The recent 2-1 decision of the North Carolina Court of Appeals calls into question the legitimacy of over 61,000 ballots cast in the Griffin-Riggs battle over a critical seat on the North Carolina Supreme Court.  The court’s decision appears to violate the well-established federal due process principles that govern the resolution of state (and federal) election disputes, as reflected in the Roe v. Alabama line of cases, Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995), as well as other federal courts of appeals decisions.  In the aftermath of Bush v. Gore, I wrote about these due process constraints in state election-dispute litigation that apply to the way state courts interpret and apply state election laws.  See Judging “New Law” in Election Disputes, 29 Fla. State U. L. Rev. 691 (2001).  

I’ll first describe the federal cases reflecting this due process doctrine, then suggest how that doctrine applies to the NC litigation.  As former federal judge and noted academic Richard Posner has written: “Nothing is more infuriating than changing the election rules after the outcome of the election, conducted under the existing rules, is known.”  That understandable feeling is reflected in this line of due process election jurisprudence.

The Roe v. Alabama litigation also involved election to a state supreme court (for the chief justice position).  After the initial tally, the margin of victory appeared to be about 200-300 votes.  Litigation then ensued over 1,000 to 2,000 absentee ballots, which one side alleged were  illegal under state law because they were improperly notarized or witnessed.  As is often the case (and is the case in NC) parallel litigation then began in both the Alabama courts and the federal courts.  Eventually, the Eleventh Circuit certified to the Alabama Supreme Court the question whether these were legal votes, and the Alabama court held that they were.  But that was far from the end of the matter.

The federal district court then found that, before this dispute, Alabama had consistently treated as illegal absentee ballots with these defects.  Thus, despite the state supreme court ruling that these were legal votes under state law, the district court concluded the state court interpretation had significantly changed Alabama election law in the guise of interpreting it.  In affirming the district court, the Eleventh Circuit held that this significant change in state election law violated Fourteenth Amendment principles of “fundamental fairness.” The Eleventh Circuit emphasized that (1) counting ballots that state law had previously excluded would dilute the votes of legal voters and (2) the change in the rules after the election would have the effect of disenfranchising those who would have voted but for the inconvenience imposed by the notarization/witness requirement.  The federal courts thus ordered the certification of the candidate who won without these absentee votes being included in the count.

The First Circuit reached a similar decision in Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).  That involved a city-council primary race in Rhode Island, where the Secretary of State had concluded that absentee ballots could be used, as they were by statute for general elections.  State officials publicized the availability of these ballots.  Absentee ballots turned out to provide the margin of the victory, and the Rhode Island Supreme Court concluded that state law did not permit absentee balloting in primaries.  But the federal courts ruled that excluding absentee ballots in these circumstances violated due process.  The First Circuit held that where ”broad-gauged unfairness permeates an election, even if derived from apparently neutral action” an election process can reach a “point of patent and fundamental unfairness” triggering a due process violation.  “[D]ue process is implicated where the entire election process — including as part thereof the state’s administrative and judicial corrective process — fails on its face to afford fundamental fairness.”

The reliance interests of voters played a central role in Griffin.  The First Circuit did not hold that the state supreme court had misconstrued state law.  But the First Circuit found that the decision was inconsistent with the state’s longstanding prior practice and with the advice state administrative officials provided before the election.  The federal courts also found that voters casting absentee ballots had reasonably relied on past practice and the advice of these election administrative officials, and that many of these voters would have gone to the polls had they known that absentee ballots would not be valid.  Thus, excluding these absentee ballots violated due process.

In North Carolina, after the canvass Riggs is ahead by 734 votes out of 5,540,090 votes cast.  The state supreme court has stayed certification of the result until the courts resolve protest actions that Griffin has brought.  These protest actions challenge three categories of ballots for different reasons. 

The biggest category is voters with incomplete voter registration forms who voted in reliance on their county board’s notice that they were properly registered and on past practice (60,273 voters).  Second, military and overseas voters who did not provide a photo identification with their ballots (1,409 voters).  Third, children of military and overseas families whose NC registration is being challenged (267 voters).  I’ll focus on the first category.

In NC, the state Election Board is tasked by statute to develop a voter-registration form.  And in 2004, NC law was amended to require a voter seeking to register to provide a current, valid driver’s license number or the last four digits of their social security number; if they have neither, the Board is to assign them a unique identifier number. But the Board never amended the voter registration form until 2023.  The Board then amended its form to require only new voter registration applicants to include this information.

Griffin’s protest is thus to voters who registered using the Board form that existed before 2023 and fully complied with that form’s requirements.  The Board is required to notify voters who failed to provide the driver’s license or social security information, but the Board did not do that for these voters.  Indeed, all of these voters received notice in the mail from the Board at some point that they were properly registered to vote.  When they showed up to vote, they were on the registration rolls and no issue was raised.  In fact, many of these voters had voted for years without this information in their voter-registration record. 

So the Board made the mistake of not updating its voter registration form from 2004-2023 and voters had no way of knowing there was any issue about their registration.  Yet in casting doubt on over 60,000 votes that were cast, the majority’s substantive analysis of this issue is about one page long (pp.24-25).

Under Roe and Griffin, to exclude these points would almost certainly seem to violate due process.  The reliance interest of these voters is even stronger, in my judgment, than those at issue in Roe and Griffin.  As I noted above, many had been voting for years; the Board had notified them at some point that they were properly registered; no one had ever questioned their registration; and they accurately completed the form the Board required from 2004-2023.

None of the judges on the NC Court of Appeal appear to be aware of the federal due process election-law cases.  The dissenting opinion is very strong, in my view, and does highlight the way the majority opinion dramatically undermines the reliance interest of voters.  But he frames these interests in terms of the Purcell doctrine.  Purcell, though, applies to late in the day pre-election changes and is a rule of federal judicial practice, not one of constitutional law.  The real problem in the NC litigation over these so-called incomplete registrations is that to throw out the vote of these 60,000+ voters, under these circumstances, would be to violate the due process principles that apply to all elections.