State courts will get the first crack at resolving the as-yet-uncertified race for a seat on the North Carolina Supreme Court. But, depending on the outcome in state courts, the matter could still go before a federal tribunal.
On Tuesday, a three-judge panel of the U.S. Fourth Circuit Court of Appeals issued an order that means Republican candidate Jefferson Griffin's protests over more than 65,000 ballots will play out in state courts before any questions under federal law can be addressed.
Griffin trails Democrat Allison Riggs, an incumbent associate justice on the state Supreme Court, by 734 votes. That gap has been confirmed by multiple recounts.
However, Griffin is protesting more than 65,000 ballots over alleged irregularities, including incomplete voter registrations and a photo ID exemption for military and overseas voters. Following hearings on his protests, the North Carolina State Board of Elections dismissed Griffin's protests in December, citing a lack of evidence of any actual voter ineligibility.
Griffin then challenged the elections board's dismissal and went directly to the state Supreme Court — in an unusual legal maneuver that circumvented the typical appeals process in state courts — seeking a writ of prohibition. Griffin wanted the court to block certification of the race, and to summarily invalidate the challenged ballots.
In a split decision, the state's high court blocked certification, but the court — minus Riggs, who recused herself — sent the matter to the trial-level Wake County Superior Court for a factual review of Griffin's claims.
That matter will be heard Friday.
Meanwhile, the state elections board — joined by Riggs and voting rights groups — had the case removed to federal court. They argued that was the proper venue because of the implications Griffin's protests had for federal laws, such as the Help America Vote Act, and voting rights protections under the U.S. Constitution.
When the case first went before U.S. District Court Judge Richard Myers in early January, he sent it back to state courts "with due regard for state sovereignty and the independence of states to decide matters of matters of substantial public concern."
On appeal from the state elections board, the U.S. Fourth Circuit said Myers was correct in sending the matter back to the state courts, but that he should have made it clear that federal courts retain jurisdiction over questions of federal law.
"In other words," the judicial panel wrote in its opinion, "federal courts have discretion to refrain from resolving a case pending in federal court that involves state law claims and potential federal constitutional issues if the resolution of those unsettled questions of state law could obviate the need to address the federal issues."
The judges — two of them nominated to the court by Republican presidents, the other appointed by a Democrat — reasoned that depending on the outcome of the matter in state courts, appeal to federal courts on unresolved questions of federal law would still be an option.
"For example," the judges wrote, "if the [state elections] Board prevails in Wake County on the state law issues, the resolution of the federal claims may not be necessary."
