Democratic incumbent Supreme Court Justice Allison Riggs and her Republican challenger, Judge Jefferson Griffin. (Courtesy photos)
In the push and pull over whether a Republican judge’s request to throw out more than 60,000 votes in his election contest should be considered in state or federal court, a panel of federal judges said Tuesday that the case will stay in state court for now.
However, the three-judge panel on the Fourth Circuit Court of Appeals said the federal court will have jurisdiction over federal issues raised by the state Board of Elections.
Republican Appeals Court Judge Jefferson Griffin wants to throw out more than 60,000 votes cast in last fall’s election for a state Supreme Court seat. He trails Democratic incumbent Justice Allison Riggs by 734 votes and believes that eliminating votes his campaign says were illegally cast will push him to victory.
The state Board of Elections voted last year to dismiss his protests.
Griffin wanted the case heard in state court. His legal briefs say the issues involve state law. Republicans hold a majority on the state Court of Appeals and have a 5-2 majority on the state Supreme Court, though Riggs has recused herself from matters related to the case.
Riggs and the state Board of Elections wanted the case heard in federal court. The elections board said the issues involve federal laws such as the Help America Vote Act, the National Voter Registration Act, the Voting Rights Act, and the Civil Rights Act.
Tuesday’s appeals court order may end up helping Riggs, said Carl Tobias, professor at the University of Richmond School of Law.
“It sort of gives Riggs two bites at the apple,” Tobias said in an interview.
“It may be the state system is satisfactory for Riggs,” he said. “If it’s not, she has available to her, perhaps, a federal remedy.”
When Griffin filed his lawsuit in state court, the state elections board had it transferred to federal court. A federal district judge then sent it back to state court. The elections board and Riggs appealed in an effort to get back to federal court. It was that appeal the Fourth Circuit panel heard on Jan. 27.
Griffin had asked the state Supreme Court to order the state Board of Elections to throw out ballots without having lower courts consider the case.
About two weeks ago, the state Supreme Court ordered Griffin to go through the normal appeals process, starting with Wake Superior Court. A hearing in Wake is scheduled for Friday.
By the time the panel of federal judges considered the state Board and Riggs’ appeal, the Supreme Court had already told Wake Superior Court to start working on Griffin’s case.
The state Supreme Court’s dismissal of Griffin’s petition made the state elections board and Riggs’ appeal moot, the Fourth Circuit order said.
“Here, the Board asked us to reverse the district court and direct it to retrieve the case from the Supreme Court of North Carolina. Because the Supreme Court of North Carolina has dismissed the case the Board asks us to retrieve, we cannot grant the relief the Board requests,” the order said.
The issues involving state law are unsettled, the order said. If the Board of Elections prevails in state court, there may not be a need to consider the federal issues, the order said. But federal court remains a backstop if federal issues linger after the case makes its way through state court.
“It leaves open the possibility that Riggs could actually win this,” Tobias said. “Given the composition of the state Supreme Court, that didn’t seem like a great venue for her views. It seems like it might work out for her, or it’s possible.”