Republican Jefferson Griffin's bid to turn around an apparent electoral loss in his race for a seat on the North Carolina Supreme Court now rests with a panel of his fellow state appeals court judges.
Griffin trails incumbent Democratic Justice Allison Riggs by 734 votes, a gap confirmed by two recounts. But he has protested more than 65,000 ballots over alleged irregularities and wants the election results recalculated minus the disputed votes.
"So, to be clear, this case is not about changing laws after the election," argued Craig Schauer, one of Griffin's attorneys. "It's a case about enforcing the laws that were already on the books before the election."
On Friday, Griffin's attorneys along with lawyers for the North Carolina State Board of Elections and Justice Riggs addressed a three-judge panel of the state appeals court.
The judges on the panel are John Tyson, Fred Gore, and Toby Hamson, two Republicans, and one Democrat, respectively.
Judge says he's 'troubled' by registration issues
Opponents of Griffin's bid have accused him of undermining democracy by trying to re-write the rules for state elections after votes were cast.
Griffin has challenged three types of ballots. The biggest batch of ballots he is protesting were cast by early and mail-in voters his attorneys have alleged are not properly registered.
According to Griffin, these voters' ballots should not have been counted because their registration records are missing requisite data, either a driver's license number or last four digits of their Social Security Number.
However, under , if a voter's registration record fails to match with other government databases, typically due to a clerical error, and is missing either of those numbers, they may not be prevented from voting.
Moreover, an analysis conducted by the state elections board after Griffin filed his protests, showed more than half of the voters challenged on the basis of their registrations did, in fact, provide the requisite information.
Judge Fred Gore, one of the appellate panel's two Republicans, expressed consternation with the fact that due to mismatched databases some voter records are still missing driver's license numbers or Social Security Numbers.
"I'm troubled that we're at 2025 and we still have, you know, voter identification errors sitting in our state registry," Gore said to the state elections board attorney Nick Brod.
Brod responded that it would be unlawful and improper to hold the challenged voters accountable for what amounts to administrative and clerical issues and errors by the state's elections administration system.
Griffin also has protested against more than 5,000 ballots drawn from four of the state's bluest counties cast by military and overseas voters because they did not provide photo ID. However, under current state law, they are exempted from doing so.
A smaller group of voters being challenged by Griffin are people who never resided in the state but are connected to North Carolina through their parents and, under , are eligible to vote here.
'It is far too late' to change election rules
In December, the North Carolina State Board of Elections dismissed Griffin's protests for a lack of evidence of actual voter ineligibility as well as a failure to adequately notify affected voters.
In January, a Wake County Superior Court judge ruled against Griffin and upheld the elections board's dismissal, prompting Griffin's current appeal.
"It is far too late to change the rules of an election that ended four months ago," Nicholas Brod, a state attorney representing the elections board, told the appellate panel on Friday.
Furthermore, Brod argued, invalidating the ballots of voters who followed the rules in place at the time, would violate an important principle established in related state and federal cases. That principle holds courts should not alter election laws too close to an election.
Griffin's opponents have argued that principle certainly must apply to the period after elections if it would mean discounting ballots cast by eligible voters.
One of the appellate judges seemed to share that concern.
Addressing Troy Shelton, another of Griffin's attorneys, Judge Toby Hamson said: "The types of remedies you're seeking in this case, which is throwing out the votes of otherwise eligible voters, who voted under the rules and regulations, and in compliance with those rules and regulations as administered by the board and the state, were valid at the time they were cast."
Hampson went on to say that established legal principles prohibit changing the rules "retroactively to discard the votes of otherwise eligible voters."
"Your honor, our argument is not that you should change the rules today," Shelton responded. "Our argument is, 'Please enforce the rules that exist at the time,' and those rules are the state Constitution and the state statutes that existed at the time."
Case could still end up in federal court
Griffin's attorneys have pointed to a 2005 state Supreme Court case, known as James v. Bartlett, in arguing discarding the challenged ballots would be the proper remedy.
That case involved a disputed race for state superintendent of public schools. The losing candidate challenged the state elections board's counting of more than 11,000 provisional ballots cast by voters who did not show up at their proper precinct.
The high court found the state elections board violated explicit statutory language in deciding to count those ballots and, thus, the votes were invalid. The case ended up being decided by the state legislature under a provision of the Constitution pertaining to Council of State races.
Even so, Nick Brod, representing the state elections board, told the appellate panel on Friday that the 2005 case and the current one were very different.
The big difference, Brod argued, is that the 2005 case involved provisional ballots, cast by voters whose eligibility is questioned when they show up at a polling site and, therefore, are informed the ballot must go through an intensive review process and might end up being disqualified.
"The voters here had no idea, they had no idea that they were potentially going to be challenged," Brod said.
"From the voters' perspective," Brod added, "they did everything that they were asked to do in order to cast a ballot."
Friday's hearing isn't likely to end the saga of this uncertified race. From the appeals court, Griffin's protest is likely to go up to the state Supreme Court, where Riggs has recused herself from any proceedings in the matter.
Then, after the case is resolved in state courts, federal courts could take over on federal questions of equal protection and compliance with U.S. law that Riggs and the state elections board have raised.
But Riggs' attorney, Raymond Bennett, expressed his hope that the case will not drag on too much longer.
"We have no desire to return to federal court if we do not have to, and this court is not powerless to put an end to these protests by rejecting them under state law," Bennett told the panel on Friday.
Bennett urged the court to bring an end to the election "more than four months after North Carolina voters went to the polls."
