It Is What It Is

The Saga Continues . . .

As you may have heard, Wake County Superior Court Judge William Pittman has rejected claims alleging illegal voting in the contest for NC State Supreme Court Justice. The contestants are current Supreme Court Justice Allison Riggs and her challenger, current State Court of Appeals Justice Jefferson Griffin. The ins-and-outs of the legal machinations in the case are numerous and – perhaps, ultimately – irrelevant. Instead, this lawsuit stands out as a shining example of how the rule of law is failing, and what awaits us on the other side. More on that in a minute.

First, a point of order. There are many things in politics and government that can be dealt with quite quickly – particularly when the niceties of legality are ignored. We need look no further than the past few weeks to confirm this claim. It is my observation – and one I believe I share with anyone who has had dealings with the legal system – that “justice” in this country comes extraordinarily slowly, if at all.

Moreover, I would suggest that this is sometimes a good thing. Traditionally, our judges avoid the snap judgements and ill-considered pronouncements of jurists who serve as simultaneously as prosecutor, judge, and executioner, as usually found in the throne rooms of monarchs and the kangaroo courts of banana republics, e.g., Mississippi.

Courts in the U.S. are slow because they’re up to here with people who want “the compensation you’ve got coming,” and everyone’s calendar is full up every day dealing with actual clients, including time spent on pointless phone calls and unnecessary meetings. Research. Discovery. Briefs. Motions. Crossclaims. Negotiations. It’s a miracle anyone makes it into an actual courtroom at all.

Courts are also slow by design. Nothing EVER occurs on the first court date, except for an emergency TRO, or some chump who wants to plead and pay the fine for his/her traffic violation. (Don’t ever, ever plead guilty to anything, without at least a hearing. It’s like handing over your money to the house without even bothering to put down a bet.) The most common motion any judge is likely to hear, day in and day out, is a motion for continuance. In short, the system is ponderous, deliberate, meticulous, and interminable. (That we frequently reach the wrong decision anyway is testament to the fact that human beings are a blight on the earth, but that’s a subject for a different day.) It is what it is.

What has changed, in recent times, is the infusion in our courtrooms another reason for delay: politics.

It used to be that Judges were held to a rigorous expectation of objectivity – that “blind justice” you’ve seen in all those courthouses and cartoons. Back in the day, no one worried, particularly, whether a judge was of one party or another – on matters of substance, most sitting jurists hewed closely to the guiding principles of black letter law, stare decisis (precedent, if you prefer) and the Constitution, both in content and by Supreme Court interpretation.

In 2016, the North Carolina legislature changed the rules to require state supreme court justices to run in partisan elections.^[1] This worked well for them for a while, with Republicans getting out the vote and gaining a 5-2 majority. As it stands now, only eight states (including NC) have partisan supreme court elections. Look for that to change.

After 2016, the Republicans drove off the cliff. Emboldened by their successes locally and nationally, they turned further and further to the right, led by a cabal of compulsive narcissists and billionaire techbros. Short cut to now – an administration that flaunts the rule of law, ignores the Constitution, is tearing down the so-called guardrails as we speak, and demands fealty from a cowering group of old “conservative” pols who are terrified of being primaried (at least) or executed, at worst (looking at you, Thom Tillis). Partisan courts are following suit.

Which brings us back to Allison Riggs. If you look at it through the lens of the North Carolina electorate, Riggs perfectly represents the voters in the Old North State. Out of 5 million plus that turned out for the last election, she won her Supreme Court seat by just over 700 votes. We are just that purple. (Purple with a hint of Johnny Reb. We voted for a racist president and the white guy – albeit Democrat – for Governor.) Riggs’ opponent was clearly incredulous that a MAGA candidate could lose a partisan race. So here we are, almost four months from election day, and the dispute continues.

As mentioned above, the Superior Court in Wake County found in Riggs’ favor, in a single-page ruling. If that seems like short shrift for such an important decision, keep this in mind: despite his claim that 60,000 voters voted illegally (for, among other reasons, not having provided the proper identification on their voter registration), Griffin has yet to produce evidence that identifies ONE SINGLE FRAUDLENT VOTE. A recent audit by the State Board of Elections found that at least 30,000 of the voters identified by Griffin did, in fact, provide the proper I.D., and where it was lacking, it was usually the fault of the registration form they were provided to complete. Of the 60,000 voters named by Griffin in his complaint, minorities (mostly Black) and young people are over-represented. Natch.

In response to Griffin’s appeal of the superior court finding, the state’s supreme court declined to provide an expedited review, and instead sent the case back to the NC State Court of Appeals. Why, you may wonder, didn’t they just accept the expedited review and have done with it?

What follows may be wild speculation, but I’ve had a pretty good batting average in that department.

The NC State Supreme Court are loath to rule in this case because anyone with any sense would see right through Griffin’s transparent demand for a do-over, and to grant his wish would be an obvious departure from legal reasoning and good jurisprudence. Nevertheless, this court is – by a factor of roughly two to one – bound by MAGA principles, the first commandment of which is, “Fuck ‘em.” Ergo, they have thrown this steaming pile of potential misprision back to the appeals court. Griffin is a member of the appeals court but will recuse himself.

What does the supreme court want, and why do they want it? They want the appeals court to overrule the superior court, based – no doubt – on the lower court’s thin record of findings, and to find in Griffin’s favor. Then, the supremes WILL take up the case as the court of last resort. Now, here’s the tricky part. Because Riggs herself is also recused from the case, there are only six justices left to rule on the issue. Two (maybe – the remaining D and one of the Rs) have already signaled that they will vote in Riggs’ favor. Accordingly, the remaining four stand with Griffin, and MAGA’s commandment is satisfied, right?

Nope.

I predict that one of the remaining 4 “Republican” justices will fall on his/her sword and stand with Riggs. WHAT? Sure. That makes it a 3-3 tie. Do you know what happens in a tie? The lower court – in this case, the appeals court – ruling stands. Griffin wins, and the supremes are off the hook. No appearance of partisanship or impropriety. You heard it here first.

But what if the appeals court rules in Riggs’ favor? Well, then, see MAGA’s first commandment, above. If they can no longer dodge responsibility, the NC State Supreme Court will find in Griffin’s favor. That’s the rule of law in an authoritarian state. It doesn’t matter how you win, if the other side loses. It is what it is.

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^[1] https://statecourtreport.org/our-work/analysis-opinion/how-years-legislative-maneuvering-shaped-years-judicial-elections