America's last undecided election threatens our core democratic principles

One of the most important premises of America’s election system in the 21st century is that the federal judiciary demands that the states must treat all cast ballots equally. Federal courts require states to uphold the constitutional principle of equal protection if the government of a state has determined that certain offices are to be decided by popular vote.

Furthermore, states must adhere to the right to due process. After an election has been completed, federal law prohibits states from throwing out ballots that were cast in accordance with the prevailing understanding of established election practices in that state at the time of the election.

These two bedrock principles of free and fair elections currently risk being weakened by a highly unusual election dispute playing out in North Carolina – and I am astounded that there’s any chance the courts would throw out the votes of North Carolinians who properly cast their ballots in last November’s election.

After two recounts confirmed that Justice Allison Riggs defeated Judge Jefferson Griffin in the race for Seat 6 on the North Carolina Supreme Court, Judge Griffin filed election protests making three core claims: First, that absentee and early in-person voters should have their votes excluded from the count despite the fact that they followed the proper protocols for registering and casting their votes; that overseas voters – only from four Democratic-leaning counties – should have their ballots thrown out because they did not provide a photo ID when they voted, even though state officials unanimously declared that overseas voters were exempt from such a requirement; and that the votes of children of North Carolina citizens who live abroad should be cast aside because they have not lived in North Carolina, even though the legislature has allowed such voters to vote in each election since 2011. Griffin is now suing to overturn the State Board of Elections’ rejection of these protests.

While researching my comprehensive history of disputed elections in the United States, I identified several striking patterns for how such disputes are decided. For example, although courts are by no means infallible, they tend to be much more likely than committees of legislators to do a fair job of resolving such contested elections.

Since the middle of the 20th century, federal courts have played a vital role in policing the fair conduct of elections and election disputes. Previously, nearly all such matters were left to the state courts. Still, the federal judiciary played an essential part in ensuring that state courts did not trample on voters' fundamental civil rights.

In its landmark 1978 decision of Griffin v. Burns, the U.S. Court of Appeals for the First Circuit stopped a Rhode Island state court from changing the outcome of the Democratic primary for a seat on the Providence City Council. The state supreme court had ordered the election’s outcome overturned by claiming that absentee ballots were impermissible in primaries, even though Rhode Island’s secretary of state had been providing for absentee ballots in primaries for the last seven years. The federal judiciary intervened, explaining that such an outcome would unjustly disenfranchise innocent, eligible voters.

Similarly, the federal judiciary demonstrated its crucial role when it decided a dispute over the 1994 election for the Alabama Supreme Court’s position of chief justice. The Democratic-majority state supreme court attempted to undo their Democratic colleague's reelection defeat by incorrectly claiming that prevailing election procedures on election day obligated them to count absentee ballots that failed to meet the proper requirements.

A fact-finding inquiry by a federal district judge determined that the clear practice of election administrators in Alabama for over a decade had been to exclude such ballots, and no reasonable voter could have understood otherwise. As a result, the federal judiciary ordered the swearing in of the Republican candidate for the state’s chief justice, ensuring that the majority on the state’s top court did not rig the result in its favor.

These cases have set an important standard for resolving such election disputes in recent decades. So long as the federal judiciary adheres to these long-standing principles and precedents, it has represented an important brake on local loyalties and partisan politics.

However, this critical precedent is being tested today in the election dispute over a North Carolina Supreme Court seat.

If the courts allow Judge Griffin’s attempts to throw out the votes of tens of thousands of North Carolinians, they will undermine trust in North Carolina’s elections and trust in the courts. Furthermore, they would upend the precedents that allow voters to know their votes will be counted if they follow the rules.