“… Griffin, who lost to Riggs by 734 votes, asked the courts to toss the ballots of three categories of voters: About 60,000 early and absentee voters he alleged had incomplete voter registration information; about 5,000 military and overseas voters from some overwhelmingly Democratic counties who were not required to provide an ID; and more than 200 overseas voters who never lived in North Carolina but whose parents were registered here before they left the country.
Last week, Griffin won a
key victory at the Court of Appeals, where he is currently a sitting judge. A Republican majority panel discarded the so-called never-resident votes and gave the other two tranches of voters 15 days to rectify their alleged infirmities. Democrats panicked. Tracking down more than 60,000 voters that quickly—some of whom might have moved—would be a herculean task. Because early voters generally lean Democratic and the overseas voters Griffin targeted were from blue counties, their votes would almost certainly cost Riggs the election
… In a brief opinion written by Justice Trey Allen, the court said the 60,000 ballots from voters with incomplete registrations should stay. The state’s case law made clear that registration errors “will not deprive the [citizens] of [their] right to vote or render [their] [vote]s void,” Allen wrote. And, he pointed out, all of them had presented an ID to vote, so there was no allegation of fraud.
Allen and Republicans Paul Newby, Phil Berger Jr., and Tamara Barringer agreed with the Court of Appeals on the other two tranches of voters, but extended the deadline for military and overseas voters to provide an ID from 15 to 30 days. They did not provide a rationale or explain why they believed the election board’s decision to allow these voters to cast their ballots without an ID—which was approved by the legislature-appointed Rules Review Commission and not challenged by any party or candidate before the election—was wrong.
As Earls pointed out in her partial dissent, they also did not specify how many overseas voters were affected. Griffin initially targeted Guilford County, then tried to expand his challenge to three other blue counties.
“Possibly at least 2,000 to 7,000 votes … are now presumed to be fraudulent unless they can prove otherwise within 30 calendar days,” Earls wrote. “The vote of an overseas or military voter who is registered in Wake County and who voted pursuant to the laws applicable at the time is counted. However, the vote of an overseas or military voter who is registered in Guilford County is presumed to be fraudulent and will not count unless that voter provides proof of their identity within thirty business days. Explaining how that is fair, just, or consistent with fundamental legal principles is impossible, so the majority does not try.”
… The majority also said little about its reasons for agreeing with the Court of Appeals that allowing never-residents to vote is unconstitutional. These voters have been allowed to cast ballots under a 2011 statute unanimously passed by the Republican-controlled General Assembly—a law that’s now been in effect for more than 40 elections. No one objected until the Republican National Committee
sued shortly before the 2024 election.
… “The Court of Appeals has since issued an opinion that gets key state law issues wrong, may implicate a host of federal law issues, and invites all the mischief I imagined in the early days of this case,” Dietz wrote.
“By every measure, this is the most impactful election-related court decision our state has seen in decades. It cries out for our full review and for a decisive rejection of this sort of
post hoc judicial tampering in election results.”
Dietz hinted that he expected federal courts might intervene. But even if that happens, “the door is open for losing candidates to try this sort of post-election meddling in state court in the future. We should not allow that.”
There are several potential federal issues. The ruling might run afoul of a
federal law governing military and overseas voters. A decision that affects voters in some counties but not others could violate equal protection rules. Federal courts also have longstanding precedents forbidding states from changing voting rules just before—or, presumably, after—an election. …”