RALEIGH, N.C. (AP) — A panel from North Carolina’s intermediate-level appeals court will hear arguments next week about a still-unsettled November election for a seat on the state’s Supreme Court.
The March 21 hearing by three judges on the Court of Appeals was announced Friday, the same day the court rejected a request by incumbent Supreme Court Associate Justice Allison Riggs to have the entire Court of Appeals consider the matter now instead.
After recounts and election protests, the registered Democrat Riggs leads Republican challenger Jefferson Griffin by 734 votes out of more than 5.5 million ballots cast in their race for an eight-year term on the highest court in the ninth-largest state.
While The Associated Press declared over 4,400 winners in the 2024 general election, the North Carolina Supreme Court election is the only race nationally that is still undecided.
Griffin, himself a Court of Appeals judge, filed challenges to over 65,000 early or absentee ballots cast that his lawyers have said should be removed from the tally. The State Board of Elections dismissed his protests in December, and a trial judge upheld the board’s decisions last month — prompting Griffin’s appeal.
Lawyers for Riggs said in a recent legal brief that the case should first be heard “en banc” — meaning by the full Court of Appeals — in part to save time, given that a losing party in any decision by the three judges would still have the right to rehearing by the full court.
But Griffin’s attorneys said having a thorough review of more than 30 issues presented by legal parties in the protests by a smaller panel first was warranted, especially because the trial judge issued bare-boned orders affirming the board’s rulings.
The Court of Appeals has 15 judges, but Griffin has recused himself from deliberations in the case before the court. Friday’s unsigned order denying initial en banc review said that only three of the court’s judges agreed with Riggs’ request. The order did not say how the judges voted. Of the 14 remaining judges, 11 are registered Republicans.
The court did reveal Friday which judges are hearing the case — two Republicans in John Tyson and Fred Gore and registered Democrat Toby Hampson.
Most of the ballots challenged by Griffin were cast by voters whose registration records lacked either a driver’s license number or the last four digits of a Social Security number. Other votes being challenged were cast by overseas voters who have never lived in the U.S. and military or overseas voters who did not provide copies of photo identification with their ballots.
Whatever the Court of Appeals result, the case likely will head to the state Supreme Court, where Riggs has recused herself from the case. Five of the six remaining justices are registered Republicans. Majorities on the court have rejected efforts for it to rule on the challenged ballots without the election protest appeals first going through lower courts.
And should Riggs lose in state court and the removal of ballots flip the race to Griffin, a federal appeals court already has told Riggs she can return to federal court to challenge decisions on federal elections and voting rights laws.
Griffin’s lawyers have argued that counting the challenged ballots violates state laws or the state constitution. Lawyers for Riggs and the board have said the ballots were cast lawfully and that Griffin failed to comply with formal protest procedures.
Riggs’ allies have held rallies state demanding that Griffin concede. They have offered as speakers voters whose choices in the race could be removed from tallies if Griffin’s arguments are successful.
Also Friday, Court of Appeals Judge Tom Murry ordered that Riggs’ motion to have him recused from participating in Griffin’s appeal be dismissed as moot because he is not on the three-judge panel hearing the case. Riggs’ attorneys had cited Griffin’s legal defense fund receiving in December a donation from a Murry campaign committee as grounds for recusal.
