Things are pretty grim right now for American democracy. President Donald Trump’s first few months back in power have (correctly) received the most attention for the damage he’s done to constitutional government. But a court battle in North Carolina over the last unresolved election of 2024 may be just as ominous a sign of where things are headed for this country.
Justice Allison Riggs, the Democratic candidate, prevailed over her Republican opponent, Jefferson Griffin, by 734 votes in last November’s race for a seat on the North Carolina Supreme Court. Griffin refused to concede and launched a series of legal challenges before the State Board of Elections, which rejected them.
Last week, the state Supreme Court that Griffin hopes to join rejected most of his claims and reinstated tens of thousands of ballots that would have been set aside. But four Republican justices, a majority on the seven-seat court, also ruled that roughly 5,000 ballots cast by overseas and military voters in last fall’s election must be thrown out unless those voters can prove their identity within 30 days.
North Carolina is what I’ve previously described as a “laboratory for oligarchy.” Thanks to extreme partisan gerrymanders after the 2010 midterms, state Republican lawmakers have given themselves a near-permanent majority in the general assembly and a heavy advantage in congressional races. If Republicans are able to effectively steal a state Supreme Court seat, it will be the death knell for self-government in the Tar Heel State—and a model for the GOP to follow in other purple states.
Griffin’s legal arguments center on a few inconsistencies in North Carolina’s election laws. Ten years ago, state GOP lawmakers passed a law requiring voters to show a photo ID when they cast their ballot. State election regulations, however, did not require voters who cast overseas ballots or military ballots to provide a photo ID, and state election officials did not provide those voters with the means to show one when they voted last fall. Griffin argued that the state law should prevail and those voters’ ballots should be tossed, even though they followed officials’ instructions.
Griffin’s lawsuit also targeted tens of thousands of ballots cast by North Carolinians who did not provide their full driver’s license or Social Security information on their voter registration form. While North Carolina has required state officials to collect that information under state law since 2004, the State Board of Elections and other state officials failed to do so on a consistent basis. Riggs and her allies have noted that the Griffin campaign has failed to identify a single ballot cast by a voter who would otherwise be ineligible to vote.
Perhaps the most troubling aspect of Griffin’s case is that it only targets a handful of counties—specifically, four heavily Democratic counties where Riggs is likely to have received far more votes. As Vox’s Ian Millhiser and others have noted, this approach violates the Supreme Court’s holding in the 2000 case Bush v. Gore that applying different state election rules in different jurisdictions violated the federal equal protection clause.
The State Board of Elections rejected Griffin’s claims, and two recounts affirmed Riggs’s victory. Griffin nonetheless won a crucial early legal victory when he persuaded the North Carolina Supreme Court to block state officials from certifying Riggs’s victory while his legal challenges go forward. (Riggs remains seated on the court, but she has recused herself from the election cases.)
The 4–2 vote to block certification drew dissents from Justice Anita Earls, the court’s other Democratic member, and Republican Justice Richard Dietz. Earls criticized the Republican majority for its decision to “intervene in an unprecedented way” and castigated its “indulgence of this sort of fact-free post-election gamesmanship.” Dietz, though sympathetic to some of Griffin’s claims, argued that ruling in his favor would violate a legal principle that prohibits last-minute changes to election rules. To hold otherwise, he warned, “invites incredible mischief.”
On April 4, a three-judge panel on the North Carolina Court of Appeals sided with Griffin. (He is a member of that court but has not taken part in the cases.) The two Republican judges on the panel effectively threw out roughly 67,000 votes that Griffin had challenged, but instructed state election officials to “expeditiously identify” those affected and give those voters 15 business days to “cure” their ballots by providing voter ID.
“The inclusion of even one unlawful ballot in a vote total dilutes the lawful votes and ‘effectively disenfranchises’ lawful voters,” the majority concluded, quoting from state court precedent. “Post-election protests protect against this risk of vote dilution by enabling candidates and voters to rigorously investigate the election process, identify and challenge unlawful ballots, and ensure those ballots are not counted.”
Judge Toby Hampson dissented at length from the court’s decision, noting that Griffin had not shown that any actually ineligible voters had cast ballots. “To accept [Griffin’s] indiscriminate efforts to call into doubt the votes of tens of thousands of otherwise eligible voters, without showing any challenged voter was disqualified under existing law from voting is to elevate speculation and surmise over evidence and reason,” he wrote.
He also rejected the majority’s insistence that a short window to cure the ballots would protect against disenfranchisement, noting that not every North Carolinian can readily comply with the “judicial hoops” imposed upon their right to vote. “What of voters in every county of this state who may have moved, have not learned of this proceeding, or are sick, immobile, elderly, transient, away on extended business travel, traveling on school breaks with their children, or are simply overwhelmed by the unrelenting attack on their voting rights?” he asked. “Their votes should count.”
On appeal, the state Supreme Court last week rejected the Court of Appeals’ shotgun approach. It declined to toss out the roughly 60,000 ballots cast by voters with incomplete applications, which amounted to the bulk of the ballots that were challenged by Griffin. All six members of the court agreed that those votes should be counted.
But the four Republicans who voted to block certification in January upheld the appeals court’s decision on a subset of voters who had been targeted: Around 5,000 overseas and military voters will have 30 days to “cure” their ballots and have them counted in the final total. An additional 200 ballots cast by voters who are domiciled in North Carolina through a provision in federal election law but have not lived in the state before were discarded entirely.
Earls, the sole participating Democratic justice on the court, objected in strong terms to the court’s decision in her dissent. She criticized the majority for its hasty decision “without debate or discussion” in open court. And even if the court’s actions do not change the outcome, she noted that the court’s intervention means that “the precedent for the complete disruption of the election process by losing candidates has been set.”
“It is no small thing to overturn the results of an election in a democracy by throwing out ballots that were legally cast consistent with all election laws in effect on the day of the election,” she wrote. “Some would call it stealing the election, others might call it a bloodless coup, but by whatever name, no amount of smoke and mirrors makes it legitimate.”
Dietz, the sole dissenting Republican justice, also lamented his colleagues’ actions. He considered some of Griffin’s claims to be legitimate and that state election officials had flawed in carrying out the duties but said these issues would not receive their proper consideration thanks to the court’s “post hoc judicial tampering in election results.” He reiterated his fears that the court’s intervention will “fuel an already troubling decline in public faith in our elections,” adding, “I expected that, when the time came, our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law. I was wrong.”
Even the state Supreme Court’s decision is not the end of the legal battle: Riggs has vowed to fight on in the federal courts. It is also possible that she will nonetheless prevail in the vote tally even after the curing process is carried out. But the template and precedent has now been set in North Carolina, one of the nation’s swing states, for surgically targeted partisan challenges to election laws and practices after the votes have been counted. If courts in other states allow for similar “mischief” in future elections, it will further hasten the decline of American democracy.
