplete registrations should have their votes counted. The supreme court agreed with the appeals court that overseas voters who did not submit photo ID with their ballots must cure their ballots, but they did extend the cure period to 30 days after notice from a county board of elections. The order affirmed the appeals court ruling that would discard the votes of children and dependents of military servicemembers and other overseas families who inherited residence from their families. A few hours later, Justice Allison Riggs filed an emergency motion in federal court, seeking to enjoin the North Carolina Supreme Court’s decision.

In a dispute that has stretched five months past Election Day, a state appeals court ruled last week that over 60,000 North Carolinians who voted in the 2024 state supreme court election will have to prove their eligibility or risk having their ballots thrown out. The court also held that the votes of hundreds of children and dependents born abroad to North Carolinians will not count.

The ruling in Griffin v. North Carolina State Board of Elections is the latest twist in a case brought by state supreme court candidate Jefferson Griffin (R), who filed post-election challenges to overturn his opponent’s win. Sitting state supreme court justice Allison Riggs (D), who won the election, and the state election board have appealed the decision.

If the ruling stands, it would violate a basic principle: It is fundamentally unfair to change the rules of the game after it has been played.

A Troublesome Ruling

After two recounts, Griffin, who is a judge on the appeals court that heard the case, lost the November election to Riggs by 734 votes. Griffin then filed hundreds of election protests statewide. In essence, Griffin argued that the state board of elections illegally registered voters through incorrect processes — failing to require some voters to provide a driver’s license or social security information, allowing some overseas and absentee ballots to be submitted without photo identification, and allowing absentee ballots cast by certain children and dependents of North Carolinians. He did not claim voter fraud or that voters failed to follow rules set forth by the state board, and he limited his disputes about the overseas voters to those in certain heavily Democratic counties. The state board denied Griffin’s initial claims and said the election should be certified.

His claims led to multiple state and federal lawsuits, including an attempt by the state elections board to remove the case to federal court and another by Griffin to bypass the state’s trial court and go directly to the state supreme court. In February, a state trial court ruled that the state board had properly rejected Griffin’s post-election protests, leading to the most recent appeal.

In last week’s ruling, a three-judge panel said that that voters with purportedly incomplete registrations and overseas voters who did not submit a copy of their photo ID with their ballots will have 15 days to cure the purported defects, after the county boards of elections notify those voters. The court ruled that the ballots of children and dependents born abroad to North Carolinians should not be counted.

The dissent by Judge Toby Hampson, the only Democrat on the panel, reiterated that challenges to election laws should, where possible, be brought prior to an election. A post-election attempt to change the rules and discard valid votes, it warned, “is directly counter to law, equity, and the Constitution.”

Griffin’s Arguments Risk Rewriting the Rules of the Election

The court’s ruling accepted Griffin’s challenges against three groups of voters. In doing so, both Griffin and the court’s ruling seek to improperly rewrite the rules of an election that has already taken place.

First, the ruling assumes that absentee voters whose registration records did not have their driver’s license numbers or last four digits of their social security number were improperly registered to vote. According to the state board of elections, many reasons might explain why that information did not appear in the state’s database, like election officials making a routine data entry error of a voter’s information or a voter having differences between their married and maiden names or hyphenated last names. Put another way, many of these voters have provided the information asked of them — but could have their ballots rejected through no fault of their own.

Second, the majority said that absentee ballots cast by military and overseas voters must include photo identification with their ballots. But both state law and related federal law exempt military and overseas voters casting absentee ballots from having to submit a photo identification when they submit their ballots. Lawmakers made these exemptions because they recognized overseas voters are already asked to provide ample identifying information. Indeed, photocopying a photo identification to submit with their ballots can be particularly burdensome for military or overseas voters who may be deployed, in a remote area, or lack adequate infrastructure.

Third, the ruling discards the ballots of children and dependents of military servicemembers and other overseas families who inherited residence from their families and are U.S. citizens. The ruling argues that these children and dependents should not be allowed to vote in state elections since they have not resided in North Carolina, despite a state law that has existed for a decade to ensure their right to vote. Many other states have a similar policy.

Why This Case Matters

Each of the rules at issue in this case were in place long before the election — and Griffin could have raised his challenges to the rules long before the ballots were cast.

“You cannot move the goal post after the game has started,” said Linda Berkeley, who moved to England decades ago, has voted in every U.S. election since the 1980s, and voted for Griffin in November.

That was one reason why the Brennan Center for Justice and law firm Ballew Puryear filed an amicus brief in the case on behalf of Berkeley, the U.S. Vote Foundation, the Association of Americans Resident Overseas, and five other impacted voters. The brief argued that overseas voters are not just names on a list, but American citizens and North Carolinians. For these voters, being able to elect candidates that affect their home state and the lives of their family and friends is part of being an American. Their voices matter.

It’s unclear who will have the final word on this dispute. Riggs and the State Board of Elections have secured a stay of the lower court’s decision and are seeking review by the North Carolina Supreme Court. And the federal courts could again be asked to intervene to protect voters’ due process rights.

Still, if left in place, last week’s appeals court decision risks silencing the voices of overseas voters by upending rules that recognize the challenges of voting from abroad. More broadly, the decision risks silencing the voices of each of the 60,000 voters affected who followed the rules they were given — rules put in place through a democratic process. Before the election, Griffin did nothing to challenge these rules. Now that the votes have been counted, he should not be able to employ the courts to skirt these rules. Nor should candidates in future races be encouraged to do the same — a distinct possibility if Griffin succeeds.

It was an extremely close race, but voters made their choice. Overturning Riggs’s win would lead to grave consequences not only for this election, but for future elections and for our democracy.

Justin Lam is a counsel at the Brennan Center for Justice.

Suggested Citation: Justin Lam, A North Carolina Court Decision Could Overturn a 2024 State Supreme Court Election, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 9, 2025), https://statecourtreport.org/our-work/analysis-opinion/north-carolina-court-decision-could-overturn-2024-state-supreme-court