Editor’s note: Following initial publication of this article on April 22, later that day the federal Court of Appeals issued a 2-1 ruling in the Griffin-Riggs case, halting the state’s planned curing of military ballots, which a lower federal court had initially allowed. The article below does not reflect that later development.
For the past six months, Republican Judge Jefferson Griffin has been on a mission to throw out over 67,000 votes in his state Supreme Court race, which he lost by 734 votes to Democratic Justice Allison Riggs. The ongoing Griffin-Riggs race and legal battles could echo far beyond the outcome of the current contest.
If Griffin’s goal is to flip the outcome and hand himself a victory, recent court decisions make it less likely he will succeed. But if his objective is to change the landscape of election challenges, in North Carolina and beyond, Griffin may be well on his way to a win with the precedent he’s set.
Last week, the NC Supreme Court asked the North Carolina State Board of Elections to come up with a plan to cure, or fix, the ballots of challenged military and overseas absentee voters within 30 days.
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The issue? The number of challenged voters that order applies to is up in the air. The board identified 1,409 challenged Guilford County voters in its plan. Griffin says that’s an undercount.
The math matters. If the board’s plan stands, Riggs has a better chance of maintaining her victory, according to a Carolina Public Press analysis.
But, if Griffin has his way, a larger group of challenged voters will have to prove their eligibility, and the outcome is not so clear.
How the Griffin-Riggs battle has unfolded
After losing the state Supreme Court race based on the vote count in November, Griffin filed a series of election protests challenging ballots of certain categories of voters.
The first: more than 60,000 voters who, due to a faulty voter registration form or clerical errors, do not have a driver’s license or Social Security number on file.
The second: about 5,500 military and overseas absentee voters who were not required to attach photo IDs to their ballots, based on an interpretation of state law Griffin disputes.
The third: about 500 so-called “Never Residents” who have never resided in North Carolina, but were permitted to vote based on an inherited residence state law that Griffin argues violates the state Constitution.
In December, the North Carolina State Board of Elections dismissed Griffin’s protests. Since, the case has journeyed through state and federal courts seeking a resolution. Meanwhile, the election remains the final un-certified election in the country.
Back and forth for Griffin-Riggs case in courts
Griffin’s wish was seemingly granted on April 4, when the North Carolina Court of Appeals validated each of his protests in a 2-1 decision. The court ruled that the “Never Residents” should be removed from the count, and the other challenged voters should have 15 days to prove their eligibility to vote by submitting a driver’s license, Social Security number or photo ID to their county boards of election.
That barely lasted a week. On April 11, the NC Supreme Court handed down a mixed order. The court agreed that Never Residents’ votes shouldn’t count in the Griffin-Riggs race, but reversed the part of the decision applying to the lion’s share of challenged voters — those with incomplete voter registrations. The court also sided with Griffin on challenged military and overseas votes, but extended the cure period to 30 days.
Riggs immediately appealed to federal court, and the next day, a federal district judge told the State Board to go ahead with the cure process, but not to certify the Griffin-Riggs election until further court action.
Now, the case is back at the North Carolina Court of Appeals and the U.S. Fourth Circuit Court of Appeals.
On the federal level, Riggs is asking the judge to stop the 30-day cure period before it starts. In her petition, she argues that Griffin’s challenge of military and overseas absentee voters in up to six Democratic-leaning counties, while leaving similar voters in the rest of the counties alone, is arbitrary and unfair.
On the state level, Griffin is asking the appellate court to clarify that its order applies to more than just Guilford County.
When Griffin originally filed his election protests, only Guilford County provided the data in time to meet the protest deadline. After the deadline, he added voters in Durham, Forsyth, Buncombe, Cumberland and New Hanover counties to his protest list. He wants all these challenged voters to provide photo ID.
Griffin also argues that the State Board’s plan undercounts Never Residents by several hundred, based on the same protest deadline issue.
Doing the math
Election predictions are, by nature, fallible. The same applies to the Griffin-Riggs NC Supreme Court race.
Nonetheless, a Carolina Public Press analysis of challenged voters found that if the State Board’s plan sticks, Riggs has a good chance of maintaining her lead.
A few disclaimers: this analysis assumes that all challenged voters cast a ballot in the Supreme Court race, which is not true. Statewide, 28% of voters left that contest blank.
The cure process, too, might defy the math. Some voters may be more likely than others to send in photo ID six months after the election.
Lastly, the challenged ballots are skewed toward registered Democrats, which may make Griffin’s chances of flipping the race higher than they first appear.
Regardless, if the State Board’s plan — which includes just 1,409 challenged military and overseas voters in Guilford County and 266 Never Residents — is implemented, Riggs would have to have originally won 72% of the vote for the race to flip.
That’s unlikely. Statewide, Riggs and Griffin were separated by less than a percentage point. In Guilford County, Riggs earned 62% of the overall vote.
However, If the other five counties are included, as Griffin would like, things could change.
While there is no public data on challenged voters in Cumberland and New Hanover counties, Griffin’s avenue for victory widens if Forsyth, Durham and Buncombe counties are included in the challenged ballots.
Specifically, if Riggs originally won more than 57% of challenged voters in these four counties, the race would flip, according to CPP’s analysis. That’s a much easier hurdle to jump for Griffin.
Ballots are secret, so it’s impossible to know for certain how — or whether — challenged voters voted.
But CPP analyzed the party registrations of the four counties’ 5,504 challenged military and overseas ballots and found that 44% were registered Democrats, 10% were registered Republicans and 47% were unaffiliated voters.
Hypothetically, if all challenged voters voted along party lines, Riggs would have to have earned 28% of the unaffiliated vote for the curing process to flip the race. (This analysis does not include the party registrations of Never Residents, who are spread across 53 counties.)
That’s not at all the point, though, said Doris Speer, president of the Association of Americans Resident Overseas. She doesn’t care who wins the state Supreme Court race, or how many votes are ultimately challenged; she cares about the principle of fair elections.
“The point is, if this decision stands, there will be Americans that will be prevented from voting, and every vote counts,” Speer said.
Reacting to the orders
Speer lives in Paris; it’s one of the easier places to mail things to the United States, she said. But still, ever since the pandemic, it’s taken two weeks for a letter to get from France to America.
She’s worried about setting a 30-day deadline for military and overseas voters to receive notification and send copies of their photo ID back to county boards of election.
“There are people who live in far flung places, and they’re in the middle of nowhere, and however they’re supposed to be sending in whatever they’re supposed to be sending, that could be very difficult,” Speer said.
Jonathan Sanchez, who lives abroad in Chile with his brother, is one of the voters on the Guilford County list. His brother isn’t. While Sanchez didn’t answer the phone, his mother, who declined to share her name, did.
Mrs. Sanchez isn’t as concerned about taking an extra step to have a vote counted. Sometimes, audits are required, she said.
“It’s more than fair,” she said. “I prefer that they are working to make sure all the votes are counted and that all the votes that are counted are true votes. So I think they’re doing their job, and as citizens, we should be fine.”
Military and overseas absentee voters can send in their ballots by postal mail, email, fax or through an online portal. As it stands, the online portal doesn’t have the ability to accept attachments like photo ID copies, but the State Board is trying to find a contractor to add that capability in the coming weeks, according to their plan for handling this face of the Griffin-Riggs case.
County boards would be instructed to contact impacted voters by mail, but also email and phone, if possible.
There still might be issues, said Sarah Streyder, Secure Families Initiative executive director. People have moved on with their lives, she said. They’re not necessarily focused on the Griffin-Riggs NC Supreme Court race, which happened half a year ago.
Military families are constantly on the move, and so sending mail to the address on file may never get to them. Plus, people may not be comfortable putting their photo ID in the mail, or sending it online, due to the risk of personal information being compromised.
“They have done their civic duty, they have followed all of the rules, and now they’re being tracked down after the fact to add additional, ultimately redundant paperwork to demonstrate their eligibility to be a voter,” Streyder said.
Extending the timeline from 15 to 30 days helps, but it “doesn’t negate the underlying indignity of the ruling,” she added.
For Guilford County Election Director Charlie Collicutt, 30 days gives his staff breathing room, if the courts ultimately approve the cure process in the Griffin-Riggs case.
Right now, Guilford elections staff members are not allowed to contact impacted voters, but are preparing for that eventuality in other ways. They’re looking through military and overseas ballots sent via email, checking to see whether anyone happened to attach a photo ID. If they had, Guilford County elections staff wouldn’t have originally sent it to the county board of elections, since it wasn’t required at the time, Collicutt said.
They’re also researching the challenged Never Residents, to make sure they belong in that category. So far, they have found a few voters who checked the box saying they had never resided in North Carolina, but have actually voted in person in the county, according to election records.
The Purcell principle
The stakes are substantial in the Griffin-Riggs race.
Up for grabs is the NC Supreme Court seat, but also answers to questions about voter eligibility, voting rights and whether losing candidates can challenge votes this long after an election, said Western Carolina University political science professor Chris Cooper.
In the past, federal courts have adopted a general rule, called the Purcell principle, that may apply in this case.
The Purcell principle states that election rules and laws should not be changed too close to an election, so as not to confuse voters. It follows that when an election rule or law is challenged after an election, the relief may apply to future elections, but cannot be enforced retroactively.
There is no state version of this principle, but Republican North Carolina Supreme Court Justice Richard Dietz has advocated for one in several of his dissenting opinions.
Even though North Carolina has equivalent precedent established, Cooper said it’s “definitely possible” for the Purcell principle to be invoked in the Griffin-Riggs case, since it’s in federal court, involves military and overseas voters protected under a federal law and considers constitutional issues like equal protection.
But even if the federal courts rule in Riggs’ favor on some of these bigger issues, it doesn’t end the potential for future losing candidates to try the same playbook, Cooper said.
“I think it will dampen the probability of success of such an attempt, but it won’t rid the world of the attempts,” he said.
Following the playbook
Democratic organizers see Riggs’ victory as a first step in a multi-year plan to flip the NC Supreme Court to Democratic control by 2030, when the next reapportionment — and the inevitable litigation that comes with redistricting — will occur.
But it’s not just about North Carolina, and it’s not just about this one campaign, state Democratic Party Chair Anderson Clayton said on a press call after the North Carolina Court of Appeals decision.
“Today it’s a Supreme Court race in our state, but in 2026 it’s a United States House of Representatives seat,” she said. “It’s a governor’s seat. It’s any race that Republicans lose on the margins in places where voters tend to balance their ballots.”
Clayton and her Democratic peers see Griffin’s protests as a playbook to disenfranchise voters by changing election rules after ballots have been cast and counted. They note that the group of targeted voters only included early and absentee voters for the incomplete voter registration protest, and a small number of Democratic-leaning counties for the overseas and military photo ID protest. And if the votes are thrown out, it would only be for the Griffin-Riggs NC Supreme Court race, not any other contest on the ballot.
“You can’t throw out votes by changing the rules of an election after it’s finished,” said Rep. Phil Rubin, D-Wake. “Doing that disenfranchises the voters who relied on those procedures. It violates their fundamental right to vote and to due process.”
Rubin recently filed a bill, the Voter Protection and Reliance Act, to that effect. If passed, it would ban courts from rejecting ballots based on a change in election procedure that wasn’t in place at the time voters cast their ballots. It would also bar election protests based solely on clerical errors; protesters would have to allege that voters were actually ineligible to vote for some other reason.
Rubin said North Carolinians shouldn’t see this as a “one-off” situation, but rather “premeditated attacks” on voters and democracy.
“What is rewarded is repeated, and even though he will lose his challenges in the end, Judge Griffin’s tactics have lasted long enough that we should count on seeing them nationwide in future elections,” Rubin said. “That is why we have to act now.”
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