North Carolina’s Republican Justices Signal Support for Overturning Democratic Judge’s Election

Ian McPherson reads names from a list of over 60,000 people who cast ballots in the November 2024 election but whose votes have been challenged by Republican state Supreme Court candidate Jefferson Griffin in his extremely close race with Demcoratic Associate Justice Allison Riggs, Jan. 14, 2025, in Raleigh, N.C. (Chris Seward/AP)

In early January, the Republican majority on the North Carolina Supreme Court blocked the state board of election from certifying the victory of Democratic Justice Allison Riggs after she led by 734 votes following two recounts. Riggs’s Republican opponent, Jefferson Griffin, asked the court to overturn the election by throwing out more than 60,000 ballots.

On Thursday, the court rejected Griffin’s extraordinary request to appoint him the winner—for now—and sent the case back to the lower courts for a full trial. But it was not all good news for Riggs. The court continued to block the state board from certifying the election; it is now the last uncertified race in the country. Worse, three of the court’s Republican justices expressed full-throated support for overturning the election—a stunning outcome that would have major ramifications for free and fair elections across the country.

“On the night of the election, petitioner led his opponent by almost 10,000 votes,” wrote Chief Justice Paul Newby, who Griffin, a state appeals judge, has called his “good friend and mentor.” “Over the course of the next several days, his lead slowly dwindled, and he now trails his opponent by 734 votes out of the 5,540,090 total votes cast. That is a highly unusual course of events. It is understandable that petitioner and many North Carolina voters are questioning how this could happen.”

Newby’s rhetoric echoes Trump’s debunked claims about the 2020 election, when he led on Election Night in key swing states but his advantage steadily shrunk after mail ballots were counted. There was nothing nefarious about this in 2020, that’s just how vote counting worked, but the Trump campaign cited his disappearing lead as the basis for alleging a vast conspiracy to rig the vote.

There’s also a simple explanation for Riggs’s lead: she gained ground after absentee and provisional ballots were counted, in accordance with North Carolina law. But instead of accepting that outcome, her Republican opponent and his allies on the bench are following Trump’s 2020 Big Lie playbook, using claims of widespread voter fraud to build support for overturning an election. The key difference is this time Republicans might actually succeed—changing the rules for an election that has already occurred.

Melissa Price Kromm, executive director of the pro-democracy group North Carolina For The People Action, has called Griffin’s legal challenge “a nonviolent version of January 6.” She told me the North Carolina Supreme Court race has implications far beyond North Carolina. “If they’re able to steal an election where votes are cherry-picked and retroactively discarded, it could set a precedent that leads to the unraveling of American democracy. Everyone is looking at Trump and saying he’s the death of our democracy, but this case could actually be it.”

Riggs, a longtime voting rights lawyer before joining the bench in 2023, emphasized in her brief before the court how a ruling for Griffin would set a radically dangerous precedent. “His effort to change the rules after an election is unprecedented,” she wrote. “And if Judge Griffin succeeds, the implications are staggering. Rather than suing before an election to challenge rules they do not believe are valid, candidates will have an incentive to say nothing and wait to see if they win. Then if they lose, they will drag out elections through litigation for months, seeking to throw out votes until they win. Never again will North Carolina voters walk out of the voting booths knowing that their votes will count, and the court system will be flooded with lawsuits after every election seeking to challenge votes all over the State.”

Rather than accept a narrow defeat, Griffin challenged the eligibility of 60,000 voters, claiming that ballots were wrongly counted from people who submitted incomplete voter registration records. But Griffin’s campaign couldn’t point to a single instance of an ineligible voter casting a ballot and all of the 60,000 voters he challenged showed identification while voting by mail or during early voting. His list of challenged ballots included example after example of lawful voters—including Riggs’ own parents. These challenged voters were disproportionately nonwhite, young, and less likely to be registered Republicans.

Perhaps sensing that asking the court to throw out 60,000 votes was a bridge too far even for the Republican majority (one GOP justice called it “almost certainly meritless”), Griffin then petitioned the court to first invalidate 5,500 ballots from voters who lived overseas, including members of the military, which he said would lead to his victory. (Griffin himself voted that way while serving in the North Carolina Army National Guard.) He argued the ballots should be tossed because those voters did not show strict forms of photo ID when submitting their votes, but the state board of election specifically exempted overseas voters from the state’s new voter ID law, which went into effect for the 2024 cycle. The state election board unanimously rejected his effort to invalidate those ballots during a hearing in December.

Griffin also cherry-picked the ballots he was challenging, contesting the votes of overseas voters only in four heavily Democratic counties where Riggs won an average of 65.5 percent of votes. Democrats were more than four times as likely to have their votes challenged as Republicans, found Western Carolina University political science professor Christopher Cooper. It was akin to Trump asking the Wisconsin Supreme Court in 2020 to only throw out ballots in Milwaukee and Madison in 2020, which the court rejected. “This calculated challenge to voters in just four Democratic-leaning counties would pose a clear equal protection problem under the US Constitution,” Riggs wrote in her brief.

Given that Griffin has uncovered no evidence of fraud or misconduct in the election, it’s shocking that the race has dragged on so long. “In seeking to invalidate the votes of over 60,000 voters, Judge Griffin cannot identify a single voter who fraudulently cast a ballot without being duly qualified under the laws of this state to do so,” Democratic Justice Anita Earls wrote in a dissenting opinion on Thursday.

Earls said that she was troubled by “what I perceive to be a signal in this Order as to the Court’s preferred outcome. The Order instructs the Superior Court to proceed expeditiously, while keeping in place a preliminary injunction against certification, which requires a showing of likelihood of the merits as I explained above. At the same time, the Order reiterates that the petitioner has identified ‘potentially illegal votes’ while citing case law to suggest that a constitutional violation will result from ‘unlawful votes’ diluting other ballots. I do not join in that signal. We cannot overturn the results of an election on potentials.”

But Newby, in a concurring opinion joined by two other Republican justices, issued his full-throated support for nullifying the result of the election and strenuously defended Griffin’s actions. “There is nothing anti-democratic about filing an election protest,” he wrote. “It is unfortunate that petitioner has been repeatedly chastised for pursuing his election protests in the manner authorized by law.”

However, the court, which has a 5-1 Republican majority with Riggs recused, may be deadlocked on how to ultimately decide the case. Republican Justice Trey Allen, who once clerked for Newby, wrote the opinion sending the case back to the lower courts and did not sign on to Newby’s concurrence. In a concurring opinion in the earlier decision temporarily blocking certification, Allen wrote that “the Court’s order granting Judge Griffin’s motion for temporary stay should not be taken to mean that Judge Griffin will ultimately prevail on the merits.”

A possible deadlock could explain why the case was sent back to the lower courts. If the court fails to reach a majority ruling now, the state election board decision rejecting Griffin’s election challenges would stand and Riggs would be certified as the winner. But a decision by a lower court could be the final word if the state supreme court ultimately deadlocks. And Newby has the power to choose which judges hear the case at the court of appeals level, which increases the likelihood they will rule in Griffin’s favor, no matter how thin his evidence might be.

Riggs has asked the federal courts to decide the case instead. The Fourth Circuit Court of Appeals is scheduled to hear oral arguments on Monday.

“There’s a lot of speculation the opinion signals where the justices are—perhaps the court is deadlocked at 3-3 and they have to send it back to buy more time or get a favorable decision from a lower court, perhaps the court of appeals,” says Bob Phillips, executive director of Common Cause North Carolina. “The legal maneuvers suggest they are willing to do anything to give Griffin a seat on the high court.”

It’s worth remembering that the court’s Republican justices have already taken a series of steps to undermine fair elections and entrench Republican power in the state. They reinstated the state’s strict voter ID law after it was blocked by a lower court, which gave Griffin the pretext to challenge 5,500 overseas ballots. They approved a felon disenfranchisement law that prevented more than 50,000 people from voting. Most significantly, in April 2023 the Republican justices reversed a prior court decision striking down the GOP-controlled legislature’s gerrymandered congressional and state legislative maps. That allowed the legislature to draw heavily gerrymandered new maps that gave Republicans three new seats in the U.S House—just enough to maintain control of the chamber and ensure one-party rule in DC.

That’s why the race initially had national significance. Republicans would still control the court 5-2 with Riggs on it, but her victory would give Democrats a shot at retaking the court’s majority after 2028 and allow them to oversee the state’s redistricting process in 2031.

But the gravity of potentially overturning an election, which would allow the court’s Republican justices to expand their GOP majority by ousting one of their Democratic colleagues, is about much more than just which party’s judges will oversee who draws redistricting maps. With everyone in Washington consumed by Trump, the effort to invalidate tens of thousands of votes in North Carolina shows how the threat of election denial—and the lengths Republicans will go to subvert free and fair elections—is far broader and scarier than just one man. If they succeed, trying to overturn elections will become the norm for Republicans, rather than the exception. It will be institutionalized within the party.

“It’s a danger for democracy across the country,” says Phillips. “If it happens here, where won’t it happen next? It gives anyone who wants to overturn an election the blueprint.”