In a pivotal hearing in the North Carolina Supreme Court elections case, the lawyer representing the state Board of Elections faced a barrage of questions from a federal court of appeals judge about the appropriateness of calling back to federal court a case that the state Supreme Court had acted on.
The state Board of Elections and Justice Allison Riggs are appealing a federal district court judge’s decision to send back to state court an elections case in which Republican Appeals Court Judge Jefferson Griffin wants to invalidate more than 60,000 votes.
Griffin had asked the state Supreme Court to order the elections board to erase those votes, believing that doing so would allow him to erase Riggs’ 734 vote lead.
Last week, the state Supreme Court dismissed Griffin’s request that it order the elections board to throw out ballots and told the Wake County Superior Court to start a trial. It also kept in place a block on certification of a winner in the race.
The case has taken several turns in the weeks since the state Board of Elections dismissed his protests. The panel of three judges on the Fourth Circuit Court of Appeals is considering whether the case should be heard in federal court or stay in state court. Riggs and the state Board of Elections want the case in federal court, while Griffin wants state courts to consider the claims.
Where the case is heard could determine the winner of the election. The state Supreme Court race is the last statewide race in the nation that does not have a declared winner. The high court currently features a 5-2 Republican majority, including Riggs, who has recused herself from the case.
The courtroom in Richmond was packed Monday afternoon with North Carolina voters. Some spectators were directed to an overflow room.
“I can’t believe that so many people would be interested in this case that was so procedural,” said Judge Paul V. Niemeyer, who was appointed by President George H.W. Bush.
Niemeyer appeared to be the most skeptical of the request to reverse the federal district court judge’s order sending Griffin’s case to state court.
“If we are able to issue an order saying ‘ give us the case,’ we get a case that has been dismissed,” he said.
“Every single case I’ve read, every single case, where there’s a remand, the assumption was that the state court had it, and how do we get it back. If the state court legitimately has it, we have to respect its orders.”…