McCrory allies wrongly accused voters of fraud, but does the law protect them?
If recent history is any indication, the 2020 elections will likely feature many untruths about voter fraud.
In North Carolina, one lawsuit that’s still dragging on from the 2016 elections could soon become a guide for whether politicians and their supporters can be penalized for making false voter-fraud allegations in the future.
The case has not yet gone to trial. But on Wednesday, a judge in Chatham County heard arguments previewing how an eventual trial over libel and conspiracy might play out, if it gets that far.
At issue are election complaints in the aftermath of the race between Republican Pat McCrory and Democrat Roy Cooper for the governor’s office. Cooper was initially declared the winner by a razor-thin margin, and although McCrory was successful in calling for a partial recount, the recount results upheld Cooper’s victory.
McCrory is not one of the people being sued for libel.
The case is against some of his 2016 supporters. They falsely accused several dozen North Carolinians of voting illegally, although only a handful of those voters are suing.
The lawsuit targets the Washington, D.C., law firm Holtzman Vogel Josefiak Torchinsky and its lawyers who worked on McCrory’s post-election push. Also being sued are McCrory’s legal defense fund — which records show has just $2,000 left in the bank — that allowed him to raise and spend money on the complaints separately from his campaign fund, and William Clark Porter IV, a Republican official from Guilford County where most of the plaintiffs in the lawsuit also live.
The voters have said they will leave it up to a trial to determine exactly how much money they should be paid by the various defendants, but they believe it should be more than $25,000. Meanwhile, their accusers say there’s no proof they committed libel or engaged in any sort of conspiracy.
One outside observer says that regardless of legal liability, politicians need to be more careful about lobbing accusations of widespread voter fraud because it’s actually quite rare.
“They hurt our democracy in two ways,” said Myrna Pérez, director of a voting rights program at the Brennan Center think tank at New York University. “One, some people are going to believe it and lose faith in our elections. But two, even people who know it’s false get disgusted because they see politicians engaging in lies and shenanigans to stay in power.”
Republican politicians stood by their claims in 2016.
“We have no apologies, and we will keep doing this,” the NC GOP’s then-leader Dallas Woodhouse told The News & Observer in late November 2016 after news of false allegations started coming to light.
And when McCrory conceded to Cooper on Dec. 5, 2016 — by which time, the N&O reported, “the majority of (the fraud allegations) were dismissed by GOP-controlled county election boards” — his concession speech included a line calling the allegations “continued questions that should be answered regarding the voting process.”
Political motives at work?
Even though he’s not personally being sued, McCrory wonders why this lawsuit is still happening nearly three years after it was filed — especially given the “many expensive lawyers” leading the lawsuit against his supporters.
“Who is paying for all these lawyers finding and representing plaintiffs,” he wrote in a text message. “Unlimited massive funds and resources coming from somewhere that never ends after three years! Real agenda???”
The main lawyer for the voters is Press Millen of the Raleigh firm Womble Bond Dickinson. Millen represented Cooper during the 2016 recount.
Also representing the voters is Allison Riggs of the Southern Coalition for Social Justice. The Durham-based nonprofit has represented plaintiffs in many high-profile political lawsuits since its founding by current NC Supreme Court Justice Anita Earls in 2007, included lawsuits against gerrymandering and voter ID.
Riggs and Millen both said no one is paying them for their work on this lawsuit.
“We’re working on the case pro bono,” Millen wrote in an email.
Key legal questions
Neither side in the 2016 libel case disputes the central fact that the voters were indeed wrongfully accused. Those false accusations were that they illegally voted multiple times, or illegally voted as a felon.
The main arguments in this case, then, are legal ones: Does the law allow voters to win damages from people who wrongfully accused them of voting illegally? Or does the law protect their accusers, since they sent the claims to state officials whose job it is to investigate such allegations? And aside from the libel claims, how much evidence do you need to prove anyone conspired against the voters who were falsely accused?
“A conspiracy cannot be based solely on suspicion and conjecture, and that’s all they offer in terms of their arguments,” said Craig Schauer, one of the attorneys for the defendants, in court Wednesday.
One of the legal questions boils down to just how serious it is for a person to be accused of voter fraud. The voters say they suffered sleepless nights, ridicule in their communities and damage to their reputations.
And voter fraud is certainly a crime. But is it an “infamous” crime? They’re trying to prove that, and one of the arguments from the GOP side is that “infamous” crimes refer to much more serious offenses, like murder or treason.
There’s also disagreement over how relevant or necessary the statements from McCrory’s recount team were to the state’s investigation of the election complaints. Millen said the McCrory team made at least five false statements about his clients, none of which were actually necessary to file an election protest, “yet they’re all there.”
But Gary Parsons, another one of the attorneys for the defendants, said proving libel requires getting over several roadblocks beyond just proving that someone said something false about you. And especially since the claims — although eventually found to be false — were relevant to a state investigation, he said, he doesn’t think the voters have a case against the people who made them.
“The plaintiffs have got to get past the very high standard for libel per se.”
A key part of the case, then, could come down to whether the McCrory team made the false statements in good faith, or without much — if any — attention to whether they were actually correct.
Millen also said he wants the court to consider examples beyond just the people from Guilford and Brunswick counties who filed this lawsuit. There were other people all around the state, from places like Raleigh and Fayetteville, who were also falsely accused even if they didn’t end up suing over it, he told Superior Court Judge Allen Baddour on Wednesday.
“The defendants say, ‘Please don’t look at what happened in Cumberland County,’” Millen said. “’Don’t look at that. Don’t look at what happened in Moore County ... or in Wake County.”
However, he added, “We think it’s all relevant.”
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This story was originally published November 23, 2019 at 2:50 PM with the headline "McCrory allies wrongly accused voters of fraud, but does the law protect them?."
