What would it look like to have a presidential election actually stolen in the United States?

In all likelihood, it doesn’t look like the violent events of four years ago this week. It’s not a military coup or an insurrection. Instead, it’s probably like what’s happening right now in North Carolina.

Here’s what’s going on: An incumbent Democratic Supreme Court justice, Allison Riggs, won her race by 734 votes. With about 5.5 million votes cast, that’s as narrow as it gets, but she won. Lots of recounts confirmed it. It’s done.

Except… the North Carolina GOP planted a backup plan in the system: a “zombie lawsuit” challenging the eligibility of certain voters who, per The New York Times, “unknowingly registered, sometimes years or decades ago, using erroneous forms that did not clearly require applicants to provide the last four digits of a driver’s license or a Social Security number as proof of identity.”

To stress: These are legitimate voters who were just given a bad form at some point. There’s even good reason to believe that many did in fact provide this information, but it was simply not included in the records because of clerical error. Plus, the vast majority of them would have provided proof of identity, like their driver’s license, when they actually voted.

Crucially, the RNC and North Carolina GOP made no effort to expedite their lawsuit and get a resolution before November 5th. Like all zombie lawsuits, this was strategically timed not to change the election rules or challenge voter eligibility before the election — but rather to create a lever for throwing out results if the election-deniers’ preferred candidates lost.

These are legitimate voters who were just given a bad form at some point. There’s even good reason to believe that many did in fact provide this information, but it was simply not included in the records because of clerical error.”

Now, the loser of the Supreme Court race, Republican Jefferson Griffin, is aiming to do exactly that. He’s asking the state Supreme Court, which has a 5-2 Republican majority — 5-1 in this suit because Riggs has recused herself — to disqualify approximately 60,000 voters (even though, again, none of them have done anything wrong!) in hopes of reversing the outcome.

The Court has already ordered the North Carolina State Board of Elections to halt certification of the race, which was supposed to happen today. Riggs and the State Board are in federal court trying to halt further interference, with a decision likely coming next week. But if the federal court doesn’t act, the North Carolina Supreme Court — whose chief justice has publicly supported Griffin’s campaign — will decide whether to void the ballots of tens of thousands of North Carolinians.

In a race with a tiny margin and a list of targeted voters that overrepresents women and voters of color, the Republican-dominated Court may end up declaring the loser the winner for one of its own seats.

If this succeeds, it’s almost certainly a template for what future efforts to overturn elections will look like.

How zombie lawsuits work

As we warned before the election, the proliferation of zombie lawsuits is a dangerous new escalation in the election denier playbook.

These are lawsuits that: “by design [have] no chance of succeeding before the election. Because the goal is to plant a dead complaint somewhere in the legal system in the hopes that a court (or Congress) will use the claims as a pretext to overrule the voters afterwards.”

A good way to spot a zombie lawsuit is by looking to see if it was even possible to resolve the question before the election. If there was no way for a court to give the plaintiffs what they supposedly wanted in time for voting to occur, that’s a pretty good sign the thing was intended as a zombie. If you’re acting in good faith, you would never wait to sue until it was too late to get anything changed.

According to Anne Tindall, Special Counsel at Protect Democracy and our lead in North Carolina, that’s the case here:

On August 23, 74 days before Election Day, the RNC and North Carolina GOP filed a lawsuit asking to throw 225,000 voters off the rolls for alleged violations of the Help America Vote Act. But as any election lawyer surely knows, federal law clearly says you can’t systematically remove people from the rolls less than 90 days before an election. Their lawsuit was dead on arrival. To make matters more absurd: This lawsuit challenged practices that had been clearly in place for over a decade and longer — and yet they waited until after election officials had already started mailing ballots to military and overseas voters. Then they did nothing to try to get the case actually decided before the election, leaving the arguments to sit quietly in the court system in case they were needed to overturn the results.

The merits of the NC case aren’t even close

This shouldn’t really matter — a zombie lawsuit seeking to throw out a free and fair election is a zombie lawsuit seeking to throw out a free and fair election — but it’s worth stressing: The claims Griffin is making here are mind-bendingly inconsistent.

Even by the shaky standards of election-denier lawsuits, this case is pretty shoddy.

Per Anne, again:

The procedural, logical, and factual errors here are honestly quite impressive. The whole complaint is about “election integrity,” but they’re only seeking to disqualify ballots in a handful of races that Republicans lost (they’re not asking, for instance, for Donald Trump’s victory in the state to be re-examined). Plus, they’re only challenging absentee voters and early in-person voters — voters who historically tend to vote more Democratic — and not voters who voted on Election Day but whose records are also missing information. And they allege that voters didn’t provide required information — either a drivers’ license number or the last-4 of their SSN — when they registered to vote. But for many, it was the government’s error in failing to ask (and almost all showed their driver’s license when they actually voted). Or for many others, they did provide that information, but elections officials transposed letters or misspelled an unfamiliar name when transferring information on paper registrations to a database. Or someone provided a driver’s license number when they registered to vote in their married name that was associated with their name before marriage and thus generated a mismatch across state databases. Or their driver’s license lists their parental names separated by a hyphen but their voter registration separates them with a “y.” (Those last two likely explain why women and non-white voters are overrepresented on Griffin’s protest list.)

All of which to say, it’s pretty safe to describe this particular case as a brazen attempt to overturn an election. It’s an attempt to get a partisan state supreme court to ignore the law and the will of the voters and install a co-partisan by pure force.

A harbinger of a national trend?

For years, North Carolina has been at the forefront of state experiments with authoritarianism, what political scientist Jake Grumbach calls “laboratories against democracy.”

(See, e.g., the state legislature stripping power away from every executive office won by a Democrat and giving those powers to executive offices that Republicans won.)

It’s hard to say what happens next in this particular zombie. Even if the Republican Supreme Court decides to install the loser, Griffin, over the winner, Riggs, to its bench, a federal court could still step in and block this judicial self-coup.

But if this effort succeeds — and honestly, even if it fails but seems to come close — it will, as Republican NC Supreme Court Justice Richard Dietz warned, provide an enticing roadmap for future attempts to overturn elections. (Remember, there were zombie lawsuits filed in dozens of states in 2024, they just didn’t come to anything because the various plaintiffs’ preferred candidates mostly won the election).

This would — obviously — be an existential threat to the integrity of future elections. Who the voters vote for will matter less than partisan courts’ willingness to cancel results they don’t like. Once the pattern and precedent are set, it’s hard to go back.

Heads I win. Tails you lose.

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