FILE - This undated photo provided by the North Carolina Administrative Office of the Courts in December 2024 shows North Carolina Court of Appeals Judge Jefferson Griffin. (North Carolina Administrative Office of the Courts via AP, File)

RALEIGH, N.C. (AP) — A federal appeals panel exchanged arguments Monday with lawyers over a still-unresolved November election for a North Carolina Supreme Court seat, immersed in jurisdictional questions over which courts should determine whether roughly 66,000 ballots should have been counted.

Three judges on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, heard, among others, from attorneys for Democratic Associate Justice Allison Riggs, trailing Republican challenger Jefferson Griffin and the State Board of Elections, which last month dismissed Griffin's demand that the ballots get removed from their race tally.

Riggs leads Griffin by 734 votes from over 5.5 million cast in the race. Griffin's attorneys have said their client is likely to win if the votes they allege came from ineligible voters are discounted. Riggs' allies say Griffin should concede. The eight-year term at stake in the election was supposed to begin in early January. Riggs remains on the court in the meantime. A Griffin victory would expand the high court’s current 5-2 conservative majority.

The panel did not indicate when it will rule following 90 minutes of oral arguments over whether Griffin's efforts to remove the ballots should be heard in federal court or remain in state court.

For now, Griffin's challenges sit simultaneously in federal and state court systems — an unusual situation following weeks of legal motions and orders over the election in the ninth-largest state. The back-and-forth between the judges and the attorneys arguing before them Monday emphasized what could be described as arcane matters over when state-law matters can be moved to federal courts or returned to state courts.

Most of the ballots being challenged by Griffin were cast by voters whose registration records lacked either a driver’s license number or the last four digits of a Social Security number. A state law has required that such numbers be collected in registration applications since 2004.

Other ballots at issue were cast by thousands of military or overseas voters who did not provide copies of photo identification with their ballots; and by fewer than 300 overseas voters who have never lived in the U.S. but whose parents were deemed North Carolina residents. Riggs and the board say the ballots that Griffin is challenging were lawfully cast. Republicans backing Griffin, a state Court of Appeals judge, said his challenge is about election integrity.

In this case, lawyers for Griffin initially asked the state Supreme Court to intervene and declare the ballots be left out of the totals. But the elections board quickly moved the matter to federal court, saying Griffin’s appeals involved matters of federal voting and voting rights laws.

Griffin’s “extraordinary request to retroactively change longstanding election rules and thereby disenfranchise more than 60,000 North Carolina voters should confront the federal civil rights laws in a federal forum as Congress intended,” state Deputy Solicitor General Nicholas Brod, representing the elections board, told the panel Monday.

The appeals judges quickly jumped in with questions about the case, focused on developments in the past three weeks. First, U.S. District Judge Richard Myers formally returned the case to state court because, in part, he said the case involved “unsettled questions of state law.” The state board then appealed Myers’ decision to the 4th Circuit.

Meanwhile, just after Myers returned the case to state courts, a majority of state Supreme Court justices immediately blocked the board from certifying the race while the court decided whether to step in and rule on Griffin’s request to remove the ballots. Riggs recused herself from the case. But last week the remaining justices dismissed Griffin's original petition for a “writ of prohibition” and decided that Griffin’s protests should be considered first by a local trial court.

U.S. Circuit Judge Paul Niemeyer asked Brod exactly what any next step could be.

“We have a case in which a writ of prohibition was filed. The North Carolina Supreme Court dismissed it. What do we do with it?” Niemeyer asked. Brod responded that Myers could take back the case: “I still think that this case exists.”

But Griffin attorney Will Thompson later said that the state Supreme Court's order made the case before the panel moot.

“My position would be the petition for writ of prohibition cannot come back to life because the state’s highest court has dismissed it on state law grounds,” Thompson told Circuit Judge Toby Heytens. Heytens responded that the case remains alive, especially since the state Supreme Court kept intact a stay that prevents certification of the election. Circuit Judge Marvin Quattlebaum Jr. also heard the case.

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