North Carolina Republicans attempt a judicial coup

When all the votes were counted in the North Carolina Supreme Court race in November, incumbent Allison Riggs had won more. The question is whether that will be enough to take office.

The race began as a heated but normal battle for political control of a key judicial post. But challenger Jefferson Griffin is asking the state’s courts to throw out about 60,000 ballots and hand him victory. This has turned the competition into something more fundamental: a test of the basic mechanisms of democracy. Now it’s up to the state’s Republican-led Supreme Court to decide whether to side with the voters or with a fellow Republican justice.

Yesterday, the court issued an order suspending certification of Riggs’ election while Griffin’s petition is considered. (Riggs, a Democrat, refused; the court’s other Democrat disagreed.) Certification was scheduled for Friday.

Riggs didn’t win the election by much: She received only a few hundred more votes than Griffin, who sits on the state’s appeals court. The race was front and center for both parties; In 2022, the GOP gained control of the state Supreme Court, which has been involved in many high-profile policy decisions. On election night, Riggs trailed by thousands of votes, but when absentee and provisional ballots were counted, she ended up with a lead of 625 out of more than 5.5 million votes.

Read: We are entering an era of “total politics.”

Griffin called for a machine recount, in which the ballots are run through tabulators again. This process actually increased Riggs’ lead to 734 votes. Griffin then called for a second recount, in which officials take a random sample of ballots, examine them by hand and compare their count with the machine count. If significant discrepancies arise, a candidate may request a full, statewide hand recount; The State Board of Elections concluded that no such evidence existed.

At that point, Republicans’ attempts to stay in the race seemed desperate. When incumbent Chief Justice Cheri Beasley, a Democrat, requested a recount in 2020 of a race she lost by 401 votes, Republicans derided her as a sore loser who wasted her dignity and everyone else’s time. (Beasley eventually admitted.) But now Griffin went one step further. He filed a motion with the state board to throw out about 60,000 votes, saying voters had not been properly registered.

The largest group of registrations Griffin has challenged are North Carolina residents whose voter registrations do not include driver’s license numbers or Social Security numbers. This is now required by law, but these voters registered using old forms that did not contain this requirement. (Reregistration was not required.) The second group consists of foreign residents who have not lived in North Carolina, such as the adult children of North Carolina citizens living abroad. A third are foreign voters who did not include a photo ID with their ballot.

Read: We drew congressional maps to benefit partisans. That was the point.

The first is the most notable installment. These voters likely considered themselves legitimately registered, and election officials had concluded that they were registered. Before the election, the Republican National Committee challenged 225,000 registrations on the same basis, but a federal judge dismissed the case. The state agency also concluded that the registrations were valid and said fraud was virtually impossible. For one thing, under a state law that went into effect this year, voters must show photo ID before voting. (The group includes both of Riggs’ parents as well as a political editor at WUNC, a public radio station in Chapel Hill.)

Now that the election is complete and the votes are counted, Griffin wants those votes to be retrospectively thrown out. It is extremely difficult to justify this as anything other than pure partisan power politics. To do such a thing would not only violate precedent, but also any fundamental sense of fairness. As ProPublica’s Doug Bock Clark reported, the theory used by Griffin was considered and rejected by election deniers earlier this year because they considered it too extreme.

The state Board of Elections, which has a 3-2 Democratic majority, rejected all three arguments, noting that they should have been made much earlier. Griffin then appealed the decision directly to the state Supreme Court. The state board moved the decision to federal court, but on Monday, Trump-appointed federal judge Richard Myers sent the matter back to the Supreme Court, deeming it a state matter. In their order yesterday, the state Supreme Court justices set a schedule for briefings later this month.

Read: Supreme Court finds racial discrimination in North Carolina unconstitutional

North Carolina is nothing new when it comes to intense election battles. (Riggs gained notoriety as a progressive lawyer who focused on voting rights cases.) In 2013, after the U.S. Supreme Court struck down key elements of the Voting Rights Act, Republicans passed a sweeping law restricting voting rights. A federal judge ultimately struck down the law because it “targeted African Americans with almost surgical precision.” The state has also seen decades-long struggles over redistricting; After previous maps were rejected as unconstitutional racial discrimination, the GOP instead pursued an aggressively partisan map. In the last Congress, North Carolina Democrats and Republicans each held seven seats; According to a new map drawn by the GOP, Republicans gained 10 seats in November to Democrats’ four.

Nevertheless, the reaction to Griffin’s attempted maneuvers was sharp, and not just on the left side. In a recent article, conservative writer and former GOP operative Andrew Dunn wrote that he couldn’t do that now, even though he had often criticized Democrats’ “dishonest nonsense” against Republicans in the past.

“If the Supreme Court sides with Griffin, the consequences will be immediate and brutal,” he wrote. “It’s not just bad optics; It is potentially a credibility-destroying disaster for the court, the party and conservatism in North Carolina. Overnight, this becomes a national story about Republicans “stealing” a Supreme Court seat. It would be impossible to defend yourself against the accusation.”

Dunn is right. If the court ultimately sides with Griffin and throws out the votes, it will be a clear sign that the Republican majority is more interested in seizing power by any means available and winning over an amenable colleague than the voters to give a say. Faith in its objectivity has already been shaken by two 2023 decisions in which the new Republican majority reversed the previous court’s decisions on gerrymandering and voter ID law. (The Republican-led state legislature also stripped new Democratic Gov. Josh Stein’s powers late last year and passed the changes just before Democrats broke a veto-proof supermajority. Stein has challenged the moves in court.)

Read: North Carolina’s deliberate disenfranchisement of black voters

What’s happening in the North Carolina Supreme Court race is worth watching for voters across the country for reasons other than moral outrage. Over the past 15 years, the Old North State has been a leading indicator of national trends, including the 2013 election law and battles over partisan gerrymandering. The independent state legislature theory, promoted by Trump allies to overturn the 2020 presidential election, first reached the U.S. Supreme Court via a case in North Carolina. Republicans’ legal challenges in the 2016 gubernatorial election were a template for Trump’s challenges in the 2020 presidential election. As North Carolina goes, so goes the nation.