RALEIGH, N.C. — The North Carolina Supreme Court dismissed on Wednesday a request by the trailing candidate in an extremely close race for a seat on this same court to rule now on whether well over 60,000 ballots should be removed from the tally.
Instead, the justices ordered that the appeals of Republican Jefferson Griffin seeking to reverse decisions by the State Board of Elections to keep counting the ballots should be held first in the local trial court, as state law directs appeals of board decisions to begin.
The dismissal of the legal motion by Griffin to bypass Wake County Superior Court could slow down the effort to determine whether he or current Associate Justice Allison Riggs, a Democrat, will win an eight-year term.
After recounts and the election board’s dismissal of Griffin’s election protests, Riggs leads Griffin — a judge on the intermediate-level Court of Appeals — by 734 votes from more 5.5 million ballots cast in the race.
The decision to dismiss Griffin’s petition for what’s called a “writ of prohibition” was unanimous among the six justices who deliberated — Riggs is still on the court but recused herself in the case. The court’s order described issuing such a writ as “extraordinary.”
With Election Day held 2 1/2 months ago, the order directs the Wake County court to “proceed expeditiously” considering Griffin’s appeals. It’s very possible that the protest appeals ultimately return to the Supreme Court.
The timing of the dismissal was a bit surprising. The order was issued as the justices were still in the process of receiving legal briefs from the candidates and the state board on whether to issue the writ. The briefing schedule was to close on Friday.
A temporary stay that the Republican-majority Supreme Court issued Jan. 7 preventing the board from formally certifying Riggs as the election winner remains in place, however.
And the Supreme Court’s action doesn’t halt scheduled oral arguments for Monday at the 4th U.S. Circuit Court of Appeals by attorneys for Riggs, Griffin, the state board and other parties.
In that matter, the federal judges are considering in part whether questions over the 66,000 ballots being challenged by Griffin should actually be heard by a federal court. Lawyers for Riggs and the board say the matter involves federal voting rights and election law. Griffin’s side says it should remain in state court.
Griffin’s lawyers contend the challenged absentee or early votes were cast without complying with state registration, residency and photo identification laws that they argue the State Board of Elections failed to enforce. Removing even a portion from the tally could flip the outcome.
Riggs has said the votes were lawful and her attorneys accuse Griffin of trying to overturn an election after the fact by removing ballots of legitimate and longtime voters, violating their rights.
Attached to Wednesday’s order were written opinions by five of the six justices hearing the case.
Chief Justice Paul Newby, one of five registered Republicans on the court, defended the right of Griffin to file protests as state law allows, and called out those who say Griffin was seeking to “disenfranchise” voters and intentionally delay the certification.
Newby pointed out that some previously contested elections in North Carolina have taken months or longer to settle following an election.
Initially leading by 10,000 votes on election night, Griffin’s advantage dwindled as provisional and absentee ballots were counted in the days ahead. Riggs ultimately took the lead.
“It is understandable that petitioner and many North Carolina voters are questioning how this could happen,” Newby wrote, adding that Griffin “has a legal right to inquire into this outcome through the statutorily enacted procedures available to him.”
But Associate Justice Anita Earls, the only Democrat deliberating the case, wrote that the temporary stay preventing the certification of Riggs’ victory should have been dismissed as well.
“In seeking to invalidate the votes of over 60,000 voters, Judge Griffin cannot identify a single voter who fraudulently cast a ballot without being duly qualified under the laws of this state to do so,” Riggs wrote.
Riggs also said she perceived “a signal in this Order as to the Court’s preferred outcome” to overturn the results. Still, she wrote, am confident that the members of our judiciary who evaluate these claims shall do so fairly.”
