The Republican challenge to a state supreme court election decided by 734 votes is mostly about overseas voters who didn’t provide photo ID or never lived in North Carolina.
The Republican challenge to a state supreme court election decided by 734 votes is mostly about overseas voters who didn’t provide photo ID or never lived in North Carolina.
I n North Carolina, as in Minnesota, the balance of power still hasn’t settled following the 2024 election. In a series of court cases, Republicans are challenging the legitimacy of the ballots that carried incumbent Democratic state supreme court Justice Allison Riggs over Republican Jefferson Griffin by 734 votes out of more than 5.5 million ballots cast. The North Carolina supreme court — which was 6–1 Democrat heading into 2020 — will remain 5–2 Republican if Riggs holds on, but would shift to 6–1 Republican if Griffin is declared the winner.
Press coverage of Griffin’s challenge has been so uniformly negative, it was impossible for me to get the Republicans’ side of the story without going directly to the court filings and speaking to the North Carolina GOP. There’s more to the story. The legal positions taken by Griffin’s campaign may be polarizing, but this isn’t a stolen-election conspiracy theory or a case about voter fraud; it’s a more prosaic election-law dispute over which ballots should be legally counted. There’s also a longer history here of a power struggle between North Carolina’s Republican legislature, which writes its election laws, and its Democrat-controlled State Board of Elections (appointed by the governor), which decides which laws it feels like enforcing.
The Hard Landing
There are multiple reasons why Republicans should be frustrated by the outcome of this race. Donald Trump carried North Carolina by 183,048 votes, more than a three-point margin, yet Republicans’ disaster of a gubernatorial candidate, Mark Robinson, got blown out by nearly a 15-point margin and is now retiring from politics. With Robinson undermining any Trump coattails, Republicans down the ballot lost their veto-proof majority in the state legislature. Moreover, Trump’s margins were significantly dampened compared with the rest of the country and region in Western North Carolina, where the counties hit hardest by Hurricane Helene had disproportionately low turnout. It’s easy to imagine Griffin winning outside the margin of counting if not for the one-two punch of Robinson and Helene. In fact, he was ahead in the count until Riggs pulled ahead ten days after Election Day. Few things deliver an emotional gut punch like having an apparent Election Day victory vanish in a long post-election count.
Frustration may justify being a little slow to concede defeat, but it’s no basis to launch a court challenge. For that, you need an argument about how votes were illegally counted, illegally excluded, or (as in Minnesota) thrown in the garbage without being counted.
The Arguments
When challenging ballots that have been counted as legal votes, there’s a spectrum of illegality. At one end of that spectrum are fraudulent ballots and illegal voters. At the other end are legal technicalities that may strike courts and fair-minded observers as harsh reasons to throw out a ballot. Griffin originally raised six categories of challenges, three of which have since been resolved. The remaining three categories span the spectrum.
The clearest challenge is to “Never Residents” — voters who have never once in their lives resided in North Carolina. The Supreme Court has, since Dunn v. Blumstein (1972), held that states may not impose durational residency requirements — a dubious rule, given that the Constitution itself imposes durational citizenship requirements on members of Congress — but the Court in Dunn emphasized that “states have the power to require that voters be bona fide residents of the relevant political subdivision.” The State Board counted the votes of overseas voters who have never resided in the United States, but whose parents were last eligible to vote in North Carolina. As Griffin notes, the North Carolina constitution has, continuously since 1776, required voters to reside where they vote. Contrary to media narratives spun by the Democrats, this isn’t a challenge to military ballots (servicemembers are counted as not losing their state residency when they deploy overseas) or to federal elections, in which a federal statute determines where overseas voters may vote.
Unfortunately for Griffin’s campaign, the Never Residents category covers only 267 ballots — less than half of Riggs’s margin of victory. Thus, his campaign concedes that this category of ballots needs be examined only if one of the other two challenges succeeds.
The main action in the case, which affects 5,509 ballots, involves overseas voters who voted by mail without including a copy of their photo identification. North Carolina law requires photo ID for both in-person voting and absentee balloting. Failure to include ID in an absentee ballot can be cured, but only before Election Day. The State Board exempted overseas ballots entirely from the ID requirement, citing a provision of the state overseas and military ballot statute that says that “an authentication, other than the declaration [signed by the voter declaring that a material misstatement of fact in completing the document may be grounds for a conviction of perjury] specified [elsewhere in the statute] or the declaration on the federal postcard application and federal write-in absentee ballot, is not required for execution of a document under this Article.” But Griffin argues that the declaration only authenticates the documents (i.e., the absentee ballot application and the ballot); it’s not how North Carolina law refers to proof of identity for the voter.
Griffin also has a third, fallback argument, which has generated the lion’s share of the media coverage of the case. He argues that the State Board for decades has been allowing people to register to vote without meeting the requirements imposed by the legislature in 2004, such as providing a driver’s license or Social Security number at the time of registration. His brief to the court he intends to join doesn’t mince words about the stakes: “The State Board . . . has broken the law for decades, while refusing to correct its errors.”
This is, however, an understandably controversial argument to make in the aftermath of an election, for two reasons. In federal elections, for example, there are detailed federal rules for when a state can remove people from the voter rolls in the run-up to an election. Those rules don’t apply to state elections, but it strikes many people as unfair to throw out votes after they were counted on the grounds that the voter was never properly registered. The second reason why this is controversial is the sheer number of votes involved: 60,273 of them, even after excluding from the challenge voters who registered before the law changed in 2004 and voters who voted in-person on Election Day and thus personally showed photo ID.
It’s this third argument that has drawn most of the criticism for Griffin’s challenge, producing headlines like these:
- Doug Bock Clark of Pro Publica: “A North Carolina Supreme Court Candidate’s Bid to Overturn His Loss Is Based on Theory Election Deniers Deemed Extreme.”
- Robyn Nicole Sanders of Slate: “The North Carolina Supreme Court Is Coming Dangerously Close to Stealing an Election.”
- Alicia Bannon of the Brennan Center: “In North Carolina, an Attempt to Overturn a State Supreme Court Election: The losing candidate for a seat on the high court is trying to have more than 60,000 valid votes thrown out.”
- Storey Wertheimer of IndyWeek: “NC Supreme Court Ballot Challenge Hits Young Voters Hard.”
- Will Doran of WRAL: “In blow to GOP, NC Supreme Court won’t fast-track lawsuit seeking to throw out 60,000 ballots”
- Kyle Ingram and Avi Bajpai of the News and Observer: “Federal appeals court considers NC GOP challenge of 65,000 votes in Supreme Court election.”
- Sarah Smiley of the Daily Tar Heel: “‘Inherently disenfranchising’: Over 60,000 votes contested in N.C. Supreme Court race.”
Griffin argues that the courts probably won’t even need to reach this argument if they rule in his favor on the first two, which raises the question of why his legal team is willing to take so much bad press over a fallback position. But the history of disputes with the State Board also helps explain why Republicans are eager to have a legal vehicle to challenge its longstanding disregard for state law. In 2020, for example, the State Board threw out statutory deadlines for ballot submission, triggering an appeal that the U.S. Supreme Court declined to hear.
Matt Mercer, the director of communications for the North Carolina Republican Party, tells National Review, “The Democrats are ignoring the merits of Judge Griffin’s protests. In each instance, the facts support not counting votes from individuals who have never lived in North Carolina or failed to show Photo ID. It is the long-term failure of the State Board of Elections to acknowledge problems with the voter rolls exist and refused to address them.”
Who, Whom?
A major part of the skirmishing has been over who gets to decide this case. The North Carolina supreme court, with Riggs recused, is 5–1 Republican, and at least two of the justices have sounded sympathetic notes to Griffin’s challenge in the initial procedural rulings against certifying the election while the dispute goes forward. Justice Phil Berger wrote:
The underlying question is straightforward — one with a clear and evident answer. Strip away politics and reality-optional hot takes, the question presented, at its core, is what should be done if it is determined that those charged with faithfully executing the law fail or otherwise decline to follow the law? Agencies, boards, and commissions operating outside the bounds of established rules is a familiar trope, as is sweeping bureaucratic incompetence and neglect under the rug.
Chief Justice Paul Newby added, “There is nothing anti-democratic about filing an election protest. . . . It is more important to ensure the result is accurate than to hurriedly finalize the process as quickly as possible.”
Griffin has argued that one of the members of the State Board — who cast the deciding votes, because the State Board has three Democrats and two Republicans — should have recused because her husband was Riggs’s lead attorney during the campaign, and the law firm in which he is a partner is still representing Riggs. Democrats have fired back by complaining that a lower-court judge not involved in the case has contributed to Griffin’s litigation fund, and that the spouses of two of the Republican justices of the North Carolina supreme court donated the maximum $6,400 apiece to Griffin’s campaign. Naturally, this headlines articles complaining about the appearance of impropriety that mention only far into the article that the husband of the other Democrat on the court donated $2,700 to Riggs’s campaign.
Democrats have tried repeatedly to take the dispute to federal court, notwithstanding the fact that the relevant federal statutes don’t apply to state elections. U.S. District Judge Richard Meyers threw the case out, and the U.S. Court of Appeals for the Fourth Circuit heard arguments on Monday, January 27, over that decision. Meanwhile, Griffin’s petition appealing the State Board decision has been briefed before the North Carolina supreme court. Further maneuvers are likely to continue for at least the next several weeks before the case is resolved.