RALEIGH, N.C. (CN) — The North Carolina Supreme Court sent Judge Jefferson Griffin’s case back to a lower state court Wednesday, in a blow to his efforts to change the results of his race for a state Supreme Court seat.
Griffin filed a request directly with the state Supreme Court in December, asking it to step in and keep the state board of elections from certifying his race and instruct it to remove over 60,000 ballots he is disputing. The North Carolina associate justice race is the only statewide race in the United States that is still uncertified over two months after the election.
The North Carolina Supreme Court halted the certification of his election and proposed a rapid case schedule. It dismissed a request to schedule a hearing in the case Wednesday, rendering it invalid, as a lower court will now weigh Griffin’s arguments.
The court also left a stay on the election certification process in place until appeals have been exhausted, which could signal that it may be many months until the final results of the election are finalized. Until it is, Associate Justice Allison Riggs — Griffin’s opponent — will continue serving in her seat.
“A writ of prohibition is an extraordinary writ,” Republican Associate Justice Trey Allen warned in the order. “The writ ‘does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, [or] by appeal … it is to be used, like all such, with great caution.’”
Chief Justice Paul Martin Newby concurred and was joined by his Republican colleagues Associate Justice Philip Berger Jr. and Associate Justice Tamara Barringer.
“I write separately to emphasize that this case is not about deciding the outcome of an election,” Newby wrote. “It is about preserving the public’s trust and confidence in our elections through the rule of law.”
Associate Justice Anita Earls, the lone remaining Democrat on the court after Riggs recused herself in the case, dissented in part, criticizing the court’s decision to maintain the stay on election certification.
“In maintaining the temporary stay, the court prevents the Wake County Superior Court from deciding for itself whether Griffin is likely to succeed on the merits and whether a stay is justified — a decision which state law vests in that court specifically,” she wrote.
“We cannot overturn the results of an election on potentials. Notwithstanding these signals, I am confident that the members of our judiciary who evaluate these claims shall do so fairly and in furtherance of our solemn obligation to administer ‘right and justice … without favor, denial, or delay.’”
Griffin, who trails Riggs by 734 votes despite two recounts, recently filed an unprecedented request in a brief before the state Supreme Court, asking it to remove over 5,500 ballots cast by overseas and military voters who were not required to provide copies of photo identification while voting, unlike all other voters in the state. If the removal of those ballots is outcome determinative, the court could stop there, he said.
If not, he asked the courts to remove votes cast by “never residents” who haven’t resided in the state, saying they shouldn’t be able to cast a vote in state elections in a conflict between federal law and the state constitution.
These ballots, which were cast early and by mail, would be the only ones that the state board of elections would be able to easily identify and remove from the final ballot count. The bulk of the ballots Griffin is disputing — over 60,000 — are North Carolina residents who registered to vote using an old form that didn’t require them to provide a driver’s license number or social security number.
Nevertheless, if removing the ballots cast abroad failed to flip his race, Griffin asked the state Supreme Court to remand the case and demand retabulation.
Griffin doesn’t want these voters removed from the voter rolls, but he does want their votes disqualified in his race.
The state’s highest court, which has a 5-2 Republican majority, has faced harsh public scrutiny from Democrats and the public, who voiced concerns that it may choose to grant Griffin’s requests, ultimately removing ballots from the tabulation and changing the outcome of the election.
An appeal concerning the case’s jurisdiction is scheduled to be heard by the Fourth Circuit Court of Appeals next week to weigh whether it belongs before the state courts, where Griffin would prefer it, or federal courts, where the state board of elections and Riggs are pushing for it to end up. The case is currently pending in both state and federal courts.
The state Supreme Court’s order puts Griffin back on the statutory path he was expected to follow to appeal his election results, which is through Wake County Superior Court in Raleigh. Instead of filing his appeal in Wake County, he filed directly with the North Carolina Supreme Court, where he expected a higher probability of success.
Griffin has not been successful in Wake County thus far in his legal challenges over the associate justice seat.
A case filed by Republican voters using Griffin’s claims had a request for a temporary restraining order denied in Raleigh two weeks ago, and Griffin has failed to secure an order blocking election certification in the state’s capital. Griffin also asked the Raleigh courts to step in in his race before official results were released, requesting the court to force the elections board to turn over records faster, but was unsuccessful.
Representatives for Riggs and the North Carolina State Board of Elections did not reply to a request for comment made outside of normal business hours, nor did Griffin.