By GARY D. ROBERTSON Associated Press
RALEIGH, N.C. (AP) — A North Carolina appeals court sided Friday with the trailing Republican candidate in an extremely close state Supreme Court election, a ruling that could flip the result of the nation’s only 2024 race that is still undecided.
In a 2-1 decision, a panel of the intermediate-level Court of Appeals ruled that ballots — likely tens of thousands of them — were wrongly allowed in the tally, and it gave some of those voters about three weeks to provide additional information or see the ballots get removed. The disputed ballots are believed to favor Democratic Associate Justice Allison Riggs, who, after two recounts, held a 734-vote lead over Republican Jefferson Griffin in their race, which saw over 5.5 million ballots cast.
The judges on Friday found that the State Board of Elections got it wrong in December when it dismissed Griffin’s election protests. The ruling is expected to be appealed to the Supreme Court.
Griffin’s postelection protests challenged over 65,000 ballots in three different categories. Griffin currently serves on the Court of Appeals and had recused himself from deliberations within the court, where some of his colleagues ruled favoring him.
The prevailing opinion declares that the board should have found that ballots from within each of three categories shouldn’t be counted because they failed to comply with state law or the state constitution. The decision also reverses the decision of a trial judge who in February upheld the board’s actions.
“Free elections under … the North Carolina Constitution include the right to an accurate counting of votes,” said the opinion backed by Judges John Tyson and Fred Gore, both registered Republicans. “Griffin has a legal right to inquire into this outcome through the statutorily-enacted and postelection procedures available to him.”
In two of those categories of challenged voters, the judges directed that the state board give voters in two of the categories 15 business days to provide their missing information or photo identification. If the information is provided in time, then those ballots would still count, the opinion reads.
Griffin’s attorneys have said previously that removing the challenged ballots would favor their client and likely make him the winner. The ballots challenged on the ID mandate, for example, largely came from Democratic-leaning counties. But it’s unclear how many voters would provide the information the judges say are necessary for the ballots to be counted.
In the third category — involving overseas voters who have never lived in the U.S. — their ballots should not count, according to Tyson and Gore.
Lawyers for Riggs and the board have said the ballots were cast lawfully based on state laws and rules that have been applied to elections for years and can’t be altered retroactively. Riggs’ allies have held rallies across the state demanding Griffin concede, saying he was trying to overturn the results of a fair election.
Court of Appeals Judge Toby Hampson, a registered Democrat writing a dissenting opinion, said that Griffin hadn’t identified a single voter who was ineligible to vote in the November elections under the laws and rules governing the election.
“To accept Petitioner’s indiscriminate efforts to call into doubt the votes of tens of thousands of otherwise eligible voters, without any showing any challenged voter was disqualified under existing law from voting is to elevate speculation and surmise over evidence and reason,” he wrote.
The eight-year term on the highest court in the ninth-largest state was supposed to begin in early January. Riggs has meanwhile remained serving in her seat. She’s also recused herself from preliminary deliberations in the protests that have already been heard by the Supreme Court.
Five of the six remaining justices on the Supreme Court that likely will review the Court of Appeals ruling are registered Republicans. Lawyers for Riggs and the board also have already signaled they will take the case to federal court should they lose in state court and Griffin takes the tally lead.
While The Associated Press declared more than 4,400 winners in the 2024 general election, the state Supreme Court election is the only race that is still undecided.