“Don’t fight the rabbits,” former college basketball coach Bobby Knight used to tell his players, urging them to concentrate on what’s important. “If you fight the rabbits, the elephants are going to kill you.” While Democrats and good government voters across North Carolina and the country worry over the ongoing election fight for a seat on the state’s highest court, a far bigger issue looms.
It is of course important whether Republican litigation can overcome a slim winning margin for incumbent Democratic Justice Allison Riggs. North Carolina Democrats already see the 5 -2 conservative Republican majority on the state Supreme Court as a daunting roadblock to challenging legislation coming out of the Republican-controlled General Assembly.
What we’re seeing really has very little to do with the state supreme court or Griffin’s desire to move up the judicial ladder.
But even if Riggs’ victory is sustained, that Republican majority on the court remains virtually guaranteed for the next four years. So why is the Republican National Committee — now more than ever under the thumb of Donald Trump — pouring literally millions of dollars into the litigation to help the GOP candidate, Court of Appeals Judge Jefferson Griffin? What’s going on here?
What we’re seeing really has very little to do with the state supreme court or Griffin’s desire to move up the judicial ladder. Republicans’ litigation strategy was in place long before any votes were cast in the 2024 election. During and after the 2020 election, the Trump team learned that a clown car of lawyers who didn’t know what they were doing, complete with spurious legal theories, would only result in losing. Thus, over the past four years, the Trump team moved to a different strategy. An all-star cast of high paid lawyers with silk stocking firms was put together to do the bidding of Trump’s political team.
One piece of this strategy included a creative election case for North Carolina — a key swing state and pivotal to Trump’s electoral path to the White House. As a result of sophisticated research, the RNC and the North Carolina Republican Party filed a lawsuit against the state elections board months before Election Day. It challenged over 200,000 North Carolinians whose voter registration, they claimed, was in violation of the Help America Vote Act of 2002. The Democratic National Committee intervened and a struggle ensued over whether the case should be heard in federal or state courts. But while the jurisdiction was being litigated, the suit’s very existence set the stage for Trump’s campaign challenge a loss in the state. Nobody was even thinking or worrying about the race for one seat on the state Supreme Court.
The election results in the state obviated the need for any litigation to save Trump. The only statewide race with a narrow margin ended up being the Supreme Court race, so, the thinking went, why not proceed with trying out the RNC’s legal theories, set favorable precedent, and maybe pick up another judicial seat? The lawyers were in place; they had the millions necessary to fund the litigation; and in the eyes of the RNC, the party had a favorable judicial landscape before them.
“Judge shopping” is a long-established practice in the legal profession, and the ultimate decision-maker in the state system is the seven-member Supreme Court with five elected Republicans. If in federal court, the landscape wasn’t necessarily bad. The federal district court judge assigned to the RNC case was a Trump appointee; and if problems arose in the 4th Circuit Court of Appeals, then potentially the case might be heard by the United States Supreme Court with its 6—3 conservative majority.
To make their case, the RNC relied heavily on a Republican consulting company named ColdSpark, especially its senior director of data and analytics, Ryan Bonifay. As his webpage bio states, Bonifay “helped create targeted universes of voters and data driven strategies for successful campaigns” including U.S. Sen. Ted Budd of North Carolina.
The RNC and North Carolina Republicans had in place a litigation strategy on a broad, sophisticated scale ready to launch if Trump needed it. Two weeks after election day, comprehensive election protests were filed in all 100 North Carolina counties regarding various categories of votes cast. These protests included lengthy affidavits from Bonifay setting out his experience and assignment in the case and detailing his data research to support the claims in the protests filed by Griffin. These protests listed three categories of challenged voters, with increasing numbers as the election litigation churned through the courts. Over 60,000 voters were singled out as falling within the HAVA issues dealing with the omission of driver’s license or social security numbers on registration forms. In addition to the 60,000 voters challenged, there was a challenge to over 5,000 military and civilian voters overseas who cast absentee ballots and over 1,000 overseas residents with North Carolina voter registrations. It seems obvious that this challenge had been in the works for months, along with thousands of pages of legal briefs and attachments prepared if needed. What this all signifies is that the RNC and North Carolina Republicans had in place a litigation strategy on a broad, sophisticated scale ready to launch if Trump needed it to secure a win through the courts. That strategy, post-2024, has implications going forward in close elections in any states that the RNC and Trump deem worthy of challenging, including U.S. House and Senate races in 2026. If they can’t win at the ballot box, then winning in the courts with selective comprehensive data and topflight legal teams will be their go-to strategy. The fight over the North Carolina Supreme Court race is just a preliminary test run, foreshadowing a far bigger “elephant” in the years ahead. If the Democrats are not prepared, then, if need be, the “elephants” will stomp them in the courtroom.
Robert F. Orr
Robert F. Orr is an attorney who served as an associate justice of the North Carolina Supreme Court from 1995 to 2004. 
