Griffin v. State Board of Elections: Griffin’s Challenge Isn’t Just Antidemocratic. It’s Against North Carolina Law.
Judge Jefferson Griffin’s attorneys say his arguments are strong. I disagree.
On Monday, I wrote about Judge Jefferson Griffin’s challenge to invalidate over 65,000 votes cast in his North Carolina Supreme Court justice election. After the state’s Board of Elections confirmed the Republican candidate’s loss to incumbent justice Allison Riggs by 734 votes, he sued them. His case now sits with the North Carolina Court of Appeals, which held oral arguments for it last week.
Griffin alleges that three groups of voters—people who did not provide identification while registering to vote online, “Never Residents”, and overseas voters who did not mail a copy of their ID with their absentee ballots—illegally voted in his race and should have their votes excluded from the final tallies.
I disagree with Judge Griffin. Here’s why.
The first group of voters Griffin challenges are people who did not provide identification when registering to vote online. In his briefs and during oral arguments before the N.C. Court of Appeals, Griffin’s attorneys (correctly) point out that state law requires the collection of a voter’s driver’s license number or the last four digits of their social security number during online registration. They further note that the State Board didn’t enforce that law until 2023, when they finally began to require identification for voters registering online.
It’s not certain that the Board of Elections erred in enforcement. Many of the challenged voters, as the Board’s attorneys showed, did submit an ID when registering online—it’s just that their ID didn’t match the Board’s database. And registration doesn’t necessarily require a form of identification in North Carolina. For those without any, there are procedures that let them vote normally. There are also provisional ballots—which county election boards individually verify—for voters in other circumstances. Perhaps the Board considered a strict ID requirement unnecessary or even problematic in light of those circumstances. A strict requirement, after all, could have prevented some people from registering online.
These defenses don’t completely exonerate the Board. They could have been in error; that’s frankly up for debate. What isn’t debatable is that Griffin challenged 60,273 voters who were registered to vote and deemed qualified electors by their state’s chief election authority. As you will see below, this prevents courts from excluding them from final tallies.
The second group of voters that Griffin challenges are “Never Residents”, hundreds of North Carolinians who were born outside of the U.S. and have not lived in the country. Griffin wants the judiciary to declare the 2011 statute that enfranchised these overseas citizens unconstitutional under the state constitution’s voter residency requirement.
Interestingly, as attorneys for the State Board said during Friday’s oral arguments, North Carolina has held dozens of statewide elections including “Never Residents” without issue. So have 36 other states, many with their own constitutional residency requirements. And the Republican candidate stands alone in his challenge even among his fellow party members. Party entities, including the Republican Party of North Carolina, conceded that “Never Resident” registration and voting was facially constitutional during a lawsuit last October.
Griffin’s argument against “Never Residents” is weakened not only by its novelty but also by current law. As an attorney for justice Riggs said at Friday’s hearing, those North Carolinians still meet the criteria for residency according to an N.C. Supreme Court decision from the 1930s.
Though “Never Residents” haven’t lived in the U.S., they maintain roots in the state through their parents. Should they lose the right to vote in North Carolina and effectively become “stateless”? I don’t think so. And neither does North Carolina’s supreme court.
Lastly, Griffin is challenging overseas voters more generally. He says thousands should have their votes discounted because they did not give the State Board a copy of their ID with their mailed absentee ballots. Griffin cites state law for absentee ballots for this challenge. Indeed, these challenged voters did not provide identification with their ballots—the North Carolina Board of Elections didn’t ask them to do so.
The Board relied on other state laws about overseas voters when making requirements for the group. That law implied an ID requirement was unnecessary. Considering also that overseas voters already sign declarations under penalty of perjury, the Board probably didn’t think the law Griffin cited applied to those abroad. In their defense, exemptions for overseas voters aren’t radical: no other state makes overseas voters submit a copy of ID with their absentee ballots.
Despite Jefferson Griffin’s argument to the contrary, it’s not entirely clear that the North Carolina Board of Elections broke the law when they counted the votes of the above groups. But even if they did, binding precedent from the North Carolina Supreme Court prevents courts from allowing Griffin’s sought remedy: the exclusion of votes. The precedent, which comes from a 19th-century decision, was cited by the ACLU in its amicus brief and the State Board in oral arguments. The court’s ruling in that case, Quinn v. Lattimore (1897), was straightforward: errors by the “registrar”—election officials—should not stop qualified voters from having their ballots counted.
The court’s rationale applies in this case too. Each of the individuals that Judge Griffin challenged was a qualified voter under state law—they were deemed so by the State Board of Elections, North Carolina’s chief election authority. They followed the instructions of that authority, who told them that they had fulfilled the requirements necessary to vote. This direct instruction from the Board did not happen in the precedent Griffin cited: in that case, voters had cast provisional ballots and were aware that their votes might not count.
If the court of appeals panel deciding Griffin’s protest does rule the Board acted illegally, the Board’s punishment shouldn’t fall on voters. Because election officials told the challenged voters that they were eligible to vote, they had no reason to believe anything was wrong or fix any issues that might have existed. To discount their ballots would be to disenfranchise tens of thousands of people and give them no recourse.
In November, tens of thousands of North Carolinians followed the directive of their state’s chief election authority to have their voices heard in our democracy. That chief authority, the State Board of Elections, deemed them qualified voters under North Carolina law. Now, five months after the election, it is unclear whether those voices will matter. They should.