NC Supreme Court Election Fight: “Bloodless Coup” or Election Administration Snafu?

More than five months after the November 2024 election, the race for Seat 6 of the North Carolina Supreme Court remains uncalled. After a full count of the votes, machine recount, and partial hand recount, incumbent Justice Allison Riggs, a Democrat, currently leads her Republican challenger, North Carolina Court of Appeals Judge Jefferson Griffin, by 734 votes.

But the results still have not been certified, as the race remains embroiled in a series of legal challenges that have passed in and out of both state and federal courts. This latest episode of high-profile election drama shows the increasing importance of state judicial elections and the investment by both political parties in ensuring the success of their candidates. It also highlights the essential role both sound election administration and timely pre-election challenges play in protecting the rights of legally qualified voters, while also ensuring confidence and integrity in election results. Supporters view Griffin’s efforts to challenge the validity of some 65,000 ballots after the election as essential to ensuring that only valid votes are counted, while critics consider these efforts akin to a “bloodless coup.” But the main takeaway should be that all of the concerns being litigated in the heat of the national spotlight now could and should have been resolved through proper election administration and timely pre-election litigation.

The current legal battle began when Griffin filed election protests in each of North Carolina’s 100 counties. The protests challenged three different categories of ballots cast in the 2024 election:

1. “Incomplete Voter Registrations”: Ballots cast by voters who were allegedly not properly registered because they did not provide their driver’s license number or the last four digits of their Social Security Number upon registration as required by North Carolina law. Approximately 60,000 ballots fall into this category.

2. “Overseas Voters Without Photo I.D.”: Ballots cast by North Carolina citizens living overseas who did not provide a copy of their photo identification or an “Identification Exception Form” with their ballot. Approximately 5,500 ballots fall into this category.

3. “Never Residents”: Ballots cast by individuals living overseas who have never resided in North Carolina or expressed an intent to live in North Carolina but whose parents are North Carolina citizens and who were domiciled in North Carolina before moving overseas. Approximately 267 ballots fall into this category.

The State Board of Elections assumed jurisdiction over Griffin’s protests and rejected each one on the merits. In response, Griffin filed an action in the North Carolina Supreme Court seeking an order prohibiting the Board from counting the approximately 65,000 challenged ballots. He also appealed the Board’s decision to the Wake County Superior Court.

The Board removed both cases to federal court on the basis that the challenges implicated federal voting laws. Riggs intervened in the proceedings. The federal court held that it had removal jurisdiction but abstained from ruling on the merits of the challenges and remanded both actions back to state court out of deference to the state-law process for resolving election disputes and the various unsettled questions of state law raised in the challenges. However, the Board and Riggs appealed the federal court’s order remanding the proceedings back to state court, and a federal appeals court ordered the district court to retain jurisdiction over the case to address any federal issues remaining after the state court proceedings conclude.

Back in state court, the North Carolina Supreme Court dismissed Griffin’s separate challenge in that court, but it directed the Wake County Superior Court to review Griffin’s appeal from the Board’s decision on his election protests. The North Carolina Supreme Court also paused certification of the election results until all appeals were completed. After the Wake County Superior Court affirmed the Board’s dismissal of Griffin’s protests, Griffin appealed to the North Carolina Court of Appeals, which largely ruled in Griffin’s favor. The Board and Riggs then appealed to the North Carolina Supreme Court.

Finally, in a brief April 11 order, the North Carolina Supreme Court held that the 60,000 ballots with Incomplete Voter Registrations could be counted, the 5,500 ballots from Overseas Voters Without Photo I.D. could only be counted if the voter cured their ballot by providing the required photo I.D. within 30 days, and the 267 ballots from Never Residents could not be counted.

As to the Incomplete Voter Registration ballots, the supreme court explained that, even though North Carolina law has required a voter to provide their driver’s license number or the last four digits of their Social Security Number upon registration since 2004, the Board failed to update the voter registration form to require that information for new voters until 2023. Because the voter registrations were incomplete primarily due to the Board’s negligence, the North Carolina Supreme Court determined that it would be inappropriate to penalize the voters by invalidating their ballots after the election. Accordingly, the supreme court ordered that those votes should be included in the final count.

With respect to the 5,500 ballots from Overseas Voters Without Photo I.D., the supreme court largely left the court of appeals’ decision undisturbed. That decision found that the Board’s administrative rule exempting overseas voters from the absentee ballot photo I.D. requirement contradicted the plain text of North Carolina’s election laws which require photo I.D. for all absentee ballots. The supreme court did, however, give voters 30 days to cure their ballots by providing proof of photo I.D.

Finally, for the 267 Never Resident ballots, the supreme court left in place the court of appeals’ decision, which held that those voters were not eligible to vote in non-federal North Carolina elections because they were not domiciled, or never established residency, in North Carolina. Therefore, the supreme court held, those ballots cannot be included in the final count.

In a heated dissent, Justice Anita Earls called the majority’s decision a “bloodless coup” and an attempt to “overturn the results of an election.” But the litigation is not over, and the North Carolina Supreme Court will not have the final word in this case. The same day that the North Carolina Supreme Court issued its order, Riggs filed an emergency motion in federal court to prevent the Board from taking action to implement it. The next day, April 12, the federal court ordered the Board to proceed in accordance with the North Carolina Supreme Court’s opinion but to refrain from certifying the results until further order of the court. Briefing on the remaining federal issues remains ongoing, and Riggs has appealed part of the federal court’s decision that permitted the Board to proceed in accordance with the North Carolina Supreme Court’s decision.

More than five months after the election, the winner is still unclear. But even if final certified results are still months away, these challenges make two things unmistakably clear today. First, state judicial elections are increasingly high-profile and contentious affairs. Earlier this month, Democratic-backed candidate Susan Crawford beat Republican-backed candidate Brad Schimel in the race for an open seat on the Wisconsin Supreme Court. The record-setting race, which cemented a 4-3 majority for Democratic-backed justices, saw turnout exceed 52% and spending surpass $100 million.

This race will not determine the ideological balance of the North Carolina Supreme Court, which currently sits at a 5-2 Republican majority. But recent changes in the partisan makeup of the court have had a real impact on the outcomes of cases. For example, in 2023, after Republicans obtained their current majority, the court reversed itself in two election law cases, overturning one decision that had struck down the state’s voter I.D. statute and another that had recognized partisan gerrymandering claims under the state constitution.

Second, this election makes clear the importance of sound election administration and timely pre-election challenges to ensure that all legally qualified voters have an opportunity to participate in elections, while also maintaining confidence in election results through robust election integrity efforts. Courts usually err on the side of allowing what may be improper ballots in order to avoid punishing voters for mistakes made by election administrators. Here again, faced with this situation, the North Carolina Supreme Court allowed more than 60,000 potentially invalid ballots to be counted because of the two-decades-long failure of the State Board of Elections to update its voter registration forms. Such election administration snafus unnecessarily undermine confidence in our elections. But timely pre-election challenges can be a critical tool to ensure election officials follow state and federal election laws.

*On April 22, the 4th Circuit Court of Appeals granted Riggs a stay in the federal litigation and prohibited the “North Carolina State Board of Elections from mailing any notice to any potentially affected vote pending” the federal district court’s resolution of Riggs’ preliminary injunction. The cure process for the Overseas Voters Without Photo I.D. ballots is thus now on hold.