How to steal a state supreme court seat with one weird trick
North Carolina Republicans are closing in on a brazen heist.
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It only took five months, multiple lawsuits, and an assist from his Republican pals on the North Carolina Court of Appeals, but it looks like Jefferson Griffin has successfully managed to steal a state supreme court seat from Justice Allison Riggs.
Griffin, a hard-right judge currently on the state court of appeals — yes, the very court that just handed him a victory — got 65,000 legally cast votes thrown out last week. One of the judges in the 2-1 majority ruling also ran a joint GOP election campaign with Griffin and other court of appeals candidates. Being buddies with Griffin didn’t seem to strike that judge, Fred Gore, as anything that would have warranted recusal because GOP judges no longer care about anything as trivial as conflicts of interest.
Those 65,000 voters now have only 15 days to confirm their voting eligibility. If they don’t, their votes no longer count. But this isn’t just a victory for Griffin. It’s also a victory for conservatives who, mimicking Donald Trump’s spurious challenges to Joe Biden’s 2020 win, no longer acknowledge or respect election outcomes if they lose.
The steal
Let’s get this out of the way: there is no dispute whatsoever that Riggs beat Griffin in the election for a seat on the North Carolina Supreme Court. Period. Riggs’s victory was narrow — only 734 votes — but that victory was confirmed by two recounts. So Griffin had to take another approach, best described as “if you can’t beat ‘em, sue ‘em.”
Griffin’s legal theory behind getting tens of thousands of votes invalidated is equal parts complicated and ridiculous. His argument is that those 65,000 people were never eligible to vote. North Carolina law requires voters to provide driver’s license numbers or the last four digits of their social security number when registering. Per Griffin, any voter registration form missing that information means that person was ineligible to vote. For many of those voters, they did supply that information when registering, but for whatever reason, it wasn’t properly entered into the state’s database.
More importantly, even if that information was missing because the voter never supplied it, the state had already determined those people were eligible to cast votes. The majority’s decision reaches back in time to overrule the state’s determination and then punish voters for the error. Of course, these voters did not know there was any issue with their registration because they were allowed to vote!
The majority opinion is steeped in the language of right-wing voter suppression, saying “the inclusion of even one unlawful ballot in a vote total dilutes the lawful votes and ‘effectively ‘disenfranchises’ lawful voters.” So one unlawful ballot disenfranchises voters, but throwing out tens of thousands of votes does not. Got it.
The court of appeals decision also ignored the biggest thing undermining Griffin’s theory: after years of trying, conservatives finally got a photo ID requirement passed. So, those 65,000 voters? Most of them showed an approved form of photographic identification when they cast their vote. There’s no way to argue that those people cast fraudulent ballots, given they had to prove their identity at the polls.
Instead of acknowledging that inconvenient truth, the majority fixates on voters who aren’t required to provide the same sort of photo ID — military and overseas voters.
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The North Carolina General Assembly adopted different procedures for military and overseas voters and did not apply the photo ID requirement to them.
As Court of Appeals Judge Toby Hampson’s dissent explains, both the Uniformed and Overseas Citizens Absentee Voters Act and the Uniform Military and Overseas Voter Act have model procedures intended to be adopted in all states so that those voters aren’t subject to a patchwork, shifting set of requirements. The court of appeals decision essentially rewrites the law, imposing the photo ID requirement on those voters without any legislation to that effect. So, all those voters who followed existing North Carolina law are now punished for not following the law the court just invented.
It’s especially galling that Griffin’s post-election challenges are similar to pre-election ones where the GOP did not prevail. Republicans tried to disenfranchise the same overseas voters Griffin now challenges. They also tried to remove 225,000 registered voters from the voter rolls because their registration form lacked a driver’s license or the last four digits of a social security number. Those challenges were rejected in part because the GOP brought them too close to the election. But apparently it’s perfectly fine to bring them afterward.
If either Griffin or his friends on the court of appeals were genuinely concerned about the legality of those 65,000 votes, the ballots should be thrown out entirely. Instead, Griffin has challenged them regarding his race against Riggs.
That’s part of what makes Griffin’s efforts, and the court rewarding those efforts, so egregious and cynical. If the argument is that these voters were not eligible to vote and the majority’s ostensible concern for the sanctity of the ballot box is so great that they’re banging on about the perils of “even one unlawful ballot,” it’s unclear why that wouldn’t apply to all other races.
Even if the theory here is that those 65,000 votes weren’t enough to swing any other statewide election result or even a congressional district, what of state-level races? State House and Senate districts are small, and a few thousand allegedly ineligible votes could possibly flip them. But everyone knows that would be an absolute nightmare to address. It would require adjustments to dozens of races, a complicated cascade of changes that may or may not invalidate other election results.
Fighting uphill
What happens next is a bit complicated. The appellate court ruling gives voters 15 business days to fix their ballots by providing the missing registration information or a photo ID. Since voters were already required to provide photo ID to cast a vote, it’s an especially cynical move to throw out those ballots as ineligible, then turn around and say that if a voter now shows up with a photo ID, it’s suddenly fine.
Of course, there’s no chance that 65,000 people will be able to fix their ballot. Some may simply not be paying attention, some might be unable to make the in-person trip that fixing requires, and some may have died since the election. Also, the challenged ballots are mostly in Democratic-leaning counties, so the more of those voters who fail to cure their ballots, the more likely it is that Griffin will win.
Riggs is planning on appealing the decision to the state supreme court. That court is stuffed with right-wingers, though, including Chief Justice Paul Newby. Newby is friends with Griffin, helped promote Griffin’s 2020 run for the appellate court, and his wife has donated to Griffin’s campaigns. Since Riggs has said she would recuse herself from any decision, that leaves six justices, five of whom are Republicans, deciding her fate.
You might have just done a little back-of-the-envelope math here and figured out that this election didn’t, and could never have, flipped control of the state supreme court. If Riggs prevails, the court would still be tilted 5-2 in favor of the GOP. So this entire fight has not been to preserve control of the court but just to ensure that a Democrat isn’t reelected.
Besides appealing to the state supreme court, Riggs can also continue to pursue the fight in federal court, which has been her preferred approach all along. The federal court stepped aside to allow the case to run its course in the state courts, but as Riggs notes, these ballot challenges implicate the federal right to vote, federal laws regarding military voters, and federal equal protection guarantees.
If this ruling holds up on appeal, expect to see a lot more of these sorts of post-election challenges. It’s not that such challenges are particularly rare or inherently suspect — Trump’s 2020 efforts notwithstanding — but that this particular one hinges on invalidating ballots that were legally cast. Put another way, Griffin succeeded in changing the rules not midgame but literally when the game was already over. Nothing will stop the GOP from doing this again and again and again, making a mockery of elections and injecting confusion into results.
For conservatives, those things are features, not bugs. They’ve been trying to undermine confidence in elections for years, and what do you know? They’re succeeding.
That’s it for today
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Thanks for reading.
Wow. Just effen wow.
The fascism is out in the open, even at the state level.
"but that victory was confirmed by TWO RECOUNTS"!!!