Federal Appeals Court Wrestles With Proper Venue For NC Election Dispute

By Carolina Journal Staff

• The 4th US Circuit Court of Appeals spent 90 minutes Monday afternoon listening to arguments about whether a state or federal court should deal with a North Carolina election dispute.
  
• Republican state Supreme Court candidate Jefferson Griffin wants state courts to resolve his challenge of more than 60,000 ballots cast in the Nov. 5 election. Democratic candidate Allison Riggs and the State Board of Elections argue the case belongs in federal court.

• A three-judge appellate panel must decided whether a federal trial judge made a mistake when he returned the case from federal court to state court on Jan. 6.

The 4th US Circuit Court of Appeals spent 90 minutes Monday afternoon — more than twice as much time as scheduled — listening to arguments about the proper venue for resolving Republican state Supreme Court candidate Jefferson Griffin’s challenge of ballots cast in the Nov. 5 election.

Griffin wants the case confined to state court, where a hearing is scheduled Feb. 7. Meanwhile, Democratic candidate Allison Riggs, the state Board of Elections, and left-of-center activist groups working with Democratic operative Marc Elias’ law firm all argued before a three-judge appellate panel that the case should return to federal court.

Appellate Judges Paul Niemeyer, Marvin Quattlebaum, and Toby Heytens must decide whether US Chief District Judge Richard Myers made a mistake on Jan. 6 when he sent the case from federal court back to state court, where Griffin originally filed suit on Dec. 18. The state elections board had removed the case from state court to federal court the following day.

If appellate judges agree that Myers should have kept the case, they must decide how he should proceed moving forward.

“Judge Griffin’s extraordinary request to retroactively change longstanding election rules, and thereby disenfranchise more than 60,000 North Carolina voters, should confront the federal civil rights laws in a federal forum as Congress intended,” argued Nick Brod, representing the State Board of Elections.

Griffin’s arguments “are just fundamentally inconsistent with the federal-state balance that Congress struck” when writing the law allowing for cases to be moved from state court to federal court, Brod added.

The state Supreme Court issued an order last week rejecting Griffin’s request for a writ of prohibition. That writ would block election officials from counting ballots Griffin challenges in the election. Riggs leads Griffin by 734 votes out of 5.5 million ballots cast statewide. Griffin argues that throwing out the disputed ballots would likely swing the election result in his favor.

While rejecting Griffin’s request for the writ, North Carolina’s top court sent the case back to a Wake County trial court to address Griffin’s complaints. In the meantime, a temporary state Supreme Court stay issued on Jan. 7 remains in place.

For Niemeyer, it’s unclear what a 4th Circuit order would call on Myers and the state Supreme Court to do. 

“If we grant all your relief, what do we tell the Supreme Court of North Carolina?” Niemeyer asked Brod. “Or what do we order the District Court [Myers] to tell them?”

Heytens, appointed by former President Joe Biden, offered one possible response. “Assume for the sake of argument we were to think the District Court was wrong in remanding the case,” he said. “Isn’t the immediate outcome the District Court has jurisdiction over this case? Now what the North Carolina courts choose to do or will do or won’t do … we would just be telling the District Court, ‘You were wrong when you dismissed this case. You should go again. You should keep going.’”

Niemeyer emphasized Griffin’s focus on potential violations of the state law and constitution, rather than federal law. “Griffin brought this case under three North Carolina provisions challenging the vote count,” he said. “Everything else is fallout from that.”

Sam Hartzell, representing Riggs, argued that federal law has to play a role in resolving the election dispute. “They can’t get from here to there — throwing out votes — without a court reckoning with the federal constitutional issues. That … is why the [state] Supreme Court’s order here can’t be controlling.”

It’s a “stretch,” Niemeyer argued, to argue that claims brought under state law should be resolved in a federal court. “The only claim here was made under the North Carolina statutes. Now the implications under the federal Constitution have to be mighty strong to say those statutes are unconstitutional, or I don’t know what you make them.”

Will Thompson, representing Griffin, argued that the state Supreme Court mooted the entire 4th Circuit case last week by rejecting Griffin’s request for a writ of prohibition. Thompson’s argument prompted a series of questions from Heytens, including a question about why Griffin had filed no motion to dismiss the 4th Circuit appeal.

Thompson urged the 4th Circuit to do nothing that would remove the state Supreme Court’s temporary stay.

“If this court somehow ordered the District Court to vacate the stay that is the only thing protecting the North Carolina Supreme Court’s appellate jurisdiction over the Wake County case, I think that would be a serious federalism affront,” Thompson said.

Part of Monday’s debate centered on Myers’ speedy return of the case from his court to the state Supreme Court on Jan. 6. Myers’ letter handing the case back to state court officials arrived before the state elections board could secure a 4th Circuit order blocking the transfer.

“So our jurisdiction on the court ebbs and flows based on how with it the District Court clerk of court is,” said Quattlebaum, appointed by President Trump. “That seems kind of weird to me.”

“Why does that just not nullify the congressionally created right to appeal a District Court’s remand order,” Heytens added several minutes later. “Because all the District Court’s got to do is get it in the mail really fast.”

Hartzell asked for an Appeals Court decision by Feb. 7. “It’s important not to lose sight of the fact that Justice Riggs’ victory as we stand here today is the last uncertified race in this country because of the stay of certification in this case,” he said. “All agree that the parties’ and public interest is served by speed here.”