With Chief District Judge Richard Myers’ latest ruling, the North Carolina Supreme Court race may finally reach a conclusion. Myers’ ruling rejected the state Court of Appeals ruling as modified by the state Supreme Court, ordering that the race be certified after a one-week stay to allow for any appeals.
While Jefferson Griffin has the right to appeal the decision, the federal Court of Appeals would likely reject it. Myers’ ruling appears narrowly tailored, focusing solely on the state courts’ rulings rather than the interpretation of the ruling by the state board of elections. The rejection is based on due process and equal protection violations within the state courts’ ruling.
The ruling concluded that these rights were violated in three separate instances:
- “Retroactive invalidation of absentee ballots cast by overseas military and civilian voters violates those voters’ substantive due process rights.”
- “The cure 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.”
While incumbent state Supreme Court Justice Riggs and other intervenors presented other arguments, including alleged violations of the National Voter Registration Act, Voting Rights Act, Civil Rights Act, and Uniformed and Overseas Citizens Absentee Voting ACT (UOCAVA), Myers rejected these ideas.
The ruling does not reject the findings of state law by the North Carolina courts, but rather discusses their retrospective application to the 2024 election:
In light of the foregoing, this court wishes (again) to make clear that its order does not implicate North Carolina’s authority to interpret state law or implement state election procedures prospectively. Likewise, this order does not question the North Carolina Court of Appeals and Supreme Court’s interpretation of North Carolina election law, and is in no way “a backhanded critique of the merits of’ those decisions. Bennett, 140 F.3d at 1225.
The violations of state law and the state constitution found in the decision of the state Court of Appeals have not been affected, and changes must be made going forward to comply with the ruling. However, Myers rightfully concludes that retroactive and selective changes to state law violate these voters’ due process and equal protection rights.
By engaging in post facto rule changes for Voter ID requirements for UOCAVA voters, Myers concluded that these voters’ substantive due process rights had been violated. This is a very sound ruling and addresses the concerns of actors trying “to change the rules of the game after it had been played”:
… retroactive changes to election procedures raise serious due process concerns, particularly where those changes result in invalidating the votes of individuals who cast ballots in reliance on previously established rules.
As for equal protection, Myers appears to take a good middle-ground approach. The ruling does not require that election protests be applied statewide or not at all, but it illustrates that there are different categories for such issues:
The court’s conclusion here is solely that, when the underlying basis for a protest is a rule that applies statewide, a geographically selective protest raises equal protection concerns and the specter of post-election mischief. But those concerns only come to fruition and manifest as an equal protection violation when a state adopts the litigant’s selectivity and retroactively applies newly announced rules to a discrete subset of citizens, and not all similarly situated voters.
In effect, Myers’ decision does not block the challenging of individual voters for irregularities, but challenges to larger issues, such as the application of rules, must be applied equally.
While substantive due process violations were present in the UOCAVA ID part of the ruling, no such issues were found with the state’s ruling of “Never Residents.” Though that is the case, the lack of a cure process violated their procedural due process.
This part of the ruling appears to be a response to recent reports that at least 30 of the voters challenged as “never residents” appear to have a viable residency claim. While these findings came out after the state courts’ ruling, the lack of a cure process in the Court of Appeals order violated their due process rights.
Myers’ ruling appears to echo concerns brought by Justice Richard Dietz in the State Supreme Court decision on the case. The ruling will likely dull the dangerous precedent set by state courts, which would have encouraged potential challengers to wait until they know the results of an election before making challenges.
Overall, this narrowly tailored ruling correctly addresses the issues present with the Griffin case without interjecting the federal courts into how states choose to conduct their elections. While Griffin has every right to appeal the case, I do not believe he should. It’s time to call the game, shake hands, and go home.
