No altering “the rules of an election after
the fact“
Good news from the laboratory of autocracy known as the Tar Heel State. A federal judge (and Trump appointee) has declared yet another GOP-led effort to disenfranchize voters unconstitutional (Democracy Docket):
In a victory for voters, a federal court has halted Republican Judge Jefferson Griffin’s efforts to overturn an election and disenfranchise thousands of voters. A federal judge has ordered the state to certify Democratic Justice Allison Riggs’ victory.
The decision comes exactly six months after Election Day and was handed down by a judge appointed by President Donald Trump.
“Today, we won,” Justice Riggs said in a statement following the ruling. “I’m proud to continue upholding the Constitution and the rule of law as North Carolina’s Supreme Court Justice.”
Riggs defeated Griffin by 734 votes, a figure that stands up after two recounts.
Griffin tried to disqualify ballots from overseas military voters and U.S. citizens born abroad who voted under long-standing state law. The North Carolina Supreme Court and North Carolina Court of Appeals initially ruled that those voters must cure their ballots by providing photo ID after the fact, or their votes would not count. The federal court has now ruled that changing the rules after the election was unconstitutional.
Judge Richard E. Myers II, a Trump appointee, ruled that the process violated equal protection because it treated some voters differently than others in the same situation.
“The cure process offends equal protection principles because it treats overseas military and civilian voters casting ballots in certain counties differently than others who are identically situated,” the court ruled, finding the process to be “inconsistent with the Equal Protection Clause of the Fourteenth Amendment” and therefore could not proceed.
The court has ordered North Carolina to finalize the results based on the original vote count, securing Justice Riggs’ seat on the State Supreme Court.The Griffin campaign has told a reporter it is “reviewing the order and evaluating next steps.”
“Permitting parties to ”upend the set rules” of an election after the election has taken place can only produce “confusion and turmoil [which] threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves,” the judge ruled.
How long before we hear GOP calls for the impeachment of Judge Meyers?
The ruling is on hold for seven days to give Griffin time to file an appeal (more time than the Trump administration gives its abductees).
Rick Hasen (Election Law Blog) quotes the court’s key finding:
The court concludes that the retroactive invalidation of absentee ballots cast by overseas military and civilian voters violates their substantive due process rights, and that the cure process violates their equal protection rights. The court further concludes that the lack of any cure process for individuals erroneously designated as Never Residents violates their procedural due process rights and represents an unconstitutional burden on the right to vote. Based on those conclusions, the State Board may not implement the stated cure process or “remove” the votes of all Never Residents “from the final count of the 2024 election for Supreme Court Seat 6.”
But this isn’t over yet. A couple of wrinkles (WRAL):
Griffin’s legal team was reviewing Myers’ order Monday night and evalulating [sic] the next steps, according to Paul Shumaker, a spokesman for the Griffin campaign.
A spokesman for the state elections board declined to comment. The board has strenuously opposed Griffin’s efforts to throw out the votes, accusing him of undermining basic democratic principals [sic], but it’s now undergoing its own political upheaval. For most of Griffin’s challenge the five-member board had a 3-2 Democratic majority. But a separate court ruling last week handed control of the board over to Republicans, following a new law passed by Republican lawmakers last year.
It’s still unclear what posture the new GOP majority on the elections board will take toward this case, particularly if Griffin appeals and the case continues on in court. But its new leaders have scheduled a meeting Wednesday to discuss and possibly vote on legal matters, among other topics.
One of the new Republican Board members is former state Senator Bob Rucho. You’ll remember him (NC Newsline):
Rucho is a Matthews dentist and former state senator who, among other things, oversaw partisan gerrymandering as the chair of the Senate Elections Committee and helped shepherd the infamous 2013 “Monster Voting Law” through the Senate – a law whose voter ID provision, according to a federal court, sought to suppress the participation by Black voters with “surgical precision.”
Rucho’s new Board colleague is Francis X. Deluca, not as well known outside North Carolina:
Meanwhile, DeLuca is a one-time congressional candidate and former boss of the right-wing Pope-Civitas Institute – a group that long and passionately championed dozens of extreme (and sometimes downright strange) causes, including most relevantly, making it much harder for North Carolinians to vote.
Jane Mayer profiled Art Pope in a 2011 expose for The New Yorker entitled “State For Sale.”
Hasen adds:
I expect any appeal would be rejected. Although part of the due process portion of the court’s analysis rests on Bush v. Gore, and not every court would agree on reading Bush v. Gore in this way, the due process arguments are nonetheless extremely strong even without relying on that case. And the equal protection arguments are even stronger.
Griffin’s appeal would be to the 4th Circuit, a majority Democrat-appointed court friendly to voting rights cases, attorney Marc Elias notes, the same court that struck down Rucho’s voter ID law. Griffin can appeal of an adverse ruling to the U.S. Supreme Court, Elias says, but it’s not the kind of case he believes SCOTUS would agree to hear.
But I believe Griffin will have no choice but to appeal so long as his party stands by him, as I noted in April:
Griffin is fighting for his party’s goal at the risk to his political life. Likely at the instigation of shadowy Republican strategists, he’s spent months trying to overturn his election loss by throwing out tens of thousands of constituents’ votes from all parties. The effort has raised his statewide name recognition, and not in a good way. If he loses here, Griffin would need voters he’s pissed off to vote for him when he’s up for reelection to the North Carolina Court of Appeals in 2028. Meaning, if he loses this case he’s toast.
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