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North Carolina Supreme Court Controversy: A Battle Over Voter Disenfranchisement

The North Carolina political landscape has been shaken by a contentious legal battle following a state Supreme Court race. At the heart of the dispute is an attempt to challenge the reelection of Democratic Justice Allison Riggs, raising concerns about voter disenfranchisement and the integrity of the electoral process.

Judge Jefferson Griffin, a Republican who lost the election to Riggs, initiated a legal challenge seeking to overturn the results. This challenge gained significant traction when four Republican members of the North Carolina Supreme Court issued an order that potentially impacted thousands of voters, primarily those with military or overseas status.

The initial report detailed the order, suggesting it would disenfranchise over 5,000 voters. This order, framed as part of Griffin’s efforts to overturn Riggs’s victory, led to accusations that the Republican justices were attempting to unseat a Democratic colleague and replace her with the losing Republican candidate.

Riggs’s victory over Griffin was razor-thin. Official tallies indicated Riggs won by a mere 734 votes. Given the close margin, the potential impact of canceling several thousand votes could conceivably change the outcome of the election.

The situation evoked strong parallels to the infamous Bush v. Gore (2000) Supreme Court case. That case addressed the intensely close 2000 presidential election in Florida, where initial counts gave Republican George W. Bush a lead of only 537 votes. The victor in Florida would secure the presidency.

Democrat Al Gore sought a recount of ballots in specific Florida counties, hoping it would swing the election in his favor. However, the Supreme Court halted the recount, preventing a definitive determination of who actually won the election.

The controversial aspect of the North Carolina Supreme Court’s decision, in the case known as Griffin v. North Carolina State Board of Electors, centers on the fact that the four Republican justices seemingly replicated the constitutional violation that led the Supreme Court to shut down the recount in Bush v. Gore.

One of the major criticisms of Bush v. Gore was that the five justices in the majority restricted their decision to the "present circumstances" – essentially implying that Bush’s win was a one-time decision unlikely to be repeated. However, the Griffin case suggests this scenario has resurfaced.

The specific legal violation identified in Bush v. Gore was the Florida Supreme Court’s order to recount ballots in only three counties – counties that tended to favor Democrats. This was compounded by the fact that each of these three counties used different procedures for conducting the recount. The Supreme Court majority ruled that this piecemeal approach violated the principle of uniform election standards throughout the state.

In the Griffin case, the four Republican justices ordered the disenfranchisement of voters in only four North Carolina counties, all of which also tend to favor Democrats, while leaving similarly situated voters in other counties unaffected. This mirrors the actions of the Florida Supreme Court in Bush v. Gore. The core principle is that a state supreme court cannot apply different, non-uniform rules after an election has already taken place.

The attempt to unseat Justice Riggs faced a temporary setback when a federal judge issued a temporary order preventing the state from certifying the election results until the case was fully litigated in federal court. According to the principles established in Bush v. Gore, federal courts should conclude that the North Carolina Supreme Court cannot selectively discard ballots.

The Griffin case primarily concerns military and overseas voters who cast absentee ballots, either online or via paper forms. While North Carolina generally requires voters to show photo identification before voting, the state’s administrative code includes an exception for military and overseas voters, explicitly stating that they are "not required to submit a photocopy of acceptable photo identification" when casting their ballots.

Lawyers representing the affected voters have even argued that it was practically impossible for military and overseas voters to submit a copy of their ID, even if they wanted to. Many voters used an online portal to cast their ballots, but this portal did not request or provide a means for submitting ID.

Nevertheless, the majority of the state supreme court ruled that these voters’ ballots were presumptively invalid because they didn’t comply with a different state law provision requiring the state to establish rules governing ID use by absentee voters. Although the court allows these voters 30 days to "cure deficiencies arising from lack of photo identification," the process for doing so remains unclear.

Critics argue that the state’s decision to hold an election under one set of rules and then change those rules after the election in only four Democratic counties violates the Constitution in at least two ways.

Firstly, multiple federal appeals courts have ruled against states attempting to retroactively change election rules after an election has occurred. The case of Griffin v. Burns (1978), where the United States Court of Appeals for the First Circuit ruled against the Rhode Island Supreme Court for trying to toss out ballots "after the results of the election were in," is cited as a precedent. The First Circuit emphasized that the state’s top elections official had "advertised, issued, and sanctioned" the very ballot forms that the state supreme court later tried to invalidate.

While the Supreme Court has not definitively ruled on whether a state can retroactively change its election procedures, it is possible the justices might diverge from these appeals court decisions.

The second alleged constitutional violation arises from the principles established in Bush v. Gore. Because Bush v. Gore was a Supreme Court decision, its precedent arguably applies to the dispute between Riggs and Griffin. Under Bush v. Gore, the North Carolina Supreme Court might have been able to disenfranchise military and overseas voters throughout the entire state. But it cannot single out voters in four Democratic-leaning counties while counting military and overseas ballots elsewhere. Bush v. Gore requires state supreme courts to "assure uniformity" when they announce new election rules after an election has already occurred.

The situation’s trajectory in federal court remains uncertain.