¹ÏÉñapp

As Jefferson Griffin sees it, a federal district court has no business considering his legal arguments for throwing out more than 60,000 ballots in his race to unseat North Carolina Supreme Court Justice Allison Riggs. Never mind that after two recounts, Riggs leads Griffin by 734 votes.

"(I)t is the North Carolina Supreme Court — and not the federal courts — which possesses 'independent authority to interpret state constitutional provisions' thereby reflecting 'the unique role of state constitutions and state courts within our system of federalism,' a legal brief in support of Griffin stated, citing a prior case from the state Supreme Court.

The legal brief was filed with Judge Richard Myers, of U.S. District Court of the Eastern District of North Carolina. The legal battle over Griffin's election protests was removed to Myers' court by the North Carolina State Board of Elections, which argues federal court has subject-matter jurisdiction over the case because it implicates federal voting laws and U.S. Constitutional protections from disenfranchisement.

Myers is now weighing whether to grant Griffin's motion to remand the case to the North Carolina Supreme Court, hear arguments in the matter himself or let the state elections board proceed with certification later this week.

Griffin's attorneys argued in their brief that "permitting federal jurisdiction here would disrupt the federal-state balance."

Griffin, a judge on the North Carolina Court of Appeals, claims the disputed ballots should be thrown out because of alleged irregularities.

In most cases, Griffin has alleged the disputed ballots were cast by voters who are not properly registered under North Carolina law. The issue has to do with voters who registered — many years and election cycles ago — using a form that predated the federal Help America Vote Act, or HAVA, of 2002. The pre-HAVA registration form did not clearly mandate registrants provide the last four digits of their Social Security number or their driver's license number.

Griffin has also protested the counting of ballots submitted by some absentee military and overseas voters who did not provide photo identification, even though , in accordance with federal law, explicitly excuses such overseas voters from that requirement.

Additionally, Griffin has alleged some ballots should be discarded because they were cast by ineligible voters who live overseas. These protests claim children of overseas voters — for example, missionaries and military personnel — who had never resided in North Carolina, should not have been allowed to vote, though such voters , again, in line with federal laws protecting the voting rights of overseas citizens.

All these cases, according to Griffin and his lawyers, involve unsettled matters of state law and should therefore remain in state court.

However, attorneys for the state elections board countered in their legal brief, that the case "squarely raises substantial federal questions under the United States Constitution, the Help America Vote Act, and other federal statutes."

Indeed, North Carolina's voter registration law is explicitly aligned with HAVA. The statute was passed in 2003 by the North Carolina General Assembly for the purpose of ensuring "that the State of North Carolina has a system for all North Carolina elections that complies with the requirements for federal elections set forth in the federal Help America Vote Act of 2002."

And neither state law nor HAVA makes having a Social Security number or a driver's license number a prerequisite for voting.

In cases where elections officials cannot confirm the last four digits of a voter's Social Security number or that person's driver's license number — often due to a clerical error — that voter must present a so-called HAVA document, such as a utility bill, when they first show up to vote.

If a person registering to vote does not have a Social Security number or a driver's license number, HAVA provides that a state elections administration office must assign the voter a special identification number for the purposes or registering.

Last month, at a hearing on his ballot protests, the state elections board dismissed Griffin's challenges due to a lack of evidence of any actual voter ineligibility.

Griffin immediately sought to bypass the usual appeals process and filed a writ of prohibition — with the solidly conservative state Supreme Court — aimed at stopping the elections board from certifying his loss to Riggs.

The state elections board had the case removed to federal district court.

"The federal issues raised in this petition are undoubtedly substantial," attorneys for the state elections board argued in their brief. "Petitioner aims to cancel more than 60,000 votes by changing the rules after an election."

A decision of that magnitude, based on federal law, that implicates the fundamental rights of voters raises a "substantial" federal question, according to the elections board's attorneys.