Rick Hasen: We're Getting Dangerously Close to a Losing North Carolina Candidate Being Declared the Winner

https://slate.com/news-and-politics/2025/04/bush-v-gore-supreme-court-ruling-north-carolina-election.html

In a preliminary order issued over the weekend likely designed to split the baby, a federal district court in North Carolina has told North Carolina election officials that they should follow a state court’s ruling to figure out which of thousands of military and overseas ballots cast by North Carolina voters should be thrown out in a dispute over the winner of a November state Supreme Court election. But the federal court also told election officials not to certify the winner of that election until it can decide if the state court–ordered remedy is unconstitutional.

This is a recipe for disaster. The federal court should have heeded the advice of Justice Antonin Scalia in the 2000 Bush v. Gore case about not allowing a questionable redo of vote totals to be announced before there’s been a ruling on the legality of the redo. The judge’s order in North Carolina could well lead people to believe the state Supreme Court election was stolen no matter what happens.

The dispute over what’s happening in North Carolina is complex and confusing. Incumbent North Carolina Supreme Court Justice Allison Riggs is 734 votes ahead of Judge Jefferson Griffin, a Republican, in November’s race for Riggs’ spot on the state Supreme Court. Griffin contested the election, calling over 60,000 ballots into question. He argued that some of these ballots did not comply with North Carolina law because the registration record of these voters did not contain certain information like a driver’s license number or the last four digits of a Social Security number. He also argued that certain military and overseas ballots were cast without requiring a photocopy of a photo ID. North Carolina election officials never asked voters for the information that Griffin said was required.

A state court of appeals issued an order that would have required voters to produce the information Griffin demanded within a few weeks or have their votes thrown out, potentially changing the outcome of the election. The state Supreme Court then narrowed Griffin’s challenge only to the military and overseas voters, and it gave these voters 30 days to produce the information or have their votes thrown out. It’s not even clear if Griffin’s challenge to military and overseas voters extends to just one Democratic-leaning county or to four.

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