In the prolonged legal battle over a North Carolina Supreme Court seat, a state appeals court panel ruled on Friday that tens of thousands of voters must promptly verify their eligibility or have their ballots thrown out. The decision could lead to the results of the November election being overturned.
The ruling was a win for Judge Jefferson Griffin, a Republican who narrowly lost the election in November and challenged the result. His opponent, Justice Allison Riggs, is one of two Democrats on the seven-member Supreme Court. The case has tested the boundaries of post-election litigation and drawn wide criticism.
Judge Griffin’s legal argument centers on a claim that about 65,000 people who cast their ballots in the election were ineligible to vote, mostly because they did not provide proof of identity — either the last four digits of a Social Security number or a driver’s license number — when they registered.
There is evidence in court filings, however, that many of those voters did provide that information, but for several reasons — name changes after marriage, key-punching mistakes — they never appeared in the database.
Although the omissions were no fault of the voters, Judge Griffin has argued, they left the voters’ eligibility in question. He has said that their ballots should be thrown out unless they provide legitimate proof of identity within a limited period of time set by the state.
Two Republican judges on the North Carolina Court of Appeals, John Tyson and Fred Gore, agreed with Judge Griffin in the majority opinion for the three-judge panel, arguing that even one unlawful vote essentially “disenfranchises lawful voters.” They ruled that the voters in question “should be allowed a period of 15 business days after notice to cure their defective registrations.”
It is not immediately clear what that verification process would look like, especially for overseas voters.
The State Board of Elections, the ruling said, should then “omit from the final count the votes of those voters who fail to timely cure their registration defects.”
A Democratic judge on the appeals panel, Toby Hampson, dissented, writing that “changing the rules” after an election for only one race was “directly counter to law, equity and the Constitution.”
The majority on the panel also wrote that “Never Residents” voters — those who have never lived in North Carolina but are registered to vote there — should have their ballots tossed out because they were ineligible to cast them. These voters typically includes the children of military parents who turn 18 while their family is stationed abroad, or missionaries, according to voting rights experts.
A bipartisan state law passed in 2011 says that such people are allowed to vote in North Carolina. But the ruling on Friday disagreed, citing the State Constitution.
Justice Riggs, in a statement on Friday after the decision, said that her legal team “will be promptly appealing this deeply misinformed decision that threatens to disenfranchise more than 65,000 lawful voters and sets a dangerous precedent, allowing disappointed politicians to thwart the will of the people.”
The North Carolina Board of Elections also noted in a statement on Friday that the court’s decision was likely to be appealed. But if the ruling did go into effect, the board said it would “provide instructions to affected voters on how to comply.”
Jason Simmons, the chairman of the North Carolina Republican Party, said in a statement that the ruling was a “victory for the rule of law and election integrity,” adding that “our position has not wavered and today’s decision confirms the facts were on Judge Griffin’s side.”
The decision marks a pivotal moment in the increasingly active arena of post-election litigation. While there have always been squabbles over recounts or close margins after race, efforts to throw out such large numbers of votes spiked after the 2020 election, when President Trump tried to overturn his loss to former President Joe Biden.
Since then, courts have almost universally held that legally cast votes cannot be invalidated under protections provided by the Constitution.
“By changing the rules of the game after it’s been played to potentially disenfranchise as many as 60,000 voters, this court has gone where no court has gone before,” said Benjamin Ginsberg, a Republican election lawyer who was national counsel for the Bush-Cheney campaign during the 2000 election and recount. “Until this decision, courts facing challenges to ballots cast in compliance with past practice and election administrators’ instructions had uniformly sided with the voters.”
The case could still find its way into federal court. The majority on the appeals panel said that while it had the authority to simply “disallow the votes cast by voters with incomplete voter registration forms,” it was opting to allow the 15-day verification process. But legal experts, and Judge Hampson in his dissent, have noted that throwing out ballots could violate the Constitution.
“If the State Supreme Court affirms the lower court’s decision, that would present a federal constitutional question for consideration by the Supreme Court of the United States,” said J. Michael Luttig, a conservative former federal appeals court judge appointed by President George H.W. Bush.
Judge Griffin sits on the state appeals court that ruled on Friday, though he has recused himself in this case.
North Carolina now has the last uncertified statewide race in the nation. Election experts and government watchdogs have warned that a successful challenge could undermine future elections and provide a blueprint for challenging close races.
