When judges act as partisan hacks, it is important to condemn their conduct. Last month, four Republican Justices on the North Carolina Supreme Court blessed the anti-democratic attempt by fellow Republican judge Jefferson Griffin to subvert the outcome of the November 2024 election for a seat on that same court by throwing out ballots of some North Carolina voters who had followed all the rules. But just as important is lauding the Republican judges who stand up against election subversion, including the Trump-appointed federal district-court judge Richard E. Myers, who ruled earlier this week that Griffin’s gambit violated the U.S. Constitution. Today, just two days after that decision, Griffin conceded defeat to Justice Allison Riggs. If the United States is going to resist attacks on free and fair elections, principled judges on the right remain indispensable.

Conservative and liberal judges regularly divide on many issues related to elections and democracy, such as the constitutionality of various provisions of the Voting Rights Act, partisan gerrymandering, and the permissibility of regulating campaign money. As I recently explained in The Yale Law Journal, there is no realistic hope that federal courts including the United States Supreme Court, now dominated by Republican appointees, are going to expand voting rights. But even so, a mostly bipartisan judicial consensus has long existed to protect the basic elements of free and fair elections: that elections should be conducted in accordance with the rules set forth before the election, that all eligible voters should be able to cast a vote that will be fairly counted, and that the winners of elections will be able to take office.

Americans saw this consensus on display in the aftermath of the 2020 presidential election, when Donald Trump and his allies filed more than 60 lawsuits seeking to overturn Joe Biden’s victory over Trump based upon factually unsupported claims of election irregularities and dubious legal theories. In a decision that rejected Trump’s legal efforts in Pennsylvania, the prominent conservative (and Trump-appointed) federal appeals-court judge Stephanos Bibas wrote: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

From the October 2022 issue: John Roberts’s long game

A similar thing happened in Wisconsin, where the conservative state-supreme-court Justice Brian Hagedorn joined with his liberal colleagues to reject a Trump claim to throw out ballots that voters had cast in that state using drop boxes during the pandemic, something that was allowed by the rules as set by election officials before voting began. If Trump had a problem with using drop boxes, Justice Hagedorn reasoned, Trump had to challenge this before the election rather than sit tight until after the election with the risk of disenfranchising voters.

Judge Myers’s ruling this week in the North Carolina case follows in this tradition of conservative judges standing up for the rule of law and against election subversion. As Mark Stern notes at Slate, “Myers is a dyed-in-the-wool conservative—not just a Federalist Society stalwart and Trump appointee, but also a longtime member of gun clubs, including the NRA, and the evangelical Christian Legal Society.”

Yet Judge Myers did not side with Griffin, a fellow conservative, in his attempt to overturn the election results. Griffin argued for throwing out ballots from certain Democratic-leaning counties for military and overseas voters who did not provide photo identification while voting, something that state law did not require. He tried to get some other ballots thrown out as well, all from voters who followed the rules as set forth and implemented by state election officials for years. The state court of appeals had allowed Griffin to challenge up to 60,000 ballots, and the North Carolina Supreme Court narrowed that universe but still allowed some of Griffin’s challenges to go forward. This ruling came over the dissent of two state justices, including Republican Justice Richard Dietz, who said the ruling had disproved his belief that “our state courts surely would embrace the universally accepted principle that courts cannot change election outcomes by retroactively rewriting the law.”

When the case landed in federal court, Judge Myers held that the remedy sought by Griffin and blessed by the state courts violated both the due-process rights of voters, by changing the rules retroactively, as well as equal-protection rights, by treating similarly situated voters differently. As Judge Myers wrote: “You establish the rules before the game. You don’t change them after the game is done.” He added, quoting some earlier cases, that this case “concerns an attempt to change the rules of the game after it had been played. The court cannot countenance that strategy, which implicates the very integrity of the election and offends the law’s basic interest in finality. Permitting parties to upend the set rule of an election after the election has taken place can only produce confusion and turmoil (which) threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves.”

That Griffin conceded after Judge Myers’s incontrovertible opinion is good—it’s more than Donald Trump ever did in 2020 or since. But it should not have come to this. Griffin should never have attempted election subversion, and the North Carolina courts never should have blessed his attempt. This kind of retroactive effort to rejigger the rules with judicial blessing may yet open a new front in the voting wars. But if principled judges like Judge Myers on the right, and their colleagues on the left, continue to stand up for the rule of law, America can still survive the ongoing attacks on its democracy.