North Carolina Republicans Try a Judicial Coup

When all the votes in November’s race for North Carolina’s state supreme court were counted, the incumbent, Allison Riggs, had won more. The question is whether that will be enough for her to take office.

The race began as a heated yet normal battle over political control for a key judgeship. But the challenger, Jefferson Griffin, is asking the state’s courts to throw out about 60,000 ballots and hand him victory. This has transformed the contest into something more fundamental: a test of democracy’s basic mechanics. Now it’s up to the state’s Republican-led supreme court to decide whether to side with voters or with a fellow Republican judge.

Yesterday, the court issued an order staying the certification of Riggs’s election while it considers Griffin’s petition. (Riggs, a Democrat, recused herself; the court’s other Democrat dissented.) Certification had been scheduled for Friday.

Riggs didn’t win the election by much: She garnered just a few hundred votes more than Griffin, who sits on the state’s court of appeals. The race was a major focus for both parties; in 2022, the GOP gained control of the state supreme court, which has been involved in many high-profile political decisions. On Election Night, Riggs trailed by thousands of votes, but as absentee and provisional ballots were counted, she ended up with a lead of 625 votes of the more than 5.5 million cast.

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Griffin requested a machine recount, in which ballots are run through tabulators once more. That process actually expanded Riggs’s lead to 734 votes. Griffin then requested a second recount, in which officials take a random sample of ballots and examine them by hand, comparing their tally to the machine count. If clear discrepancies appear, a candidate can request a full, statewide hand recount; the state board of elections concluded no such evidence existed.

By this point, Republican attempts to keep contesting the race had started to appear desperate. In 2020, when sitting Chief Justice Cheri Beasley, a Democrat, requested recounts in a race she lost by 401 votes, Republicans ridiculed her as a sore loser wasting her dignity and everyone else’s time. (Beasley eventually conceded.) Yet now Griffin was going further. He filed a request with the state board to throw out some 60,000 votes, arguing the voters were not properly registered.

The largest group of registrations that Griffin has challenged are North Carolina residents whose voter registrations don’t include driver’s license numbers or Social Security numbers. This is now required by law, but these voters registered using old forms that didn’t include the requirement. (They were not required to re-register.) The second set is overseas residents who have not lived in North Carolina, such as the adult children of North Carolinians who live abroad. A third is overseas voters who didn’t submit a photo identification with their ballot.

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The first is the most notable tranche. These voters likely understood themselves to be legally registered, and elections officials had concluded they were registered. Prior to the election, the Republican National Committee challenged 225,000 registrations on the same basis, but a federal judge dismissed the case. The state board also concluded that the registrations were valid, and said that fraud was virtually impossible. For one thing, voters are required to show photo ID before voting, in accordance with a state law that went into effect this year. (The group includes both of Riggs’s parents, as well as a politics editor at WUNC, a public-radio station in Chapel Hill.)

Now that the election has been completed and the votes have been counted, Griffin wants these votes to be thrown out after the fact. It’s exceedingly hard to justify this as anything other than pure partisan power politics. Doing such a thing would violate not only precedent, but any basic sense of fairness. As ProPublica’s Doug Bock Clark reported, the theory that Griffin is using was considered and rejected earlier this year by election deniers who deemed it too extreme.

The state board of elections, which has a 3–2 Democratic majority, rejected all three arguments, and pointed out that they should have been made far earlier. Griffin then appealed the decision directly to the state supreme court. The state board had the move shifted to federal court, but on Monday, the federal judge Richard Myers, a Trump appointee, sent the matter back to the supreme court, deeming it a state matter. In their order yesterday, the state supreme court justices set a schedule for briefing later this month.

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North Carolina is not new to vicious election fights. (Riggs rose to prominence as a progressive attorney focused on voting-rights cases.) In 2013, after the U.S. Supreme Court demolished key elements of the Voting Rights Act, Republicans passed a sweeping law restricting voting. A federal judge eventually struck the law down as targeting “African Americans with almost surgical precision.” The state has also seen decades of battles over redistricting; after previous maps were struck down as unconstitutional racial gerrymanders, the GOP instead pursued an aggressively partisan map. In the previous Congress, both Democrats and Republicans from North Carolina held seven seats; under a new GOP-drawn map, Republicans won 10 seats to Democrats’ four in November.

Even so, the reaction to Griffin’s attempted maneuvers has been sharp, and not only on the left. In a recent article, the conservative writer and former GOP operative Andrew Dunn wrote that while he had often criticized Democrats’ “dishonest nonsense” about Republicans in the past, he could not do so now.

“If the Supreme Court sides with Griffin, the fallout will be immediate and brutal,” he wrote. “This isn’t just bad optics; it’s potentially a credibility-shattering disaster for the court, the party, and conservatism in North Carolina. Overnight, this becomes a national story about Republicans ‘stealing’ a Supreme Court seat. The allegation would be impossible to defend against.”

Dunn is right. If the court ultimately sides with Griffin and throws the votes out, it will be a plain message that the Republican majority is more interested in grabbing power by any means available and adding an amenable colleague than in letting voters have a say. Faith in its objectivity has already been shaken by a pair of 2023 decisions, in which the new Republican majority reversed decisions about gerrymandering and the voter-ID law that had been made by the prior court. (The GOP-led state legislature also stripped powers from incoming Democratic Governor Josh Stein late last year, passing the changes just before Democrats broke a veto-proof supermajority. Stein has challenged the moves in court.)

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What happens in the North Carolina Supreme Court race is worth watching for voters around the country for reasons other than moral outrage. For the past 15 years, the Old North State has been an early indicator for national trends, including the 2013 voting law and the battles over partisan gerrymandering. The independent state legislature theory, floated by Trump allies as a way to overturn the 2020 presidential election, first reached the U.S. Supreme Court via a North Carolina case. Republican legal challenges to the 2016 election for governor were a template for Trump’s challenges to the 2020 presidential election. As goes North Carolina, so goes the nation.