The head of the Voter Integrity Project has set out a proposal for resolving North Carolina's state Supreme Court election dispute without throwing out more than 65,000 ballots cast last fall.
The state Appeals Court accepted Tuesday a friend-of-the-court brief from election activist Jay DeLancy. It spells out the possibility of a new election.
DeLancy urges the Appeals Court to order North Carolina election officials to conduct a "special list-maintenance mailing" by April 15 to identify voters whose ballots should not have counted in the race between Democrat Allison Riggs and Republican Jefferson Griffin.
The head of North Carolina’s Voter Integrity Project is urging the state Court of Appeals to issue an order that would disqualify votes that never should have been counted in the 2024 state Supreme Court election, without threatening most of the 65,000 ballots targeted by Republican candidate Jefferson Griffin.
Election integrity activist Jay DeLancy’s plan spells out the possibility of a new election between Griffin and Democrat Allison Riggs.
DeLancy offered his plan in a friend-of-the-court brief filed March 12. The Appeals Court accepted and published the brief Tuesday.
Appellate Judges John Tyson, Tobias Hampson, and Fred Gore are scheduled to hear oral arguments in the Supreme Court election dispute Friday morning. DeLancy filed a request Wednesday to take part in that argument.
“The Court’s resolution of this case will affect whether my vote is counted fairly or diluted with invalidly cast votes,” DeLancy wrote. “The same goes for the votes of the many volunteers with whom I have worked very hard to ensure the integrity of North Carolina’s elections.”
DeLancy argued that his proposal would “avoid disenfranchisement of innocent voters whose registration lacked required information and whose validly cast ballots should be counted, “avoid dilution of all validly cast ballots,” and “ensure that all voters’ substantive due process rights are upheld. He also proposed to address the State Board of Elections’ “inherent conflict of interest between acting in its quasi-judicial capacity on this protest and its own administration of the election which is the subject of the protest itself.”
The brief focuses only on the largest category of voters targeted by Griffin as “illegal votes.” Griffin challenges more than 60,000 ballots cast by voters whose registration records appeared to have no record of a driver’s license number or the last four digits of a Social Security number.
“[T]he Court should consider the magnitude of the problem the State Board itself created by not following the law and obtaining the required personally identifiable information (PII) from voters for whom such information was missing, when it knew of such problem on or about October 6, 2023,” DeLancy wrote.
“I join the chorus of those opposing the disenfranchisement of more than 60,000 voters en masse over what was clearly a problem created by the adamant refusal of the State Board to follow the letter and intent of both state and federal law, regarding the PII that is required to be requested before a person can become registered to vote in North Carolina according to N.C.G.S. § 163-82.4,” he wrote.
“The clear intent of this statute is that the applicant’s driver license number is required,” DeLancy argued. “In the case where the applicant does not have a driver license number, the applicant is required to provide the last four-digits of his or her social security number. Only in the case that an applicant does not possess a driver license or social security number, may the applicant be assigned a unique identifier number without providing this otherwise required information.”
To avoid throwing out thousands of votes from people “who did nothing wrong,” DeLancy suggested a three-step remedy.
“This remedy does not produce an instant result,” he warned. “However, it will avoid disenfranchising any voters, address the underlying problem, remove the taint of irregularity and impropriety in this contest, correctly determine the duly elected winner for Seat #6 of the North Carolina Supreme Court, and restore public trust in our electoral process.”
First, the court would order the state elections board to conduct a “special list-maintenance mailing” by April 15 targeting voters who cast ballots in the Nov. 5 election but did not have registration records with the required PII. Voters would have 30 days to respond to the mailing and provide the missing information. State and county elections officials would have another 21 days to address responses to the mailing.
In the second step, elections officials would count the number of voters disqualified by the mailing in two categories: Election Day voters and early and absentee voters. Removing the early and absentee ballots, “the race should be retabulated statewide to determine the margin of victory for the winning candidate,” DeLancy wrote.
If that margin is larger than the number of disqualified Election Day votes, “the State Board shall declare the winner and certify the result,” he wrote.
The remedy would proceed to the third step — a new election — only if the number of disqualified Election Day votes is higher than the winning candidate’s victory margin. DeLancy’s brief offered no details about when a new election would be scheduled.
“While correctly determining the winner in this race is paramount over speed, we are already four months past Election Day,” he wrote. “It’s time to implement a plan to correct the administration [of] 2024’s State Supreme Court election. This entire problem was created by the North Carolina State Board of Elections, so this Court should require them to fix it.”
Riggs leads Griffin by 734 votes out of more than 5.5 million ballots cast in the Nov. 5 election. Recounts have confirmed Riggs’ lead. Yet a Jan. 7 stay issued by Riggs’ state Supreme Court colleagues has blocked the State Board of Elections from certifying Riggs as the winner.
Wake County Superior Court Judge William Pittman issued three orders on Feb. 7 rejecting Griffin’s request to throw out 65,000 ballots in three separate voting categories. Griffin appealed Pittman’s rulings to the Appeals Court.
The state Supreme Court decided on Feb. 20 to reject a request from the elections board, supported by Riggs, to bypass the state’s second-highest court.
Republicans hold a 5-2 majority at the state Supreme Court. Riggs has recused herself from the case, giving Republicans a 5-1 margin. Republican Justice Richard Dietz has split from the majority in two recent decisions involving the election dispute. Votes in both instances split the court, 4-2.
Republicans outnumber Democrats, 12-3, at the Appeals Court. Tyson and Gore are Republicans. Hampson is a Democrat. The Appeals Court rejected Riggs’ request to conduct a rare “en banc” hearing of the full court to hear the case.
Griffin challenges the State Board of Elections’ decision to count three types of ballots in the recent election: more than 60,000 votes cast by people whose voter registration records appeared to lack a driver’s license number or last four digits of a Social Security number, more than 5,500 overseas voters who provided no proof of photo identification, and 267 voters who have never lived in North Carolina.
Riggs continues to serve on the Supreme Court during the legal dispute, while Griffin continues his work on the Appeals Court.
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