On Friday, four Republican members of the North Carolina Supreme Court issued an order attempting to disenfranchise more than 5,000 of the state’s voters. This order is part of an ongoing effort by Judge Jefferson Griffin, a Republican and the losing candidate in a recent state supreme court race, to overturn Democratic state Supreme Court Justice Allison Riggs’ reelection in that race.
Four of the state’s Republican justices, in other words, are attempting to unseat one of their own Democratic colleagues and replace her with the Republican who lost his bid to unseat her.
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Riggs’s victory over Griffin was very close, which is why canceling several thousand votes may be enough to change the result of this election. By official tallies, Riggs beat Griffin by just 734 votes.
Griffin’s attempt to steal this election closely resembles an even more famous court case about a contested election: Bush v. Gore (2000). Bush addressed the nail-bitingly close 2000 presidential election in Florida. Initial tallies showed Republican George W. Bush with just a 537 vote lead, and whoever prevailed in Florida would also win a term in the White House.
Democrat Al Gore, meanwhile, sought a recount of some Florida ballots in the hopes that this recount would push him over the top. But we’ll never know if Bush or Gore was the proper winner of the 2000 presidential election because the Supreme Court effectively halted that recount in Bush.
The stunning thing about the North Carolina Supreme Court’s recent decision, in a case known as Griffin v. North Carolina State Board of Electors, is that the four Republican justices behind that decision somehow managed to recreate the exact same constitutional violation that drove the Supreme Court to shut down the recount in Bush.
That’s not easy to do. One reason why Bush is widely criticized as a partisan decision is that the five justices in the majority went to great pains to limit their decision to the “present circumstances” before the Court — implying that Bush’s victory was a good-for-this-ride-only decision involving facts that are unlikely to arise again. But now they have arisen in the Griffin case.
The specific legal violation identified in Bush v. Gore was that the Florida Supreme Court ordered just three counties — counties that tended to favor Democrats — to recount their ballots, a problem exacerbated by the fact that each of these three counties used different procedures to conduct this recount. A majority of the justices concluded that this piecemeal procedure was not allowed and the state supreme court had an obligation to “assure uniformity” of election rules throughout the state.
In Griffin, meanwhile, the four Republican justices ordered voters disenfranchised in just four North Carolina counties — all of which favor Democrats — while leaving similarly situated voters in other counties untouched. That’s the exact same thing the Florida Supreme Court did in Bush. A state supreme court cannot apply non-uniform rules after an election has already happened.
For the moment, the state supreme court’s attempt to steal Riggs’s seat is on hold — a federal judge issued a temporary order forbidding the state from certifying the result of the election until after this case is fully litigated in federal court. But under Bush, there’s only one conclusion the federal courts should reach in this case: that North Carolina’s Supreme Court cannot selectively toss out ballots.
Which voters are being disenfranchised?
Griffin primarily involves military and overseas voters who cast their ballot using either an online or paper form permitting them to vote absentee. Though North Carolina state law generally requires voters to show a photo ID before they can vote, the state’s administrative code provides that military and overseas voters are “not required to submit a photocopy of acceptable photo identification” when they cast their ballot.
Indeed, according to lawyers representing several voters the state supreme court is attempting to disenfranchise, it was impossible for military and overseas voters to submit a copy of their ID even if they wanted to. Many of these voters cast their ballot using an online portal maintained by the state, but that portal neither asked voters to provide ID nor “[provided them] with a means of doing so.”
Nevertheless, a majority of the state supreme court ruled on Friday that these voters’ ballots are presumptively invalid because they did not comply with a different provision of state law that requires the state to establish rules governing the use of ID by absentee voters. The state supreme court’s decision does allow these voters to “cure deficiencies arising from lack of photo identification” within 30 days, but it is unclear how this curing process will even work.
The state’s decision to hold an election under one set of rules and then change those rules after the election in just four Democratic counties violates the Constitution in at least two ways.
The first is that several federal appeals courts have ruled against states that attempted to retroactively change their election rules after an election took place. In Griffin v. Burns (1978), for example, the United States Court of Appeals for the First Circuit ruled that the Rhode Island Supreme Court could not toss out a stack of ballots “after the results of the election were in,” pointing to the fact that the state’s top elections official had previously “advertised, issued, and sanctioned” the ballot forms that the state supreme court later tried to invalidate.
The Supreme Court has not yet ruled on whether a state can retroactively change its election procedures, so it is possible that the justices will break with these appeals court decisions.
The second constitutional violation arises under Bush. And because Bush was a decision of the Supreme Court of the United States, its rule clearly should apply to the dispute between Riggs and Griffin.
Under Bush, the North Carolina Supreme Court might have been allowed to disenfranchise military and overseas voters throughout the state. But it cannot disenfranchise these voters in just four Democratic counties while counting military and overseas ballots elsewhere. Again, Bush said state supreme courts must “assure uniformity” when they announce a new election rule after the election has already happened.
The good news for Riggs is that the Fourth Circuit, the appeals court that oversees North Carolina, has a 9-6 Democratic majority among its active judges. So that court is unlikely to tolerate the state supreme court’s violation of the Constitution. It remains to be seen, however, whether the GOP-controlled US Supreme Court decides to get involved in this case. If it does, it is difficult to predict how it might rule.
