As a hearing on Judge Jefferson Griffin’s election challenge commenced, protesters assembled on the steps of the Wake County Courthouse to demand their votes be counted. (Photo: Brandon Kingdollar/NC Newsline)
Just hours after a hearing on Judge Jefferson Griffin’s challenge to more than 65,000 ballots in the state Supreme Court election, a state judge upheld the state election board’s rejection of those claims in a late Friday ruling.
Judge William Pittman ruled in favor of the North Carolina State Board of Elections on its rejection of challenges to voters of three separate categories — military and overseas voters who did not include photo IDs with their mailed ballots, early and absentee voters who Griffin alleged had incomplete voter registrations, and a group Griffin called “Never Residents” consisting of the children of North Carolina citizens living abroad.
“The Court concludes as a matter of law that the Board’s decision was not in violation of constitutional provisions, was not in excess of statutory authority or jurisdiction of the agency, was made upon lawful procedure, and was not affected by other error of law,” Pittman wrote in an order issued Friday afternoon.
Both Griffin and incumbent Supreme Court Justice Allison Riggs, his opponent in the contested election, attended the hearing before the Wake County Superior Court in person Friday morning. Pittman presided over the hearing, which included attorneys for Griffin and the Board of Elections, as well as those representing Riggs and impacted North Carolina voters and nonprofits.
“The court, having reviewed more than 5,000 pages in the record and all of the briefs — have some other information acquired today that I’ll have to review, so I’m going to take it under advisement,” Pittman said at the hearing’s conclusion. “I can promise you I will do it as fast as I can.”
Pittman’s determination only concerns matters of state law — a federal appeals court ruled Tuesday that the case will remain in state court, but reserved jurisdiction over potential federal civil rights issues for the federal courts.
“Today’s decisions denying Judge Griffin’s challenges of more than 65,000 ballots are a victory for North Carolina voters and the rule of law,” said Justice Riggs in a statement. “Voters decide elections, and I remain committed to seeing this fight through and upholding North Carolinians’ constitutional freedoms.”
Last month, the state Supreme Court returned the case to the Wake Superior Court for a hearing on whether the Board of Elections erred in rejecting Griffin’s petitions to discard military and overseas ballots he says improperly failed to include photo ID, as well as more than 60,000 early and absentee ballots from voters whose registration forms, he said, failed to include necessary information.
Attorneys for Griffin and the Board of Elections sparred for more than two hours Friday over Griffin’s challenge — and specifically, whether it constituted an attempt to change the election rules after the fact, or to enforce them as they were already written, as well as the question of whether challenged voters received adequate notice.
The Griffin argument
Craig Schauer, an attorney for Griffin, defended his client’s decision to challenge only early and absentee ballots from voters whose registration forms he said did not include a driver’s license number or a partial Social Security Number, while refraining from challenging in-person Election Day votes.
“The state board doesn’t identify who votes on Election Day until after the protest deadline; therefore, you cannot identify who voted on Election Day and include them in an election protest,” Schauer said. “Second, those people who vote on Election Day — my understanding is, those ballots aren’t retrievable.”
He added that it’s irrelevant that errors in the database indicated that some individuals’ registrations lacked driver’s license numbers or a partial Social Security Number — instead, Schauer said, “this exception simply prove the rule” by allowing some voters who have followed the legal requirements to provide this information and vote.
“The fact that there is an exception that allows you to vote if you provided this information and there’s a mismatch simply proves that you must provide the information in the first place,” Schauer said. “This is not a waiver of the obligation to provide the information in the first place.”
He added that he did not see it as a violation of voters’ equal protection rights to specifically dispose of military and overseas ballots that did not include photo ID’s, but only from a set of heavily Democratic counties. He analogized it to someone challenging the ballot of a neighbor who they know is a felon, but failing to challenge the ballots of felons in other counties.
“The reality is, they’re in different situations. The individual in Wake County had their vote challenged, the individual in the other counties didn’t have their vote challenged,” Schauer said.
“Retroactive disenfranchisement”
Ray Bennett, an attorney for Riggs, condemned Griffin’s challenge as an attempt at “retroactive disenfranchisement,” which he called “anti-democratic” and a violation of state law.
“To listen to my friends on the other side, you would think that this is an anodyne, routine election protest process and that this sort of thing happens all the time,” Bennett said. “The reality is that this is unprecedented. The arguments have been tried in some other states, but they’ve not succeeded.”
He accused Griffin of “cutting corners” in providing notice to voters whose ballots were being challenged, arguing that he was required to serve all parties with proper legal notice. Instead, Bennett said, Griffin and the state Republican Party sent out a “postcard” addressed to the voter “or current resident” in a manner identical to election campaign bulk mail.
Bennett said that the notice was also deficient in that it provided only a QR code to view the election protests, which took voters to a set of 300 links for each individual challenge filed by Griffin that “often included attachments with dozens or hundreds of names attached that were not sorted in alphabetical order.” Some of the challenged voters, he said, did not own cell phones or if they did, do not know how to use QR codes.
Bennett argued that Griffin’s challenge amounted to an attempt to “change the rules after the game has been played” — and that the challenges to election rules Griffin’s case relies on either had been attempted before the election and failed, or were not brought despite ample opportunity to do so.
In his view, the arguments brought by Griffin for requiring photo ID’s with military and overseas ballots are made on policy grounds, not statutory ones — he noted that the North Carolina Constitution only requires photo ID for in-person voting, and it was an act of the General Assembly that expanded this to absentee ballots. He said Griffin’s attorneys incorrectly combine two separate articles of statutory law, which do not explicitly require photo ID for military voters.
“…Trying to impose a requirement where there is none under state law”
Terence Steed, an attorney for the Board of Elections, concurred with Bennett that the postcards did not amount to “real, effective notice” — which he said requires the materials in question, not just “a link to thousands of pages of spreadsheets.”
He said that even if voters registrations lacked the information Griffin charges, that does not render them ineligible to vote — the law in question does not create new requirements or qualifications to vote, and instead, was aimed at standardizing voting practices across a single database. He added that regardless, Griffin had not actually identified any voters who did not provide the information, only those where the information could not be found in the digital database.
“These are voters from all walks of life who from everything we can tell, did everything they were told to do when registering, but for many innocuous reasons may not have a driver’s license or Social Security Number in their registration records,” Steed said.
“Petitioner is trying to impose a requirement where there is none under state law,” Steed said. “He has failed to identify a single voter that has actually registered without this information, he has only identified voters who potentially don’t have this data field, filled out in their registration records.”
“I am committed to upholding the rule of law…”
Riggs spoke to observers outside the courthouse after the hearing concluded, and was followed by voters who spoke about their experiences of having ballots challenged. Some said they never received a postcard at all, while others were unable to find their names using it even though they were in fact listed. One voter reported requesting the purportedly “incomplete registration” documents only to find that it included all the requisite information Griffin specified.
“No matter how long this takes, I am committed to upholding the rule of law, standing up for the voters who elected me to keep my seat, standing up for the 65,000 voters whose constitutional rights would be infringed by the relief sought in this case, and ensure that we have accountability for any elected official who would disregard the solemn oath that we all take to uphold, maintain, and defend the state and federal constitutions,” Riggs said.
Hilary Klein, an attorney representing some of the voters whose ballots have been challenged, had said right after the hearing that she expected a ruling from Pittman to be issued sometime in the coming weeks — though the turnaround was ultimately far shorter. She said there would likely be appeals regardless of the hearing’s outcome — a development that could ultimately bring the case back up to the North Carolina Supreme Court.
After that, parties in the case could seek to stay the high court’s ruling and be heard on the federal civil rights issues implicated in the case through the federal courts — portending the possibility of a lengthy legal saga to come.
An overflow crowd
The Wake County courtroom where the case was heard was full to capacity following calls by voting rights organizations to pack the hearing — more than 100 tried to get in, with many observers turned away and left to wait outside.
Daikwon Redfearn, a recent NC Central University graduate, waited outside the courthouse as the hearing was underway. Redfearn said he worked to have young voters turnout at the polls last year, and he wanted to represent those voters whose ballots are being challenged.
“I’m here to let people know your vote counts and you need to fight for your vote,” he said. “If I need to be one man fighting for 60,000 people, I will.”
“This is the case that Trump would have brought if he hadn’t quite won in North Carolina and that is a national story,” said Ann Webb, policy director at Common Cause North Carolina. “This is important for all of us to be following, and it has implications not only for North Carolina — all of North Carolina’s voters — but voters all across the country.”
Lynn Bonner contributed to this report.