North Carolina appeals judges hear arguments in unresolved court election

North Carolina appeals court judges listened to arguments Friday about whether votes on tens of thousands of ballots in an unsettled state Supreme Court election from November should remain in the tally or could be discarded.

A three-judge panel of the intermediate-level Court of Appeals will decide if the State Board of Elections in December properly dismissed the formal protests of those ballots by Republican Jefferson Griffin. A trial judge upheld the board's actions last month.

After two recounts, Democratic incumbent Allison Riggs leads Griffin by 734 votes from more than 5.5 million ballots cast in the Supreme Court race. Griffin's lawyers have cited more than 65,000 ballots from three categories they argued came from ineligible voters. Removing them from counts could flip the vote advantage to Griffin.

No immediate ruling was issued Friday after 90 minutes of arguments before the panel, which is composed of two registered Republicans and one Democrat.

There's no date set on when the panel will act. But there is pressure to act quickly. The eight-year term on the highest court in the ninth-largest state was supposed to begin in early January. Riggs has meanwhile remained serving in her seat. And Griffin is in his current job as one of the 15 Court of Appeals judges.

While The Associated Press declared more than 4,400 winners in the 2024 general election, the state Supreme Court election is the only race that is still undecided.

However Judges John Tyson, Fred Gore and Toby Hampson rule, their decision will likely be subject to more appeals to the state Supreme Court on which the two candidates are fighting to serve, as well as potentially federal courts.

While Griffin has recused himself from Court of Appeals deliberations in his case, having the three judges rule in a matter directly affecting a colleague and Riggs — herself a Court of Appeals judge briefly in 2023 — is extraordinary.

The panel’s judges asked many questions about the three categories of ballots Griffin challenged.

The largest category covers ballots cast by voters whose registration records lacked either a driver’s license number or the last four digits of a Social Security number. Other votes being challenged were cast by overseas voters who have never lived in the U.S. and military or overseas voters who did not provide copies of photo identification with their ballots.

Griffin’s lawyers have argued that counting the challenged ballots violates state laws or the state constitution, and the state elections board — now composed of three Democrats and two Republicans — is to blame by failing to follow them. They want these ballots declared ineligible and ultimately discounted.

“This case is not about changing laws after the election,” Griffin lawyer Craig Schauer told the panel. "It’s a case about enforcing the laws that were already on the books before the election.”

Lawyers for Riggs and the board said the ballots were cast lawfully based on rules that have been applied to elections for years and can't be altered retroactively and that Griffin failed to comply with formal protest procedures.

“It is time for this election to come to an end and for voters to know that their votes will count in this state if they follow the rules in place at the time of the election,” Riggs attorney Ray Bennett said.

Hampson, the Democrat on the appeals panel, questioned Schauer’s statement that Griffin's protests are only seeking to ensure voting laws are implemented evenhandedly. Hampson said Griffin is challenging a subset of the ballots cast statewide that, under Griffin's allegations, could be ineligible, raising claims of implementing voting restrictions unevenly and unconstitutionally. For example, Griffin is only challenging categories of votes cast early or from certain counties.

“So how does it not impose a significant burden on voters all across North Carolina, where we’re only selectively looking at certain ballots?” Hampson asked Schauer.

Tyson, a Republican, asked questions about a 2005 state Supreme Court ruling that found certain provisional ballots cast in the 2004 election were unlawful even if the state board had decided they could be counted. Tyson’s line of questioning suggested precedent to remove a swath of ballots after an election.

Doesn't the 2005 ruling “say that if a voter relied on board guidance that is contrary to the statute that still is not a reason to excuse the noncompliance?" Tyson asked state attorney Nick Brod, representing the board. Brod disagreed.

Riggs’ allies have held rallies across the state demanding Griffin concede. Before Friday's hearing, several outside groups filed briefs backing the board's decisions, including voters whose ballots have been challenged by Griffin.