Voters make selections at their voting booths inside an early voting site on Oct. 17, 2024 in Hendersonville, North Carolina. (Photo by Melissa Sue Gerrits/Getty Images)
When and how North Carolina voters cast their ballots last year is a key to distinguishing which votes in the race for a state Supreme Court seat are in danger of being thrown out.
Republican Appeals Court Judge Jefferson Griffin is seeking to toss out more than 60,000 votes in the race. He trails Democratic incumbent Supreme Court Justice Allison Riggs by 734 votes.
Most of the votes Griffin wants tossed were cast by people he argues were not legally registered because, he claims, they did not provide required ID numbers on their registration applications. Both the state Supreme Court and the 4th Circuit Court of Appeals are hearing the case at this point.
All the voters Griffin is challenging cast ballots during the early voting period or voted absentee. Those ballots can be traced to individual voters. A Griffin court brief says he believes he can win if the votes he is contesting are erased.
In addition to the voters whose registration he questions, he also wants to delete the votes of overseas voters who did not provide photo ID with their ballots, and those of overseas voters who have never lived in North Carolina but whose parents lived in the state.
None of the voters he’s challenged voted in person on Election Day. Ballots cast by people who vote on Election Day cannot be tracked back to individuals.
The League of Women Voters of North Carolina put a focus on how Griffin treats voters differently depending on when they voted in a “friend of the court” brief it filed while U.S. District Judge Richard Myers II had the case and before he sent it back to state court.
The Equal Protection clause of the Fourteenth Amendment requires “that when making determinations about the validity of its citizens’ ballots, the government cannot apply one set of rules to, say early in-person and absentee voters and a different set of rules to similarly situated voters who cast their ballots on election day,” the brief said.
Anne Tindall, one of the lawyers with Protect Democracy who represented the League and individual voters, said in an interview that if government treats people differently, it has to have a reason.
“The Equal Protection clause, when it comes to something like voting, holds the government to a higher standard than what the requested relief would require,” she said.
In his order sending the case back to state court, Myers said he considered the League’s brief, but he did not address the equal protection issue.
The North Carolina constitution also has an Equal Protection clause, said Jeff Loperfido, chief counsel for voting rights at the Southern Coalition for Social Justice.
Protections under the state Equal Protection clause are stronger, he said.
“Under our Equal Protection clause, the constitutional protections for individuals should be more protective and more expansive.”
Craig Schauer, a lawyer representing Griffin, did not reply to a Jan. 3 email or Jan. 6 phone call. He did, however, respond to a question about equal protection when the State Board of Elections debated Griffin’s voter protests on Dec. 11.
Board member Siobhan Millen, a Democrat, asked Schauer about counting the votes of some people with missing information, but not others.
“Wouldn’t the people whose votes are thrown out have an equal protection claim based on different treatment depending on which method of voting they chose?” she asked.
Schauer responded: “Equal protection requires that the two groups be similarly situated. So, I believe there could be a basis of distinguishing the two groups on the fact that some elected to vote provisionally or by absentee ballot and others elected to vote in person. I will say that is a question I haven’t contemplated before and it is a good question for the board to consider.”
In a brief filed Tuesday in the state Supreme Court case, Griffin’s lawyers seem to deemphasize his protest of early, in-person voters.
Griffin’s lawyers suggest the Supreme Court consider the protests in phases, starting with overseas absentee ballots that arrived without photo ID. A state Board of Elections rule exempts overseas voters from the photo ID requirement, but Griffin says the Board was wrong to adopt such a rule.
If Griffin is ahead of Riggs after those overseas votes are erased, the Supreme Court wouldn’t have to make a decision on to the other categories, the brief says.