The North Carolina state board of elections turned away a request on Wednesday from a Republican candidate to disqualify 60,000 ballots in a state supreme court election that a Democrat appears to have won by a little over 700 votes.
Democrats have a 3-2 majority on the board. In a vote on partisan lines, they said that the protesters had not followed proper procedure when they filed their protest, noting that thousands of residents had received a mailing with a QR code stating that their eligibility could be affected by the challenges.
“If I read that I might just toss it. It sounds like a car warrantee,” said Siobhan O’Duffy Millen, a Democrat on the board.
But beyond procedure, the board also turned away challenges to tens of thousands of voters whose registrations Republicans took issue with because they lacked a social security or driver’s license number. They also turned away challenges to overseas voters who had never lived in North Carolina or provided photo identification.
The Democrat Allison Riggs, a well-known North Carolina voting rights lawyer appointed to the state court in 2023, narrowly edged out Jefferson Griffin, a Republican appellate court judge, in the state supreme court race. A full machine recount and a partial hand recount have both showed Riggs leading in the contest by 734 votes.
Republicans currently have a 5-2 majority on the state supreme court and the race is being closely watched because Democrats must hold Riggs’s seat to have any chance of taking control of the court this decade.
It also comes as the Republican-controlled state legislature is on the verge of remaking the Democratic-controlled state board of elections. Lawmakers are poised to override a veto on a bill that would strip the incoming Democratic governor of his power to appoint members of the board.
In November, Griffin filed hundreds of challenges across the state, saying that about 60,000 people had illegally been allowed to cast ballots. The vast majority of that group were North Carolinians who lacked either a driver’s license number or the last four digits of their social security number in their voter registration record. Such information has been required by the state since 2004.
“These voters were not eligible to cast a ballot without first lawfully registering,” Griffin’s lawyers wrote in their initial brief to the state board.
During a two and a half hour hearing on Wednesday, lawyers for Riggs and Democrats on the board questioned how a voter who had essentially done everything right to get registered ahead of the election could be disenfranchised. The three Democratic members who comprise a majority on the board all voted against advancing the challenges, while the two Republicans said they would advance them.
“The idea that someone could have been registered to vote, came to vote and then had their vote discarded is anathema to the democratic system. And simply cannot be tolerated,” said Alan Hirsch, a Democrat who serves as the board’s chair, on Wednesday.
Griffin’s filings essentially try to revive arguments that were dismissed ahead of the election, lawyers for Riggs wrote in a brief to the board on Friday. Republicans had filed a lawsuit on the eve of the election trying to disqualify 225,000 voters for failing to provide the same information, they noted, and courts declined to grant the request ahead of election day.
Some people may have registered before the requirement went into effect. Anyone who registered without providing a driver’s license or social security number would be required to show ID before they voted, proving their identity, Riggs’s lawyers noted. And just because someone’s voter record did not show a driver’s license or social security number, did not necessarily mean they were unable to provide one.
“Whether playing a board game, competing in a sport, or running for office, the runner-up cannot snatch victory from the jaws of defeat by asking for a redo under a different set of rules. Yet that is what Judge Griffin is trying to do here,” Riggs’s lawyers wrote.
Several voters who have been casting ballots for years have come forward and expressed outrage when they learned their eligibility was being questioned. Ballots cast by Riggs’s parents are among those Griffin is challenging.
Chris Shenton, a voting rights lawyer at the non-profit Southern Coalition for Social Justice (Riggs previously served as the group’s co-executive director), said “this is definitely an unprecedented protest.
“First, it’s a huge number of ballots to challenge in one fell swoop, and certainly orders of magnitude bigger than previous protests,” he continued.
“But even more fundamentally, it’s a protest of a different kind. The candidates aren’t alleging that the election rules for 2024 weren’t followed or administered properly, but that the rules need to retroactively change, after everyone has voted. That just isn’t a thing people have tried in this context – and for good reason.”
After the state board’s decision, the losing party could bring an appeal into the state court system, where the issue could work its way up to the state supreme court. Democrats filed a pre-emptive suit in federal court on Friday to try to ensure all ballots are counted.
Shenton said the arguments in the protest were so novel, it was difficult to predict the chances of success.
“I do not think it’s a strong legal argument and I haven’t heard anyone make an even plausible case that this theory should serve as the ‘Redo your statewide election with this One Weird Trick’ button that the protesters are trying to turn it into,” he said.
“It’s true that it’s not explicitly foreclosed by precedent – but that is because this is the kind of thing that people wouldn’t have considered bringing in the past.”
Griffin’s lawyers are also challenging several hundred ballots from overseas voters, claiming that they failed to provide photo ID or were ineligible to vote because they had always lived outside the US and never in North Carolina.
The board voted unanimously to turn away challenges to voters who had failed to provide ID and voted 3-2 to dismiss the challenges to overseas voters who had never lived in North Carolina.
Riggs’s lawyers note that Republicans tried to make both arguments in court before the election and they were rejected. Overseas voters are protected by a law that does not require them to provide photo ID and they can claim North Carolina as their domicile, Riggs’s lawyers wrote.
