Request Denied: NC Supreme Court Returns Griffin Case to Lower Court 

by Sarah Michels, Carolina Public Press –

Republican Court of Appeals Judge Jefferson Griffin skipped a step when appealing the State Board of Elections’ decision to dismiss his election protests, the N.C. Supreme Court ruled on Wednesday, January 22, 2025.

But that mistake may not sound the death knell on his efforts to reverse the outcome of his election. In fact, several members of the state Supreme Court hinted in Wednesday’s order that if the case made it back up to them, they could rule in his favor.

Griffin, the apparent runner-up in his race against incumbent N.C. Supreme Court Justice Allison Riggs, a Democrat, wanted to speed up the legal process to ensure that courts would hear the merits of his protests. Those protests challenge the validity of over 66,000 ballots cast in the 2024 general election before the outcome was certified.

After an election is certified, there is no going back. If his election had been certified on schedule, Griffin’s protests would have been moot and any court decisions would have applied only to future elections.

So, anticipating a more positive and quicker reception, Griffin appealed the State Board’s decision straight to the state Supreme Court instead of the lower Wake County Superior Court, as protocol directs.

While the state Supreme Court granted Griffin’s request to delay election certification in early January, this week they declined to hear the case on its merits, instead returning it to Wake County Superior Court.

On Thursday, Riggs expressed her agreement with the Supreme Court’s decision to dismiss the case, but disappointment that it is allowed to continue in a lower court.

“We have always known that Griffin’s baseless challenges should be heard and decided in federal court,” she said. “It’s telling that he is already trying to delay the Fourth Circuit Court of Appeals’ review in light of the North Carolina Supreme Court’s order. Voters decide elections and deserve a swift resolution from our federal courts.”

Wednesday’s ruling may seem like a setback for Griffin. But two months into his attempt to reverse the outcome of the election, which he lost by 734 votes according to the post-election canvass and two recounts, the battle isn’t over.

Election protests dismissed

The state Supreme Court dismissed Griffin’s case solely on procedural grounds.

Griffin is challenging three categories of voters: those who cast votes in North Carolina elections despite never having lived in the state; overseas voters who did not include photo identification in their absentee ballots; and voters who Griffin alleges improperly registered to vote without providing a driver’s license or social security number.

Together, the election protests implicate just over 66,000 voters.

The State Board of Elections and Riggs have argued that these voters followed rules in place and available to them at the time, and that it would be unfair to remove their votes retroactively.

Griffin, on the other hand, contends that the State Board willingly enforced these election rules even though they contradicted state law and the North Carolina Constitution.

In December, the State Board of Elections dismissed Griffin’s protests along party lines on technical and substantive grounds. Under state law, Griffin was then allowed to appeal the election board’s decision to Wake County Superior Court.

Griffin did so, but only after seeking judicial review with the state Supreme Court.

What the judges said

On Wednesday, in an unsigned majority opinion, the state Supreme Court dismissed Griffin’s petition to hear his case on its merits so that the Wake County Superior Court may do so instead.

They ordered the lower court to act “expeditiously.”

Riggs recused herself from the case and was not part of the decision.

Crucially, five of the six remaining justices offered their thoughts — and perhaps, hints on how they might rule if the case ends up back in their court — in concurring and dissenting opinions. Only Republican Justice Trey Allen stayed silent on the matter.

Chief Justice Paul Newby, a Republican, chastised those who have criticized Griffin’s election protests as attempts to “disenfranchise” voters or “overturn” the election in his concurring opinion. Griffin has a legal right to question the results of the election, he wrote, and such protests are “a crucial step in ensuring integrity in an election result before the result becomes final.”

Newby also blamed the State Board for any delay in resolving the protests. By removing the case to federal courts immediately, he said the election board prevented the Wake County Superior Court from taking action.

“There appear to be valid concerns that some of the State Board’s actions in this election may violate the law,” Newby continued. “It is possible that these actions may affect the outcome of the election.”

Republican Justice Philip Berger Jr. wrote a brief concurring opinion acknowledging that it was not appropriate for the state Supreme Court to address the merits of the case right now, but did not hold back in a thinly veiled dig at the State Board of Elections. He noted that it’s not uncommon for agencies, boards and commissions to break rules or try to gloss over their incompetence and neglect.

“Strip away politics and reality-optional hot takes, the question presented, at its core, is what should be done if it is determined that those charged with faithfully executing the law fail or otherwise decline to follow the law?” he asked.

Republican Justice Tamara Barringer joined both of these concurring opinions in addition to drafting one of her own. Barringer wrote that she would actually rather the court go ahead and hear the case on its merits to speed up the process, but “reluctantly” agreed with the decision.

In contrast to the other Republican judges, Justice Richard Dietz’s concurrence signals that he may rule against Griffin if the case returns to the state’s highest court.

Griffin’s argument is “not that the Board violated the existing rules, but that the rules themselves are either unlawful or unconstitutional,” he wrote. He compared the matter to a previous North Carolina case — Hendon v. NC State Board of Elections — where the court found that a state election law was unconstitutional and struck it down for future elections, but did not retroactively apply it to past elections.

Dietz suggested that method would also work in Griffin’s case.

Finally, the sole Democratic judge ruling on this case, Justice Anita Earls, agreed with the court to not take up the case, but disagreed with the decision to keep the temporary election certification pause in place.

In order to pause election certification, Earls argued that a court has to decide that the protester is likely to succeed on the merits of their case. She does not think Griffin met that standard, and worries that the court’s decision to pause certification will have a negative impact on future elections.

“If any losing candidate can make any sort of argument about votes in the election, no matter how frivolous, and automatically receive a court-ordered stay on appeal, preventing the winning candidate from being certified, nothing stops litigious losers from preventing duly-elected persons from taking office for months or longer,” she wrote.

Going forward

With three of six justices signaling some level of support for Griffin’s claims, his path to removing challenged ballots gets a bit wider.

If the case were to return to the state Supreme Court, a 3-3 vote would affirm the decision of the court that heard the case immediately before, and a 4-2 vote would grant Griffin’s request to remove thousands of ballots from the final vote count in his race.

Despite some of the justice’s views on a federal role in this case, its outcome could still depend on a separate appeals pathway through the U.S. courts.

In light of the state Supreme Court’s ruling, Griffin asked the federal Fourth Circuit Court of Appeals to postpone its oral arguments on the case. The appellate court is scheduled to decide whether Griffin’s case should be heard in state or federal court this week.

This article first appeared on Carolina Public Press and is republished here under a Creative Commons license.