NC Voters Must Fix Ballots in 15 Days or Be Disenfranchised, Court Rules

A three-judge panel in the North Carolina appeals court ruled Friday to disenfranchise tens of thousands of voters in the state’s Supreme Court election unless they can fix their ballots in 15 days.

The panel, composed of two Republican judges and a Democratic judge, overturned a lower court’s decision that had protected the ballots and had dismissed challenges filed by Republican candidate Jefferson Griffin.

Incumbent Democratic Justice Allison Riggs, whose victory Griffin challenged, said in a statement that she “will be promptly appealing this deeply misinformed decision that threatens to disenfranchise more than 65,000 lawful voters and sets a dangerous precedent, allowing disappointed politicians to thwart the will of the people.”

“North Carolinians elected me to keep my seat and I swore an oath to the constitution and the rule of law – so I will continue to stand up for the rights of voters in this state and stand in the way of those who would take power from the people,” Riggs said.

Riggs told Democracy Docket she expected the dispute to ultimately be decided by the federal courts.

In addition to Riggs’ appeal, election law experts said the ruling could lead the federal courts to revive their involvement in the case on the grounds that North Carolina voters’ due process rights had been violated.

The ruling is the latest development in the ongoing legal saga over the state Supreme Court race between Riggs and appeals court judge Jefferson Griffin. Griffin lost the election, but the race was close enough that he challenged the results. Even after two recounts, Riggs still won, but Griffin filed multiple lawsuits in response.

Bob Phillips, the executive director of the nonpartisan voting rights organization Common Cause North Carolina, called the ruling a “shameful decision in favor of sore loser Jefferson Griffin” in a statement.

“This poorly conceived decision is an extreme overreach and sides with a sore loser candidate over the citizens of our state,” Phillips said. “If allowed to stand, the ruling would inject chaos into North Carolina’s elections in ways that could disenfranchise tens of thousands of lawful voters and invite similar challenges nationwide.”

At the heart of the issue is the North Carolina State Board of Election’s decision to count some 60,000 ballots cast by voters with allegedly incomplete registrations, along with several thousand more ballots by overseas voters who didn’t provide their photo ID with their absentee ballots or by overseas voters who never resided in North Carolina. 

Per the appeals court’s ruling, the roughly 60,000 voters with incomplete voter registrations will be given 15 days to fix their ballots, as will military and overseas voters who did not provide proper photo ID. Ballots cast by North Carolina residents who live overseas but have never lived in the state will not be counted.

One of the GOP judges in the majority on the ruling, Judge Fred Gore, ran a “joint campaign” with Griffin and other GOP appellate court candidates in 2020. That was the first time judges campaigned together on a party platform.

“Changing the rules by which these lawful voters took part in our electoral process after the election to discard their otherwise valid votes in an attempt to alter the outcome of only one race among many on the ballot is directly counter to law, equity, and the Constitution,” Democratic judge Toby Hampson wrote in a lengthy dissent. 

Hampson noted that the majority’s ruling imposes a remedy on the issue “without thought or care for its impact on the people its decision truly impacts: the voters.” He described a host of scenarios in which people’s vote will be disenfranchised: voters who died since election day, voters who have moved since election day, servicemembers living abroad in unsafe locations who are “unable to jump through the judicial hoops the majority now puts in their way.

“Make no mistake: should the majority’s decision be implemented, the impact will be to disenfranchise North Carolina voters even though they were eligible to vote on election day,” he wrote.

The case will next go to the state Supreme Court, on which Republicans maintain a 5-2 majority. However, Justice Riggs has recused herself from the challenge, so only six justices would hear the appeal, which could result in a 3-3 split ruling. 

“The court didn’t throw out 65,000 ballots, but it’s requiring all of those voters to jump through more hoops to have their vote counted,” Billy Corriher, the state courts manager for the People’s Parity Project and a Democracy Docket contributor, said in a social media post. “NONE of these voters broke the rules.”

Until the appeal is filed to the state Supreme Court, however, Riggs’ campaign will be boots to the ground to try and track down all the voters whose ballots can be cured. “I do think Riggs will have a chance with this ballot cure push, but it will be so tough,” Corriher, a veteran North Carolina advocate on behalf of progressive causes, told Democracy Docket.

The election law scholar Rick Hasen said Friday’s ruling could also lead to a revival of the federal case over the election. “To me this has remedies (sic) of Roe v. Alabama, where a state court appeared to violate due process in changing the rules for a state election after the fact,” Hasen wrote online. “The state courts may be violating federal law by disenfranchising voters in this way.”

Anderson Clayton, chair of the North Carolina Democratic Party, said in a social media post that the court has effectively disenfranchised “voters from LAST year’s election.”

“North Carolina Democrats WILL fight this decision,” Clayton added. “But make no mistake, the statewide court of appeals bench has cowered to political pressure and corruption from their own party. The NCGOP and RNC are trying to steal an election and test the waters for future election denial.”

Latest update, April 7, 11 a.m.: The Riggs campaign and the NCSBE appealed the ruling to the state Supreme Court.