Like Trump, Jefferson Griffin May Be One Vote Away From Overturning a State’s Election Result

North Carolina’s highest court recently rejected Judge Jefferson Griffin’s request to bypass the lower courts and declare him the winner of last year’s state Supreme Court election, even though Democratic incumbent Justice Allison Riggs received 734 more votes. But three of the seven justices signed on to a misleading concurring opinion implying — with zero evidence — that election fraud impacted the outcome.

Like President Donald Trump in 2020, Griffin is seeking to overturn the results of an election that he lost. Trump’s election denialism was rejected by courts across the country — but in Wisconsin, Trump lost his baseless appeal to the state Supreme Court by just one vote. Judge Brian Hagedorn, a Republican appointee, voted with the liberals and authored a narrow 4-3 ruling to reject the conspiracy theories that formed the basis of Trump’s appeal. 

The North Carolina Supreme Court’s order on Jan. 22 was mostly unanimous, but the justices disagreed in their concurrences. And one justice dissented from dubious language about “potentially illegal votes.” 

Griffin argues that 60,000 votes shouldn’t count, because election officials didn’t record a Social Security number or drivers’ license number on the voters’ registration forms. He also wants to cancel the votes of military families overseas, because they didn’t include a photo ID with their ballot — something that the state’s election law rules didn’t require.

Two members of the court signed on to a concurring opinion by Chief Justice Paul Newby that suggested Griffin’s petition was about combatting potential fraud in the counting of votes. Two Republicans, Justices Trey Allen and Richard Dietz, didn’t join the concurrence.

Newby’s opinion began with the unironic claim that Griffin’s petition “is about preserving the public’s trust and confidence in our elections.” He noted how the state had tallied more votes for Griffin on Election Day, only to see Riggs get 734 more votes after the provisional ballots were cured and counted over the next two weeks. 

Newby called it “a highly unusual course of events,” even though observers knew that some close races could drag on for weeks. The chief justice wrote, “It is understandable that petitioner and many North Carolina voters are questioning how this could happen.” 

Other Republicans in Raleigh have also fed into election denialism. State Senate Leader Phil Berger Sr. described the process as “another episode of count until someone you want to win, wins.” The senator’s son, Phil Berger Jr., serves on the state Supreme Court and joined Newby’s opinion. 

Voters won’t forget how the judges charged with protecting their democracy handled this attempted election theft.

In the most disingenuous part of the opinion, Newby then suggested that Riggs overtaking Griffin in the weeks after the election had something to do with the substance of Griffin’s claims. He said that the candidate “has a legal right to inquire into this outcome.” But Griffin’s actual arguments have nothing to do with the counting of votes. 

Griffin isn’t alleging that a single fraudulent vote was cast, and he’s not claiming any irregularities with the final vote count. He’s simply trying to change the rules after an election, so that he gets more votes. 

Though they dismissed the case, the GOP justices kept in place a stay — a pause — that blocks officials from certifying the election result. This unusual outcome led the 4th U.S. Circuit Court of Appeals to dismiss Democrats’ federal appeal, which argues that federal law doesn’t allow the state to toss out thousands of votes by retroactively changing election rules. But the 4th Circuit retained jurisdiction to act if federal issues arise.

Justice Anita Earls, the only Democrat on the case since Riggs recused herself, dissented from the portion of the state Supreme Court’s decision that kept the stay in place. She warned that the precedent “sets up courts to be the arbiters of election outcomes instead of voters, and weakens faith in the democratic processes of this state.” 

When the court entered the stay on Jan. 8, Justice Dietz dissented and warned that Griffin’s petition would “fuel an already troubling decline in public faith in our elections.” Dietz described the case as “post-election litigation that seeks to remove the legal right to vote from people who lawfully voted.”

Though this suggests that Dietz isn’t on board with Griffin’s election denialism, three of his Republican colleagues may be. Justices Newby, Berger and Tamara Barringer signed on to Newby’s recent opinion that lays the groundwork to either declare Griffin the winner or order a new high court election. 

Justice Trey Allen appears to be the swing vote on Griffin’s appeal, and unless the federal appellate courts intervene, the case could head back to the state Supreme Court. A lower court in Raleigh denied Griffin’s petition on Friday. Griffin plans to appeal the ruling to the GOP-dominated North Carolina Court of Appeals, where he has served for several years. 

The state Supreme Court could get the final decision. But if the justices split 3-3, the Court of Appeals’ ruling would stand. 

Activists are pushing Republicans to drop their attempt to declare Griffin the winner. Voters whose ballots could be canceled are speaking out to defend their state’s democracy. Will Justice Allen assist his colleagues with dismantling North Carolina’s democracy? The voters can only hope that Allen, like Justice Hagedorn in Wisconsin, acknowledges that reality and honors the voters’ decision to keep Justice Riggs on the bench. 

Voters, for now, still decide who sits on North Carolina’s courts. In 2028, three Republican justices and five GOP Court of Appeals judges — including Griffin, unless he manages to steal a high court seat — will be on the ballot. And the voters won’t forget how the judges charged with protecting their democracy handled this attempted election theft.

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Billy Corriher is the state courts manager for People’s Parity Project and a longtime advocate for fair courts and progressive judges. As a Democracy Docket contributor, Billy writes about voting and election state court cases in North Carolina and across the country.