Republicans mean to make unequal treatment legal
Late Friday, North Carolina’s Supreme Court issued an order regarding the nation’s last unsettled race of the 2024 season. Justice Allison Riggs (D) won the race to hold her seat on the state Supreme Court by 734 votes after a couple of recounts. Then the GOP’s legal effort on behalf of Appeals Court Judge Jefferson Griffin (R) kicked into gear to challenge tens of thousands of votes with some Cleta Mitchell-level, creative interpretatin’ of election law. Pay attention. This tactic is coming soon to an election near you.
As a non-lawyer, bear with me.
First, this was an order, not a formal review of the Court of Appeals ruling. There was no hearing or review of the appellate case. By 4-2 a vote (with one Republican justice dissenting), the court simply overturned in part the lower court ruling in Griffin’s favor. Riggs has appealed to the federal court.
In brief (Democracy Docket):
Per today’s ruling, around 60,000 ballots with incomplete registrations cast in the 2024 state Supreme Court election will be counted. The Court also issued a 30-day cure period for the roughly 5,000 overseas military voters who did not provide proper photo ID when they registered to vote. But the Court greenlit the decision of a lower court to reject around 200 ballots cast by overseas voters who are registered to vote in North Carolina but never resided in the state. Those ballots will not be counted.
The justices sent the case back to the lower court to work out the details of how the overseas and military voters might yet have their votes counted. “Cure” is a misnomer here. The majority, as the Appeals Court did, elected to clear statutory language on how their votes get counted.
Rick Hasen at Election Law Blog:
This is disenfranchising of voters and raises the risk of election subversion. It’s unprecedented, as Republican lawyer Ben Ginsberg explained about the earlier Court of Appeals ruling, and it violates due process rights of voters (and potentially other federally protected rights) by changing the rules after the fact, as Rick Pildes and Justin Levitt explained.
Hasen quotes Justice Anita Earls from her dissent:
I have no doubt that this special order, upending years of precedent, violating due process, resulting in the discarding of thousands of legitimate votes, and issued with unseemly haste as though quickly ripping the bandage off the deep wound to our democracy will hurt less, marks one of the lowest points of illegitimacy in this I look forward to the day when our Court will return to the rule of law and act to resolve the critical issues implicated in matters such as this with clarity, transparency, and even treatment for all voters and candidates.
Earls was in town on Saturday for a couple of private events and, when asked, quoted from her dissent, as I will here:
It is no small thing to overturn the results of an election in a democracy by throwing out ballots that were legally cast consistent with all election laws in effect on the day of the election. Some would call it stealing the election, others might call it a bloodless coup, but by whatever name, no amount of smoke and mirrors makes it legitimate.
Griffin’s challenges focused on four of the bluest counties in North Carolina (including mine). It is not clear just which counties will be included in the 30-day period. But essentially, the court majority’s order threw the equal treatment principle out the window, Earls insists:
[T]he vote of an overseas or military voter who is registered in Wake County and who voted pursuant to the laws applicable at the time is counted. However, the vote of an overseas or military voter who is registered in Guilford County is presumed to be fraudulent and will not count unless that voter provides proof of their identity within thirty business days. Explaining how that is fair, just, or consistent with fundamental legal principles is impossible, so the majority does not try.
It is yet uncertain how the process will pan out. Riggs’s federal appeal will likely mean a stay on implementing the 30-day period for overseas and military voters to provide photo IDs to back up their ballots. These include foreign exchange students, businesspeople, missionaries, etc. The court let stand the Appeals Court ruling that overseas and military voters who did not include photo IDs with their ballots will not be counted unless they jump through additional hoops.
Two separate sections of NC election law handle absentee ballots. Article 20 covers domestic absentee ballot procedures. Article 21A covers military and overseas voters. The former requires absentee ballots to include a photo ID. The latter does not. Griffin’s argument is that since there is a constitutional amendment requiring voters “offering to vote in person” to present a photo ID, that this applies to military and overseas voters voting absentee. Some of our judges can read black-letter law but choose not to follow it.
For those hard of reading, Earls includes a chart in her dissent:
As for voters born overseas, now 18 or older, who never lived in N.C., the court majority let stand the Appeal ruling that these ballots will not count because of state constitution language requiring residency in the state. Never mind that state statute defines these voters a residents of their parent’s last state of residence, as does federal law. Earls explains at length the legal concept of “domicile” and how her colleagues erred gravely in dismissing their votes. These are American citizens being disenfranchised. Where else are they entitled to vote?
On we go to the federal level. As for how, if Griffin prevails, ballots already counted get removed from the count, that is a process I may include as an update later. It may erase Riggs’s 734 vote margin, as the GOP clearly hopes. Or it may not.
But wherever you live in this teetering republic, be forewarned. Republicans mean to make courts they control the final arbiters of who wins elections. And not you. Equal treatment under law is for losers.
UPDATE:
A reader from out of state asked if the disputed ballots are included in the totals so far. (Yes.) So how can these challenged secret ballots be removed from the tallies in this state Supreme Court race? (All other races have been certified.) This is my best effort to explain. If I get anything significantly wrong, someone is sure to correct me. Buckle up.
The 65k+/- challenged ballots are absentee-by-mail ballots or early vote ballots (a.k.a., “one-stop absentee” ballots from our 2-1/2 week early voting period). Because NC has same-day registration/voting during the early voting period, it is possible that not every same-day registration will pass muster before the official canvass 10 days after the election. In that case, that ballot must be retrievable to be voided.
Counties using scannable (fill in the bubble) paper ballots affix a bar code to each ballot issued during early voting. That bar code links to that particular ballot that gets scanned and retained. Should the ballot need to be retrieved, it can be via the batch scanners and (in this case) the votes for Riggs or Griffin can be subtracted from the local count for that race. For counties using electronic ExpressVote machines, the ExpressVote (paper) ballot strip gets issued to the voter with a bar code printed at the top that works the same way. Once the voter records her votes, that ballot strip gets scanned by the local scanner/tabulator, and the machine retains the paper record for recounts.
Election Day ballots are not retrievable. Only certified registrants vote on Election Day. If any of those voters’ records are deficient by Judge Griffin’s reckoning, he’s SOL for retrieving and voiding them.
Absentee-by-mail users get issued the old-style paper ballot. Once opened and evaluated by the local Board for compliance with election rules, approved paper ballots also get scanned and retained. Any military and overseas ballots rejected under this court challenge (over lacking a photo ID), as well as the small group of overseas voters rejected as so-called “never-residents” can have their ballots retrieved, and their votes in this race subtracted the same way.
(h/t ME)
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