An attorney representing the Republican candidate in a tight race for the North Carolina Supreme Court went before a Wake County judge this week without notifying opposing counsel to seek an order blocking certification of the election. In some instances, under state and federal rules of procedure, such ex parte motions are improper.
The ex parte motion took place on Tuesday before Judge Cynthia Sturges, in a Wake County courtroom. Sturges, a registered Republican, at first granted the motion, which was filed by Craig Schauer, who represents Jefferson Griffin. Griffin, a North Carolina Court of Appeals judge, is the GOP candidate seeking to unseat Democrat Allison Riggs from her associate justice post on the state Supreme Court.
After initially granting the ex parte motion, Judge Sturges later withdrew it because "the Court became concerned that neither the Respondent nor Respondent's attorneys received appropriate notice of the Motion, as required by Local Rules and Rule 65 of the Rules of Civil Procedure."
Schauer did not immediately respond to WUNC's request for comment on his ex parte motion.
Under North Carolina's rules of civil procedure, which align with federal rules, a court may grant a temporary restraining order without prior or written notice to the adverse party only if the applicant shows they will suffer immediate and irreparable injury before opposing counsel can be heard on the matter, and that the applicant's attorney has certified in writing "the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required."
Schauer's ex parte motion sought either a temporary restraining order, preliminary injunction, and/or a stay. It was filed as part of a lawsuit Griffin filed in Wake County Superior Court last month, asking the court to halt the certification process, and to recount the votes minus more than 60,000 ballots Griffin says should be invalidated due to alleged irregularities.
Griffin's attorneys have argued he faced immediate and irreparable harm if certification — which, under state deadlines, was supposed to happen Friday — did not get blocked because it would render his election protests moot.
State attorneys 'still in the dark'
Mary Carla Babb, a special deputy attorney general with the North Carolina Department of Justice, who represents the state elections board, declined comment on the matter in response to WUNC's inquiry about the ex parte motion in Wake County court.
In an email, responding to WUNC's question about any possible ethical issues around the ex parte motion, Paul Cox, the state elections board's general counsel, declined comment because "we're still in the dark on what exactly happened."
Cox added that until Tuesday morning attorneys representing the elections board "were not aware of whatever had occurred in Wake County Superior Court" prior to Judge Sturges' order rescinding her earlier TRO.
"Our attorney happened to be in the court Tuesday morning for a different election-related appeal, which is when he was made aware of the original order that was later rescinded," Cox explained.
Griffin in a full court press to avoid electoral loss
Griffin trails Riggs by 734 votes — out of more than 5.5 million ballots cast. The gap between Riggs and Griffin has been confirmed by two post-election recounts.
In most of the protests, Griffin has alleged thousands of ballots should be tossed because they were cast by voters who have not been completely registered under state law.
The issue has to do with voters who registered — many years and election cycles ago — using a form that predated the federal Help America Vote Act, or HAVA, of 2002. The pre-HAVA registration form did not clearly mandate registrants provide the last four digits of their Social Security number or their driver's license number.
Griffin's protests notwithstanding, neither state law nor HAVA makes having a Social Security number or a driver's license number a prerequisite for voting.
In fewer instances, Griffin has challenged ballots cast by military and overseas citizens who did not provide photo ID with their absentee votes, even though state law excuses them from doing so. And Griffin has challenged a far fewer number of ballots cast by overseas citizens who never resided in North Carolina, despite state law explicitly saying such citizens are eligible to vote.
Griffin first filed protests over the disputed ballots with the North Carolina State Board of Elections. The board held a hearing last month and dismissed Griffin's protests due to a lack of evidence of any actual voter ineligibility, and due to inadequate notice for affected voters.
While Griffin's attorneys filed their lawsuit over the election in Wake County Superior Court, they also went directly to the state Supreme Court with a writ of prohibition seeking a stay of certification.
On Tuesday, the same day Schauer sought a TRO from Superior Court Judge Sturges, the state's high court granted Griffin's request in a split, 4-2, vote.
Riggs recused herself from the matter, since she's a candidate in the contested race. Justice Anita Earls, the high court's only other Democrat, dissented in the order granting the stay.
One of the court's five conservative justices, Richard Dietz, also dissented, citing a U.S. Supreme Court case known as Purcell, which frowns on judicial intervention in close proximity to an election. Dietz wrote: "In my view, the challenges raised in this petition strike at the very heart of our state's Purcell principle."
"The petition is," Dietz added, "in effect, post-election litigation that seeks to remove the legal right to vote from people who lawfully voted under the laws and regulations that existed during the voting process."
Since the state Supreme Court issued a stay blocking certification, Griffin's attorneys have withdrawn their request for a hearing on a TRO in Wake County Superior Court.
Case could end up in SCOTUS
Meanwhile, after filing his writ of prohibition with the state Supreme Court Griffin filed his lawsuit in Wake County Superior Court on Dec. 20.
Attorneys for the state elections board — joined by Riggs and several advocacy groups — are fighting to have the post-election litigation resolved in federal court.
A federal district court judge had remanded the case back to the state Supreme Court, but the state elections board appealed that remand to the U.S. 4th Circuit Court of Appeals.
The 4th Circuit could send the matter back to the federal district court for oral arguments on the legal questions raised by Griffin's election protests — or the matter could even end up back before the state elections board for an evidentiary review of Griffin's claims.
And any 4th Circuit decisions could be appealed to the U.S. Supreme Court.
