North Carolina Supreme Court Justice Allison Riggs is asking a federal Appeals Court for a stay and injunction in the election dispute involving her seat on the state’s highest court. The trial judge in the case has rejected requests to place his recent rulings on hold.
Riggs filed paperwork Wednesday with the 4th US Circuit Court of Appeals. She seeks a court order that would block a ballot “cure” process ordered by state courts. US Chief District Judge Richard Myers issued an order Saturday calling for that process to move forward.
Riggs’ opponent in last November’s election, Jefferson Griffin, opposes Riggs’ request, according to her court filing. The State Board of Elections “consents to the requested relief.”
An appointed incumbent, the Democrat Riggs leads the Republican Griffin by 734 votes out of 5.5 million ballots cast in the election last fall. A Jan. 7 order from Riggs’ state Supreme Court colleagues has blocked the State Board of Elections from certifying Riggs as the contest’s winner.
Griffin, a state Appeals Court judge, has been pursuing ballot challenges involving more than 65,000 voters in last fall’s election. More than 60,000 of those ballots are no longer in jeopardy. The state Supreme Court agreed Friday that voters with incomplete registration records would have their ballots counted.
Remaining ballot challenges could target 5,700 voters, though the elections board indicated Tuesday that it expects to address no more than 1,675 challenged ballots. If the board’s number stands, it’s less likely that Griffin would see the vote margin swing enough for him to overtake Riggs in the final tally.
Riggs is asking the 4th Circuit to step into the case. She wants federal courts to block the rest of Griffin’s ballot challenges.
“Two months ago, this Court exercised its discretion to abstain from deciding the federal issues in this case while the North Carolina courts resolved unsettled questions of state law,” Riggs’ lawyers wrote. “The North Carolina courts used the opportunity to issue the ‘most impactful election-related court decision our state has seen in decades.’”
“That decision permits a losing candidate to bring a post-election lawsuit intended to overturn the results by retroactively disenfranchising voters,” the court filing continued. “Rather than obviate the need for federal court review, the North Carolina courts endorsed a state-law remedy that ‘cries out’ for ‘a decisive rejection of this sort of post hoc judicial tampering in election results.’”
“This stay and injunction are necessary to ensure that this Court has time to ‘address the federal constitutional and other federal issues the Board raised in removing the case,’” Riggs’ lawyers wrote. “To allow the state-law remedy to go into effect while those federal-law issues remain unresolved would be inconsistent with the U.S. Constitution and this Court’s mandate.”
Myers refused Tuesday to grant a stay of his recent orders in multiple lawsuits linked to the state Supreme Court election dispute.
Riggs, activist groups working with Democratic operative Marc Elias’ law firm, and plaintiffs working with League of Women Voters of North Carolina all filed emergency motions with Myers.
“All three motions request a stay of the portion of Text Orders entered by this court on April 12 and April 14 that direct the North Carolina State Board of Elections ‘to proceed in accordance with the North Carolina Court of Appeals opinion … as modified by the North Carolina Supreme Court,’” Myers wrote Tuesday. “That portion of the court’s Text Orders, though framed in mandatory terms, did nothing more than decline to interfere (on an expedited basis and without the benefit of briefing) with the initiation of a remedial process ordered by the North Carolina Court of Appeals and North Carolina Supreme Court.”
“Thus, to the extent the parties seek a stay of the court’s inaction, that is, its decision not to enjoin the Board of Elections from complying with the North Carolina Court of Appeals’ order, that request is denied as improper,” Myers wrote. “What the parties actually seek is reconsideration of the court’s denial of their requests for temporary restraining orders. The correct avenue for that form of relief is a motion for reconsideration or direct appeal, if one is available.”
“This court now clarifies that the only mandatory portion of its April 12 and April 14 Text Orders is the language prohibiting the Board of Elections from certifying the results of election pending further order of this court,” Myers added. “This court has made no order altering or modifying the cure process, which is now proceeding pursuant to the North Carolina Court of Appeals’ order, as modified by the North Carolina Supreme Court.”
Myers rejected the requests for mandatory injunctions in the case.
“The court does not find that initiation of a cure process ordered by the North Carolina Court of Appeals and North Carolina Supreme Court, on its own, constitutes a form of irreparable harm because that process cannot result in ‘massive ex post disenfranchisement,’ unless the Board of Elections takes further action at the conclusion of that process,” Myers wrote. “And the court has expressly prohibited the Board of Elections from certifying the results of the election until the federal constitutional issues in these consolidated matters have been resolved.”
Riggs, the Elias plaintiffs, the LWVNC plaintiffs, and the North Carolina Democratic Party all have asked the 4th US Circuit Court of Appeals to block Myers’ ruling.
The state Supreme Court agreed unanimously Friday to reject Griffin’s challenge of more than 60,000 ballots cast by people who appeared to have incomplete voter registration records.
The court split, 4-2, on two other sets of ballot challenges. Justices upheld the state Appeals Court’s decision to throw out votes from voters who never have lived in North Carolina. The Supreme Court also endorsed the Appeals Court’s plan to give overseas voters time to provide evidence of photo identification to have their ballots counted.
The Appeals Court had ordered elections officials to give overseas voters 15 business days to complete that task. The state Supreme Court extended that window to 30 calendar days.
“Defendant North Carolina State Board of Elections is ORDERED to proceed in accordance with the North Carolina Court of Appeals opinion, as modified by the North Carolina Supreme Court in its April 11 Order, but SHALL NOT certify the results of the election, pending further order of this court,” Myers wrote Saturday.
The judge also set new deadlines in the case “to facilitate prompt resolution of this matter.”
Each party can file an opening brief by April 21 with final briefs due April 28. Myers indicated he “intends to rule on the papers as soon as practicable,” rather than holding oral arguments.
The total number of ballots affected by Griffin’s protests has been unclear as the process has moved forward. In an earlier stage of the case, Myers identified more than 5,500 ballots belonging to overseas voters who provided no photo ID. He also spelled out 267 votes from “never residents.” The State Board of Elections believes the total number of ballots affected by state court orders is no larger than 1,675.
The state Supreme Court’s decision modified a 2-1 ruling on April 4 from the North Carolina Court of Appeals.
The Appeals Court would have given more than 60,000 voters with incomplete voter registration information 15 days to verify their information and have their votes counted. The Supreme Court took up that issue “for the limited purpose of reversing the decision of the Court of Appeals.”
“The board’s inattention and failure to dutifully conform its conduct to the law’s requirements is deeply troubling,” the Supreme Court majority wrote. “Nevertheless, our precedent on this issue is clear. Because the responsibility for the technical defects in the voters’ registration rests with the Board and not the voters, the wholesale voiding of ballots cast by individuals who subsequently proved their identity to the Board by complying with the voter identification law would undermine the principle that ‘this is a government of the people, in which the will of the people — the majority — legally expressed, must govern.’”
The Appeals Court also would have granted 15 days for overseas voters to provide photo ID and have their votes counted. The Supreme Court addressed the issue “for the limited purpose of expanding the period to cure deficiencies arising from lack of photo identification or its equivalent from fifteen business days to thirty calendar days after the mailing of notice.”
Appellate judges called on state elections officials to discard votes cast by people who never have lived in North Carolina. “[T]he Court of Appeals held that allowing individuals to vote in our state’s non-federal elections who have never been domiciled or resided in North Carolina or expressed an intent to live in North Carolina violated the plain language of Article VI, Section 2(1) of the North Carolina Constitution,” according to the Supreme Court order. The high court did not alter that decision.
Riggs was recused from the case. Justice Anita Earls, a fellow Democrat, agreed with the decision to count more than 60,000 ballots challenged based on incomplete voter registration. She criticized the rest of the majority’s opinion.
“The majority is blatantly changing the rules of an election that has already happened and applying that change retroactively to only some voters, understanding that it will change the outcome of a democratic election,” Earls wrote. “That decision is unlawful for many reasons, including because: 1) it is inconsistent with this Court’s longstanding precedent, 2) contrary to equitable principles that require parties to bring their claims in a timely manner, 3) contrary to equal protection concerns, 4) violative of due process requirements, and 5) contrary to state constitutional provisions vesting the right to elect judges in the qualified voters of this state, not the judge’s colleagues.”
Earls labeled the decision a “judicial coup.”
Justice Richard Dietz, a Republican, also issued a partial dissent. “I expected that, when the time came, our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law.”
“I was wrong,” Dietz wrote.
The state elections board had rejected all of Griffin’s ballot challenges. A Wake County Superior Court judge upheld the board’s decision in a series of Feb. 7 orders.
Appeals Court Judges John Tyson and Fred Gore, both Republicans, supported the court’s April 4 decision. Judge Tobias Hampson, a Democrat, dissented.
Riggs continues to serve on the state Supreme Court during the legal battle. Griffin continues to serve on the Appeals Court.
The post Riggs seeks stay, injunction from federal Appeals Court in election dispute first appeared on Carolina Journal.