"Who's next?" asked Ali Evarts. The registered Democrat joined hundreds of other people gathered on the Old State Capitol grounds in Raleigh recently to protest Republican Jefferson Griffin's effort to invalidate more than 65,000 ballots in his bid for a seat on the North Carolina Supreme Court.
"Like, what tiny little thing are they going to try to challenge in the future?" Evarts added.
Evarts isn't one of the voters whose ballot Griffin has challenged but she expressed a belief that Griffin's campaign threatens to undermine democracy.
"If any party can come in after the election results are in and it appears you lost and then pick some statutory or regulatory issue involving elections that you think might help you flip the results, you're opening up Pandora's box to all sorts of legal shenanigans post-election," cautioned Bob Orr, a former justice on the North Carolina Supreme Court.
"Plus," Orr said, "it just further erodes confidence in the independence of the judiciary, which is really important in how democracy works."
Ballot protests could damage public trust in the courts
Griffin's ballot protests have put the court he's trying to join in an uncomfortable position: forcing the justices to decide whether to silence the voices of legitimate voters.
Orr served on the high court from 1995 to 2004, elected as a Republican. He was a state Court of Appeals judge before that, the same court on which Jefferson Griffin now serves. Orr says he broke with the GOP in 2021 over Trumpism and the Jan. 6, 2021 insurrection. He's now registered unaffiliated and works with a fair-elections initiative sponsored by The Carter Center.
The prospect of post-election gamesmanship Orr warned about is the same danger cited by a current conservative justice on the state Supreme Court who parted with his Republican colleagues and decided against Jefferson Griffin's request to block certification of his electoral loss.
Justice Richard Dietz, in a dissenting opinion in January, wrote: "Permitting post-election litigation that seeks to rewrite our state’s election rules — and, as a result, remove the right to vote in an election from people who already lawfully voted under the existing rules — invites incredible mischief."
Like Dietz, former Justice Orr said Griffin and Republicans might be raising legitimate issues worth exploring, such as whether military and overseas voters covered by federal elections law should be exempted from North Carolina's photo ID requirement. But, Orr added, the time and place to do that is in legislative debates and policy advocacy, not once ballots have been cast by voters according to well-established rules in place at that time.
Griffin has argued that 62,027 of the ballots he's challenging should be invalidated because the voters who cast them were not properly registered under state law. The issue is whether they provided a state driver's license number or last four digits of their Social Security number, personal information required under the federal .
However, HAVA and provide for instances where voters did not have either form of identification.
Moreover, an audit of original registration application records conducted by the state elections board's IT staff, and referenced in , confirmed that more than half of the voters challenged over the registration issue did, in fact, provide either a driver's license number or last four digits of their Social Security number.
Griffin has also challenged 5,509 absentee ballots — drawn from four of state's most Democratic-leaning counties — cast by military and overseas voters covered by the federal , or UOCAVA, which contains no provision for providing photo identification.
The to UOCAVA does not mention a photo ID requirement either, and, accordingly, the state elections board adopted a explicitly exempting UOCAVA voters from the photo ID requirement.
Orr called the remedy Griffin is seeking — tossing out the ballots — "extreme."
Griffin trails incumbent Justice Allison Riggs, a Democrat, by 734 votes, a gap confirmed by two recounts. After the Democratic-majority North Carolina State Board of Elections dismissed his protests over a lack of evidence, Griffin turned to the state courts.
A Wake County judge recently upheld the state elections board's dismissal of Griffin's claims. Griffin has appealed to the state Court of Appeals, a tribunal on which he is a sitting judge, and a hearing could take place next month. Republicans hold a solid majority on the appeals court. One of the GOP judges on the appeals court, Tom Murry, has contributed to Griffin's legal expense fund.
The North Carolina Supreme Court, also dominated by conservative jurists, the state elections board's request to bypass the appeals court and take up the case immediately. That procedural maneuver could have an important impact on the ultimate outcome of this case in state court.
Justice Riggs has recused herself from hearings on the Griffin protests. That has left the six remaining justices, five Republicans and one Democrat, to preside over the case. Had the case gone directly from the Wake County Superior Court and the high court's justices then deadlocked 3-3, the outcome would have reverted to the lower court's decision dismissing Griffin's ballot protests.
However, by sending the matter to the state Court of Appeals first, where Republicans hold a solid majority, any deadlock on a subsequent appeal to the state Supreme Court will default to the Court of Appeals decision.
On top of all that, Chief Justice Paul Newby's wife has contributed to Jefferson Griffin's judicial campaign, which is not prohibited under the state's judicial code, but raises questions about impartiality, nonetheless. Justice Anita Earls' husband has contributed to Riggs; Riggs and Earls both share backgrounds as advocates representing clients in civil and voting rights cases.
"It plays into the public's perception that this is all political," Orr said.
"To some extent that's inherent in having elected judges," said Carl Tobias, a professor who teaches federal and constitutional law at the University of Richmond, seat of the U.S. Fourth Circuit, which may end up reviewing federal questions raised by the Griffin-Riggs legal battle.
Politically charged cases a challenge to court's image
Starting in the late 1990s, the North Carolina General Assembly passed legislation making judicial races for trial courts nonpartisan; appellate contests followed a few years later. Then, starting in 2016, the GOP-led state legislature returned judicial contests to a partisan format: first for the appellate courts, then the trial courts.
"I don't think that was a good move if the goal is to have the courts be perceived as impartial actors that don't bring a partisan agenda to the bench" said Robin Hudson, a former justice on the state Supreme Court. Hudson served two consecutive eight-year terms on the high court, running during the period when races for that judicial post were nonpartisan.
However, before her tenure on the high court, Hudson successfully ran for the state Court of Appeals as a Democrat.
But Hudson said any public perception of the state's judiciary as becoming more partisan has been fueled, in part, by a string of politically charged cases in the past decade or so and media coverage of those battles.
Immediately after taking office as governor in 2017, Democrat Roy Cooper was in court fighting power grabs by the Republican-led legislature. GOP lawmakers also pushed through a state Constitutional amendment and legislation requiring photo ID for voting, which got tied up in the courts.
A slim Democratic majority on the state Supreme Court eventually ruled against the Republican legislative defendants in some of those cases. And that same court capped off a decade's worth of litigation over Republican gerrymandering and found GOP lawmakers had drawn excessively partisan maps.
However, in the 2022 midterms, Republicans won a majority on the state Supreme Court and promptly reversed prior rulings on redistricting and photo ID.
"For the vast majority of all of the cases and all of the judges in North Carolina, the judiciary does its job in a nonpartisan, call- 'em-as-you-see-'em, apply the law and the Constitution, straight down the middle, very fair, and impartial way," said Hudson.
But she added: "It's a harder thing for the public to believe that judges are doing that if the decision comes out in a way that reinforces that 'Oh, this is a partisan thing after all,'" Hudson said.
"Do I think that we are giving outsized attention to a few cases that are then being framed as being decided through a partisan lens?" Campbell University law professor Nicole Ligon asked. "I do."
Ligon, who teaches media law and professional responsibility and previously served as supervising attorney for the First Amendment Clinic at Duke University's School of Law, said she has a great deal of trust in the judiciary.
But she said in cases like Griffin's protests, politically sensitive topics under the gaze of a skeptical public, judges must be clear in the way they communicate their rulings.
"The public tends to trust the judiciary more when decisions are well explained," she said. "And a lack of detailed reasoning can fuel speculation about judicial motives regardless of whether the decision was legally sound."
Griffin has declined comment, citing pending litigation. But Paul Shumaker, a political consultant working with Griffin indicated that his client shouldn't be too worried about what voters think of his ballot protests.
"They are more concerned about the economy, crime, education, and the recovery from Hurricane Helene than any case making its way through our court system," Shumaker said in an email.
