Griffin v. N.C. State Bd. of Elections

• Court: U.S. District Court — Eastern District of North Carolina
• Writing for the Court: RICHARD E. MYERS II, CHIEF UNITED STATES DISTRICT JUDGE
• Citation: 781 F.Supp.3d 411
• Docket Number: Case No. 5:24-CV-00731-M,Case No. 5:24-CV-00699-M,Case No. 5:25-CV-00193-M
• Decision Date: 05 May 2025
• Parties: Judge Jefferson GRIFFIN, Plaintiff, v. NORTH CAROLINA STATE BOARD OF ELECTIONS, Defendant. and Allison Riggs, et al., Intervenor-Defendants North Carolina Democratic Party, Plaintiff, v. North Carolina State Board of Elections, et al., Defendants. Carrie Conley, et al., Plaintiffs, v. Alan Hirsch, et al., Defendants.
• topic: Civil Rights,Administrative Law,Constitutional Law

781 F.Supp.3d 411

Judge Jefferson GRIFFIN, Plaintiff, v. NORTH CAROLINA STATE BOARD OF ELECTIONS, Defendant.andAllison Riggs, et al., Intervenor-DefendantsNorth Carolina Democratic Party, Plaintiff, v. North Carolina State Board of Elections, et al., Defendants.

Carrie Conley, et al., Plaintiffs, v. Alan Hirsch, et al., Defendants.

Case No. 5:24-CV-00731-M

Case No. 5:24-CV-00699-M

Case No. 5:25-CV-00193-M

United States District Court, E.D. North Carolina, Western Division

Signed May 5, 2025

Troy D. Shelton, Craig Daniel Schauer, William Michael Dowling, Dowling PLLC, Raleigh, NC, for Plaintiff in No. 5:24-CV-00731.

Terence Steed, Mary Carla Babb, NC Department of Justice - Public Safety Section, Raleigh, NC, for Defendants in Nos. 5:24-CV-00731, 5:24-CV-00699.

Lalitha Madduri, Christopher D. Dodge, James Justin Pinchak, Julie Zuckerbrod, Tina Meng Morrison, Elias Law Group LLP, Washington, DC, Narendra K. Ghosh, Patterson Harkavy LLP, Chapel Hill, NC, for Intervenor-Defendants North Carolina Alliance for Americans Retired, VoteVets Action Fund, Sarah Smith, Juanita Anderson in No. 5:24-CV-00731.

Raymond M. Bennett, Samuel B. Hartzell, Zachary Nathaniel Bernstein, Womble Bond Dickinson (U.S.) LLP, Raleigh, NC, for Intervenor-Defendant Allison Riggs in No. 5:24-CV-00731.

Christopher Babbitt, Ann E. Himes, Daniel Volchok, Jane E. Kessner, Seth P. Waxman, Nitisha Baronia, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, James Weldon Whalen, William A. Robertson, Shana L. Fulton, Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, Raleigh, NC, for Plaintiff in No. 5:24-CV-00699.

Mark Montgomery Rothrock, Lehotsky Keller Cohn LLP, Raleigh, NC, Troy D. Shelton, Craig Daniel Schauer, William Michael Dowling, Dowling PLLC, Raleigh, NC, for Intervenor Defendant Judge Jefferson Griffin in No. 5:24-CV-00699.

Jessica Ann Marsden, Protect Democracy Project, Chapel Hill, NC, for Plaintiffs in No. 5:25-CV-00193.

Terence Steed, NC Department of Justice - Public Safety Section, Raleigh, NC, for Defendants in No. 5:25-CV-00193.

RICHARD E. MYERS II, CHIEF UNITED STATES DISTRICT JUDGE

I. Introduction

Six months ago, millions of North Carolinians exercised their right to vote. In one race, for Seat 6 on the Supreme Court of North Carolina, the results were close. At the end of the canvassing period (and after two recounts), the incumbent Justice Allison Riggs led Judge Jefferson Griffin (a judge on the North Carolina Court of Appeals) by 734 votes: 2,770,412 (50.01%) to 2,769,678 (49.99%). In the aftermath of the election, Judge Griffin filed hundreds of election protests across North Carolina's 100 counties.

But before getting to those protests, it's important to understand who cast ballots in the election, and under what rules. For example, thousands of North Carolina voters cast absentee ballots from overseas. Many of these folks serve in the military, or are in the family of someone who does. Others may be missionaries. Still more are temporarily working or pursuing an education abroad.

Relevant to those voters, North Carolina's General Assembly enacted a voter identification ("ID") law in 2018, and after years of litigation, that law took effect in 2023. But the law has never been applied to overseas military and civilian voters who cast absentee ballots. The North Carolina Board of Elections (the "State Board"), on a bipartisan and unanimous basis, exempted those voters from the voter ID law; on April 1, 2024, the State Board, pursuant to its rulemaking authority under state law, promulgated a final rule which provided that overseas military and civilian voters were not required to submit a copy of their photo ID with their absentee ballot. An identical temporary administrative rule had already been in effect for eight months before promulgation of the final rule.

The final rule was then on the books for over seven months prior to the election, and it went unchallenged. In the months leading up to the election, the State Board also publicized guidance to overseas voters which informed them that they were exempt from the voter ID law. Thousands of overseas voters then, on election day, relied on the State Board's rule and its guidance. In fact, they had to. Overseas voters submit their ballots through an online portal that lacked any mechanism for a voter to attach a copy of their photo ID.

Judge Griffin challenged the votes from overseas voters who cast absentee ballots without providing a copy of their photo ID. But he targeted only a select few of North Carolina's 100 counties. And, months after the election, North Carolina's Court of Appeals and Supreme Court agreed with him on the merits of his state law argument: overseas voters who cast absentee ballots (in those select counties) were required to submit a copy of their photo ID with their ballot. Unless these affected voters cure their ballots by submitting a copy of their photo ID, their votes will be discarded from the final tally for Seat 6.

Judge Griffin also challenged the votes from a separate group of voters: children of overseas North Carolinians who, when casting an absentee ballot in 2024, checked a box indicating that they have never lived in the United States ("Never Residents"). For over a decade prior to the 2024 election, a state law granted Never Residents the right to vote, and they had voted under that statute in over 40 consecutive elections. But North Carolina's Constitution includes a bona fide residency requirement for voters.

The North Carolina Court of Appeals and Supreme Court subsequently determined that the law granting Never Residents the right to vote conflicted with the bona fide residency provision in the state Constitution and was void. Everyone who self-identified as a Never Resident in the November 2024 election (several hundred individuals) will have their votes in the Seat 6 race discarded. There was no cure process offered to any individual who may have inadvertently checked the box indicating that they have never lived in the United States and who had, in fact, previously resided in North Carolina.

The question presented here is whether those decisions from the North Carolina Court of Appeals and Supreme Court, which rested on state law grounds, can be implemented in an election (that has come and gone) in a manner consistent with federal law.

The right to vote is "of the most fundamental significance under our constitutional structure."¹ "No right is more precious in a free country than that of having a voice."² Voting is essential to "a free and democratic society,"³ because it is "preservative of all rights."⁴ These principles are "beyond cavil."⁵

At the same time, our "Constitution was also intended to preserve to the States the power that even the Colonies had to establish and maintain their own separate and independent governments."⁶ States must "retain the power to regulate their own elections."⁷ And "not every" state "election irregularity gives rise to a" federal "constitutional claim."⁸ To conclude otherwise would be to "authorize federal courts to" act as roving "state election monitors."⁹

With those fundamental principles in mind, the court wishes to make clear that this case is not about the prerogative of North Carolina courts to interpret North Carolina law. Without question, those courts "are the principal expositors of state law."¹⁰ This case is also not about North Carolina's primacy to establish rules for future state elections; it may do so. Rather, this 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." For that reason, and those that follow, the court finds that effectuation of the North Carolina Court of Appeals and Supreme Court's orders would violate the equal protection and substantive due process rights of overseas military and civilian voters. The court further finds that discarding the votes of Never Residents without any process for those who may have been misclassified as ineligible violates procedural due process and represents an unconstitutional burden on the right to vote. Accordingly, the State Board must not proceed with implementation of the North Carolina Court of Appeals and Supreme Court's orders, and instead must certify the results of the election for Seat 6 based on the tally at the completion of the canvassing period.

II. Case History

To pick up where the court left off in its introduction, in the aftermath of the election, Judge Griffin filed hundreds of election protests across North Carolina's 100 counties. Three categories of protests are relevant to this consolidated action.

First Judge Griffin challenged the votes of approximately 60,000 "voters whose voter registration database records contain neither a driver's license number nor the last-four digits of a social security number." DE 1-4 at 12.¹¹ Second, Judge Griffin contested the votes of 1,409 overseas voters¹² who cast absentee ballots in Guilford County. Id. Third, Judge Griffin challenged 266 ballots that were "cast by overseas citizens who have not resided in North Carolina but whose parents or legal guardians were eligible North Carolina voters before leaving the United States," i.e., Never Residents. Id.

In late November 2024, the State Board assumed jurisdiction over these three categories of protests and consolidated them. Id. at 10, 13. Approximately two weeks later, the State Board held a public meeting to consider the protests. Id. at 10.

By written decision dated December 13, 2024, the State Board denied each of Judge Griffin's three protests. Id. at 15. The State Board first...