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Republican Judge Jefferson Griffin’s attempt to throw out votes on military and overseas absentee ballots is unconstitutional, federal District Judge Richard Myers ruled Monday.
In a 68-page ruling, Myers said the state Board of Elections should certify the election results based on the tally of all eligible votes in November, which means Democratic incumbent Supreme Court Justice Allison Riggs would prevail in the race for the seat on the high court over Griffin. Her 734-vote lead over Griffin was confirmed in two recounts. Myers stayed his order for seven days to give Griffin time to appeal.
Riggs said in a statement Monday night that the ruling is a vindication for voters.
“Today, we won,” her statement said. “I’m proud to continue upholding the Constitution and the rule of law as North Carolina’s Supreme Court Justice.”
In the long-running dispute over voter eligibility, Griffin, a judge on the state Court of Appeals, was seeking to throw out more than 60,000 votes covering three categories of voters.
The largest group of voters, more than 60,000, were people who Griffin claimed were not properly registered because they did not provide a partial Social Security number or driver’s license number on their voter registration applications. Over the months, voters came forward to say they did provide those numbers, but the digits did not appear on the statewide database due to typos or data mismatches.
The state Supreme Court majority said those votes should count.
Griffin also challenged military and overseas absentee voters in a handful of Democratic counties for not providing photo ID with their ballots. The state Board of Elections did not require any military and overseas absentee voters to send in photo ID.
The state Supreme Court majority said the absentee voters Griffin challenged needed to submit a photo within 30 days of notification if they wanted their votes to count.
Myers, a Trump nominee, wrote that the state Board of Elections should not follow the Supreme Court’s orders. Retroactively invalidating military and overseas voters’ ballots violates those voters’ due process rights, and the “cure” process violates their equal protection rights, he wrote.
Requiring military and overseas absentee voters in one county to “undertake additional efforts to have their votes counted” while similar voters in other counties don’t have to make that same effort is ‘a constitutional violation’ of the Equal Protection Clause,” Myers wrote.
“Overseas military and civilian voters followed the rules as they existed at the time of the election, but the retroactive change in voting procedure at issue here deprives them of their fundamental right to have their votes counted,” he wrote.
Griffin challenged a few hundred votes from people who said they had never lived in North Carolina but were connected to the state through their parents. The Supreme Court majority ruled that those votes should not be counted.
The state had counted votes from what Griffin called “never residents” for years without controversy. A reporter writing for The Assembly found that some of the “never residents” on Griffin’s list live in the state. Griffin did not want the state Board of Elections to give those voters a chance prove their residency before throwing out their votes.
Myers said the state has an interest in limiting the right to vote to bone fide residents, but it shouldn’t risk throwing out votes from people who live in the state.
“[T]he court finds that post-election ballot disqualification for individuals erroneously designated as Never Residents constitutes a substantial burden on the right
to vote,” Myers wrote.
Myers ruled that election rules cannot be changed after the fact, writing:
“[T]his case concerns whether the federal Constitution permits a state to alter the rules of an election after the fact and apply those changes retroactively to only a select group of voters, and in so doing treat those voters differently than other similarly situated individuals. This case is also about whether a state may redefine its class of eligible voters but offer no process to those who may have been misclassified as ineligible.
“To this court, the answer to each of those questions is ‘no.”
Myers ruling comes six months to the day after the Nov. 5, 2024 election. It also comes a few days before the state Board of Elections holds its first meeting with a new Republican majority.
Before this year, the governor appointed members to the Board of Elections, and the governor’s party held three seats on the five member board.
Last week, state Auditor Dave Boliek appointed the board with a Republican majority under a new law that strips governors of their appointment power. Gov. Josh Stein, a Democrat, is appealing.
The Democratic majority on the Board of Elections resisted throwing out votes as Griffin wanted.
By Lynn Bonner, NC Newsline
NC Newsline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. NC Newsline maintains editorial independence. Contact Editor Rob Schofield for questions: info@ncnewsline.com.
