Key point in recent NC Supreme Court dissent gets lost in partisan spin

More than two months after the Nov. 5 election, the ongoing legal battle over a seat on North Carolina’s Supreme Court continues to generate headlines.

Most recent commentary has focused on whether Republican candidate Jefferson Griffin should give up his fight against appointed incumbent Democrat Allison Riggs. Riggs leads Griffin by 734 votes out of 5.5 million ballots cast statewide. Recounts have confirmed Riggs’ lead.

Yet Griffin continues to challenge more than 60,000 votes cast in the election last fall. He seeks an order called a writ of prohibition that would block the State Board of Elections from counting those ballots.

It’s easy to dismiss complaints about Griffin’s conduct from Democratic politicians and their ideological allies. They stand to benefit from Griffin giving up. Many of these critics would endorse Riggs fighting until the end if the November vote totals were reversed.

It’s much more difficult to ignore criticism from those who usually agree with Griffin in ideological debates. That’s why Republican state Supreme Court Justice Richard Dietz’s critique of Griffin’s election challenge has attracted extra attention. Dietz was the only Republican justice who voted against a Jan. 7 order blocking certification of the Riggs/Griffin contest.

It’s unfortunate that most coverage of Dietz’s dissent has downplayed or ignored critical pieces of his argument.

Those who have cited Dietz have focused primarily on a single paragraph within his six-page opinion. “Permitting post-election litigation that seeks to rewrite our state’s election rules — and, as a result, remove the right to vote in an election from people who already lawfully voted under the existing rules — invites incredible mischief,” Dietz wrote. “It will lead to doubts about the finality of vote counts following an election, encourage novel legal challenges that greatly delay certification of the results, and fuel an already troubling decline in public faith in our elections.”

Dietz alluded to a North Carolina version of federal courts’ Purcell principle. “The Purcell principle recognizes that, as elections draw near, judicial intervention becomes inappropriate because it can damage the integrity of the election process,” he wrote. Griffin’s ballot challenges “strike at the very heart of our state’s Purcell principle.”

“In sum, I would hold that the relief sought in the petition for a writ of prohibition comes too late,” Dietz explained.

Those words carry greater weight because of their author’s political affiliation. The Republican Dietz has nothing to gain from a partisan perspective by rejecting Griffin’s complaint.

Yet pundits who have showcased Dietz’s criticism have been much less likely to highlight another key aspect of his dissent. He appears to agree with Griffin that many challenged ballots should not have counted in the Nov. 5 election.

Most targeted ballots involve people who registered to vote without providing a driver’s license number or last four digits of a Social Security number. “[T]his portion of the argument is almost certainly meritless,” Dietz wrote.

That’s not the end of the story. The “crux” of Griffin’s complaint involves “two state law arguments that appear to me quite likely to be meritorious,” Dietz explained.

First, the state elections board counted votes from people living in foreign countries who “have never stepped foot in North Carolina” and “have no intent to ever reside in our state.” “This decision by the Board appears to me to be quite plainly unconstitutional. Only residents of North Carolina can vote in our state elections,” Dietz wrote.

Second, the elections board decided voters in foreign countries “do not need to comply with our State’s voter ID law, although all voters living in North Carolina must do so,” Dietz added.

Labeling the elections board’s view of voter ID “bizarre,” Dietz said its decision “is obviously inconsistent with the law’s intent.”

“One does not need a law degree to understand that people claiming to be registered North Carolina voters while mailing in absentee ballots from a foreign country are among the key groups of people that the General Assembly (and we the people in our state constitution) intended to be subject to our voter ID law,” he wrote.

These “potential legal errors … could have been — and should have been — addressed in litigation long before people went to the polls in November,” Dietz’s dissent argued.

While Dietz signaled he would not support a ruling that would help Griffin win the election, he clearly believes elections officials counted thousands of votes last fall that never should have been allowed. Griffin deserves partial credit, in Dietz’s view. The case exposes a legitimate legal controversy.

Those who quote Dietz’s dissent do readers a disservice if they omit that critical piece of his argument.

Mitch Kokai is senior political analyst for the John Locke Foundation.