Plus: A scholarship roundup, February oral argument preview, and more ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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In a dispute that is attracting national

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attention

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, Judge Jefferson Griffin, a Republican candidate for the North Carolina Supreme Court and judge on the state intermediate court, is seeking to invalidate more than 60,000 votes and overturn the electoral win of his opponent, Justice Allison Riggs.

The dispute stems from November’s state supreme court election, which Griffin lost by just 734 votes. The crux of Griffin’s argument

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is a claim that the state board of elections has been breaking state election law for decades by following an incorrect process for registering voters, including failing to require voters to provide a driver’s license or social security information and wrongfully allowing certain overseas and absentee ballots to be submitted without photo identification.

Notably, Griffin does not claim voter fraud or dispute that voters followed the process presented to them by the board of elections. And with respect to overseas voters, Griffin has limited most of his objections to votes cast in certain heavily Democratic counties in the state. His argument is that the board of elections refused to fix illegal processes prior to the election and that as a result, people who failed to provide legally required information had cast ballots. Now the “chickens have come home to roost,” he argues, and those votes should not be counted.

Riggs and the state board of elections respond that Griffin can’t throw out ballots cast by eligible voters who followed the rules as they existed at the time of the election. Voters are entitled to rely on the established election procedure, Riggs argues

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, and are protected in doing so by the U.S. Constitution’s Due Process Clause. (There are also disputes about what state and federal law actually requires with respect to North Carolina’s processes, as well as claims that many voters identified as having missing information actually provided those materials at the time they registered to vote.)

The dispute has spurred multiple state and federal lawsuits, including ongoing litigation over whether Griffin’s state litigation should be removed to federal court. A federal district court judge declined to hear the case out of respect for state interests, under a principle called abstention. The judge’s order has been appealed, and the U.S. Court of Appeals for the Fourth Circuit heard argument on Monday.

Griffin is seeking to undo what’s been a North Star in election law: You can’t change the rules of an election after the fact. Several justices on the North Carolina Supreme Court, however, have signaled openness to his claims. It’s a test for the judiciary that puts in stark relief the role that courts play in supporting — or eroding — democratic norms. A ruling in Griffin’s favor could also open the door to similar gamesmanship in other states.

In an amicus brief

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filed with the Fourth Circuit last week, eight prominent scholars who study democratic backsliding characterized Griffin’s efforts as “no ordinary legal dispute” but rather a dramatic escalation of democratic backsliding in North Carolina. “If we saw this happening in another country, we would know what to call it,” the scholars observe: a break with democratic norms. They urged federal court intervention “to preserve democracy in North Carolina and counter the backsliding process.”

For its part, last week the North Carolina Supreme Court, which currently has a 5–2 Republican majority, rejected

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a petition

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by Griffin that the state high court bypass the lower courts to resolve his case in the first instance. (Riggs, a Democrat, is recused from hearing the case.) However, the court kept in place a stay barring the board of elections from certifying the election result.

The court’s order, authored by Justice Trey Allen, a Republican, used language that may signal openness to Griffin’s claim, including characterizing Griffin as contesting “potentially illegal votes.” Three other Republican justices on the court wrote concurrences that, among other things, criticized those who have “chastised” Griffin. Griffin is not seeking to disenfranchise voters, they argue, and has a “right to ensure that only lawful votes are counted and that the result of the election is accurate.”

On the other side, Justice Anita Earls, the only Democratic justice hearing the case, argued that the court should have dissolved its temporary stay against certifying the election. Responding to the court’s characterization of “potentially illegal votes,” she wrote, “we cannot overturn the results of an election on potentials.” Justice Richard Dietz, a Republican, also signaled skepticism toward Griffin’s claims, emphasizing that “the State Board of Elections complied with the election rules existing at the time of the election” and that Griffin’s claim is “not that the Board violated the existing rules, but that the rules themselves are either unlawful or unconstitutional.” Any shortcomings with those rules, Dietz argued, cannot be applied to an election that has already taken place.

If the court ultimately divides 3–3, a distinct possibility, whatever ruling comes from the lower court will stand (absent a federal court ruling to the contrary). The state trial court is set to hold a hearing in the case on February 7.

Griffin’s case is about the outcome of an important state election, but it’s also about the role of courts — state and federal — in preserving democracy. We often talk about courts as limiting (or failing to limit) efforts by others to violate voting rights or undermine democracy. But here, the call is coming from inside the house. The North Carolina courts are being asked to retroactively throw out tens of thousands of votes and potentially overturn an election. The federal courts are being asked to intervene to protect voters’ federal due process rights. It’s a major test of our judicial system at a moment when many of our democratic institutions are showing great frailty.





State Constitutions Can Help Address the Housing Crisis

At a time when homelessness is at historically high levels, state constitutional amendments are one tool to address housing affordability and access, writes Caryn Schreiber, director of the Civil Legal Services Clinic at the University of Wyoming College of Law. Amendments that lower property tax assessments and allow local governments to address housing shortages can make “stable, sustainable housing more accessible to more people,” she argues. Read more

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Courts Across the Country Consider Exceptions to Strict Abortion Bans

“Recent reporting has suggested that abortion bans lead to preventable deaths,” writes University of California, Davis School of Law professor Mary Ziegler, “and that exceptions to the bans, designed to address serious health complications in pregnancy, are inadequate.” Ziegler summarizes litigation in Idaho, Indiana, Iowa, North Dakota, Oklahoma, Texas, and elsewhere requesting that state courts clarify language permitting abortions only in cases of medical emergency. Read more

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Does the Arizona Constitution Limit Juryless Administrative Hearings?

After charging the owners of a business with fraud, a state securities commission “held its own in-house trial, found them guilty, and imposed tens of thousands of dollars in penalties,” writes Timothy Sandefur of the Goldwater Institute, which filed an amicus brief in a pending appeal. Sandefur argues that the commission’s actions amount to an unconstitutional denial of the Arizona Constitution’s right to a trial by jury. Read more

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Local Abortion Restrictions Preempted by New Mexico State Law

New Mexico has expansive protections for abortion rights, but some cities and counties in the state adopted local ordinances intended to restrict abortion access. Earlier this month, the New Mexico Supreme Court struck down these measures, writes Martha F. Davis, a professor at Northeastern University School of Law. The court explained that because abortion access “is specifically addressed in several state laws,” there are “limitations on local power to act in the abortion arena.” Read more

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Washington Supreme Court Hears Challenge to Ban on Large-Capacity Magazines

Washington’s high court is being asked to decide if a ban on selling the type of magazines often used in mass shootings violates the right to bear arms guaranteed in the federal and state constitutions. The arguments this month included extensive discussion about the confusion caused by the U.S. Supreme Court’s recent Second Amendment decisions, writes the Brennan Center’s Erin Geiger Smith. Read more

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Scholarship Roundup: New Year Edition

Professor Miriam Seifter, codirector of the State Democracy Research Initiative at the University of Wisconsin Law School, summarizes recent state constitution–related scholarship, including the New York University Law Review’s recently published “rich volume of articles and essays from its 2024 symposium

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‘The Promise and Limits of State Constitutions,’” cosponsored by State Court Report and the Brennan Center. Read more

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February Oral Arguments in State High Courts

State high courts will hear arguments in multiple high-profile cases this month, including whether a fetal heartbeat occurs at six or nine weeks for the purposes of triggering an abortion ban in South Carolina, whether an Ohio police department must release the identities of police officers involved in shootings, and whether a public university professor’s letter about racial bias — which used racist slurs and other inflammatory language — should receive heightened speech protections as commentary on a matter of public concern. State Court Report adviser Sarah Kessler and the Brennan Center’s Erin Geiger Smith explain what’s at stake and how to watch the arguments. Read more

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You May Have Missed

The U.S. Supreme Court declined

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to hear the Montana secretary of state’s appeal of a March state supreme court decision in which the court struck down voting restrictions under the state constitution and adopted a framework that is more protective of voting rights than the test used at the federal level. The case was framed to the U.S. Supreme Court as an opportunity to revisit the “independent state legislature theory

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.” State Court Report previously covered

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the Montana Supreme Court decision.

A group of about 100 students recently sued

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the state of Kentucky for failing to provide an “adequate and equitable” education as required under the state constitution. State Court Report previously wrote

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about the decades-long evolution of right-to-education cases, which state courts around the country have aggressively litigated for more than half a century.

The Pennsylvania Supreme Court agreed

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to evaluate whether requiring a handwritten date on mail or absentee ballots violates the state’s Free and Equal Elections Clause. State Court Report previously covered

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litigation over the date requirement during the 2024 election season.

The U.S. Supreme Court agreed

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to hear a case about whether the Oklahoma Supreme Court was correct in striking down a state agency’s approval of a publicly funded Catholic charter school. State Court Report previously wrote

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about the importance of the case, as well as additional litigation related to charter schools.







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