USCA4 Appeal: 25-1019 Doc: 130 Filed: 02/04/2025 Pg: 1 of 11

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 25-1018

JEFFERSON GRIFFIN,

Plaintiff - Appellee,

v.

NORTH CAROLINA STATE BOARD OF ELECTIONS,

Defendant - Appellant.

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NORTH CAROLINA DEMOCRATIC PARTY; BIPARTISAN FORMER MEMBERS OF CONGRESS; NORTH CAROLINA VOTERS; LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; HONEST ELECTIONS PROJECT,

Amici Supporting Appellant.

RESTORING INTEGRITY AND TRUST IN ELECTIONS,

Amicus Supporting Appellee.

No. 25-1019

JEFFERSON GRIFFIN,

Plaintiff - Appellee,

v. USCA4 Appeal: 25-1019 Doc: 130 Filed: 02/04/2025 Pg: 2 of 11

NORTH CAROLINA ALLIANCE FOR RETIRED AMERICANS; VOTEVETS ACTION FUND; TANYA WEBSTER-DURHAM; SARAH SMITH; JUANITA ANDERSON,

Intervenors – Appellants.

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NORTH CAROLINA DEMOCRATIC PARTY; BIPARTISAN FORMER MEMBERS OF CONGRESS; NORTH CAROLINA VOTERS; LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; HONEST ELECTIONS PROJECT,

Amici Supporting Appellant.

RESTORING INTEGRITY AND TRUST IN ELECTIONS,

Amicus Supporting Appellee.

No. 25-1020

JUDGE JEFFERSON GRIFFIN,

Plaintiff - Appellee,

v.

NORTH CAROLINA STATE BOARD OF ELECTIONS,

Defendant - Appellant,

ALLISON JEAN RIGGS; NORTH CAROLINA ALLIANCE FOR RETIRED AMERICANS; VOTEVETS ACTION FUND; TANYA WEBSTER-DURHAM; SARAH SMITH; JUANITA ANDERSON,

Intervenors.

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No. 25-1024

JEFFERSON GRIFFIN,

Plaintiff - Appellee,

v.

ALLISON RIGGS,

Intervenor - Appellant.

Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Richard E. Myers, II, Chief District Judge. (5:24-cv-00724-M-RN; 5:24-cv- 00731-M-RJ)

Argued: January 27, 2025 Decided: February 4, 2025

Before NIEMEYER, QUATTLEBAUM, and HEYTENS, Circuit Judges.

Affirmed in part, modified in part, and remanded with instructions by unpublished per curiam opinion.

ARGUED: Nicholas Scott Brod, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Samuel B. Hartzell, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina; Christopher D. Dodge, ELIAS LAW GROUP LLP, Washington, D.C., for Appellants. William Thomas Thompson, LEHOTSKY KELLER COHN LLP, Austin, Texas, for Appellee. ON BRIEF: Raymond M. Bennett, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina, for Appellant Allison Riggs. Ryan Y. Park, Solicitor General, James W. Doggett, Deputy Solicitor General, Sripriya Narasimhan, Deputy General Counsel, Trey A. Ellis, Solicitor General Fellow, Mary Carla Babb, Special Deputy Attorney General, Terence Steed, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellant North Carolina State Board of Elections. Narendra K. Ghosh, PATTERSON HARKAVY LLP, Chapel Hill, North Carolina; Lalitha D. Madduri, Tina Meng Morrison,

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Julie Zuckerbrod, James J. Pinchak, ELIAS LAW GROUP LLP, Washington, D.C., for Appellants North Carolina Alliance for Retired Americas, VoteVets Action Fund, Tanya Webster-Durham, Sarah Smith, and Juanita Anderson. Mark M. Rothrock, Raleigh, North Carolina, Kyle D. Hawkins, LEHOTSKY KELLER COHN LLP, Austin, Texas, for Appellee. Shana L. Fulton, William A. Robertson, James W. Whalen, BROOKS, PIERCE, MCLENDON HUMPHREY & LEONARD, LLP, Raleigh, North Carolina; Seth P. Waxman, Daniel S. Volchok, Christopher E. Babbitt, Jane E. Kessner, Ann E. Himes, Nitisha Baronia, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amicus North Carolina Democratic Party. Norman Eisen, Tianna Mays, Jon Greenbaum, Spencer Klein, STATE DEMOCRACY DEFENDERS FUND, Washington, D.C.; William C. McKinney, HAYNSWORTH SINKLER BOYD, P.A., Raleigh, North Carolina. Jessica A. Marsden, Anne Harden Tindall, Chapel Hill, North Carolina, Hayden Johnson, PROTECT DEMOCRACY PROJECT, Washington, D.C.; Stacey Leyton, Danielle Leonard, ALTSHULER BERZON LLP, San Francisco, California, for Amici North Carolina Voters and The League of Women Voters.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

These appeals involve the November 2024 general election for Seat 6 of the

Supreme Court of North Carolina. The candidates in that election are Jefferson Griffin, a

current judge on the North Carolina Court of Appeals, and Allison Riggs, the incumbent

for Seat 6.

Griffin brought a number of challenges to the ballots cast in the election. The North

Carolina State Board of Elections held a hearing on three of Griffin’s challenges: (1) ballots

cast by people who were not legally registered to vote because of incomplete voter

registrations in violation of

; (2) votes cast by overseas citizens

who were not North Carolina residents and did not live in the United States in violation of

, 163-231, and 163-166.16; and (3) the Board’s acceptance of

ballots by military and overseas citizen voters who failed to provide photo identification

with their absentee ballots in violation of

. After considering

these challenges, the Board dismissed Griffin’s election protests on procedural grounds

and on the merits. Part of the Board’s denial was its determination that granting Griffin

relief would violate certain federal statutes. 1

Griffin then petitioned for a writ of prohibition in the Supreme Court of North

Carolina (“Griffin I”). In that proceeding, he sought an order prohibiting the Board from

counting the votes he challenged. Griffin also sought a stay of the Board’s certification of

the election results for Seat 6 pending the resolution of his election challenges. Finally, in

The Board initially dismissed a subset of the total challenges but dismissed the 1

remainder of the protests in a later order. 5 USCA4 Appeal: 25-1019 Doc: 130 Filed: 02/04/2025 Pg: 6 of 11

addition to the petition filed in the Supreme Court of North Carolina, Griffin petitioned for

review of the Board’s dismissal of his challenges in the Superior Court of Wake County,

North Carolina (“Griffin II”).

The Board removed both cases—Griffin I and Griffin II—to the United States

District Court for the Eastern District of North Carolina under

, 1441(a),

1443(2) and 1367(a). In Griffin I, Griffin moved for a preliminary injunction prohibiting

the Board from certifying the election results for Seat 6. The district court ordered the

Board to respond to Griffin’s motion for preliminary injunction and to show cause as to

why the “matter should not be remanded to the North Carolina Supreme Court for lack of

subject-matter jurisdiction.” J.A. 9. The district court also ordered the parties that had

intervened—Riggs as well as the North Carolina Alliance for Retired Americans, VoteVets

Action Fund, Tanya Webster-Durham, Sarah Smith and Juanita Anderson—to respond to

the motion for preliminary injunction. After that, Griffin moved for the district court to

remand Griffin I back to the state supreme court, claiming first that the Board’s removal of

the case was not proper under §§ 1441 or 1443(2) and, alternatively, that the district court

should abstain under Railroad Commission of Texas v. Pullman Company,

(1941).

In considering Griffin’s motion for preliminary injunction, the district court held

that the Board’s removal under § 1443(2), the civil rights removal statute, was proper.

Nevertheless, the court decided to abstain from hearing the removed case under Burford v.

Sun Oil Company,

(1943). As a result, it remanded the matter to the Supreme

Court of North Carolina. That same day, the district court sua sponte remanded Griffin II

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back to the Superior Court of Wake County under the same reasoning as its remand of

Griffin I. 2

That same day, the Board appealed the district court’s order remanding Griffin I to

the Supreme Court of North Carolina. We assigned that appeal Case No. 25-1018. The next

day, the intervenors appealed. We assigned the appeal of the North Carolina Alliance for

Retired Americans, VoteVets Action Fund, Tanya Webster-Durham, Sarah Smith and

Juanita Anderson Case No. 25-1019. We assigned Riggs’ appeal Case No. 25-1024.

Finally, the Board appealed the district court’s order remanding Griffin II to the Superior

Court of Wake County. We assigned that appeal Case No. 25-1020.

Meanwhile, the Supreme Court of North Carolina, having received Griffin I back

from the district court by remand, granted Griffin’s motion for a temporary stay of the

certification of the election results and set an expedited briefing schedule concerning the

writ of prohibition.

We consolidated Case Nos. 25-1018 (L), 25-1019 and 25-1024, all of which

challenged the district court’s order finding removal proper under § 1443(2) and remanding

to the Supreme Court of North Carolina under Burford abstention. After appealing, the

Board moved for a stay asking us to order the district court to retrieve the action from the

Supreme Court of North Carolina. With respect to these consolidated cases removed from

For the same reason the district court remanded another related case, Kivett v. 2

North Carolina State Board of Elections, No. 5:25-cv-00003-M-BM, to the Superior Court of Wake County. The Board appealed that decision to the Fourth Circuit and that appeal remains pending, Case No. 25-1021.

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the Supreme Court of North Carolina, we granted Riggs’ motion to expedite briefing,

scheduled oral argument for January 27, 2025, and deferred action on the pending motion

to stay.

Days before oral argument, Griffin notified us that the Supreme Court of North

Carolina had dismissed the writ of prohibition proceeding, permitting Griffin’s challenges

to the Board’s denial of his election protests to proceed in the Superior Court of Wake

County. The Supreme Court of North Carolina also ordered that the temporary stay it

previously issued should apply to the Wake County Superior Court proceedings until that

court ruled on Griffin’s election challenges.

After we held oral argument in Case No. 25-1018 (L), 3 we granted Riggs’ motion

to intervene in Case No. 25-1020. We also ordered expedited briefing in that case, allowing

any parties to file briefing with respect to any distinction between the two sets of appeals,

No. 24-1018 (L) on the one hand and No. 25-1020 on the other.

Now, having reviewed the record and considered the positions advanced in the

parties’ briefs and at oral argument, we issue the following orders:

As to Case No. 24-1018 (L), the Supreme Court of North Carolina’s dismissal of

Griffin’s petition for a writ of prohibition renders moot the appeals of the district court’s

order abstaining from exercising jurisdiction and remanding the case. “If an event occurs

during the pendency of an appeal that makes it impossible for a court to grant effective

relief to a prevailing party, then the appeal must be dismissed as moot.” Int’l Bhd. of

3 Our reference to Case No. 25-1018 (L) includes Case Nos. 25-1019 and 25-1024. 8 USCA4 Appeal: 25-1019 Doc: 130 Filed: 02/04/2025 Pg: 9 of 11

Teamsters, Loc. Union No. 639 v. Airgas, Inc.,

(4th Cir. 2018). Here,

the Board asked us to reverse the district court and direct it to retrieve the case from the

Supreme Court of North Carolina. Because the Supreme Court of North Carolina has

dismissed the case the Board asks us to retrieve, we cannot grant the relief the Board

requests. Accordingly, those appeals are dismissed as moot. And all remaining motions

pending in those consolidated cases are denied as moot.

As to No. 25-1020, we affirm the district court in part and modify in part. We affirm

the district court’s order insofar as it found the Board had properly removed the case under

§ 1443(2). As the district court explained, the Board claimed that granting Griffin the relief

he sought might violate federal civil rights law, including the Help America Vote Act,

, et seq.; the National Voter Registration Act,

, et seq.;

the Voting Rights Act, codified in relevant part at

; the Civil Rights Act,

codified in relevant part at

, the Uniformed and Overseas Citizens

Absentee Voting Act, codified in relevant part at

; and the Fourteenth

Amendment to the United States Constitution. Following Republican National Committee

v. North Carolina State Board of Elections,

, 408 (4th Cir. 2024), we see no

error in the district court’s decision.

Regarding the district court’s order abstaining from exercising federal jurisdiction

and remanding to Wake County Superior Court, we affirm but modify. 4 While the district

4 “Where a district court has remanded a lawsuit to state court based on abstention principles, the remand is considered a final order appealable under

.” Bryan v. BellSouth Commc’ns, Inc.,

(4th Cir. 2004) (citing Quackenbush

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court abstained under Burford, in our view, Pullman abstention is a more appropriate

theory for abstaining from federal jurisdiction. Pullman abstention may be applied when

“there is (1) an unclear issue of state law presented for decision (2) the resolution of which

may moot or present in a different posture the federal constitutional issue such that the state

law issue is potentially dispositive.” Wise v. Circosta,

, 101 (4th Cir. 2020) (en

banc) (quoting Educ. Servs., Inc. v. Md. State Bd. for Higher Educ.,

, 174 (4th

Cir. 1983) (internal quotation marks omitted)). In other words, federal courts have

discretion to refrain from resolving a case pending in federal court that involves state law

claims and potential federal constitutional issues if the resolution of those unsettled

questions of state law could obviate the need to address the federal issues. However, under

Pullman abstention, the federal court retains jurisdiction of the federal constitutional claims

while the state court issues are addressed in state court. Meredith v. Talbot Cnty.,

, 232 (4th Cir. 1987) (“The usual rule is to retain jurisdiction in Pullman situations, but

to dismiss in Burford situations.”).

Pullman abstention is not new to this case. Griffin asked the district court to abstain

under Pullman in his motion to remand. And the district court referenced Pullman

abstention in its order remanding Griffin I. And we, of course, may affirm on any ground

apparent from the record and are not limited to the grounds offered by the district court to

support its decision. L.J. v. Wilbon,

, 310 n.9 (4th Cir. 2011).

v. Allstate Ins. Co.,

(1996)). So, because the district court remanded the lawsuit to state court based on abstention principles, we have jurisdiction to consider the district court’s decision to abstain under

and 1447(d). 10 USCA4 Appeal: 25-1019 Doc: 130 Filed: 02/04/2025 Pg: 11 of 11

Applying the requirements of Pullman abstention, the state law issues involved in

the case removed from the Superior Court of Wake County are unsettled. The parties

advance diametrically opposed interpretations of the North Carolina statutes that are the

subject of Griffin’s challenges. And neither provide authority from North Carolina

appellate courts making the resolution of that conflict about those state law issues

abundantly clear. What’s more, the resolution of those issues of North Carolina law could

avoid the need to address the federal constitutional and other federal issues the Board raised

in removing the case. For example, if the Board prevails in Wake County on the state law

issues, the resolution of the federal claims may not be necessary. Thus, this case satisfies

the elements of Pullman abstention. Accordingly, we affirm the district court’s decision to

abstain from exercising federal jurisdiction.

However, because the district court did not retain jurisdiction of the federal issues

as required by Pullman abstention, we remand with instructions directing the district court

to modify its order to expressly retain jurisdiction of the federal issues identified in the

Board’s notice of removal should those issues remain after the resolution of the state court

proceedings, including any appeals. See England v. Med. Exam’rs.,

(1964).

We deny all remaining outstanding motions as moot.

AFFIRMED IN PART, MODIFIED IN PART, AND REMANDED WITH INSTRUCTIONS

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