Has the N.C. Supreme Court – deeply polarized in recent years under conservative Republican control – finally signaled that the prospect of throwing out thousands of votes in an election to fill one of its own seats might be more than it wants to swallow? Even if the beneficiary would be another Republican who wants to oust a liberal Democrat?
The high court on April 7 without explanation paused a lower-court decision siding with Supreme Court candidate Jefferson Griffin, whose post-election challenge seeks to overcome Democratic incumbent Justice Allison Riggs’ apparent 734-vote margin of victory last November.
Two of Griffin’s fellow Republican judges on the state Court of Appeals ruled that some 65,000 voters weren’t legally registered, although most of them should be given 15 business days to validate their identity. Riggs, who has recused herself from her colleagues’ deliberations, asked them to put that ruling on hold while she appealed it.
That her request was granted, with no objections from the five Republicans and single Democrat who sit alongside Riggs, might have been routine in such a momentous case. But consider also that by agreeing to give challenged voters a do-over, Judges John Tyson and Fred Gore ended up highlighting the unfairness and illogic at the heart of Griffin’s claims.
One thing is certain: Their ruling prompted a dissent from Democratic Judge Toby Hampson so detailed and so blistering that it must have left Griffin and his attorneys gasping for air. (See page 38 and following in the linked text.)
The case reached the Court of Appeals after Judge William Pittman in Wake County Superior Court on Feb. 7 ruled against Griffin and his challenges involving three categories of voters:
- Absentee or early voters in several Democratic-leaning counties whose registration records appeared to lack either their driver’s license number or the last four digits of their Social Security number.
- Overseas voters, including members of the military, who didn’t include copies of photo IDs with their absentee ballots.
- Voters living abroad who were deemed eligible to vote in North Carolina elections because their parents had been registered here.
Referencing those categories, Hampson dove right in. “To be clear,” he announced in launching his 66-page dissent:
“On the Record before us, Petitioner [Griffin] has yet to identify a single voter—among the tens of thousands Petitioner challenges in this appeal—who was, in fact, ineligible to vote in the 2024 General Election under the statutes, rules, and regulations in place in November 2024 governing that election.
“Every single voter challenged by Petitioner in this appeal, both here and abroad, cast their absentee, early, or overseas ballot by following every instruction they were given to do so. Their ballots were accepted. Their ballots were counted. The results were canvassed. None of these challenged voters was given any reason to believe their vote would not be counted on election day or included in the final tallies.
“The diligent actions these voters undertook to exercise their sacred fundamental right to vote was, indeed, the same as every other similarly situated voter exercising their voting right in the very same election. Changing the rules by which these lawful voters took part in our electoral process after the election to discard their otherwise valid votes in an attempt to alter the outcome of only one race among many on the ballot is directly counter to law, equity, and the Constitution.”
Blame game
Tyson and Gore cited a principle that has to be regarded as true on its face: “The inclusion of even one unlawful ballot in a vote total dilutes the lawful votes,” thus effectively disenfranchising voters who did nothing wrong.
Yet there’s an underlying outrage if this principle is stretched to apply to the Griffin-Riggs contest. It surely risks disenfranchising many honest voters now being smeared as cheaters. And that’s despite there being no evidence that a single “unlawful” ballot was cast for either candidate, as Hampson contended – especially if “unlawful” means cast in knowing defiance of the rules.
Griffin asserts that the mere fact that some voters’ identifying data didn’t match up with the state’s records renders their voter registration invalid and that their votes thus should be discarded. But to accept that argument, as Tyson and Gore did, has the effect of blaming 60,273 voters for not providing the info when the only known fault lay with election workers’ data-entry mistakes or confusion over name changes and the like.
A significant chunk of those voters assert they did in fact supply the information that was being sought, just that for whatever reason it didn’t match the data on file. And then there was a version of the registration form that failed to make clear that providing driver’s license or Social Security numbers was mandatory, not optional.
Hampson was adamant that under North Carolina law, voters should not be punished for errors committed by election officials. The case cited by Griffin as a precedent for throwing out votes after an election because of official mistakes actually wasn’t comparable, Hampson pointed out, because it involved provisional ballots – meaning that voters were on notice their votes might not be counted.
The judge ripped Griffin’s campaign for its haphazard effort to give notice to voters whose votes were being challenged, as required, so they could correct any problems with their registration.
The state Republican Party sent vague-sounding postcards to the voters it had identified, addressed to those individuals or to “current resident” and telling them that their vote “may be affected by one or more protests filed in relation to the 2024 General Election.” The card resembled junk mail, Hampson noted, and voters had to follow a link via a QR code to try to figure out why their vote was under scrutiny.
“The postcards do not identify a protestor or campaign committee, do not provide for forwarding, and, ultimately, provide no indication a quasi-judicial election protest has, in fact, been instituted involving the recipient,” the judge wrote.
“Forcing voters to have the technological means, ability, or trust to not only scan a QR code —sent anonymously through the mail — but to then be directed to a partisan website in order to sift through dozens of challenges and thousands of names, which were not even listed in alphabetical order, cannot be said to be reasonably calculated or certain to inform those affected voters.” Point well taken!
Dubious ‘cures’
North Carolina’s recent requirement, foisted upon the electorate by Republican legislators keen on political self-preservation, that absentee-by-mail voters include photo identification veers into the absurd when it comes to any real safeguard against identification fraud, as vanishingly non-existent as that kind of fraud happens to be.
But then to impose that same requirement on overseas voters – including service members who might well be deployed in hostile territory while hoping to cast a vote for their commander in chief – careens from the absurd to the preposterous. It would be bad enough if such a requirement actually were on the books. Judge Hampson makes a convincing case that the pertinent photo ID rules say nothing of the kind.
Regarding voters who have never had a legal home in North Carolina but whose parentage entitles them to vote in our state, Hampson explains why that privilege is built into our laws. Tyson and Gore would have barred them from voting, period.
Hampson describes why allotting 15 business days for challenged voters to “cure” their registration records still wouldn’t enable many of them to salvage their votes. As he put it:
“What of overseas voters who only learned of this process second-hand due to lack of any service? Their votes should count. What of voters in every county of this State who may have moved, have not learned of this proceeding, or are sick, immobile, elderly, transient, away on extended business travel, traveling on school breaks with their children, or are simply overwhelmed by the unrelenting attack on their voting rights? Their votes should count.
“They did everything they were required to do. Their votes were accepted as valid votes on election day and through the canvassing process. Make no mistake: should the majority’s decision be implemented, the impact will be to disenfranchise North Carolina voters even though they were eligible to vote on election day.”
“The invented cure period,” Hampson also remarked, “does not save the majority’s decision from being what it is: the disenfranchisement of thousands of voters in categories selected by Petitioner in order that he may have a second chance at winning his election.”
The fact is that Riggs, as one of two members of the high court’s Democratic minority, serves as an important counterweight to a majority that notably has opposed efforts to control hyper-partisan gerrymandering, to achieve equitable and effective education funding, and to guard against legislative encroachment on the governor’s rightful powers.
Beyond that, the N.C. Council of Churches seeks to affirm a decision by the majority of voters, as narrow as it may have been, to endorse a judicial viewpoint embracing the link between democratic values and a society in which everyone has a fair chance to live a fulfilling life. The Supreme Court can move North Carolina closer to that goal by turning aside Judge Griffin’s effort to fashion a victory from what plainly should be reckoned as the ashes of defeat.
—Steve Ford, Staff Volunteer
April 10, 2025
