RALEIGH — A North Carolina appeals court panel will soon decide whether a libel complaint can proceed to trial over false accusations that representatives of former Gov. Pat McCrory made in 2016 alleging several voters had unlawfully cast multiple ballots, were ineligible due to a felony conviction or voted in the name of dead people.
If allowed to go to trial and ultimately successful, the lawsuit could provide a pathway for lawmakers and their supporters to be penalized for making inaccurate voter fraud claims in future elections. A hearing was held Wednesday after McCrory’s side appealed a lower court’s decision to advance the case to trial.
McCrory, a Republican who narrowly lost his reelection bid in 2016 to Democrat Roy Cooper, is not personally listed as a defendant in the complaint the Southern Coalition for Social Justice brought forward on behalf of voters from Brunswick and Guilford counties in 2017. The group is instead targeting those that supported last-ditch efforts to have McCrory overcome a more than 10,000-vote loss after Election Day.
William Clark Porter, a GOP official in Greensboro; the Pat McCrory Committee Legal Defense Fund; the Holtzman Vogel Josefiak Torchinsky law firm and four of the Warrenton, Virginia-based firm’s attorneys are named in the complaint.
The lawsuit accuses McCrory’s supporters of participating in a “civil conspiracy” that harmed voters’ reputations. Damages exceeding $25,000 are being sought as a result.
More than four years after the lawsuit was filed, the voters and McCrory supporters are still fighting over whether a trial should be able to go forward. A three-judge panel of the state Court of Appeals on Wednesday heard arguments from both sides, with two judges who are registered Democrats appearing to more aggressively question the pro-McCrory side. The lone judge on the panel registered as a Republican asked more questions to those that brought forward the lawsuit but did not signal support for one side over the other.
Craig Schauer, a Raleigh-based attorney representing McCrory’s supporters, argued his clients have the absolute right to have made their statements about unlawful ballots at that time, regardless of whether it is considered defamatory. He said a successful lawsuit would “chill speech” by dissuading people from speaking out on potential voting irregularities.
“It’s going to result in the most vulnerable people in our society being the ones who are least likely to speak up,” Schauer told the panel. “It’s those who can least afford to defend themselves against a defamation lawsuit who are going to be the first ones to no longer speak up and raise their concerns.”
The three judges are not evaluating whether the voters were defamed and should be compensated for reputational damage they may have incurred. Rather, they are tasked with deciding whether the defendants enjoy a so-called “absolute privilege” and a trial can proceed.
Pressly Millen, a Raleigh attorney representing the voters, argued during Wednesday’s hearing that Porter, the law firm, the attorneys, and McCrory’s legal defense fund all participated in the election protest and qualify to be sued. He took particular aim at the Virginia-based law firm.
“They are saying, in effect, ‘Let us come into North Carolina, secretly cause chaos in your election process by defaming innocent voters and then head back to Virginia scot-free, no sanctions, no discipline, no civil liability (and say), ‘Thank you, absolute privilege.'”
If the appeals court rules in favor of a trial, McCrory’s side could still appeal the decision to the state Supreme Court. Jeff Loperfido, senior counsel for voting rights for the group bringing forward the lawsuit against McCrory representatives, expects a decision from the panel in the coming months and said his organization would likely appeal if the court doesn’t send the case to trial.