The Lewis F. Powell Jr. federal courthouse in Richmond is home to the U.S. Court of Appeals for the 4th Circuit. (Photo: Ned Oliver/ Virginia Mercury)
In a pivotal hearing in the North Carolina Supreme Court elections case, the lawyer representing the state Board of Elections faced a barrage of questions from a federal court of appeals judge about the appropriateness of calling back to federal court a case that the state Supreme Court had acted on.
The state Board of Elections and Justice Allison Riggs are appealing a federal district court judge’s decision to send back to state court an elections case in which Republican Appeals Court Judge Jefferson Griffin wants to invalidate more than 60,000 votes.
Griffin had asked the state Supreme Court to order the elections board to erase those votes, believing that doing so would allow him to erase Riggs’ 734 vote lead.
Last week, the state Supreme Court dismissed Griffin’s request that it order the elections board to throw out ballots and told the Wake County Superior Court to start a trial. It also kept in place a block on certification of a winner in the race.
The case has taken several turns in the weeks since the state Board of Elections dismissed his protests. The panel of three judges on the Fourth Circuit Court of Appeals is considering whether the case should be heard in federal court or stay in state court. Riggs and the state Board of Elections want the case in federal court, while Griffin wants state courts to consider the claims.
Where the case is heard could determine the winner of the election. The state Supreme Court race is the last statewide race in the nation that does not have a declared winner. The high court currently features a 5-2 Republican majority, including Riggs, who has recused herself from the case.
The courtroom in Richmond was packed Monday afternoon with North Carolina voters. Some spectators were directed to an overflow room.
“I can’t believe that so many people would be interested in this case that was so procedural,” said Judge Paul V. Niemeyer, who was appointed by President George H.W. Bush.
Niemeyer appeared to be the most skeptical of the request to reverse the federal district court judge’s order sending Griffin’s case to state court.
“If we are able to issue an order saying ‘ give us the case,’ we get a case that has been dismissed,” he said.
“Every single case I’ve read, every single case, where there’s a remand, the assumption was that the state court had it, and how do we get it back. If the state court legitimately has it, we have to respect its orders.”
In Raleigh, Riggs supporters decry Griffin’s attempted ballot purge
Outside the North Carolina Supreme Court Monday morning, several hours prior to the Fourth Circuit argument, state Democrats and voters continued to rail against Griffin’s efforts to challenge ballots.
“What we are witnessing in North Carolina is nothing less than a blatant attempt to overturn a free and fair election,” said Rep. Deborah Ross (D-NC) of Raleigh. “Justice Riggs’ opponent refuses to accept defeat. Instead, he wants to throw out valid votes in a quest for power.”
Ross and North Carolina Democratic Party Chair Anderson Clayton spoke alongside voters whose ballots were challenged and their family members. Speaking from a podium emblazoned “Protect our Votes,” Clayton attacked Griffin for “cherry-picking voters” from Democratic counties in his effort to throw out military and overseas ballots.
“It’s shameful and disturbing considering that Jefferson Griffin as a sitting judge is in this position, that he’s supposed to uphold the laws. He’s someone that’s voted by absentee ballots twice himself as a sitting member of our judiciary,” Clayton said. “These actions are not becoming of a sitting judge — they’re actions of a sore loser.”
Clayton said she hopes the Fourth Circuit will quickly resolve the case in the state’s favor, but noted that the fastest resolution would be for Griffin and Republicans to concede the race. She added that she and others concerned about the outcome of the case would travel to Richmond to ensure that someone was “bearing witness” to the process.
Ross noted that even some North Carolina Republicans were speaking out against Griffin’s effort. She pointed to an ad launched by a Republican-led group with tied to former Governor Pat McCrory that shows GOP voters who themselves were targeted for exclusion condemning the challenge.
“There are more and more Republicans, real Republicans who believe in the Constitution and the rule of law, that are getting sick of their own party,” Ross said. “There will be a reckoning, and it will be a reckoning within their own party.”
Carro Rose Eddings, a Lumbee registered voter and U.S. Air Force veteran, said her ballot is among those being challenged, a fact she finds “unconscionable” particularly as Griffin used the same military voting process to cast his ballot as a member of the Army National Guard.
“These men and women may not be living or serving in North Carolina, but they are North Carolinians nonetheless,” Eddings said. “They did everything right to make their voices heard and deserve to have their votes counted, and Judge Griffin knows it.”
-Brandon Kingdollar
Lawyers representing the Board of Elections and Riggs said the state Supreme Court’s order kept in place the prohibition on the state Board of Elections certifying the election, keeping control over part of the case. And the state Supreme Court order referenced a bundle of cases Griffin filed in trial court that are still pending.
William Thompson, Griffin’s lawyer, told the three-judge panel that the case became moot on Wednesday, when the state Supreme Court said it would not immediately step in as Griffin requested.
Judge Toby J. Heytens, who President Joe Biden appointed, peppered Thompson with technical questions.
Griffin’s challenges fall into three categories.
He claims that more than 60,000 voters did not provide a driver’s license or partial Social Security number with their registrations. He argues that makes those voters not legally registered. Voters have come forward to say they provided the information, but it was not attached to their electronic record due to typos or data mismatches.
Griffin is challenging about 5,000 military and overseas voters from four overwhelmingly Democratic counties for not providing a photo ID with their ballot. The state does not require these voters to provide ID.
Voters in the third category, numbering a few hundred, are overseas voters who have never lived in North Carolina but are connected to the state through their parents.
Susan McQuiddy of Winston-Salem attended the hearing because she is on list of people whose votes Griffin wants to toss, but doesn’t know why.
McQuiddy said she keeps track of her registration and was careful to update it when she moved. McQuiddy said the Forsyth elections board told her she was properly registered.
Anne Tindall, a lawyer with Protect Democracy, said after the hearing that she was waiting for someone to “to say something about the tens of thousands of North Carolinians whose votes are at stake.”
Outside the courthouse after the hearing, state Democratic Party Chair Anderson Clayton led a group of about three dozen people in a chant “Count, Don’t Cancel.”
The third judge on the panel — Marvin Quattlebaum, Jr. — was appointed by President Donald Trump to the Fourth Circuit in 2018. The panel gave no indication as to when it might rule in the case.