Challenged NC ballots: After intense questioning in court, federal judges to choose who will decide fate of 60,000 votes

Lawyers for North Carolina's two candidates in a still-undecided election for state Supreme Court on Monday sparred with a trio of federal judges, who peppered them with intense questioning over the issue of which court should have the final say in a lawsuit that could decide the fate of the election.

Democratic Supreme Court Justice Allison Riggs had 734 more votes than Republican challenger Jefferson Griffin in the 2024 election, a result confirmed by multiple recounts. But Griffin tried to reverse that result by challenging the eligibility of more than 60,000 people who voted, using a series of largely untested legal theories to argue that they should never have been allowed to vote at all — and that their ballots should now be thrown out and the results counted again.

Subsequent lawsuits are now moving forward simultaneously in state and federal court, a rare occurrence. The oral arguments in the U.S. Court of Appeals for the Fourth Circuit on Monday were not focused on the merits of the case or whether the ballots should or shouldn't be thrown out. Rather, the judges must decide who should make that decision over the fate of the ballots: federal courts or state courts.

The bipartisan panel of federal judges in Richmond appeared skeptical of arguments made Monday by both sides in the case.

They repeatedly referenced how complicated the issues were and, at the conclusion of the oral arguments, the most senior judge jokingly asked if anyone from the audience wanted to weigh in with answers beyond what they had just heard in the previous 90 minutes of highly technical arguments over judicial philosophy and legal minutiae.

"Speak now or forever hold your peace," Judge Paul Niemeyer, who led much of the day's back-and-forth, told the gallery. He also opened the hearings by remarking on the strange circumstances of the day, in which dozens of Democratic activists made multi-hour drives from North Carolina to the federal courthouse in Richmond for the case. They protested outside and packed the inside of the court to the extent that court officials had to open a second courtroom for overflow seating.

"I cannot believe so many people would be interested in this case," Neimeyer said.

How the judges rule on the jurisdiction question could determine who ultimately wins the election.

Griffin and fellow Republicans want the case to be heard in state court, where Republicans control sizable majorities on the state Court of Appeals and the state Supreme Court. Riggs and her fellow Democrats, as well as the Democratic-majority State Board of Elections, want the case to be heard in federal court, where arguments similar to Griffin's have already been rejected.

Contested ballots

It's not known how the 60,000-plus voters in question actually voted. But they're disproportionately from demographics that lean Democratic, and Griffin has written in court filings that he thinks he will end up the winner if the ballots are tossed.

His arguments were rejected by the State Board of Elections in December, with board chairman Alan Hirsch saying Griffin's effort to throw out so many people’s votes “is anathema to the democratic system and simply cannot be tolerated.”

A spokesman for the North Carolina Republican Party, which is backing Griffin's challenge, previously said they're not accusing the voters themselves of committing fraud but still believe their votes shouldn't be counted, due to technical errors in a state database of voters. Last week a group of international politics experts also weighed in with a brief in federal court, comparing Griffin's legal strategy to a "backsliding" from democracy that they've studied in foreign nations descending into authoritarian rule, such as Hungary and Venezuela.

Griffin has declined to comment on the case, saying judges shouldn't rule on pending litigation.

“I was grateful for the opportunity to be heard in the Fourth Circuit Court of Appeals this afternoon," Riggs said in a statement late Monday. "Today reinforced the need for a swift resolution for the more than 65,000 voters who Judge Griffin seeks to disenfranchise.”

The legal theory behind nearly all of the challenges Griffin filed — a claim that state officials can't be 100% sure these voters are who they say they are, despite the state's voter ID rules — was rejected in federal court during the 2024 elections, with the same federal appeals court ruling that the voters in question should be allowed to vote.

Griffin had tried to avoid a similar rejection by seeking to keep the case in state court where fellow Republicans control the Court of Appeals and the Supreme Court. But the state elections board, as well as Riggs and other opponents of Griffin's strategy, succeeded in getting the federal appeals court to hear the case before state courts take it up.

Legal complications

Complicating the efforts by Riggs and the state elections board to keep the case out of state court are two main issuses.

One is that Griffin filed his state-level challenge in two separate actions: A request to the state Supreme Court to allow him to skip a trial court hearing and have the issue decided directly by the high court, and another case at the trial court level. The request for the Supreme Court to fast-track the case is what Monday's federal oral argument was over. But last week the state Supreme Court dismissed Griffin's request, telling him he had to go through the normal trial process.

Griffin's lawyers argued Monday that because of that, the case that's technically in front of the federal appeals court no longer exists, so there's nothing to move to federal courts. Lawyers for the elections board said that's not true. The state Supreme Court issued an order that did dismiss Griffin's fast-tracking request, but that also ordered the elections board not to certify a winner in the race. They argued, as did Riggs' attorneys, that the order stopping the elections board from certifying Riggs as the winner can still be moved to federal court, where they hope it will be overturned and Griffin's arguments dismissed.

But the judges were also concerned by the fact that the state Supreme Court had ruled so quickly to dismiss Griffin's case. Moving the case back to federal court now, they said, would essentially undo an act of the state Supreme Court — something the federal appellate judges weren't sure they have the authority to do. Much of Monday's arguments centered around the fact that such situations have happened extremely rarely in U.S. history, and none seemed to have had circumstances that perfectly match what this case presents.

Griffin's attorneys said the judges were correct to worry they lacked the authority to act. But attorneys for Riggs and the elections board said the state Supreme Court should never have had the case at all, so it shouldn't be a hard question to take the case back from them now.

One of the judges, Toby Heytens, seemed amenable to that argument. But Niemeyer appeared to indicate that at this point they can't necessarily force state courts to let the federal courts take it back, even if they wanted to. He referenced a case recently out of Texas, where a different federal appellate court wanted to take back a case that had been sent to trial in New Jersey state court, but the New Jersey judge refused to cooperate and let the federal courts have it, and the federal appeals court decided they had to just let it go, he said.