Republican judicial candidate Jefferson Griffin might have lost his race for a seat on the North Carolina Supreme Court, but he has changed the rules for future elections in the state.
Until a state appeals court panel ruled in his favor last month, military and overseas voters who cast absentee ballots in North Carolina were not required to present photo ID. Now, however, North Carolina will be the only state to require such voters to present photo ID if they want to participate in elections for state office.
In the end, Griffin's attempt to reverse his electoral loss to Democratic incumbent Justice Allison Riggs—by just over 700 votes—hinged on more than 5,000 ballots cast by military and overseas voters registered in a handful of Democratically-leaning counties.
These are voters covered by the federal Uniformed and Overseas Citizens Absentee Voting Act, or UOCAVA, whether deployed overseas or in other areas stateside. Griffin argued in state and federal courts that these UOCAVA voters should have been required to submit photo ID with their absentee ballots to count in a contest for state office.
"The legislature enacted the photo ID law in late 2018," explained Paul Cox, general counsel for the North Carolina State Board of Elections. "So, one of the first things the state board had to do in early 2019 was to promulgate rules on how the photo ID law was going to be carried out, be implemented, by the county boards of elections."
The state elections board went through a lengthy statutory process when it adopted the rule exempting UOCAVA voters from the photo-ID requirement, since it's not required under federal law.
"That interpretation, that rule, was shared with the leadership of the General Assembly in the summer of 2019," Cox continued. "No objection, no changes in the law resulted from that. The Rules Review Commission approved that rule."
Still, Griffin and the Republican Party made the issue a centerpiece of his efforts to overturn the state Supreme Court election. And last month, the Republican majority on a state Court of Appeals panel sided with Griffin, a fellow appeals court judge.
The panel's GOP majority said UOCAVA voters should have been required to submit photo ID with their ballots to participate in a state election. The state's conservative majority Supreme Court then affirmed that decision.
"The court has the power to decide what the statutes mean and, sometimes, you get court decisions that are just wrong," said Prof. Justin Levitt, a constitutional and elections law scholar at Loyola Marymount University, in California.
A federal judge ultimately stepped in and dismissed Griffin's case, saying it would unlawfully disenfranchise legitimate voters by rewriting the rules of an election after it had already taken place.
But that decision did not undo the state appellate court's new rule for future elections. Levitt said that will require robust outreach and education for voters often in far-flung places and frequently on the move.
"It's part of why no other state does this," Levitt added. "It's part of why I don't think the North Carolina legislature intended to do it in the first place."
Of the 25 states that have photo ID requirements for voters, North Carolina is now the only one to extend that requirement to UOCAVA voters for state elections. That distinction doesn't seem to bother state Senator Ralph Hise, a member of the North Carolina General Assembly's GOP-majority and co-chairman of the Elections Committee.
"We need to ensure that all of those voters are eligible voters in the state of North Carolina and are participating in the correct state," Hise told ÃÛÌÒ´«Ã½.
"And I suspect you will see many other states move in the same direction, but it's an evolving policy," he added.
Just like regular absentee ballots, UOCAVA ballots go through a validation process to be counted. And voters who submit them, whether through the state's online portal, by mail, or by email, must attest to the veracity of their information under penalty of perjury.
For Sarah Streyder, the policy shift could do more harm than good, especially since individual voter fraud is exceedingly rare. Streyder is executive director of Secure Families Initiative, a nonpartisan nonprofit that supports military spouses, partners and families through civic engagement efforts.
She said the new requirement concerns her because of the historically lower turnout among military voters.
"Our community disproportionately lags behind the kind of civilian population, in general, even before you add additional barriers," Streyder said.
While most UOCAVA voters will be able to participate in state elections with photo ID, so-called 'never residents' are no longer eligible to vote in elections for state office.
Siding with Griffin, the state appeals court said lawmakers got it wrong when enacting a 2011 statute that said overseas voters who never lived in North Carolina but whose parents are registered North Carolina voters could participate in state elections.
These voters, numbering only in the hundreds statewide, now may only cast ballots in federal races.
