North Carolina Justice Race Splits Judges on Post-Election Suits

A panel of North Carolina appeals court judges struggled Friday to balance fairness for voters with strict adherence to state election law in a case with a state high court seat on the line—and their colleague as the plaintiff.

Court of Appeals Judge Jefferson Griffin (R) urged his colleagues to toss more than 60,000 votes from the November 2024 election, which he lost to sitting North Carolina Supreme Court justice Allison Riggs (D) by 734 votes. In between pressing the candidates’ lawyers on the minutiae of election rules, the judges often expressed frustration with a challenge that could disenfranchise voters because state regulators hadn’t updated rolls based on newer laws.

“I don’t think the remedy we’d look at is holding the voters accountable, but I’m concerned that we’re in 2025 and we still have voter identification errors sitting in our state registry,” said Judge Willie Fred Gore (R), one of three judges on the panel. “The fact that we haven’t been able to get it right to this point, I see why we’d have this challenge to a certain degree.”
Griffin’s lawyers highlighted that for more than a decade the state elections board didn’t require existing registrants to add a drivers license number or Social Security number to their registration—things that were required under state law. They also challenged ballots from overseas and military voters that didn’t include voter ID.

Riggs’ team said separate federal litigation seeking a change to the board’s process moving forward is addressing that, but a state court can’t cast aside valid votes cast under the board’s rules at the time of the election.

General legal principles hold that “you can’t change the rules retroactively to challenge the votes,” Judge Toby Hampson (D) said. When the elections board denied Griffin’s challenge to these votes, Hampson said, the board pointed out its “rules and statutes have been there for years prior and there was no challenge: no challenge to rulemaking authority, no challenge to statues for these covered voters. These principles are all the way through that decision.”

Challenging Votes, or Rules

Griffin’s lawyer, Craig Schauer of Dowling PLLC, argued that the board ignoring statutory requirements for registrations raises the question of whether the election was conducted lawfully.

“According to the state board they can conduct an election however they want—it doesn’t matter if the rules are inconsistent with state statutes or the state constitution, because after an election is over it’s too late to demand the actual laws be enforced,” he said.

In a prior case, 11,000 votes cast in the wrong precinct were thrown out after a statewide election—even after the state board sought to count these votes. Judge John M. Tyson (R) leaned on this case, and the concept that absentee votes can later be rejected of the voter was found to be ineligible, when pressing attorneys for the board and Riggs.

“How can you challenge an illegal vote before it’s cast?” he asked.

Attorneys supporting Riggs said this challenge is unlike any a court has accepted in the past, because Griffin attacked rules that have been in effect for up to 40 state elections rather than challenging votes cast against the rules created by the state board.

“There’s US Supreme Court precedent going back more than 100 years that says you can’t cancel the vote of a valid voter because of a mistake by election officials,” said Nick Brod, Deputy Solicitor General at the North Carolina Department of Justice. “That’s on top of a mountain of state Supreme Court precedent that says it would be fundamentally fair to punish voters from a mistake election officials make.”

Deadlock

The panel’s ruling—either to uphold the trial court’s rejection of Griffin’s challenge or to reverse and compel election officials to reject votes—could become the final word in deciding the race’s winner.

Riggs has recused herself from the litigation at the North Carolina Supreme Court. The remaining five Republicans and one Democrat on the court have shown signs of deadlock on the case, which would mean the appellate court ruling would hold.

If the state doesn’t uphold the election, the federal courts might have to, said Riggs’s attorney, Womble Bond Dickinson partner Raymond M. Bennett. A federal track in the case has been paused, but would restart if Riggs’ victory isn’t certified.

“We don’t want that. This court can and should bring an end to this election,” he said. This “poses a risk to the stability and integrity of our elections in North Carolina.”

The case is Griffin v. North Carolina State Bd. of Elections, N.C. Ct. App., No. 25-181, oral argument 3/21/25.