How North Carolinians can ensure their Supreme Court votes don't get discarded

Tens of thousands of North Carolina voters are at risk of having their ballots removed from the Supreme Court tally. Here's what you can do to prevent that from happening.

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On Oct. 1, 2016, Elon University sophomore Jake Kiesler works on behalf of Democratic presidential nominee Hillary Clinton’s campaign to register people to vote outside the Elon Community Church.

This Supreme Court election is one big cluster.

Republican Court of Appeals Judge Jefferson Griffin wants to overturn an apparent 734-vote defeat to Democratic Supreme Court Justice Allison Riggs. To do so, he’s relying on legal arguments that would effectively discount the ballots of voters who did nothing wrong and followed all rules in place at the time the election was administered.

Instead, the legal challenge pins the blame on lawmakers and unelected elections officials for inappropriately administering the election.

To help make sense of this case, I’ll be working on lining up another live Zoom Q&A this week for paid members.

In the meantime, I wanted to offer some answers to questions I’ve been getting from readers. Let’s begin with the most important:

Q: Is my vote being challenged? And if so, what do I do about it?

Without diving into all the nuances of protest categories and the complicated mess of a court case, here’s a simple, three-step process I’ve come up with:

1. Check if you’re impacted. I have a spreadsheet available here of all voters Griffin has challenged, and I’ve gone the extra step of sorting them into different tabs based on protest category. If you’re on a computer, use the Find function (Command F for Mac users) to locate your name. If you’re not on the list in any of the tabs, you’re in the clear. If you’re on the list, continue to Steps 2 and 3.

2. Update your registration. The vast majority of challenged voters fall into the “incomplete registration” category. In many cases, this stems from hyphenated names, name changes, typos, or other clerical issues. These aren’t cases of voter fraud! If you find yourself in this protest category, already have a driver’s license and are concerned your registration information is incomplete, go to payments.ncdot.gov to fill out a voter registration application. You don’t need to create a special account with the DMV and can just select “Continue as Guest” on the DMV’s website to proceed. Voters who are already registered and submit information will merely have their existing registration updated.

3. Contact your county elections board. If you’re running into any issues, have concerns or just need to talk to a human, get in touch with your county elections office. Contact and address information for the 100 county boards of elections is available here.

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Q: How long do I have to do this?

With the Supreme Court stepping in on Monday to halt last week’s Court of Appeals ruling, there’s presently no immediate deadline.

But if the high court ultimately upholds the Court of Appeals decision as its written, a Wake County Superior Court judge would have to instruct the State Board of Elections and county elections boards to contact impacted voters.

Once mail goes out to impacted voters, those voters would have 15 business days to cure any ballot deficiencies.

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Q: How many votes are in jeopardy?

There’s no good answer to that. And believe me, I’ve tried. So let me give you the best information I have:

Here’s who Griffin says shouldn’t be allowed to have their votes count, sorted by largest protest category:

• Incomplete Registration: 60,273 people with incomplete voter registration information (missing driver’s license or last four digits of Social Security number)

• Military/Overseas Photo ID: 5,509 military or overseas voters whose absentee ballots were not accompanied by a photocopy of a photo ID or ID Exception Form

• Never Residents: 267 overseas citizens who have not resided in North Carolina but whose parents or legal guardians were eligible North Carolina voters before leaving the U.S. will have their votes immediately discarded

*Griffin believes additional votes should be tossed out, but those protests weren’t timely filed, so they could be an uphill battle.

Who the Court of Appeals says should automatically be tossed out:

• Never Residents

Who the Court of Appeals says should be given 15 business days to correct errors:

• Incomplete Registration

• Military/Overseas Photo ID

What the State Board of Elections has to say:

In an affidavit, the NCSBE identified 62,027 voters (60,666 early voters and 1,361 absentee voters) lacking a driver’s license number or the last four digits of their Social Security number on a state database. Within that “Incomplete Registration” group, 31,167 voters were properly registered. The remaining 30,860 would require a more rigorous county-level review to attest to their eligibility.

Complications:

A dissenting opinion from Democratic Court of Appeals Judge Toby Hampson, referenced 61,682 voters in question. That figure was presumably attained by adding 1,409 military and overseas ballots in question over photo ID in Guilford County. But Griffin’s protest sought to challenge 5,509 such voters, including ones from Durham, Forsyth and Buncombe counties. The order from the GOP judges didn’t make clear which subset of voters were to be given the 15-day deadline.

Some voters also appear multiple times in the same protest category or in separate protest category, further complicating matters.

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Q: So how many voters are actually at risk?

Depending on how the court order is implemented, anywhere from 30,782 to 66,049 votes hang in the balance.

The low end of this range assumes all 31,167 votes the NCSBE deemed valid were indeed part of Griffin’s election protest and aren’t subject to the Court of Appeals 15-day cure window. It also assumes only 1,409 military and overseas votes (not 5,509) are in dispute.

The high end of this range assumes everyone in Griffin’s protest will need to take some form of corrective action in order for their ballots to be counted. It also doesn’t take into account any overlapping data points.

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Q: Will my vote for other races count?

Yes. That’s because this case only addresses the Supreme Court race. Other state and federal laws spell out different procedures for election protests. This statewide judicial protest is unique and largely isolated to this race.

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What happens next?

It’s likely the North Carolina Supreme Court takes up the case and sides with Griffin, as three Republicans have already publicly expressed at least some support for Griffin’s arguments. Two justices aren’t on board with it. One justice hasn’t publicly weighed in on the merits of Griffin’s protest.

Because the Court of Appeals sided with Griffin and Riggs has recused herself, a 3-3 Supreme Court deadlock would allow the appellate court’s decision to stand.

Because of that, Riggs would then need to appeal to federal court, where she’d be more likely to get a favorable ruling.

Griffin’s weakest legal argument is the registration inconsistencies. His strongest is with the “Never Residents” category, though that’s not enough to overcome his 734-vote deficit.

This leaves the case hinging on how the federal court system rules on the Military/Overseas Photo ID election protest.

But I ran the math: If it only applies to 1,409 Guilford County voters and Griffin’s other arguments fail, Griffin could still lose, even if nobody cures their ballots and 75% of the discarded ballots are Riggs votes.

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What’s the bottom line?

I reiterate what I said at the top: This Supreme Court election is one big cluster.