Voter fraud case before NC Supreme Court may determine how much power state election officials have

RALEIGH, N.C. — North Carolina’s highest court could determine whether election officials retain special legal privileges that allow them to discredit individual voters and set a precedent for how voter fraud claims are prosecuted.

The North Carolina Supreme Court will hear oral arguments Thursday morning in Bouvier v. Porter — a lawsuit that has been pending in state courts for the past seven years. The case centers on four voters from Guilford and Brunswick County who allege they were defamed by supporters of former Republican Gov. Pat McCrory in the aftermath of the 2016 election.

By a margin of 10,277 votes, Democratic Gov. Roy Cooper defeated McCrory in the 2016 gubernatorial election. Afterward, McCrory supporters filed petitions against election protests stating that voting irregularities had occurred, including allegations by Republican official William Porter of Greensboro.

According to the plaintiffs’ 2017 lawsuit, four people were accused of voting twice in Guilford County during the election protests. Porter’s petition against three voters in Guilford was dismissed for “lack of evidence presented” and one protest in Brunswick County was withdrawn, according to an appeals court ruling.

The plaintiffs claimed they had been defamed by Porter’s petition and sought $25,000 in damages, the complaint said.

It is not clear whether the case will be decided before the 2024 elections, according to one of the plaintiffs’ lawyers.

Later that year, an amended complaint named more defendants, including law firm Holtzman Vogel Josefiak Torchinsky and the Pat McCrory Committee Legal Defense Fund. According to the amended complaint, another plaintiff from Brunswick County was also added to the case when one of the original voters voluntarily left the case.

But the case before the N.C. Supreme Court will not determine whether the allegations defamed voters. Instead, it focuses on whether the defendants had a form of immunity known as absolute privilege to bring those claims.

Absolute privilege is a legal term used in defamation cases to outline circumstances in which someone is protected from liability for potentially defamatory statements. The privilege is usually granted in judicial and legislative proceedings.

A North Carolina appeals court gave plaintiffs a partial victory in 2021 by ruling that McCrory’s legal fund and law firm did not have absolute privilege. However, they did rule that Porter was privileged because he was operating in a “quasi-judicial election protest proceeding.”

But the defendants argue before the Supreme Court that they should all have immunity. By not granting absolute privilege to all involved, it prevents people concerned about the election from speaking “freely and fearlessly,” the letter said.

Bob Hunter, an attorney for the Pat McCrory Committee Legal Defense Fund, declined The Associated Press’ request for comment.

The defendants were not functioning in a capacity that would grant them absolute privilege because they “ghost-wrote” the petitions so others could sign them, said Jeff Loperfido, attorney for the plaintiff and lead counsel for the Southern Coalition for Social Justice. If the N.C. Supreme Court sides with the defendants, he says allegations of voter fraud could be used to deter voters or sow distrust in states’ election systems.

“It’s really about the fundamental right to vote and whether individuals, citizens of North Carolina, can be used as political pawns in this way and have their names tarnished without consequences,” said Loperfido, who joined in 2018 connected the case.

A lot has changed since the appeal ruling. One of the plaintiffs, Karen Niehans, died in early 2023, resulting in her defamation claim being dismissed, Loperfido said. The remaining claimants are retirees, he said.

The makeup of the N.C. Supreme Court has also changed since the appellate decision to include five Republicans and two Democrats — both of whom had to recuse themselves after previously working as attorneys for the plaintiffs.

But a panel of all Republican judges isn’t concerned about Loperfido because he sees the case as nonpartisan.

“This could have been the campaign effort of any losing candidate to try to create enough smoke to delay certification, or to encourage the Board of Elections to review these protests in some way,” he said.

Now both sides will await a decision after oral arguments are completed. Loperfido says this could take about six months, depending on whether the court chooses to issue an opinion after the 2024 election.