The legal challenges for the North Carolina Supreme Court election have been difficult to follow and generated much confusion. Not only has the case been active in both state and federal jurisdiction, but has involved more contested voters over time. These factors and the way the case has been argued make many people forget that this lawsuit is about voters being challenged by Judge Griffin, not statutes or all the North Carolina voters affected by them.
This more limited scope is how the Court of Appeals ruling only affects those challenged by Griffin rather than being equally applied to all voters in the 2024 election. While the Court of Appeals majority’s decision on April 4 was ambiguous, failing to give an exact number to each of the three protests, the dissent implies that the ruling is limited only to Griffin’s original protests. This would indicate that the votes of individuals on the expanded lists presented to both the court and the State Board of Elections are not impacted by the ruling.
The estimated number of individuals that are affected by this ruling would be:
- 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
The State Board of Elections improperly dismissed Griffin’s original protest based on his use of QR codes and a less-than-optimized list of those being challenged. However, the court should not apply these retroactive changes to the state’s election law.
The limited scope of the ruling not only creates an equal protection issue since not all voters in the same situation are being treated the same. For example, only Guildford County military/overseas voters who did not present a voter ID are being challenged. The Appeals Court ruling also invites future election law challengers to take a “wait-and-see approach.” Instead of challenging established laws before an election, individuals would be incentivized to challenge these rules after an election and have these laws apply selectively to challenged voters. Griffin’s arguments do have some merit. The State Board of Election should have resolved the incomplete registration issue when it was brought up in 2023 but opted not to do so. The state constitution seems to support the argument that those who have never lived in North Carolina have no claim to residency to vote in state elections. However, these challenges were presented in other cases that would be better avenues for these issues to be addressed.
A case on incomplete registrations was filed in August, but the Board of Elections’ hands were tied due to federal law. Because the request came within 90 days of a federal election, the Board of Elections would be violating the National Voters Registration Act of 1993 (NVRA) if they removed voters. If this had been filed in a timely manner, this issue could have been addressed.
A never-residents voting challenge, Kivett vs. State Board of Elections, is currently before the State Supreme Court.
Griffin’s only complaint, which does not have a similar lawsuit filed before the election, is the challenge to a lack of a voter ID requirement for military and overseas voters.
In all, the lawsuits filed before the election are a much better venue to hear the merits of the challenges central to the Griffin complaints. In contrast to the Griffin case, those lawsuits focus on the laws themselves.
A core aspect of election integrity is applying laws correctly, which also means applying the rules of elections equally. At their heart, the Griffin protests rely on a new interpretation of election laws and require these rule changes to apply selectively. Allowing such selective and retroactive rule changes would cause voters to lose trust in our election system.
While retroactive rule changes have been used before, such as in James v. Bartlet, they should only be used when relief cannot be sought prior to the election. My hope is that this decision is overturned by the North Carolina Supreme Court race or federal courts in the context of the Griffin-Riggs race while still applying to future North Carolina elections.
