Military and overseas absentee voters from four Democratic-leaning counties will now have 30 days to prove their eligibility or be dropped from the count in a key 2024 judicial race that remains contested, per a Friday decision by the North Carolina Supreme Court. However, an appeal to the federal courts means this might not be the final word in the legal battle.
But the court majority also said 61,000 voters identified as lacking identification numbers on their voter registration because of a State Board of Elections error should be counted, the court majority ordered, overturning a ruling by a state Court of Appeals panel a week earlier.
It’s the latest twist in the contest between Republican Judge Jefferson Griffin and Democrat Allison Riggs for the state Supreme Court. After all absentee and provisional votes were counted, and two recounts later, Riggs is ahead by 734 votes. The incumbent in the race, she retains her seat while the case is being decided.
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Following the November election and multiple recounts, Griffin filed a series of election protests attempting to remove certain categories of voters from the count shortly after the election:
One, the group of more than 61,000 voters who filled out a faulty voter registration form and did not include either a driver’s license or Social Security number, or check a box indicating they had neither to be assigned a unique identification number. Griffin had argued these voters did not register lawfully, and therefore cannot be considered eligible voters, a claim that the Supreme Court rejected Friday.
Two, a category of about 5,500 overseas and military absentee voters from four Democratic-leaning counties who did not provide photo identification with their ballots, according to the State Board’s interpretation of the law at election time. Griffin argues that interpretation was incorrect, and those voters were subject to the voter ID law just like domestic in-person and early voters. The high court affirmed this argument on Friday.
Three, several hundred voters, called “Never Residents,” who don’t live in North Carolina but claim inherited residency through a special state law provision. Griffin argues that this state law violates the North Carolina Constitution’s residency requirements, and deems these voters ineligible. Justices on Friday also affirmed this claim.
After the State Board of Elections initially dismissed his protests in November, Griffin appealed straight to the state Supreme Court. At the time, the court directed him to start at the Wake County Superior Court, as the law prescribes, but halted election certification until the case could be resolved.
Six months later, the election remains uncertified. The case returned to the state’s highest court this week for the third time. This time, they agreed to take it up just long enough to hand down Friday’s mixed order reversing, amending and affirming parts of last week’s North Carolina Court of Appeals panel order in the same case.
Incomplete voter registrations
The Supreme Court’s majority placed the blame for voters missing driver’s licenses and Social Security numbers squarely on the State Board of Elections.
But while the Board’s “inattention and failure to dutifully conform its conduct to the law’s requirements is deeply troubling,” the state Supreme Court ruled that the 61,682 voters on Griffin’s protest lists for incomplete voter registrations should be counted.
Based on court precedent, the majority opined that votes can’t be retroactively removed for technical issues, especially considering that voters were subject to voter ID laws this year.
If there was reason to believe that a significant portion of these challenged voters didn’t provide photo ID at the polls or were otherwise ineligible to vote, the situation may have been different, the opinion emphasized.
Military and overseas photo ID
Military and overseas absentee voters from Guilford, Durham, Forsyth and Buncombe counties aren’t so lucky.
Last week, the North Carolina Court of Appeals gave them and the voters challenged for having incomplete voter registrations 15 business days to “cure deficiencies,” or fix their ballot.
While the first category of voters no longer have to do so, the state Supreme Court kept the cure period in place for overseas and military absentee voters in these counties. However, the court extended the timeline to 30 calendar days after impacted voters get notices in the mail.
Democratic Justice Anita Earls disagreed with her peers on this part of the order. She said requiring voters from four Democratic-leaning counties identified in Griffin’s protests to prove their eligibility, while military and overseas voters who acted in the same way from 96 other counties don’t have to take that extra step is a threat to equal protection.
“Explaining how that is fair, just, or consistent with fundamental legal principles is impossible, so the majority does not try,” she wrote in her partial dissent.
Republican Justice Richard Dietz also issued a partial dissent. While he agrees with the principles of the case, he said the court should not retroactively void votes like those of military voters, and should instead apply their judgments to future elections.
“Even if the federal courts ultimately reverse the Court of Appeals decision because of a conflict with UOCAVA, or Bush v. Gore, or whatever else, the door is open for losing candidates to try this sort of post-election meddling in state court in the future,” he wrote. “We should not allow that.”
‘Never Residents’
The state Supreme Court fully sided with the North Carolina Court of Appeals on the “Never Residents” issue by denying review of the appellate court’s decision.
The state law that allowed people who had never resided in the state to vote in North Carolina state and local elections violated the state Constitution, the majority wrote.
If the state Supreme Court ruling is the final decision in the case, these voters will be removed from the count and will no longer be eligible to vote in non-federal elections.
What’s next for military voters and others?
Now, the case goes back to the North Carolina Court of Appeals to execute the Supreme Court’s order.
But in the meantime, Riggs appealed the case to federal court Friday, and is seeking to block further action until the case’s federal issues are considered.
She was pleased the court rejected the attempt to disenfranchise voters with incomplete voter registrations, she said, but plans to fight for military and overseas voters as the “proud daughter of a 30-year military veteran who was deployed overseas.”
State House Democratic Leader Robert Reives issued his own statement Friday afternoon, calling the decision on military and “never resident” voters a “disservice to North Carolina.”
“Legal votes from military and overseas citizens in certain Democratic counties could be tossed out months after being legally cast in the 2024 election,” he said. “The fact remains: Allison Riggs won.”
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