RALEIGH, N.C. (AP) 鈥 An appeals court agreed Tuesday that a federal trial judge acted properly last month in declining to rule on the eligibility of tens of thousands of voters last fall in an unresolved North Carolina Supreme Court election and returning the matter to state court.
But the panel of the 4th U.S. Circuit Court of Appeals also gave Associate Justice Allison Riggs the ability to come back to federal court to plead her case if appeals in state courts result in challenger Jefferson Griffin overtaking her in their extremely close race 鈥 should ballots be directed removed from tallies. The circuit judges' order essentially provides a lifeline to plead violations of federal elections and voting rights laws.
The decision appears 鈥 at least in the immediate future 鈥 to shutter federal court venues to settle the November election outcome between the Democrat Riggs and the Republican Griffin, who had sought to keep appeals in state court. With over 5.5 million ballots cast in the race and after two recounts, Riggs leads Griffin by 734 votes.
Griffin is challenging whether roughly 66,000 ballots should have been counted. Most of those ballots were cast by voters whose registration records lacked either a driver鈥檚 license number or the last four digits of a Social Security number. Others were cast by thousands of military or overseas voters who did not provide copies of photo identification with their ballots and by hundreds of overseas voters who have never lived in the U.S.
In December, the State Board of Elections rejected the formal protests by Griffin, himself a state appeals judge who seeks to have the votes removed based on restrictions in state law or the North Carolina Constitution.
The state Republican Party, which backs Griffin's challenge, is 鈥減leased the 4th Circuit has agreed that state courts should decide state elections,鈥 party spokesperson Matt Mercer said by text.
Riggs' allies, who include top Democrats, have said Griffin should concede. They accuse Griffin and the state GOP of trying to overturn an election result by disenfranchising citizens without specific evidence that they are actually ineligible to vote.
The election is among the final Nov. 5 races nationwide still not settled.
Riggs is the 鈥渃lear winner鈥 and "North Carolinians deserve to know that their vote counts," but Tuesday's decision 鈥渨ill drag this out even longer, wasting the tax dollars of hardworking families,鈥 new Democratic 好色tv Committee Chair Ken Martin said in a news release.
Since the election board's action, litigation associated with the election has wound its way through .
Lawyers for Griffin to intervene and declare the ballots be left out of the totals. But the elections board moved the matter to federal court, saying Griffin鈥檚 appeals involved matters of federal law. Four weeks ago, U.S. District Judge Richard Myers sent cases back to state court after abstaining from ruling in the matter because, in part, he said the case involved 鈥渦nsettled questions of state law.鈥 The board, Riggs and others appealed to the 4th Circuit, which heard oral arguments last week in Richmond, Virginia.
But Myers had already returned the case to state court, where a majority of state Supreme Court justices while the court decided what to do next. Riggs recused herself from those deliberations.
Two weeks ago, the remaining justices dismissed Griffin鈥檚 original petition to have them remove the ballots and decided Griffin鈥檚 ballot in a local trial court. A hearing is set for Friday in Wake County.
On Tuesday, the panel consisting of U.S. Circuit Judges Paul Niemeyer, Toby Heytens and Marvin Quattlebaum Jr. ruled that some appeals by Riggs and others were moot because of the state Supreme Court's action. And although citing a different legal theory than Myers, their opinion affirmed his decision to abstain because of unsettled state-law issues.
鈥淭he parties advance diametrically opposed interpretations of the North Carolina statutes that are the subject of Griffin鈥檚 challenges,鈥 the opinion read, adding that the resolution of state-law issues 鈥渃ould avoid the need to address the federal constitutional and other federal issues鈥 raised. Any state appeals could return to the state Supreme Court, where five of the six justices hearing the case are registered Republicans.
But the opinion told Myers to modify his recent order to 鈥渆xpressly retain jurisdiction of the federal issues" that the elections board has cited "should those issues remain after the resolution of the state court proceedings, including any appeals.鈥 This would allow Riggs, a legal party in the matters, to seek redress in federal court by asking that any removed ballots be restored to the tallies.
The eight-year term at stake in the election was supposed to begin in early January. Riggs remains on the court in the meantime.
