North Carolina's Supreme Court decided last week that ballots from two categories should have been left out of the tally of an unresolved November election for a seat on the court because state laws otherwise makes the voters ineligible.
But there's still legal friction about the number of ballots that state courts say must be scrutinized by election officials tasked with removing them from the count and giving voters the chance to provide additional information so their votes can remain.
The universe of potential ballots is critical since Democratic Associate Justice Allison Riggs leads Republican challenger Jefferson Griffin by just 734 votes from more than 5.5 million ballots cast in what is the nation's last undecided race from the 2024 general election.
Griffin hopes enough ballots that he challenged are removed to flip the result. Meanwhile, Riggs and her allies have asked federal judges to stop the State Board of Elections from starting its ballot review while they argue U.S. law prevents any of these ballots from being removed.
The State Board of Elections, in a court filing this week, said that up to 1,675 ballots that were formally challenged by Griffin will be subject to the "cure" process ordered by state appeals courts. But Griffin's attorneys wrote the next day that his formal protests required thousands of additional ballots to be identified by the board and potentially removed. And they accused the board of carrying out an order of the state Court of Appeals too narrowly.
"The State Board has announced its intent to defy this Court's mandate," Griffin lawyer Craig Schauer wrote Wednesday in asking the Court of Appeals to intervene.
A majority on the state Supreme Court let stand parts of an April 4 Court of Appeals decision that ballots shouldn't be counted if they were cast by overseas voters who have never lived in the U.S. but whose parents were declared North Carolina residents. Election officials were told to "identify the votes from 'Never Residents' and remove them from the final count."
The other disallowed category covers military or overseas voters who did not provide copies of photo identification or an ID exception form with their absentee ballots. Judges decided state law required that they provide IDs like other voters. Election officials were told to identify these voters and notify them that they could turn in an ID copy or exception form within 30 days for their vote to count.
An attorney for the State Board of Elections wrote Tuesday that only up to 1,409 voters in just one county would be subject to the ID curing process because only Griffin's protest in Guilford County was complete by the election protest deadline.
But Griffin's lawyers said he filed ID protests in five more counties before the deadline while still awaiting lists of such voters. Three more counties later provided information that raised the number of potential challenges to over 5,500. Schauer wrote that the Court of Appeals made it plain that ballots from all six counties should be subject to the review. Unofficial results show Riggs ahead in all six counties.
The state board also said Griffin's residency protests would only affect up to 266 people in 53 counties. Griffin's brief said the order should apply to voters from all 100 counties. The board also plans to give any voters inaccurately identified as living overseas the chance to keep their ballot in the count.
Riggs, the state Democratic Party and other groups and voters contend that Riggs is the winner, and that federal laws and the U.S. Constitution prevent state courts from changing voting rules after an election so that ballots cast properly can be removed.
Earlier this week, U.S. District Judge Richard Myers refused their injunction requests to halt the board's vote-curing process while they argue those points, but he barred the state board from certifying results or declaring a winner in the meantime. Riggs and others appealed Myers' ruling to the 4th U.S. Circuit Court of Appeals.
"This Court must intervene to prevent a retroactive application of a state court ruling that infringes North Carolina voters' fundamental rights," Riggs attorney Sam Hartzell wrote the 4th Circuit late Wednesday.
Griffin, who is a Court of Appeals judge, and Riggs — one of two Democrats on the seven-member Supreme Court — have not participated in deliberations in their respective courts about their election.
