North Carolina is asking people to vote according to rules the state hasn't set

Five months out, chaos continues in a state Supreme Court race that was counted, recounted and audited.

By Stephen Richer

The race continues for one of the seven seats on the North Carolina Supreme Court.

On Friday, a state appeals court reopened Pandora’s Box by calling into question more than 60,000 votes cast in North Carolina’s Nov. 5 general election. This gives the Republican candidate, Jefferson Griffin, new hope to close his 734-vote deficit, out of 5,540,090 total votes, against Democratic candidate Allison Riggs.

The 2-1 ruling covers a wide span of issues in its 36 page-opinion (and 66-page dissent), but the meatiest three are: (1) if 60,273 votes should be invalidated because of insufficient information in the voter’s registration record, (2) if 1,409 military and overseas votes from Guilford County should be invalidated because those voters did not provide photocopies of their identifications in their mail ballot packets, and (3) if 267 U.S. citizens living overseas should be disqualified because they had never lived in North Carolina.

It will be a lot to unpack over the next few weeks, but here are five observations:

1) Punishing voters for failures of state government would represent a major departure from most election law.

In each of the three challenged categories of voters, the alleged error is not the fault of the voter.

This is a big deal.

It’s broadly accepted in the United States that if the voter doesn’t follow the established rules of the game—e.g., by failing to register in time, failing to sign a return ballot envelope, or forgetting to bring identification to the poll—then it’s OK to not count the voter’s ballot.

But, in this instance, the voters were following the rules as they were told by the State Board of Elections. Voters were not told ahead of the election that their voter records were incomplete. They were not told they needed to provide identifications by photocopy. They were not told they were ineligible based on their current residence status.

The Republican plaintiff argues that the State Board of Elections had given unlawful instructions to these voters. The board disagreed.

But, whatever the correct ruling as to the underlying instructions issued by the State Board of Elections, it would be highly unusual to punish the voters for any failures by the government. As the North Carolina Supreme Court has long held, “the mistake, or even the willful misconduct, of election officials in performing the duty cast upon them” does not “permit[] the disenfranchisement of innocent voters.”

This principle—don’t harm the voter for a mistake of an election administrator or a disagreement of law—is held throughout the United States. Republican election lawyer Benjamin Ginsberg recently wrote that it would be a gross error to disenfranchise “thousands of otherwise legal voters, not because they did anything wrong, but because of election officials’ instructions.”

And, in Arizona, my former office discovered in September that a longstanding fault of the Arizona government meant that over 200,000 registrants had not provided sufficient documentation to vote a ballot. The Arizona Supreme Court allowed those voters to fully participate in the November general election because it was not their fault.

It would be highly, highly unorthodox to tell 60,000 North Carolina voters, “sorry, we know it wasn’t your fault, but now you have to quickly fix a vote that you already cast.”

2) The ruling ignores election law precedent that cases that can be brought before an election must be brought before an election.

Courts throughout the country have consistently held that any election lawsuits that can be brought before an election should be brought before an election. As the dissent said,

“Efforts to change the rules under which an election is conducted–either during the election or after valid votes have been cast–should be viewed with great skepticism … Call it what you will–laches, the Purcell principle, or common sense–the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so.”

Remarkably, each of the three existing disputed rules was in place well before the November election. If the plaintiff was so offended by the alleged illegality of the rules of the State Board of Elections, why didn’t he challenge those rules six months before the election? The dissent says on page 17 that “the Board expressly noted the applicable statutes had been in place for thirteen years and applied in 43 elections.”

Again, this is highly discordant with election law as typically applied throughout the United States. Here’s Republican election lawyer Benjamin Ginsberg on the topic: “why [did] the GOP wait[] a decade until this election to challenge … the law?”

3) The laughable nature of the court’s remedy

The majority opinion tries to soften the blow of potentially discarding 60,000 votes by allowing all affected voters 15 business days to cure a deficiency.

But anyone who has worked in election administration can tell you that this is not going to happen for many of the 60,000 voters.

First, some of those people will be dead. It’s been five months since the election. It happens.

Next, some of those people will have moved. Voter files are always snapshots at one specific moment in time. Hundreds of voter registration records change every single day in North Carolina. Those people likely aren’t going to bother to remedy their ballots. And good luck finding them.

Others will be on long vacations. After all, they didn’t know that this was going to happen.

Some of the affected voters lived abroad when they voted, and they still live abroad. Owing to the uncertainties and delays of mail when living abroad, federal law requires ballots to be mailed to military and overseas voters 45 days before an election. It seems unlikely that a high percentage of these voters will cure their ballots in 15 business days.

Finally, many of these voters simply won’t care enough to take an extra step. Voters in November were drawn to the polls to vote in the contentious presidential election or to vote in the state’s eventful governor’s race. These voters might not be sufficiently motivated to undertake the nuisance of an additional step when the only race in play is the state’s last Supreme Court seat.

4) Why does this only apply to one race?

On that note, the majority opinion never explains why this election contest would only apply to the North Carolina Supreme Court. After all, if these votes are invalid, then presumably they’re invalid for all contests. And presumably this would apply to all counties, not just Democratic-leaning ones like the military and overseas voters of Guilford County.

5) Are North Carolina’s ballots really secret?

The bizarre component of all of this is that North Carolina actually has the ability to “back out” a voter’s ballot. This seems to fly in the face of the secret ballot requirement.

In Arizona—the state where I administered elections—once the voter fed his ballot into the tabulator at a voting location, or once we separated his mail ballot from the envelope, we had no way to tie a ballot back to an individual voter. This means that no matter how curious I was, I couldn’t find out how my neighbors voted in the 2024 election.

In North Carolina, it seems individual ballots are married by a sequencing number to specific voters. This has the benefit in this case of being able to invalidate the votes of any voter the court ultimately decides is invalid. But it is a major liability in terms of preserving the secret ballot. If this only applies to certain ballots, then it poses another confusion for the majority opinion.

And confusion is really the theme we’re left with. We’re now five months from the 2024 election, and we still have a lot of confusion in North Carolina.

Stephen Richer, a Republican, is the former elected Maricopa County recorder, responsible for that county's elections. He is chief executive of Republic Affairs, a senior fellow at the Harvard Kennedy School's Ash Center, and a board member of State Democracy Defenders.

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