By Gene Nichol

I have, I’ll concede, been more critical of the North Carolina Supreme Court than most. I have watched, and complained of, their lawlessness, their bold and unrelenting partisanship, their wild and sanctimonious hypocrisy, their judicial dishonesty and unprofessionalism, their rash contempt for the rule of law. I have even pointed to the signals of what they were about to do – in the Jefferson Griffin challenge — to steal the election.

Still, part of me thought, and of course hoped, that all signs to the contrary, they wouldn’t actually do it, villainous as they may be. Stealing a supreme court election — thus destroying their own institution as they attempt to overthrow the broader democracy — is just too far beyond our professional norms, their oaths of office, our defining national mission, our belief in constitutionalism, the promise of our forebears, to be literally undertaken. But undertake it they did. On Friday, April 11, 2025, a day in judicial infamy, the North Carolina Supreme Court crossed the Rubicon.

As Justice Anita Earls explained in a blistering dissent:

“It is no small thing to overturn the results of an election in a democracy by throwing out ballots that were legally cast consistent with election laws in effect on the day of the election. Some would call it stealing the election, others might call it a bloodless coup, but by whatever name, no amount of smoke and mirrors makes it legitimate.”

And, from the Republican side of the court, in an act of breathtaking political courage, Justice Richard Dietze, called out his colleagues’ unforgivable transgression:

“By every measure, this is the most impactful election related court decision our state has seen in decades. It cries out for full review and for a decisive rejection of this sort of post hoc judicial tampering in election results.”

How, I must wonder, do North Carolina Republicans explain Dietz’ career-ending commitment to personal and professional integrity? Is it merely a whimsical act of self-immolation? Perhaps a hoax driven by Trump Derangement Syndrome? I know the last thing Justice Dietz might want, or need, is praise from the likes of me. But he deserves a John F. Kennedy Profiles in Courage Award. (There is, actually, such a thing.) Dietz obviously believes it’s important to be able to look oneself in the mirror.

I know many were relieved that the high court didn’t accept Griffin’s broad challenge to roughly 65,000 voters with alleged technical mistakes in the registration process. The majority opinion determined that “mistakes made by negligent election officials” can’t deprive otherwise eligible voters of their franchise. But the court called into question 2,000-7,000 military and overseas voters — giving Griffin plenty of room to upset the outcome. (So much for patriotism). And, as Justice Earls noted, “the majority failed to explain why precedent protecting voters from being penalized for negligence by officials in the registration process” should not also protect the military voters “when casting their ballots.”

Beyond that, by accepting Griffin’s partisan targeting, “the vote of an overseas or military voter registered in Wake County who voted pursuant to the laws applicable at the time is counted while (the same voter) registered in Guilford County is presumed to be fraudulent.”

“Explaining how this is fair, just or consistent with legal principles is impossible, so the majority does not try,” Earls wrote.

These are not mistakes. They are intentional wrongs. They also violate federal constitutional law. Bush v. Gore (2000) famously prohibited “standards for accepting or rejecting ballots that vary from county to county.” And, as conservative icon Judge Richard Posner has written: “Nothing is more infuriating than changing the election rules after the outcome of the election, conducted under the existing rules, is known.” The former violates the equal protection clause, the latter, due process.

But surely Paul Newby, Philip Berger Jr, Tamara Barringer and Trey Allen know this. Their loyalty to party, their corrupt loyalty to party, merely supersedes. They should resign.

Gene Nichol is a professor of law teaching courses in the constitution and federal courts at the University of North Carolina School of Law.