Newby laments over-the-top reactions to NC Supreme Court dispute

The ongoing legal battle over a seat on North Carolina’s Supreme Court has generated plenty of heated rhetoric. Critics have labeled Republican candidate Jefferson Griffin’s election challenges “anti-democratic.” They’ve accused him of trying to disenfranchise tens of thousands of voters.

The high court’s leader isn’t buying the spin. State Supreme Court Chief Justice Paul Newby, a fellow Republican, recently considered Griffin’s case in the context of North Carolina’s legal and electoral history.

Griffin, a state Appeals Court judge, trails appointed incumbent Democrat Allison Riggs by 734 votes out of 5.5 million ballots cast in the Nov. 5 election. Yet Griffin believes 65,000 votes should not count based on state law or the North Carolina Constitution. He petitioned the high court to block the State Board of Elections from certifying the race.

“[T]his case is not about deciding the outcome of an election. It is about preserving the public’s trust and confidence in our elections through the rule of law,” Newby wrote on Jan. 22, when the Supreme Court sent Griffin’s case to a trial judge.

Election night returns showed Griffin leading “by almost 10,000 votes,” a lead that disappeared as county election officials counted provisional ballots and others not available for reporting on Nov. 5.

“That is a highly unusual course of events,” Newby wrote. “It is understandable that petitioner and many North Carolina voters are questioning how this could happen. Petitioner has a legal right to inquire into this outcome through the statutorily enacted procedures available to him.”

State law permits election protests. “There is nothing anti-democratic about filing an election protest,” Newby explained. “The process was designed by the people’s representatives in the General Assembly as the lawful way to inquire into elections and is transparently set out in the General Statutes.”

“Accordingly, election protests are not unusual; they are established by law and intended to promote ‘the public’s trust and confidence in our system of self-government,’” the chief justice added.

The “statutory scheme” calls for election certification to be blocked, or stayed, “until all protests are fully resolved,” Newby wrote. “While designed to proceed expeditiously, … the election protest process can take months.”

Newby reminded readers that two hotly contested statewide elections in 2004 remained unresolved for months. A Guilford County commissioner’s race that year finally concluded 18 months after the election.

“After all, it is more important to ensure the result is accurate than to hurriedly finalize the process as quickly as possible,” Newby wrote. “This is particularly true here where both candidates continue in their current judicial positions during the pendency of petitioner’s protests.”

Riggs and Griffin keep their current jobs as the case moves forward.

“The election protest process preserves the fundamental right to vote in free elections,” Newby wrote. Counting “even one unlawful ballot in a vote total dilutes the lawful votes and ‘effectively “disenfranchises”’ lawful voters.”

“Election protests protect against this risk of vote dilution by enabling candidates and voters to rigorously investigate the election process, identify unlawful ballots, and ensure those ballots are not counted,” he added.

Newby criticized claims that Griffin seeks to “disenfranchise” voters, “overturn” an election, and delay the election’s certification. “It is unfortunate that petitioner has been repeatedly chastised for pursuing his election protests in the manner authorized by law.”

“Such statements mischaracterize the election protest process, hindering its efficacy and breeding distrust in our elections. Blaming citizens for using the legal processes afforded them by law only discourages some from voicing their concerns and wrongfully taints those who do,” Newby warned.

The state elections board “caused” the delay in resolving Griffin’s protests, in Newby’s view, by repeatedly shifting the dispute from state court to federal court.

The board “has sought to elude” a review in Wake County Superior Court, Newby wrote. “If the State Board is concerned about delaying the certification of this election, why does it seek to circumvent the statutory process for reviewing petitioner’s election protests?”

“There appear to be valid concerns that some of the State Board’s actions in this election may violate the law,” Newby added. “It is possible that these actions may affect the outcome of the election.”

As Griffin “seeks to pursue his right to ensure that only lawful votes are counted and that the result of the election is accurate,” he must follow “statutorily provided procedures,” the chief justice concluded.

That’s why Newby agreed with colleagues to send Griffin’s case to a Wake County trial judge. The process should be “carried out expeditiously,” but not at the expense of accuracy.

And, one might add, without over-the-top rhetoric.

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