RALEIGH, N.C. (AP) — An appeals court agreed Tuesday that a federal trial judge acted properly last month in declining to rule on the eligibility of tens of thousands of voters last fall in an unresolved North Carolina Supreme Court election and return it to state court.
But the panel of the 4th U.S. Circuit Court of Appeals also gave Associate Justice Allison Riggs the ability to return to federal court to plead her case if appeals in state courts result in challenger Jefferson Griffin overtaking her in their extremely close race — should ballots be directed removed from tallies. The circuit judges’ order essentially provides a lifeline to plead violations of federal elections and voting rights laws.
The decision appears — at least in the immediate future — to shutter federal court venues to settle the November election outcome between the Democrat Riggs and the Republican Griffin. With over 5.5 million ballots cast in the race and after two recounts, Riggs leads Griffin by 734 votes.
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Griffin is challenging whether roughly 66,000 ballots should have been counted. Most of those ballots were cast by voters whose registration records lacked either a driver’s license number or the last four digits of a Social Security number. Others were cast by thousands of military or overseas voters who did not provide copies of photo identification with their ballots and by hundreds of overseas voters who have never lived in the U.S.
In December, the State Board of Elections rejected formal protests by Griffin to have the votes removed based on restrictions in state law or the North Carolina Constitution. Riggs’ allies have said Griffin should concede. They accuse Griffin and the state GOP of trying to overturn the results by disenfranchising citizens without specific evidence that they are actually ineligible to vote.
Since the board’s action, litigation associated with the election has wound its way through both state and federal court systems.
Lawyers for Griffin initially asked the state Supreme Court to intervene and declare the ballots be left out of the totals. But the elections board moved the matter to federal court, saying Griffin’s appeals involved matters of federal law. Four weeks ago, U.S. District Judge Richard Myers sent cases back to state court after abstaining from ruling in the matter because, in part, he said the case involved “unsettled questions of state law.” The board, Riggs and others appealed to the 4th Circuit, which heard oral arguments last week in Richmond, Virginia.
But Myers had already returned the case to state court, where a majority of state Supreme Court justices blocked the board from certifying the race while the court decided what to do next. Riggs recused herself from those deliberations.
Two weeks ago, the remaining justices dismissed Griffin’s original petition to have them remove the ballots and decided Griffin’s ballot protests should be heard first in a local trial court. A hearing is set for Friday in Wake County.
Tuesday, the panel consisting of U.S. Circuit Judges Paul Niemeyer, Toby Heytens and Marvin Quattlebaum Jr. ruled that some appeals by Riggs and others were moot because of the state Supreme Court’s action. And although citing a different legal theory than Myers, their opinion affirmed his decision to abstain because of unsettled state-law issues.
“The parties advance diametrically opposed interpretations of the North Carolina statutes that are the subject of Griffin’s challenges,” the opinion read, adding that the resolution of state-law issues “could avoid the need to address the federal constitutional and other federal issues” raised. Any state appeals could return to the state Supreme Court, where five of the six justices hearing the case are registered Republicans.
But the opinion told Myers to modify his Jan. 6 order to “expressly retain jurisdiction of the federal issues” that the elections board has cited “should those issues remain after the resolution of the state court proceedings, including any appeals.” This would allow Riggs, a legal party in the matters, to seek redress in federal court by asking that any removed ballots be restored to the tallies.
The eight-year term at stake in the election was supposed to begin in early January. Riggs remains on the court in the meantime.
