With all avenues of appeal exhausted in state courts, Judge Griffin’s challenge of North Carolina election law has found its way back before federal district court Judge Richard Myers. The last two weeks have seen rapid action in this case, with Myers seeming to be following suit with a resolution to this appeal, possibly coming around the end of this month based on the briefing schedule.
While the legal challenge is still ongoing, this may not matter for the election results, no matter the court’s decision.
In part due to the ambiguous court of appeals ruling, Myers ordered the North Carolina State Board of Elections (NCSBE) to establish the number of voters impacted by Griffin’s challenges. The NCSBE’s brief filed late Tuesday illustrated that their interpretation of the ruling would mean only those challenged in Griffin’s original protest would be affected by the state court of appeals order.
While the State Supreme Court dismissed Griffin’s challenge to those with incomplete registrations, his other two challenges include:
- Military/Overseas voters who did not present photo ID with their absentee ballot (UOCAVA ID): 1,409 (Limited only to Guilford County)
- Overseas voters who never resided in North Carolina (FPCA): 266
When removing duplicates and voters challenged under both criteria, there are only 1,654 voters challenged. Even if we assume the most favorable situation for Griffin, where each ballot being contested voted in this election and none are cured during the 30-day window provided by the court, Griffin would need more than 72.2% of all these votes to have gone for Riggs to overcome Riggs current lead of 734 votes. Something statistically unlikely to occur due to ballot drop-off and cure process likely to favor Riggs.
When analyzing the two remaining sets of challenges, far more voters are Democrats and unaffiliated than Republicans. With the UOCAVA ID case being only against voters in the more Democratic-leaning Guilford County, these voters are more likely to have gone to Riggs, but not enough to overturn the race. Similar assumptions can be made regarding the residents’ claims.
Figure 1: UOCAVA ID challenges by Griffin. Minor data errors from voter rolls added one voter each to Craven and Davidson counties.
Figure 2. Never Residents challenges by Griffin excluding duplicated voters.
With new reports indicating that some of the “never residents” have a residency claim in North Carolina, Griffin is becoming increasingly unlikely to overturn the election. The only way for him to win would be a statistical anomaly or if Judge Myers or the State Court of Appeals issued a ruling that the NCSBE errored in limiting the scope to only the original protest and should expand it to the more than 5,700 voters added to Griffin’s challenge during the court proceedings. Something Griffin has asked the State Court of Appeals to do in his latest filings.
The Court of Appeals and State Supreme Courts’ silence on expanding the window for protests and lack of a specific number mean the NCSBE is right to constrain this to only those who were timely challenged in the original protest. While I agree with the NCSBE’s interpretation of limiting the decision to just those challenged during the protest window, their expansion of the Court of Appeals order regarding “never residents” is conflicting with the court order.
While morally, the NCSBE is correct in trying to ensure a cure process for voters who may have been incorrectly challenged; this appears to go against the strict reading of the Court of Appeals order, something they note in part of their recent brief.
Under normal state election protest procedures, a voter challenged under an election protest would be guaranteed notice and an evidentiary hearing to contest the allegations of ineligibility in the protest. See N.C. Gen. Stat. § 163-182.10(b)–(c). The Court of Appeals order does not appear to permit this statutory process to play out. However, the State Board interprets the order’s direction for the county board to “identify the votes from ‘Never Residents’” to afford any such challenged voters an opportunity to demonstrate to the county board that their votes should not be so identified, because they are not, in fact, “Never Residents.
While acknowledging the court order leaves no room for a statutory evidentiary hearing, the NCSBE expands upon it by conflating votes with voters. While I believe these voters should have their votes counted, I don’t think the board is within its authority to go against the court’s orders, no matter how poorly the decision was written.
It’s important to remember that this proceeding concerns the challenge presented by Griffin, not the statute itself. This limitation on the scope of the ruling applies to what the court refers to as these “purported voters.”
The belief that these voters lacked residency stems from indicating on their ballot request, “I am a U.S. citizen living outside the country; I have never lived in the United States.” This presumption that voters were accurately indicating their history of residency is likely why the court moved forward without allowing for an evidentiary hearing for this challenge.
While the Court of Appeals made an error that could disenfranchise lawful voters, I can see why they made it. While there is a clear issue with the ruling, it is not within the NCSBE’s authority to ignore it. The solution to this must be through the court system.
While I hope the court will correct this matter, the issue stems from a bad precedent set by these challenges. Because of this case, the door is open for a “wait-and-see approach” to election law challenges.
That being said, the State Court of Appeals should still take this opportunity to clarify its previous order. The technicalities of this proceeding necessitate a clearly defined number of voters in each protest category.
While it is in the Court of Appeals’ power to expand the protest window to include the additional voters Griffin has added through this proceeding, the court should refrain from doing so. With the ruling being only an extension of the original protests, expanding this would further raise the issue of why these changes to election law are not equally applied across all counties and voters.
The court should only address the compliance issue with the State Board of Elections’ handling of the “Never Residents” voters. There is a clear need to address the State Board of Elections’ actions in conflict with the court order. The court should either make clear that the indication these voters gave on their ballot request is final and no evidentiary hearing shall proceed, or prescribe an evidentiary process for those who were challenged.
In either case, the issues raised by this case highlight why the court should not have applied these rule changes retrospectively.
