Three justices from the 4th U.S. Circuit Court of Appeals on Tuesday ruled the litigation of the nation’s last undecided election shall be returned to Superior Court in North Carolina.
Wake County Superior Court is the next stop, on Friday, for decisions on Republican Jefferson Griffin’s ballot challenges that the State Board of Elections dismissed and he feels was done wrongly against state law.
Still possible after a Wake Superior Court would be appeal to the North Carolina Court of Appeals, and the state Supreme Court for matters of the state; appeals of a federal issue would return to U.S. District Court for the Eastern District of North Carolina.
Justices presiding for the 4th Circuit were Toby Heytens, Paul Niemeyer and Marvin Quattlebaum Jr.
The election board dismissed six protests, allowing three to be handled first by county jurisdictions. The panel includes three Democrats, two Republicans, and allowed one of the Democrats to participate despite her husband representing one of the two candidates.
The state board and Allison Riggs, the Democratic candidate and incumbent to the state Supreme Court seat, share the same side in seeking to dismiss Griffin’s challenges. Griffin is a judge at the state Court of Appeals.
Neither candidate has participated in any proceedings involving the case when it has come to their respective courts.
Though more than 65,000 ballots were included in the protests, there are just over 5,500 involving people from overseas voting where Griffin says a copy of photo identification did not come with the ballot submitted. State law requires it in person and by absentee method. A failure to do so can be cured before Election Day.
The state board ruled the votes count.
State Democratic Party Chairwoman Anderson Clayton has called the 734-vote win by Riggs, from more than 5.5 million ballots cast, decisive and says Griffin should concede and end litigation. “This is not the type of behavior expected from a sitting judge, this is the behavior of a sore loser,” she said in a release Jan. 23.
The protests the state board denied included registration records of voters, such as lack of providing either a driver’s license number or the last four digits of a Social Security number. State law for that has been in place two decades, dating back to 2004; registrations prior were grandfathered in, Clayton explained.
Other ballots protested and denied by the state board included voters overseas who have never lived in the United States, and for lack of photo identification provided with military and overseas voters.
The calendar for the state Supreme Court includes two sessions this month – Tuesday though Wednesday next week, and Feb. 18-20. The scheduled next session is April 15-17.
On Election Night, with 2,658 precincts reporting, Griffin led Riggs by 9,851 votes of more than 5.5 million cast. Provisional and absentee ballots that qualified were added to the totals since, swinging the race by 10,585 votes.
In a statement Jan. 8, the state Republican Party said, “The protests highlight specific irregularities and discrepancies in the handling and counting of ballots, raising concerns about adherence to established election laws.” And, it said, “It is imperative that blatant violations of state law are decided by our state’s highest court.”
In each of the last five state Supreme Court elections, Republicans have defeated Democrats. The Democratic Party gained a 4-3 edge on the bench with Michael Morgan’s win in 2016 and pushed it to 6-1 entering the 2020 election cycle.
If victorious, Riggs and Anita Earls would be the only Democrats on the bench.
