The North Carolina Supreme Court ruled in Jefferson Griffin vs. North Carolina State Board of Elections on April 11. The decision mostly favored incumbent justice Allison Riggs (who was recused from the case) but leaves enough room for doubt about the status of some ballots that we may not know the final result for another month. That assumes that a federal court does not order a halt to the ballot cure process the state Supreme Court ordered
The ruling affected three groups of ballots:
-
Incomplete registration (HAVA): 60,273 (but roughly 31,000 according to State Board of Elections findings on those being challenged.)
-
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): 267
Below are descriptions of each group based on Griffin’s protest to the North Carolina State Board of Elections (State Board), which eventually led to the state Supreme Court’s ruling. Then, there is a brief description of how the court resolved the issue. All block quotes below are from those two sources unless otherwise noted.
Incomplete registrations
North Carolina law (163‑82.4.(a)) requires election officials to request several things from people registering to vote, including their driver’s license or the last four digits of their social security number. The federal Help Americans Vote Act of 2002 (HAVA) imposed that ID number requirement on states. For a year, the SBE has been dealing with complaints related to its lack of enforcement of the HAVA provision for over 200,000 registrations. The Griffin campaign wants the SBE to contact those voters who lack the required ID numbers so they can provide them or, failing that, not count ballots from registrations lacking the numbers.
First, the court noted that the State Board has been negligent in its duties to correct the problem of voter registration missing legally required information:
To the extent that the registrations of voters in the first category are incomplete, the Board is primarily, if not totally, responsible… In 2023, however, the Board became aware and admitted that it had not been in compliance with these requirements since they were initially imposed… The Board took action by updating the voter registration application form going forward; it did nothing, however, to ensure that any past violations were remedied… The Boar’s inattention and failure to dutifully conform its conduct to the law’s requirements is deeply troubling.
Justice Richard Dietz agreed in his partial concurrence “that the agency displayed a troubling lack of competence in its maintenance of the voter rolls.”
However, the court noted that problems with the voters’ registration process do not mean that their votes should be disallowed after the fact:
Nevertheless, our precedent on this issue is clear. Because the responsibility for the technical defects in the voters’ registrations rests with the Board and not the voters, the wholesale voiding of ballots cast by individuals who subsequently proved their identity to the Board by complying with the voter identification law would undermine the principle “this is a government of the people, in which the will of the people the majority legally expressed, must govern…” Accordingly, we cannot agree with the Courtof Appeals that the Board erred by counting their ballots.
In other words, deficient registrations by themselves are not proof that the registrants are not eligible voters. The court noted that the ruling would have been different if “the record provided grounds for believing that a significant number of the roughly 60,000 ballots in the first category were cast by individuals whose identity was not verified by voter identification or who were not otherwise qualified to vote.”
I staked out a similar position in a January editorial:
While missing HAVA numbers can make it easier to hide fraudulent registrations, they are not proof that individual registrations are fraudulent. Likewise, the Griffin campaign has not shown that the election outcome would have been any different if the registrations with missing HAVA numbers had been corrected before the election. Voters who did nothing wrong — because the registration form did not indicate that the HAVA numbers were required — should not be punished for election officials’ maladministration
The ruling spends little space on the other two categories, devoting only one paragraph to each.
Overseas/military voters who did not present voter ID
From the review of Griffin’s protest:
The Griffin campaign contends that overseas voters (they did not mention military voters) [UPDATE: it does include military voters, although military voters who are in-state can vote in-person] are covered by North Carolina’s voter ID law, and so must provide a copy of their ID with their ballot. As evidenced by an email from State Board of Elections (SBE) executive director Karen Brinson Bell the Griffin campaign included in the protest, election officials believe that they are not required to provide ID and have not required those voters to provide them.
The court held that overseas and military voters are subject to the same voter ID requirements as all other voters:
For the second category military or overseas ballots cast under Article 21A for whom the Board of Elections failed to follow the express requirements of N.C.G.S. § 163-230.1 [link added] we allow the petitions for the limited purpose of expanding the period to cure deficiencies arising from lack of photo identification or its equivalent from fifteen business days to thirty calendar days after the mailing of notice.
Again, the court laid the problem with a lack of voter ID at the feet of the State Board. However, while the missing registration information only addressed registrations and not the legality of the ballots themselves, this is a deficiency of the ballots. Rather than strike those ballots, the court agreed with the Court of Appeals that affected voters could cure their ballots by providing the required copies of their ID. They expanded the cure period from 15 business days to 30 calendar days.
Election officials have the email addresses of military/overseas voters who submitted their ballots electronically (I have been informed that about 90 percent of the military/overseas voters voted that way.). The others must be contacted by mail or phone (if a phone number is on file). However, logistical hurdles exist, such as people who have moved or died since the election. Those who voted electronically using their “.mill” email address and have since been discharged may not have access to that email address.
I have little doubt that both parties are working furiously to help “their” voters cure the affected ballots. I also have little doubt that federal courts will stay the ballot curing process as Rigg’s inevitable lawsuit works through the federal court system. (UPDATE: A federal judge has allowed the curing process to continue but stayed the State Board from certifying the race until he rules on it.)
Overseas voters who never resided in North Carolina
From the review of Griffin’s protest:
The North Carolina Constitution (Article XI, Section 2(1)) limits voting rights for state elections to “any person who has resided in the State of North Carolina.” The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) “requires that the states and territories allow certain groups of citizens to register and vote absentee in elections for Federal offices” [emphasis added]. That includes the children of former North Carolina residents who themselves have never resided in the state. The Griffin campaign says that a state statute (163‑258.2.(e)) passed to comply with UOCAVA allowing those never-resident voters to vote in state elections violates the state constitution (Article VI, Section 2(1)), and those registrations should not be allowed to vote in those races. At a minimum, election officials have not taken action to ensure that UOCAVA voters have met residency requirements. This issue is also covered by a Republican Party lawsuit that has so far failed to gain traction in the courts. [emphasis in the original]
The North Carolina constitution is clear: Only people who have “resided in the State of North Carolina” may vote in North Carolina elections. The affected individuals should have only been allowed to vote in federal elections. The Supreme Court agreed:
As to the “never residents” in the third category, the Court of Appeals held that allowing individuals to vote in our state’s non-federal elections who have never been domiciled or resided in North Carolina or expressed an intent to live in North Carolina violated the plain language of Article VI, Section 2(1) of the North Carolina Constitution, and we deny review.
I would go further. Someone checking a box saying that he or she intends to move to North Carolina does not mean that the person “has resided” in the state. A further court case may resolve that question.
In her partial concurrence, Justice Anita Earls claimed that “the only contention is that the rules have changed [for never-residents].” The rules have not changed. The constitutional requirement that people must be residents of North Carolina to vote in North Carolina elections has not changed. It is the nature of courts that they cannot rule on an issue until it is brought before them. The fact that a violation of the constitution has festered for several years before the court had an opportunity to strike it down does not make it constitutional.
(Congress could resolve this problem by modifying UOCAVA so that citizens without residency in any state may vote for federal races in the District of Columbia.)
The inevitable federal continuance
Dietz stated in his partial concurrence that the case involves “questions that should be resolved in a declaratory judgment action seeking prospective relief that would apply in future elections.” That would have forced election officials to fix problems Griffin’s protest exposed without tossing ballots that were legal under the rules as established and understood on election day.
Riggs immediately signaled that she would continue her push to win the election officially. That will undoubtedly include a federal lawsuit seeking to stop the state Supreme Court’s decision.
I have heard Riggs supporters make a couple of variations of the equal protection argument. While it is true that some ballots are being treated differently than others, the equal protection argument is hardly a slam dunk.
The first argument is that it only affects early and absentee ballots but not election-day ballots. However, only early and absentee ballots are retrievable. They were made retrievable so they can be removed if a problem is discovered with the ballot (such as finding out that the voter also voted twice, perhaps by voting early while the absentee ballot was in processing). Potentially problematic election-day votes are handled by provisional ballots, which are vetted before they can be counted. So early and absentee ballots are being treated differently because they are different in a non-trivial way.
The second argument is that it only affects overseas and never-resident voters in one or a handful of counties. That is because the case is an appeal from Griffin’s protests to the State Board and only dealt with those ballots he argued were problematic. However, some other counties he had wanted to add to the process may also be involved (it is not completely clear, as Justice Anita Earls noted in her partial concurrence). Despite all the twists and turns we have seen over the past few months, this case is still a continuance of those protests. In other words, the court can only deal with the protested ballots put before it.
The Griffin campaign certainly did not invent selective protests. After the 2020 North Carolina Supreme Court chief justice race, Cheri Beasley protested over 3,200 ballots that election officials found to have been illegally cast. About 70 percent of those ballots were from Democrats, while less than one percent were from Republicans. If the boards had decided in Beasley’s favor in those protests, she would have almost certainly been declared the winner (Paul Newby also issued a smaller number of protests). Given the short time and limited resources campaigns have to protest ballots, expecting them to include a complete list of all potentially affected ballots in a statewide race is unreasonable.
There is no easy solution to this dilemma; courts could insist that plaintiffs cast a wider net to include all ballots in a particular class when their legality is questionable. However, that insistence would further delay resolving contested elections.
The state Supreme Court could have resolved this case immediately had it followed the opinion of Dietz, who stated in his partial concurrence all three aspects of the ruling are “questions that should be resolved in a declaratory judgment action seeking prospective relief that would apply in future
elections.”
Jefferson Griffin can still end this
Jefferson Griffin’s lawsuit has resulted in several legal and constitutional victories, but not for him. The State Board will have to address deficient registrations before the 2026 election; all voters, including those overseas and in the military, will have to submit copies of their ID when voting absentee; and people who have never set foot in North Carolina will no longer be able to vote in state or local elections.
However, this ruling has considerably shrunk his window of opportunity for winning the race. He is now unlikely to overcome the 734-vote margin he faces.
Furthermore, Rigg’s federal lawsuit and its appeals will almost certainly delay the resolution of the election well beyond the 30 days set by the state Supreme Court ruling. This turmoil undermines our election system. Some voters may gain confidence in the process by seeing illegal ballots not counted, but at least as many see it as an attempt to change the results of an election after the votes have been counted.
Griffin could spare himself, the courts, and the state further turmoil by declaring victory on the constitutional questions raised by his lawsuit and conceding the race. It would be his gift to the people of North Carolina and potentially give him a path to victory in a future election. That may be the best he can hope for now.
