Federal judge tells state board to certify Riggs' victory in disputed NC Supreme Court race

North Carolina Supreme Court Justice Allison Riggs would retain her seat on the state’s highest court under a new federal court order that said efforts to invalidate thousands of overseas voters' ballots are unconstitutional.

U.S. District Judge Richard Myers II on Monday ordered the North Carolina State Board of Elections to certify the Democrat’s narrow victory in the November election. But he paused the ruling for seven days to give Republican challenger Jefferson Griffin time to appeal.

Myers agreed with Riggs and others who have long argued it would be a violation of the U.S. Constitution to carry out recent decisions by state appeals courts that directed the removal of potentially thousands of voter ballots deemed ineligible. He wrote that ballots couldn't be thrown out six months after Election Day without damaging due process and equal protection rights of the affected voters.

“This case concerns whether the federal Constitution permits a state to alter the rules of an election after the fact and apply those changes retroactively only to a select group of voters, and in so doing treat those voters differently than other similarly situated individuals,” Myers wrote. “This case is also about whether a state may redefine its class of eligible voters but offer no process to those who may have been misclassified as ineligible."

He concluded: “To this court, the answer to each of those questions is ‘no.’”

Griffin's legal team was reviewing Myers' order Monday night and evalulating 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, 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.

Constitutional violations

About 5.5 million ballots were cast in the race. Riggs received 734 more votes than Griffin, multiple recounts have shown. But Griffin has sought to reverse the outcome by having more than 60,000 ballots thrown out. He alleged that the board of elections shouldn't have let the voters cast ballots largely due to voter registration inconsistencies or noncompliance with voter ID laws. The state board of elections rejected his challenges, so Griffin appealed in court.

In a 4-2 decision last month the state Supreme Court ruled against the majority of Griffin’s challenges, which targeted tens of thousands of people whose identifying information was missing from a state spreadsheet of registered voters, largely due to typos made by government workers filling out the forms.

But the state Supreme Court ruled in Griffin’s favor by retroactively making certain overseas voters ineligible to vote and throwing out their ballots with no ability for them to challenge the decision — a decision that would affect a few hundred people, and which Myers said violates their rights to due process.

“You establish the rules before the game. You don’t change them after the game is done,” Myers wrote in a 68-page order.

The state Supreme Court also said Griffin was right to claim that other overseas voters should’ve shown photo identification, even though it wasn’t required at the time. The justices gave those voters 30 days to provide acceptable ID or valid exemption forms, or else have their ballots thrown out.

But on Monday, Myers said the Supreme Court simply got the basic facts wrong on that part of its ruling, in addition to violating voters' rights. The voter ID law, Myers wrote, "has never been applied to overseas military and civilian voters" — and that the voters couldn't have submitted proof of ID even if they wanted to, since the overseas voting tools included no way for them to do so.

“Retroactive invalidation of absentee ballots cast by overseas military and civilian voters violates those voters' substantive due process rights,” Myers wrote.

He also said the 30-day remedy process violates the equal protection rights of overseas military and civilian voters. “The lack of any notice or opportunity for eligible voters to contest their mistaken designation as Never-Residents violates procedural due process and represents an unconstitutional burden on the right to vote,” wrote Myers, who was appointed to the court by Republican President Donald Trump during his first term.

His ruling is notable for breaking with the trend long observed in this case, of the judicial rulings breaking down almost entirely along partisan lines. Griffin's victory at the state Court of Appeals was purely along party lines, and his 4-2 win at the state Supreme Court saw four of the court's five Republicans siding with Griffin.

Myers, however, previously issued a ruling in a separate-but-related case during the 2024 elections — in which the North Carolina Republican Party had sought to block about 225,000 people from being allowed to vote due to the missing information in a state database that Griffin also based his lawsuit on. Myers bucked the party line in that 2024 case, writing that if he ruled in favor of the NCGOP's arguments, it "would significantly alter the allocation of power ... away from a democratic form of government."

In Monday's ruling, Myers said that the retroactive changes to the voting laws suggested by the state Supreme Court would arbitrarily disenfranchise only the voters who were targeted by Griffin. Griffin challenged overseas voters in only a handful of Democratic-leaning counties, rather than all across the state.

“Permitting parties to ‘upend the set rules’ of an election after the election has taken place can only produce ‘confusion and turmoil'" that "'threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves,'" he added while citing other cases.

Myers ordered the state elections board to ignore the orders of the North Carolina Court of Appeals and the state Supreme Court and certify the results of the election based on the tally at the completion of the canvassing period on Dec. 10.

“Today, we won," Riggs said in a statement. "I‘m proud to continue upholding the Constitution and the rule of law as North Carolina’s Supreme Court Justice."

Riggs has recused herself from the case. Griffin, a judge on the state Court of Appeals, has also recused himself. Republicans would retain a 5-2 edge on the state Supreme Court if Riggs were to retain her seat.

WRAL State Government Reporter Will Doran and the Associated Press contributed to this report.