A Stress Test for Democracy: Will the North Carolina Supreme Court Allow a GOP Candidate To Steal a Seat on the Bench?

Soon after it shifted from a Democratic to Republican majority in the 2022 midterm elections, the North Carolina Supreme Court laid bare its brazenly partisan and anti-democratic proclivities. At the behest of the state’s GOP-controlled Legislature, the newly constituted bench overturned the prior court’s precedent in two major voting cases — a move that reinstated a discriminatory voter ID law and green-lit gerrymandered redistricting maps in quick succession.

Acting under the guise of “judicial restraint,” the Republican-dominated high court sought to justify its unprecedented actions by emphasizing that it is the province of the Legislature — not the judiciary — to exercise authority over such weighty election-related matters. 

But currently, the GOP justices are getting involved to the greatest extent possible in North Carolina’s elections: They’ve positioned themselves to consider overturning the results of a race won by their very own colleague, incumbent Democratic Justice Allison Riggs. Alarmingly, the court has already meddled in the election process by pausing certification of Riggs’ November 2024 election victory over her GOP opponent, North Carolina Appeals Court Judge Jefferson Griffin.

The court’s decision to halt certification came in response to a request directly from Griffin, who has been engaged in a months-long legal battle to steal Riggs’ seat on the bench by disenfranchising some 65,000 lawful voters. Recently, a state trial court rejected Griffin’s meritless challenges, but his case is nearly certain to make its way back up to the North Carolina Supreme Court in the coming weeks. 

That the state’s highest tribunal was willing to take the drastic step of stopping election certification as Griffin’s frivolous lawsuits play out portends an ominous trajectory for the future of free and fair elections in the Tar Heel State and beyond — regardless of how the justices might ultimately rule on the merits. 

As the court appears to have reached a nadir in terms of anti-democratic judicial behavior, voting rights advocates and North Carolinians are expressing renewed concerns about its ability to be a fair and objective arbiter going forward. All the while, Riggs’ seat on the North Carolina Supreme Court — and Democrats’ ability to regain control of the bench in 2028 — hangs in the balance.

Griffin’s legal approach: If at first you don’t succeed, change the rules of the game after the fact.

As in many of the races that transpired in the Tar Heel State this past election cycle, voters repudiated right-wing extremism when it came to the contest for a seat on the state’s highest court. Riggs — one of two Democratic justices on the seven-member court — hung onto her post after defeating Griffin by a narrow yet conclusive margin of 734 votes. Indeed, two separate recounts conducted via machine and by hand confirmed this result.

Undeterred, Griffin turned to the North Carolina State Board of Elections, before which he unsuccessfully mounted a trio of so-called “election protests” seeking to retroactively throw out the votes of a staggering 65,000 North Carolinians. Thereafter, he filed multiple sets of legal challenges over the same three tranches of ballots in both the state Supreme Court and a state trial court — hoping that the conservative North Carolina judiciary would indulge his request to subvert the election outcome. 

Griffin’s most sweeping protest encompasses 60,273 voters whose registrations were alleged to be “incomplete” for lacking either a driver’s license number or last four digits of one’s Social Security number. But there are several valid reasons why state officials might not have such identifying information on file — these could include data entry errors and the fact that the state’s registration form did not make clear until recently that this information is mandatory.

And as opponents of Griffin have underscored, the voters implicated by this particular challenge have proven their identities on one or multiple occasions in compliance with federal and state laws. Ahead of the 2024 election, a Trump-appointed judge denied a similar GOP attempt to purge hundreds of thousands of North Carolinians on the basis of purportedly incomplete voter registrations.   

Hilary Harris Klein, senior counsel at the Southern Coalition for Social Justice (SCSJ), told Democracy Docket that what is both “unprecedented” and “deeply concerning” about Jefferson’s actions is that “there are no allegations of fraud or accusations that even a single voter did anything wrong…to be sure, voters followed the exact rules that were presented to them when they went to vote.” 

Klein — who represents a subset of affected voters and organizations as amicus curiae in the case — noted that at the crux of these mass election protests is a “bait and switch” ploy to “try and change the rules after the election that voters are subject to without giving them, of course, any chance to go back in time.” 

Such gamesmanship is also evident in Griffin’s remaining categories of election protests — namely those challenging military and overseas voters who did not submit a copy of their photo IDs with their ballots and their adult children who live abroad but never previously resided in North Carolina. In both cases, the voters adhered to existing laws and regulations.

Riggs — a former voting rights attorney herself — pointed out that in a strikingly partisan maneuver, Griffin’s photo ID protest cherry picked a swath of around 5,500 military and overseas voters in the state’s four most heavily Democratic counties, while leaving unchallenged voters residing in the state’s other 96 counties. 

According to SCSJ’s amicus brief, the individuals targeted by Griffin’s cynical disenfranchising tactics are disproportionately voters of color who have endured a long and sordid history of voter suppression at the hands of state and federal actors. Anna Louise Richards, a 74-year-old Black woman, is one such voter. Despite following all of the state’s election rules — by providing her driver’s license number upon registering and presenting her photo ID at the polls on Election Day — Richards was notified via a postcard that her vote was being called into question.

“If my ballot is retroactively discarded under Griffin’s protest, I will feel outraged because we are supposed to be a democracy…My ancestors fought hard for me to have this right…it is sacred for me,” she stated in a sworn affidavit submitted to the Wake County Superior Court.  

SCSJ emphasized that in addition to folks like Richards, lawful voters of all identities, ages and political stripes have gotten caught up in the mix of people whose only “transgression” was “voting exactly how [the state] told them to.” NC Newsline reported that 21 local elected officials — some of whom are Republicans — were on Griffin’s sprawling list of contested voters.

Will the North Carolina Supreme Court indulge Griffin’s arguments?

Although the North Carolina Supreme Court has not yet waded into the merits of Griffin’s lawsuit, it has suggested a willingness to entertain his claims should the case come back up on appeal. 

In a late January order — from which Riggs recused herself — the justices unanimously dismissed Griffin’s petition that sought to skip over lower North Carolina courts and get an immediate resolution in the state Supreme Court. But as part of the same ruling, most of the court’s GOP jurists agreed that their earlier order halting certification of Riggs’ victory should remain in effect as the case proceeds in lower state courts. 

An attorney familiar with the case explained that such a move is procedurally dubious, as it is unheard of for a court to maintain a stay of election certification in a case it has since dismissed. Not to mention, it is surprising that a court would give anything but short shrift to a set of baseless arguments from a sitting judge seeking to overturn an election. 

Of paramount concern to voting rights advocates is the fact that four of the court’s GOP members have expressed at least some appetite to consider Griffin’s requests to toss out what their Jan. 22 order describes as “potentially illegal votes.” And in a concurrence, GOP Chief Justice Paul Newby — a friend and longtime supporter of Griffin’s — seemed highly sympathetic to the losing candidate’s arguments. 

In particular, Newby stated that the way in which Griffin’s initial lead over Riggs “slowly dwindled” after election night was “highly unusual” and it is “understandable that many are questioning how that could happen.” The reality, however, is that this is quite a common phenomenon that occurs when states are counting millions of votes. Nevertheless, two of Newby’s fellow GOP justices joined his concurring opinion. 

For her part, Democratic Justice Anita Earls issued a scathing dissent, decrying what she perceived to be her colleagues’ “signal” as to their “preferred outcome,” which would likely tip the scales in Griffin’s favor. “We cannot overturn the results of an election on potentials,” Earls added.

The lone Republican member of the court who appears to be in the same camp as Earls is Justice Richard Dietz. “Permitting post-election litigation that seeks to rewrite our state’s election rules—and, as a result, remove the right to vote in an election from people who already lawfully voted under the existing rules—invites incredible mischief,” he wrote in a dissent from the court’s earlier decision to suspend certification. 

Dietz also cited a 2005 case in which the state Supreme Court disqualified 11,000 ballots that were deemed to have been cast in contravention with existing state law; but he was careful to distinguish that case from Griffin’s, where voters complied with all election rules. 

Of course, there is no way to predict exactly what the court will do when the time arrives for it to decide the merits of Griffin’s case. If the justices hypothetically deadlock in a 3-3 split, then a decision from the North Carolina Court of Appeals would stand. However, on Thursday, Riggs and the board indicated their intent to file a petition to bypass the appeals court level; if the justices grant that request and issue an evenly divided ruling on the merits, then the Wake County Superior Court’s denial of Griffin’s challenge would remain in place.

Notwithstanding how the court comes down, many believe that irreparable damage has already been done in the way of election integrity. Former North Carolina Gov. Roy Cooper (D) said in a press conference that what Republicans are doing is essentially creating a blueprint for future post-election maneuvering: “There will be copy lawsuits across this country…to invalidate fair, legal votes…for races where Republicans don’t like the result.”

A federal court could have final say in the matter; meanwhile, anti-democratic entrenchment continues in North Carolina.

In light of a recent 4th U.S. Circuit Court of Appeals ruling, there exists a possibility that Griffin’s case ends up in federal court at some point. Earlier on in the suit, the state board of elections and Riggs attempted to remove the matter to federal court, citing the fact that Griffin’s protests raised voting rights, due process and equal protection concerns under federal law and the U.S. Constitution. 

After weighing complex procedural arguments, the 4th Circuit ultimately concluded that the case should first play out in state courts, but held that it could return to federal court for resolution of outstanding claims if necessary. 

Even if the federal courts get involved and ultimately rule in favor of Riggs and voters, the ongoing threat to democracy in the Tar Heel State should not be overlooked. Earlier this year, the GOP Legislature enacted a power grab law known as Senate Bill 382, part of which shifts authority to appoint state and county election board members from the Democratic governor to the now-Republican state auditor. Prior iterations of the law were repeatedly struck down by state courts over the years, and Gov. Josh Stein (D) is currently challenging aspects of S.B. 382 across multiple lawsuits. 

But if the right-wing state Supreme Court upholds the new legislation, a GOP-controlled state board of elections could rubber-stamp future election subversion efforts like the one being advanced by Griffin right now. Recall that the Democratic-majority state board was the first line of defense against his baseless requests to discard scores of votes. 

On Tuesday, the North Carolina Supreme Court sat for its first arguments of the 2025 term, with Riggs holding over in her seat as permitted by state law. It’s been 101 days since the November 2024 general election, and the judicial race at issue is the last uncertified statewide contest in the nation. 

“We’ve known this would be a long fight, and I remain committed to speaking up on behalf of the voters that Jefferson Griffin is seeking to disenfranchise,” Riggs said this week. “As a constitutional officer, I swore an oath to defend our state and federal constitutions and the rule of law. I will continue to uphold my duty, including holding accountable any elected official who thwarts the will of voters.”