Three NC Appeals Court judges, Tobias Hampson (D), John Tyson (R), and Fred Gore (R), hear arguments in GOP Judge Jefferson Griffin’s attempt to throw out more than 60,000 votes. (Screenshot from Court of Appeals video feed)
Three Appeals Court judges will decide whether they should order thousands of votes cast in November’s race for a seat on the state Supreme Court to be thrown out.
Republican appeals court Judge Jefferson Griffin wants more than 60,000 votes in his race for the Supreme Court seat tossed. He is trailing Democratic incumbent Supreme Court Justice Allison Riggs by 734 votes. Two recounts have affirmed her lead. Griffin believes he can win if he can convince courts to reject the votes he’s challenging.
The state Board of Elections dismissed his protests in December. Griffin contends the elections board is counting illegal votes. His case against the elections board has traveled a tangled route through state and federal courts. A trial court judge’s decision in favor of the elections board teed up Griffin’s appeal. The case may yet make its way back to federal court.
Two Republican judges, John Tyson and Fred Gore, and one Democrat, Tobias Hampson, heard Griffin’s appeal on Friday.
Griffin is challenging three sets of ballots. He claims that more than 60,000 voters were not properly registered because they did not include either a partial Social Security number or driver’s license number on their forms. Voters Griffin is challenging have come forward in the past months to say they did provide that information, but it was excluded from the electronic voter file due to typos or data mismatches.
Griffin is also challenging the votes of more than 5,500 military and overseas absentee voters because they did not provide voter ID with their ballots. These voters are from a handful of overwhelmingly Democratic counties. The state Board of Elections does not require military and overseas voters to submit a copy of their photo ID. Griffin’s lawyers say the elections board is wrong to exempt those absentee voters from the photo ID requirement.
Lastly, he is challenging the ballots of overseas absentee voters who have never lived in North Carolina, but who are connected to the state through their parents.
Lawyers for Riggs and the elections board argued that Griffin wants to change election rules now that he’s lost. It would be wrong to throw out ballots cast by people who followed the rules months after the election, they said.
“This court should reject petitioners’ destabilizing request to cancel the votes of more than 60,000 innocent voters who did everything they were asked to cast a ballot in the November 2024 General Election,” said Nick Brod, the lawyer representing the state elections board.
Griffin’s lawyers said this case is not about changing laws after the election, but about enforcing existing laws.
The state Supreme Court set a precedent for erasing votes in a case known as James vs. Bartlett, when it ordered about 11,000 ballots cast in 2004 to be discounted, they said.
“The protests do not violate the constitution because they do not impose a severe burden on voters, said Craig Schauer, one of Griffin’s lawyers. “Judge Griffin is asking the court to impose evenhanded laws that ensure only qualified voters are allowed.”
Brod countered that the facts of the James case were very different from Griffin’s.
The rules voters followed last year were in place for a long time before Griffin bought his challenge, and there was plenty of time before the election to question them, Brod said.
“Supreme Court precedent dating back more than a century confirms it would be fundamentally unfair to cancel votes based of errors allegedly made by elections officials,” he said.
A 2011 law the legislature unanimously passed allows people who have never lived in North Carolina but are connected to the state through their parents to vote absentee. The law has been in place for 43 elections, said Ray Bennett, Riggs’ lawyer. Included in that group of voters are children of military members who move from base to base, and children of missionaries.
The 2011 law was fashioned after federal law designed to make it easier for service members and civilians living overseas to vote absentee.
Griffin’s lawyers contend that these absentee voters should have been required to show photo ID, and that the state Board of Elections’ decision to exempt them from the ID law was wrong.
The Board of Elections approved a rule exempting military and overseas absentee voters needing to show photo ID. The state Rules Review Committee approved it, Brod said, and no one objected at the time.
No other state requires military and overseas voters to submit photo ID, including the 35 other states that require it from other voters, said Bennett. The North Carolina legislature never amended the overseas voting law to require photo ID.
Most people who vote this way don’t use paper, but vote via an electronic portal, he said. “If you log onto that portal, you’re not provided with an opportunity to provide a photo ID or to provide an exception.”
Concerning incomplete registration forms, Troy Shelton, one of Griffin’s lawyers, said the problem was brought to the elections board in December 2023, but the board didn’t attempt to collect the missing information.
The elections board has since found that about half the people Griffin is targeting for incomplete registrations actually provided the information, but it didn’t get attached to their electronic files.
Under the law, even if there is no match, voters cannot be prevented from registering or voting, Bennett said.
Hampson asked how the remedy Griffin wants would not impose a severe burden on the right to vote. He also questioned Griffin selectively challenging certain ballots.
In addition to challenging military and overseas votes from only a handful of heavily Democratic counties, the only people Griffin is challenging on the basis of incomplete registrations are those who voted early. Those are ballots that can be traced to individuals. He is not challenging people who voted on Election Day and whose registrations may be missing the same information. Ballots cast on Election Day can’t be traced to individual voters.
Just because some voters were identified as violating the law and others weren’t doesn’t raise an equal protection violation, Schauer said.
Gore said he was troubled that the electronic voting file still has information missing.
“I’m troubled that we are at 2025 and we still have voter identification errors sitting in our state registry” he said. “I see why we have this challenge to a certain degree. There are a certain number of voters who don’t have proper identification in the registry, and that is troubling to me.”
The judges provided no indication as to when they will issue a ruling.