The U.S. Fourth Circuit Court of Appeals heard arguments Monday in what one law professor called a "knotty" and "fascinating" case over North Carolina's disputed election for a seat on the state's highest court.
A three-judge appellate panel heard arguments Monday on the uncertified statewide contest between Republican Jefferson Griffin and incumbent Democrat Allison Riggs, an associate justice on the North Carolina Supreme Court, and whether the proper venue for resolving the matter is the federal courts.
"The heart of it is the 'comity' piece, wanting to respect the North Carolina Supreme court as the high court in the state system," said Prof. Carl Tobias, who teaches Constitutional Law at the University of Richmond, referring to a key issue the appellate panel is weighing.
But Tobias also said the lawyer representing the state elections board did a commendable job arguing the federal court should assert jurisdiction over the matter, rather than defer to the North Carolina Supreme Court.
"When it implicates voting, there are U.S. Code provisions that say the federal court should act," Tobias said.
Tobias was explaining one of the main arguments made by Nicholas Brod, the North Carolina Department of Justice attorney representing the state elections board, in his address to the federal appeals panel.
The case has followed a convoluted and circuitous route to the 4th Circuit.
Griffin trails Riggs by 734 votes, as confirmed by two recounts. But Griffin filed protests challenging more than 65,000 ballots over alleged irregularities, including incomplete registrations and a failure on the part of military and overseas voters to provide photo ID with their absentee ballots.
The state elections board dismissed his protests due to a lack of evidence of actual voter ineligibility, and, the board's lawyers contend, because the challenged voters complied with the rules as established by state and federal law.
Griffin appealed directly to the state Supreme Court under a writ of prohibition, asking the justices to both block certification of the election, and to invalidate the challenged ballots. However, the state elections board had the case removed to federal district court, something allowed under federal law which allows for removal when someone's equal protection rights are threatened.
The state elections board 鈥� joined by Justice Riggs and advocacy groups including the League of Women Voters 鈥� contend Griffin's election protests raise federal equal protection issues because they target small groups of voters. For example, Griffin is challenging 5,509 absentee ballots cast by military and overseas voters drawn from just four Democratic-leaning, urban counties: Buncombe, Durham, Forsyth, and Guilford.
"The arguments on the other side of this case are just fundamentally inconsistent with the federal-state balance that Congress struck in the text of Section 1443, and we'd ask the court reverse," Brod argued.
After the elections board first had the case removed to federal court, a federal district court judge, Richard Myers II, a Trump appointee, sent it back to the North Carolina Supreme Court "with due regard for state sovereignty and the independence of states to decide matters of matters of substantial public concern."
The issue became more complicated for the 4th Circuit judges because the state Supreme Court dismissed Griffin's motion for a writ of prohibition and sent his protests to the trial-level Wake County Superior Court for a factual review.
Attorney Will Thompson, representing Jefferson Griffin, argued on Monday that means it's too late for the state elections board to have federal courts reclaim the case over their appeal of Griffin's motion for a writ of prohibition.
"This case became moot on Wednesday evening when the North Carolina Supreme Court dismissed the petition for a writ of prohibition," Thompson said, referring to the state Supreme Court's ruling issued on January 22.
Professor Tobias said the three judges on the appellate panel probably will take their time deliberating over what he called "very complicated kinds of issues that clash with one another."
Tobias called it an "interesting" panel, with a long-sitting judge, Paul Niemeyer, appointed in 1990 by Pres. George H.W. Bush; Toby Heytens, appointed in 2021 by Pres. Joe Biden; and A. Marvin Quattlebaum, appointed by Pres. Donald Trump, in 2018.
Tobias also pointed out that Quattlebaum, who was born in Durham, originally was nominated by Pres. Barack Obama, but his nomination at the time got blocked by Republican Senate Majority Leader Mitch McConnell.
Meanwhile, last week, the state Supreme Court ordered the trial-level Wake County Superior Court to "proceed expeditiously" with its review of Griffin's ballot protests.
