Griffin v. State Board of Elections: Griffin’s Election Protest Was (Mostly) Successful. Where Do We Go From Here?
Judge Jefferson Griffin won initial victories in state court regarding his election challenges. What did the courts say, and where will his case end up?
Proceedings in Griffin v. State Board of Elections have evolved significantly in the last few weeks. The case, which involves Judge Jefferson Griffin’s challenge to invalidate over 65,000 votes in his supreme court election, focuses on three classes of voters. Jefferson alleged that those groups—people who registered to vote without an ID on the North Carolina State Board of Election’s registration portal, overseas voters who did not provide ID with their absentee ballots, and “Never Residents”—were invalid voters under North Carolina law and should have their votes excluded from his election’s results. We published our last post while awaiting a decision from a North Carolina Court of Appeals panel that had recently heard oral arguments for the case. There has been much progress since then.
On April 4th, the state court of appeals panel ruled in favor of Griffin. A week later, the Supreme Court of North Carolina issued an order that substantially modified some aspects of the panel’s decision and left in place others. What exactly did both courts say, and where do we go from here?
The appeals panel initially ruled that all three classes of voters that Griffin challenged were ineligible to vote when they cast ballots in November. They gave most voters a 15-business-day window to cure their ballots, but they completely disenfranchised “Never Residents”—those North Carolinians saw their votes in the 2024 election voided.
The state Supreme Court then issued an order that greatly reduced the scope of the panel’s decision.
Citing Quinn v. Lattimore (a case I discussed in my last post), the body decided that the roughly 60,000 voters challenged due to their incomplete registration requirements would have their votes counted in Griffin’s race. Lattimore says that errors of the “registrar”—election officials—should not prevent qualified voters from having their votes counted. According to the state Supreme Court, the State Board of Elections erred in enforcing voter registration requirements, and that error was the primary factor behind those voters’ ineligibility. As such, the Court said those individuals didn’t need to cure their ballot. But it didn’t grant this reprieve to the other two groups. The court affirmed the disenfranchisement of “Never Residents” and upheld the ballot curing requirement for the remaining overseas voters, albeit on a more forgiving timeframe. Those voters now have thirty days to send a copy of their IDs to their local boards of elections if they want their votes counted.
Though the North Carolina Supreme Court’s order is less restrictive than the lower court’s decision, it is problematic. The ruling itself is sloppy. It invites apparent due process issues—at both the state and federal levels—and is unclear to a fault. And yet it’s very likely that their decision, as it stands, may change the outcome of Griffin’s election.
Dissenting justices on the state Supreme Court wrote at length about the majority opinion’s due process issues. Justice Anita Earls wrote that her court’s ruling was a “surgical strike” against thousands of military and overseas voters. And indeed it was. Griffin, in his initial election protest, only objected to overseas voters from certain counties in the state. Her court’s order didn’t distinguish which voters were subject to curing. This means that, absent further guidance, it’s impossible to know which overseas North Carolinians need to cure their ballots. Accordingly, people will have their votes invalidated without an adequate opportunity for recourse under the state Supreme Court’s plan.
This is also the case with the disenfranchised “Never Residents”. When affirming their disenfranchisement, the Court took votes from North Carolinians without giving them the chance to defend themselves. This is a textbook example of a due process violation. Ironically, some of the state’s “Never Residents” are in fact residents. Others are listed multiple times in Griffin’s election protest, meaning that they can (presumably) cure their ballots. But the Court doesn’t have any guidance for these individuals.
Justice Dietz wrote that his court’s decision invited a “host of issues” with federal law. He’s correct. Rick Pildes and Justin Levitt on Rick Hasen’s Election Law Blog succinctly explain how the North Carolina state courts perpetuated federal violations with their rulings.
According to Pildes, existing precedent from federal circuits in other parts of the country prevents votes from being excluded retroactively in cases like this one. Pildes cited a case where federal courts upheld the exclusion of some votes in a 1994 state supreme court election. In that race, the state’s supreme court chose to count votes that the state had historically considered illegal. Federal courts overturned their decision, saying that it violated their state’s longstanding election principles.
In this case, the opposite situation is true: the state’s highest court is disenfranchising voters that, for many years, were considered legal electors. The thousands of overseas voters now forced to cure their ballots had voted in thirteen elections without issue. And “Never Residents” voted in more than forty. To retroactively discount the votes of people who voted in line with their state’s longstanding principles while under the guidance of their election officials would violate federal due process precedent.
Levitt outlined how North Carolina courts may also be perpetuating equal protection violations. The ballot-curing requirement seemingly only applies to overseas voters who cast their absentee ballots in certain counties. As said by Justice Earls, this means that some overseas voters will be subject to ballot curing (and others exempt) only because Griffin singled out (or ignored) their votes. Once the deadline for curing passes and votes are disqualified, I see ample reason for why this might become an issue under equal protection guidelines.
The final outcome for Griffin v. State Board of Elections is still unclear. Though the North Carolina Supreme Court’s ballot-curing scheme is currently in progress, the Fourth Circuit stayed the certification of Griffin’s election pending further review. Following their stated briefing schedule, a federal district court should be issuing a decision in the case later this month or in early May. Perhaps they’ll address the mistakes state courts made when trying to resolve Griffin.