VOTING RIGHTS
Explaining the North Carolina Election Protests
A handful of candidates in North Carolina have filed election protests challenging results from the 2024 General Election. These protests seek an extraordinary result: the disqualification of tens of thousands of lawful voters’ ballots and the invalidation of North Carolina election results across the state. Yet, the protesters have offered no evidence whatsoever that ineligible voters cast ballots in sufficient quantity to change the outcome of any race. The protests either simply repeat the names of voters whose ballots were already challenged and removed by county election officials during normal post-election-day audit procedures, or revive zombie legal arguments from failed pre-election litigation that certain voters shouldn’t be eligible (rather than actually aren’t eligible). The protesters have expressly stated they have no evidence to offer that the State Board of Elections doesn’t already have – but nonetheless, they seek to overturn outcomes they wish were different. This is not what election protests are for, and not how democracy works. These protests should be forcefully rejected.
Update (Feb 12, 2025) - The N.C. Supreme Court race remains uncertified more than three months after the November election while candidate Judge Jefferson Griffin continues to challenge more than 60,000 votes to try to reverse his loss to incumbent Justice Allison Riggs.
The Wake County Superior Court ruled Friday, Feb. 7 that the North Carolina State Board of Elections was right to dismiss Griffin’s election protests. Griffin has appealed this decision to the state appellate courts, where it is likely to be heard in coming weeks. The appeals may also return to federal courts after the U.S. Court of Appeals for the Fourth Circuit issued a Feb. 4 opinion preserving federal jurisdiction over voters’ federal voting protections in the event those protections are implicated by the state courts’ final decision.
Update (Jan. 27, 2025) – The N.C. Supreme Court race remains uncertified nearly three months after the election while losing candidate Jefferson Griffin challenges 60,000 votes to try to gain an edge over incumbent Allison Riggs.
The North Carolina Supreme Court sent the case to a lower court, Wake County Superior Court, to consider Griffin’s appeal of a N.C. State Board of Elections’ decision dismissing the protests. The N.C. Supreme Court also issued an order blocking certification of the election until the legal appeals conclude. A hearing will be held at 10 a.m. Feb. 7 at the Wake County Courthouse in downtown Raleigh. The docket for the case is here.
Meanwhile, on the federal side, the U.S. Court of Appeals for the Fourth Circuit is holding oral arguments Jan. 27 to decide if the case belongs in federal court rather than state courts given the protections voters have under federal law.
Update (Jan. 13, 2025) – The N.C. Supreme Court issued an order Jan. 7 blocking the N.C. State Board of Elections from certifying the results of the 2024 election in a statewide N.C. Supreme Court Justice race.
Democratic incumbent Justice Allison Riggs holds a narrow 734-vote lead over Republican candidate Judge Jefferson Griffin in a contest where more than 5.5 million ballots were cast. Griffin has asked to disqualify more than 60,000 voters over a technical voter registration issue but without evidence these people are ineligible to vote.
These election protests are highly unusual and have no precedent in North Carolina history. A final resolution is expected sometime after Jan. 24. Possible outcomes could include votes being thrown out, an order for a new election, or a dismissal of Griffin’s challenges.
The nonpartisan pro-democracy group Common Cause NC wants to hear from people whose votes are being challenged by Griffin. You can find out more on their website.
The N.C. State Board of Elections has developed this explainer for affected voters.
Common Cause North Carolina will host a virtual town hall at 6:30 pm. Thursday, January 23 to provide an overview of the case, allow impacted voters to share their stories and offer next steps for advocates. Click here to register.
If you are interested in more information about this issue, please reach out via email to hilaryhklein@scsj.org
Update (Dec. 17, 2024) – The North Carolina State Board of Elections rejected the dangerous attempt to discount the ballots of more than 60,000 registered voters in four closely-decided races. The State Board made its decision at a meeting Wednesday, Dec. 11, 2024, and released it in writing Friday, Dec. 13.
Among the points made in the written order:
- The protests assume facts about voter eligibility that are not true. This attempt to discount people’s votes is based on a flawed understanding of voter registration records. The absence of a driver’s license or Social Security number in the public voter file does not mean the voter’s registration application was incomplete when submitted. State law and procedures explain why qualified voters may appear on the public voter rolls without that information even though they originally provided it or have since updated their voter registration prior to voting. Rather than investigate these possibilities, the protests simply assumed these voters were ineligible, contrary to state law.
- Throwing out ballots was outside federal & state law. There was no legal avenue for the State Board to remove ballots of voters who are qualified to vote, did everything required of them to register to vote, and who then cast a ballot. Numerous federal laws – including the Help America Votes Act (HAVA) and National Voter Registration Act (NVRA) – and hundreds of years of state court precedent protect voters from having their ballots discounted.
- Affected voters weren't notified. The State Board found that Griffin’s campaign and those of the legislative candidates failed to let voters know their ballots were being called into question in a variety of ways, including not letting them know who was challenging their ballot, why they were doing it, and that they were asking to have their ballot rejected and not count. Instead, voters received nothing but a postcard resembling political junk mail and had to sort through a confusing webpage with hundreds of protests listing the names of tens of thousands of voters.
- What's next? The courts are still figuring out the next steps. The N.C. Supreme Court asked the candidates to submit written arguments for their consideration by Jan. 24, 2025 and is expected to make a decision soon after. However, there is also an appeal pending before a higher court –the U.S. Court of Appeals for the Fourth Circuit – about whether the federal courts or state courts should have the final say on deciding the election protests. That appeal is scheduled for oral argument at 3:30 on Jan. 27 in Richmond, VA.
Background
Before North Carolina’s 100 counties had even finished certifying their results, protests challenging those results were filed in a handful of races – two State Senate contests (SD 42 in southern Mecklenburg County and SD 18 in northern Wake/Granville Counties); two State House contests (HD 32 in Granville/Vance Counties and HD 24 in Wilson County); and one statewide contest, for North Carolina Supreme Court Seat 6. These various protests raise largely identical issues and are being considered by the various county boards of elections and the State Board of Elections presently and through the coming weeks. Per Order of the State Board of Elections, county boards are proceeding with consideration of the protests made on the basis of death, felony conviction, or removed/denied registrations. The State Board of Elections has taken jurisdiction over the protests made on the basis of statewide election law disputes: voters whose registration records are purportedly incomplete, overseas voters who did not provide a copy of their ID (and who are not required to do so by state law), and overseas voters whose parents are North Carolina citizens but who have never lived in the state (who are authorized to vote in North Carolina by state statute).
What Should I Know About the Election Protests?
State law allows candidates to argue that irregularities affected the election process and impacted the certified results of the election. But state law requires protesters to actually prove that these irregularities occurred, and that they cast doubt on the results of the election. The simple filing of an election protest or allegation of an irregularity is the beginning of the process, not the end of it. The claims must be carefully considered, and the burden is on the protesters to demonstrate the election results were tainted. Overturning an election result is an extraordinary outcome that requires extraordinary evidence. Protesters must provide that proof if they wish to undo the results of the election.
The largest category of ballots challenged by the protestors relates to a sweeping allegation that tens of thousands of North Carolina voters should have never been permitted to vote because they purportedly have incomplete voter registration records. Not only is there no evidence that any of these voters are ineligible to vote in North Carolina, the protesters directly disclaim even attempting to provide any such evidence. Instead, the protesters ask election officials to assume these voters are ineligible and overturn the result of the election accordingly. This is contrary to fundamental democratic principles, as well as contrary to state law, which requires protesters to provide affirmative proof that the voters identified are in fact ineligible.
Other categories of challenges raised by the protesters allege that ballots were cast by North Carolinians who passed away before Election Day or who were convicted of a felony rendering them ineligible to vote. While both of these categories of voters should be removed under state law, the protesters ignore that county boards of elections would have already removed these voters during the regular canvass process. Election staff work throughout the canvass period to investigate and remove voters who cast a ballot but are later determined to be ineligible using state and local databases. The protesters’ challenges are based on the exact same information the counties and State Board of Elections used in this process, and simply repeat many of the same names already investigated and addressed by election officials during canvass. This is a normal part of every election – a fact which the protesters know and yet chose to ignore.
State law makes clear allowances for voters and candidates to challenge the eligibility of other voters if they have reason to think those voters are ineligible. All of the voters implicated in protesters’ claims were subject to those same state law guidelines, yet none of these challenges were raised until after election results were certified (and until it became clear the protesters had lost their elections). The rights of voters should not be subject to challenge solely based on who they voted for.
The various theories advanced by protesters implicate the voting rights of tens of thousands of North Carolinians, all of whom are now at risk of having their ballot thrown out. These voters must be notified of the challenge to their vote, notified of the specific grounds of that challenge and the evidentiary basis for it, given an opportunity to speak in their own defense at the protest hearings, and, in accordance with state law, be afforded the presumption that they are eligible, valid voters unless the protesters provide evidence to the contrary. Any protest that does not respect the rights of individual North Carolina voters must be rejected.
The protesters sent woefully inadequate mailers to voters whose ballot may be discounted by their challenges. The mailers do not state that any ballot is actually at risk of being discounted (just that the ballots may be “affected”), do not state why a voter’s ballot is at risk (instead referring the voters to the NC GOP website, which lists all the different protests by county), and do not tell the voter anything about how to protect their right to vote (opting to simply refer voters to the State Board of Elections website to look up when a hearing could take place). These mailers do not come near actually informing voters about what’s going on and never directly state that the reason their vote might be tossed out is because the protesters are arguing they should not be eligible to vote. This level of notice would not be sufficient in other legal proceedings and should not be sufficient here.
Many of these protest theories were rejected by both state and federal courts in pre-election litigation. Nonetheless, protesters press those claims again here, hoping they can achieve in the context of an election protest what they could not achieve on the strength of the legal arguments. It would be fundamentally undemocratic for claims that were rejected before the election to come back to life and be used to disqualify voters after they had already cast a ballot in compliance with state law.
Consideration of these protests is ongoing. If your name appears on a challenge list or you received a mailer from one of the protesters, you should contact your county board of elections to find out when the hearings are taking place and how you can defend your right to vote. Every affected voter has a right to be heard and present evidence during the protest hearing, and to rebut any allegation that they are ineligible to vote in North Carolina. If you would like to get in touch with parties to the protest proceeding, the email address for the statewide protester is info@jeffersongriffin.com and the email address for the candidate opposing the statewide protest is team@riggsforourcourts.com.
Need Help?
Call 888-OUR-VOTE if you have questions or concerns about a protest or challenge to your vote and trained nonpartisan election protection teams will help you protect your rights. If you want to speak directly to a non-partisan voting rights attorney, email Jeff Loperfido, SCSJ’s Chief Counsel of Voting Rights, at jeffloperfido@scsj.org.
