Decision by North Carolina Supreme Court: Majority of disputed ballots to be included in vote tally for Jefferson Griffin vs. Allison Riggs race

RALEIGH, N.C. — North Carolina’s Supreme Court ruled on Friday that tens of thousands of cast ballots challenged by the trailing candidate in November’s unresolved election for a seat on the court must remain in the election count.

The decision partially overturns last week’s ruling by a panel of the intermediate-level Court of Appeals that had favored Republican Jefferson Griffin, who closely trails Democratic Associate Justice Allison Riggs.

But a majority of justices – all registered Republicans – agreed with the lower court that additional ballots from two other categories that Griffin contested were wrongly allowed in the tally. Some of these voters – potentially thousands who serve in the military or live overseas – would still get a chance to turn in a photo identification or an ID exception form for their choice in the race to remain in the count, the court’s prevailing order says.

The Supreme Court’s order isn’t expected to fully resolve the close race between Griffin and Riggs, who leads Griffin by 734 votes from more than 5.5 million ballots cast in their race. It’s the only 2024 election in the country that is still undecided.

On Monday, the state Supreme Court temporarily halted enforcement of the appeals court decision in favor of Griffin.

State Board of Elections response

“For two other groups of challenged voters, the Supreme Court decision would affect their votes.

“For certain military and overseas-citizen voters who used absentee ballots, the Supreme Court’s decision would now require them to provide a copy of their photo identification, or complete an affidavit known as a Photo ID Exception Form, to ensure their votes remain in the count for this contest. The Supreme Court’s order today increased the amount of time that an affected voter would have to provide their photo ID documentation to 30 days once they are notified by their county board of elections.

“Additionally, for certain voters who, while otherwise eligible, have never resided in the United States but have a connection to North Carolina through their parents, the Supreme Court’s order today would require those voters’ votes to be removed from the Supreme Court contest.

“The State Board understands there may be further proceedings in federal court before this matter is fully resolved. State Board of Elections staff are continuing to review the effect of these decisions and, at the appropriate time, will provide instructions for county boards of elections and affected voters on how to comply with the decisions. This protest does not affect these voters’ selections in any other contest on the ballot.”

Democrat files motion in federal court

It’s also unknown whether the outstanding ballots that could ultimately get taken out of the count could flip the result to Griffin, himself a current Court of Appeals judge. Griffin did not sit on the three-judge panel whose majority ruled for him last week, and Riggs did not participate in the Supreme Court deliberations.

Riggs’ attorneys filed a motion late Friday in U.S. District Court in Wilmington asking a judge to issue an injunction preventing the state appeals court decisions from being carried out immediately.

In response, DNC Chair Ken Martin issued the following statement:

“For more than five months, disgraced candidate Jefferson Griffin has attempted to change the rules of an election after losing fair and square,” said Democratic National Committee Chair Ken Martin. “Today’s decision from the North Carolina Supreme Court rightly dismisses Griffin’s anti-democratic attack on some 60,000 North Carolina voters. However, thousands of other ballots, including those cast by military members and their families who followed all the rules, remain in jeopardy. Jefferson Griffin doesn’t get to pick and choose whose votes count in an election – no politician does. The men and women serving in our military will not allow their voices to be silenced by a desperate loser like Griffin.

“The nation is watching North Carolina. Meanwhile, the DNC and Democrats across this country stand ready to marshal resources and manpower to ensure every vote cast in this election is counted. The people’s voices will be heard, and Justice Allison Riggs will take her rightful place on the North Carolina Supreme Court.”

WATCH: Justice Riggs responds to recent ruling by state Appeals Court

Riggs and the State Board of Elections, which had previously thrown out Griffin’s formal protests of more than 65,000 ballots covering three categories, had signaled plans to return to federal court if necessary, should the justices side with Griffin to potentially plead violations of federal elections and voting rights laws.

Ruling blames Board of Elections, not voters for mistakes

The largest category of challenged voters – roughly 60,000 – included ballots cast last fall by people who have been registered to vote since 2004, but their records lack a driver’s license number or the last four digits of a Social Security number.

Friday’s prevailing opinion said the Court of Appeals got it wrong by declaring these ballots shouldn’t have been counted. That’s because, according to the opinion, the blame rests with the State Board of Elections for failing for years to properly collect those numerical identifiers, not the voters.

These voters ultimately proved their identity by complying with the state’s new photo ID law, and longtime legal precedent says such mistakes by election officials cannot result in cast votes being voided, the order reads.

“Accordingly, we cannot agree with the Court of Appeals that the Board erred by counting their ballots,” the order says. The Court of Appeals’ ruling on the registrations, had it been upheld, would have given these voters about three weeks to provide their identifying numbers.

More time to ‘cure’ ballots

A majority of the six justices participating in the case declined to alter the bulk of the portion of the Court of Appeals ruling that determined that ballots from a category of military or overseas voters who did not provide copies of photo identification or ID exception forms were ineligible. But instead of giving 15 business days to these voters to provide an ID or form to keep them eligible, the prevailing order directed a “cure” deadline in 30 calendar days.

And the high court kept in place the Court of Appeals ruling that those in the third category – potentially hundreds of overseas voters who have never lived in the U.S. – were ineligible based on state residency laws to cast ballots, and their choices should be removed from the totals.

Attorneys for Riggs and the board have argued that the votes challenged by Griffin were lawfully cast by voters based on the rules in place for the November election and should remain in the count.

Reactions to ruling

Riggs said in a news release that while she was gratified that the justices reversed a large portion of the Court of Appeals decision, “I will not waiver in my fight to protect the fundamental freedoms for which our military service members and their families have sacrificed so much.”

Griffin campaign spokesperson Paul Shumaker said Friday’s ruling was “consistent with what we asked in our initial filing.”

Associate Justice Anita Earls, the only Democrat among the participating justices on Friday, entered a blistering opinion of nearly 40 pages. While agreeing that canceling the ballots based on registration issues would have been inappropriate, Earls wrote that the prevailing order, should it stand, “compels unequal treatment of North Carolina voters and infringes on their state constitutional right to vote.”

In another opinion, Republican Associate Justice Richard Dietz wrote the courts should have agreed to conduct a full-blown review of the appeal, then declare Griffin’s claims could not be made to alter a past election. The Supreme Court held no oral arguments before Friday’s decision.

The Associated Press contributed to this report.