There's a legal principle — enshrined in a 2006 U.S. Supreme Court case known as Purcell — that says judicial intervention too close to an election is inappropriate because it could undermine the integrity of the voting process.
And that principle is why North Carolina Supreme Court Justice Richard Dietz dissented in the high court's order this week blocking certification of an election for an associate justice seat on that very tribunal.
Republican Jefferson Griffin, a judge on the North Carolina Court of Appeals, has petitioned the state Supreme Court to invalidate more than 60,000 ballots in his race against Democratic incumbent Allison Riggs, an associate justice on the high court. Griffin trails Riggs by 734 votes as confirmed by two recounts.
In most of the cases, Griffin has alleged the disputed ballots were cast by voters who did not properly register under North Carolina law. The issue has to do with voters who registered — many years and election cycles ago — using a form that predated the federal Help America Vote Act, or HAVA, of 2002. The pre-HAVA registration form did not clearly mandate registrants provide the last four digits of their Social Security number or their driver's license number.
Griffin's protests notwithstanding, neither state law nor HAVA makes having a Social Security number or a driver's license number a prerequisite for voting.
Moreover, Griffin has not provided any evidence of actual voter ineligibility in the ballots cast. Among the voters swept up in his protests are registered Republicans, Democrats, an editor at WUNC, and Justice Riggs' parents.
"In my view, the challenges raised in this petition strike at the very heart of our state's Purcell principle," Dietz, one of the state Supreme Court's five conservative justices, wrote in his dissent. "The petition is, in effect, post-election litigation that seeks to remove the legal right to vote from people who lawfully voted under the laws and regulations that existed during the voting process."
The high court's only other Democrat, Justice Anita Earls, also dissented. Riggs, since she is one of the candidates, has recused herself.
Griffin has also protested the counting of hundreds of ballots submitted by some absentee military and overseas voters who did not provide photo identification, even though state administrative code, in accordance with federal law, explicitly excuses such overseas voters from that requirement.
Additionally, Griffin has alleged some ballots should be discarded because they were cast by ineligible voters who live overseas. These protests claim children of overseas voters — for example, missionaries and military personnel — who had never resided in North Carolina, should not have been allowed to vote, though such voters are eligible under state law, again, in line with federal laws protecting the voting rights of overseas citizens.
Another conservative justice, Trey Allen, concurred in the state Supreme Court's order issuing a stay that blocked certification but said doing so "should not be taken to mean that Judge Griffin will ultimately prevail on the merits."
The North Carolina State Board of Election's statutory deadline for certification — following elections board hearings on his protests, a dismissal of his protests, and notice to the parties — was this Friday, but the state Supreme Court stay has, for now, blocked that from happening.
Attorneys for the North Carolina State Board of Elections initially had the case removed to federal court. And after a federal district court judge remanded the matter to the state Supreme Court, the state elections board's attorneys appealed to the U.S. Fourth Circuit Court of Appeals.
The Fourth Circuit could send the matter back to the federal district court for oral arguments on the legal questions raised by Griffin's election protests - or the matter could even end up back before the state elections board for an evidentiary review of Griffin's claims.
And any 4th Circuit decisions could be appealed to the U.S. Supreme Court.
