(The Center Square) – Jurisdiction for petitions by Judge Jefferson Griffin in his dispute with the North Carolina State Board of Elections and Judge Allison Riggs, his election opponent, were remanded from federal court to the state on Monday night.
The duel between Griffin, Republican candidate, and Riggs, Democratic incumbent, for Seat 6 on the state Supreme Court has reached a third month since Election Day. Griffin, state appellate court judge, has protested more than 60,000 ballots and the state board has dismissed all protests leaving Riggs in a 734-vote victory awaiting the election certificate of the state board.
The long-delayed issuance of the certificate would end Griffin’s protests. And his filings and the ruling Monday from Chief U.S. District Judge Richard Myers II indicate a likely date was to be this Friday.
Predictable in timing as litigation has played out previously, the state board immediately filed an appeal of Myers’ ruling.
Myers, in a 27-page order, wrote in conclusion, “The court has removal jurisdiction under 28 U.S.C. §1443(2) but abstains from reaching the merits of Griffin’s motion for preliminary injunction and remands this matter to the North Carolina Supreme Court.”
Myers wrote in part, “a sitting state court judge seeks a writ of prohibition (a form of judicial relief authorized by the state constitution) from the state Supreme Court that would enjoin the state board of elections from counting votes for a state election contest that were cast by voters in a manner allegedly inconsistent with state law. Should a federal tribunal resolve such a dispute? This court, with due regard for state sovereignty and the independence of states to decide matters of substantial public concern, thinks not.”
Myers cited two cases, Burford v. Sun Oil Co. from 1943 and Louisiana Power & Light Co. v. City of Thibodaux from 1959, “and their progeny” in deciding to remand. His order laid out the context of December actions when the protests were handled by the Board of Elections, and court filings following from Griffin, Riggs and the state board.
Multiple decisions at the U.S. Circuit Court of Appeals are also referenced.
At each juncture, his explanations include differentiation or lack thereof between state and federal authority with respect to election law. He wrote at one point, “This matter, which involves a state, not federal, election, involves potential practical implications but a crucial theoretical distinction, which has in turn led some of the parties (and amici) to at times conflate what precisely is at issue.”
Myers also recognized amicus briefs filed by former Senate Majority Leader Thomas Daschle, former House Majority Leader Richard Gephardt, and former U.S. Reps. Christopher Shays, Jim Greenwood, Robert Wexler, Wayne Gilchrist and Steve Israel, and by the North Carolina League of Women Voters.
Myers wrote that he appreciated but did not agree with the view of the amici from the former members of Congress, citing a 1st U.S. Circuit Court of Appeals ruling in 2004 that said in part, “whether a state court will adopt as the meaning of the state’s law the federal courts’ interpretation of parallel language in the United States Code is a matter of state law.”
The Help America Vote Act of 2002 is cited by the state board as a reason for federal jurisdiction.
On Election Night, with 2,658 precincts reporting, Griffin led Riggs by 9,851 votes of 5,540,090 cast. Provisional and absentee ballots that qualified were added to the totals since, swinging the race by 10,585 votes.
It was Dec. 11 when the protests under state board jurisdiction were handled. The remainder handled by counties and given to the state board for approval were also dismissed at a meeting Dec. 20.
