Libel case over North Carolina voter fraud lies moves forward

After former North Carolina Gov. Pat McCrory narrowly lost his 2016 re-election bid to current Democratic Gov. Roy Cooper, political operatives working on the Republican's behalf deployed a strategy that would be taken to new levels four years later by President Donald Trump after his loss to President Joe Biden: spreading misinformation to raise doubt about the election's legitimacy.

In North Carolina, the effort was led by the Pat McCrory Committee Defense Fund, which was formed on on Nov. 9, 2016, to contest the results of the close gubernatorial election that took place a day earlier, along with attorneys it hired from Holtzman Vogel (then Holtzman Vogel Josefiak Torchinsky), a law firm headed by Virginia state Sen. Jill Holtzman Vogel (R) that has offices in Virginia, Florida, and Washington, D.C. Holtzman Vogel partner Jason Torchinsky served as the Defense Fund's counsel.

They oversaw the filing of election protest paperwork with local elections boards, then under Republican control statewide, that charged about 600 North Carolinians in 37 counties with committing voter fraud by voting twice or while ineligible because of a felony conviction. Even after election officials pointed out that the complaints were full of sloppy errors like getting middle initials wrong or confusing juniors and seniors, the filings continued. When the local elections boards called preliminary hearings to address the issues, the Holtzman Vogel attorneys did not appear, and the attorneys also told local protest filers they did not need to appear, leading to protests being dismissed for lack of evidence. Research has repeatedly shown that voter impersonation fraud is extremely rare and does not occur at a rate that could affect the outcome of statewide races.

The McCrory organization's unusual pattern of behavior was documented in an April 2017 report by the nonpartisan advocacy group Democracy North Carolina titled "The Deceit of Voter Fraud," which accused the campaign and the state Republican Party of engaging in "a coordinated legal and publicity crusade to disrupt, and potentially corrupt, the elections process with what amounted to fraudulent charges of voter fraud." The report speculated that the effort may have been aimed at sowing enough doubt about the vote to trigger a state law allowing the Republican-controlled General Assembly to pick the winner.

In the end, though, neither the state election board nor any local boards found evidence of widespread fraud; of the 600 ballots protested, fewer than 30 were illegally cast or counted, and for the most part by accident or due to confusion about voting rules for people on probation. Democracy North Carolina called for criminal investigations of those behind the accusations, but that hasn't happened. McCrory, who conceded the 2016 election a month after it took place, is now running for the U.S. Senate seat being vacated by Republican Richard Burr, who is not seeking re-election next year.

But the lies had consequences: In February 2017, four voters who faced false accusations of double voting filed a libel lawsuit against their accusers, initially naming as the defendant William Porter IV, a local Republican official in Guilford County under whose signature one of the election protests was filed. Several months later, the plaintiffs amended their complaint to include Holtzman Vogel and the McCrory organization. McCrory himself is not named as a defendant, but the suit names four Holtzman Vogel attorneys who were involved in filing the protests: Steve Roberts, Erin Clark, Gabriela Fallon, and Steven Saxe. The lawsuit was brought in state Superior Court in Guilford County and seeks damages in excess of $25,000.

The defendants have argued that the case should be summarily thrown out, claiming they're protected by various forms of privilege including "absolute privilege." That's a concept in defamation law that in certain circumstances an individual is immune from liability for making defamatory statements — legislators debating on a statehouse floor, for example, or an attorney arguing in court. Under North Carolina law, absolute privilege applies only in judicial or quasi-judicial contexts, which the trial court judge ruled did not apply in this case.

The Republican defendants then turned to the North Carolina Court of Appeals and asked it to reconsider their absolute privilege claims, and a three-judge panel issued a unanimous ruling on Oct. 5. They held that Porter was in fact protected by absolute privilege since he submitted the protest at a local elections board hearing — but that the McCrory organization and Holtzman Vogel attorneys were not. The court noted that not only did the attorneys skip local election board hearings, they weren't even licensed to practice law in North Carolina. The appeals court sent the case, Bouvier et al. v. Porter, back to the trial court. Should the defendants appeal again on the privilege question, the case would go to the state Supreme Court, which has a 4-3 Democratic majority.

Allison Riggs is the co-executive director and chief counsel for voting rights at the Durham-based Southern Coalition for Social Justice, which represents the plaintiffs alongside pro bono attorneys from Raleigh-based Womble Bond Dickinson. Her group was also involved in a 2019 Virginia lawsuit brought on behalf of voters subject to false accusations of voter fraud; it ended in a settlement with J. Christian Adams, a former member of the Trump administration's voter fraud commission that uncovered no widespread fraud, and Adams' organization, the Public Interest Legal Foundation. Riggs applauded the North Carolina Court of Appeals ruling and pledged to keep fighting.

"The defendants' baseless claims of voter fraud, wielded in a last-ditch effort to sow doubt in the results of our state's 2016 elections, upended the lives and reputations of innocent North Carolinians who were simply exercising their fundamental right to vote," she said in a statement.

Voter fraud lies continue

The Southern Coalition for Social Justice said the appeals court ruling in Bouvier fits a growing pattern of courts rejecting bad-faith attempts to create distrust in North Carolina elections through false claims of voter fraud. The organization pointed out that last month a magistrate judge for the U.S. District Court for the Western District of North Carolina recommended dismissal in a lawsuit seeking purges of voter rolls in Guilford and Mecklenburg counties. The case was brought by the national conservative group Judicial Watch, which has been involved in numerous controversies involving the spread of disinformation; it relied on false claims of voter fraud and misconduct in North Carolina's election administration.

But some North Carolina Republicans — and the attorneys working with them — clearly remain committed to spreading false claims about voter fraud: They even did so in a court filing for the libel lawsuit, as a group of academic researchers pointed out in a friend-of-the-court brief they submitted in the case.

The researchers were among the authors of a 2020 paper published in the American Political Science Review titled "One Person, One Vote: Estimating the Prevalence of Double Voting in U.S. Presidential Elections" that estimated how many people voted twice in 2012. They found that about one in 4,000 voters cast two ballots, though an audit suggested the actual rate may be lower due to errors in electronic vote records. Looking only at states that share Social Security numbers, which makes it easier to quantify who voted twice, they found that one suggested strategy for reducing double voting — removing the record with an earlier registration date when two share the same name and birthdate — would block about 300 legitimate votes for each double vote prevented.

But that was not how the McCrory Committee Defense Fund represented the research to the court. In an appeal brief submitted in August 2020, the Defense Fund incorrectly said that the researchers "estimate as much as 1.3% of voters casting votes may be double voting." In fact, the 1.3% figure was the researchers' estimated clerical-error rate that would explain all of the apparent double voting that they found. The apparent double votes occurred at a rate of only 1 in 4,000, which is 0.025%. The Defense Fund implied there were 50 times as many double votes as the actual number of duplicates found by the authors before they applied the clerical-error analysis.

"That statement is a significant misinterpretation of the paper's findings, greatly overestimates the rate of double voting found in the paper, and must be corrected," the researchers wrote in their brief.

Outside of the courts, North Carolina Republican state lawmakers are also continuing to baselessly cast doubt on the integrity of state elections. Earlier this month, members of the far-right House Freedom Caucus said they wanted to investigate voting machines used in last year's election in Durham County and would use the General Assembly police to do so, part of the group's broader effort to weaken confidence in the state's election systems. The caucus is led by Rep. Keith Kidwell of Beaufort County, who — according to documents leaked by hackers — is a listed as a member of the extremist militia group the Oath Keepers, which played a key role in the Jan. 6 assault on the U.S. Capitol that was fueled by Trump's lies about the 2020 election. To date, federal charges have been lodged against 22 Oath Keepers members for their role in the attack, which aimed to stop certification of the presidential results, and five have pleaded guilty. But despite his extremist ties, Kidwell is no pariah in the state GOP; besides himself, the North Carolina Republican Party is Kidwell's top campaign contributor.

Freedom Caucus members claim they chose Durham at random from the state's 100 counties, but many observers found that hard to believe. A Democratic stronghold, Durham County has one of the state's largest Black populations and is where the McCrory organization focused much of its ire in 2016 because votes that were counted late there due to equipment malfunction put Cooper ahead by about 5,000 votes out of 4.7 million cast. The North Carolina State Board of Elections officials have said the lawmakers have "no authority" to open and inspect voting machines.

The ongoing lies about election fraud have state and local election officials nationwide struggling to correct the record and defend themselves from attack. Last month, a nonprofit that works with election administrators launched the Election Official Legal Defense Network, which offers pro bono legal representation to poll workers, county clerks, and other election workers, regardless of political affiliation, in the face of growing political pressure and even threats of physical violence. And this past summer, the U.S. Justice Department created a law enforcement task force to address increasing threats against election officials, which have been fueled by disinformation.