The outcome of a lawsuit appeal coming before the North Carolina Supreme Court this week could determine whether politicians can be held liable for defamation when they make false allegations of voter fraud.
Former Gov. Pat McCrory‘s legal team and a group of Virginia attorneys accused about 600 voters in 37 counties of voter fraud in an effort to overcome the small margin by which McCrory lost the gubernatorial race to Roy Cooper in 2016. The majority of the accusations turned out to be false.
Four of those accused were Joe Golden, Louis M. Bouvier Jr., Karen Andrea Niehans, Samuel R. Niehans. They were the original plaintiffs in the defamation lawsuit now under appeal, Bouvier v. Porter, though Karen Neihans has died since the case was originally filed.
A trial court rejected the defendants’ claims of absolute privilege, protecting them from the defamation lawsuit. The Court of Appeals upheld that ruling in part in 2021, before the current appeal to the high court.
Justices are scheduled to hear arguments in the case, on Thursday, April 11.
In addition to the question of accountability for politicians, the case will also help define what protections exist against defamation for voters in North Carolina, according to Jeff Loperfido, the chief counsel for voting rights at the Southern Coalition for Social Justice, and Mac McCorkle, a professor of the practice at the Sanford School of Public Policy at Duke University and a former political consultant.
“There’s been no evidence supporting that these individuals double voted or did anything improper,” Loperfido said. “Yet they have been impacted by these allegations and have had to basically defend their ballots from being thrown out and then defend themselves in the court of public opinion.
The plaintiffs had all recently moved to North Carolina at the time of the accusations of double voting. Double voting is a felony and state law violation.
The plaintiffs are represented by the Southern Coalition for Social Justice and pro bono attorneys from Womble Bond Dickinson.
A plaintiff’s perspective
Golden recalls getting a call in early November 2016 from someone at the Brunswick County Board of Elections, telling him he had been accused of voting twice. The Board had already checked into his voting record in Montgomery County, Maryland, and found the accusation to be false but the caller wanted to give him a heads up since it was going to be coming out in the news media.
When he learned of the allegations of voter fraud against him in 2016, “I was shocked,” Golden said. “It was embarrassing to deal with when I’ve just moved here and don’t know that many people and then of course seeing it in the papers over the next week.”
Golden, 61, a retired resident of Southport in Brunswick County, moved to North Carolina in 2016 from Maryland. He owned an employment agency in Washington, D.C., for 12 years.
The accusations haven’t stopped Golden from casting his ballot. He has since been “more careful and a little suspicious” at times whenever he goes to vote during elections, he said. While Golden doesn’t support voter IDs limiting people’s ability to vote, having to show an ID to vote has helped alleviate the stress of being wrongfully accused again, according to him.
“I am cautiously optimistic that the truth will prevail,” Golden said, of his expectations of the outcome of the lawsuit. “That is my hope, but I’m sort of guarded in some ways because of other court rulings and things happening in our country right now.”
Defamation lawsuit significance
The Bouvier v. Porter case is significant in North Carolina, especially as voters prepare to head into another contentious election year, according to the Southern Coalition for Social Justice.
The plaintiffs and their legal representatives have been waiting for nearly seven years to reach an outcome at the trial, appellate and now the state Supreme Court level “trying to pursue their day in court,” Loperfido said.
“This case is impactful because innocent voters who are just going about their business, voting in elections, should not be dragged into this sort of political gamesmanship that occurred,” he said. “It can rise to the level of voter intimidation, by targeting individuals.”
Virginia-based attorneys who were digging into voter fraud in 2016 had limited knowledge about North Carolina election laws, according to Loperfido. Their allegations turned out to be baseless, yet there was no accountability for the damage that they did to the individuals who were accused.
The court can “provide accountability for folks who may choose to do these types of activities in the future,” he said.
“This is a nonpartisan issue and it could one day be any out-of-state organization … that could organize a similar type of contest and challenge ballots throughout the state, depending on the outcome of a race,” Loperfido said.
The court decision in Bouvier v. Porter is important because it can set a precedent, according to McCorkle. “We don’t want private citizens just attacked by political types, for the hell of it,” he said.
There could have been a settlement out of court or an apology from McCrory’s legal team and the group of attorneys to the citizens whose reputations were being attacked, but that didn’t happen, according to McCorkle.
North Carolina Supreme Court justices are voted into office in partisan elections. Current the court has a 5-2 Republican majority that might be seen as sympathetic to McCrory. However, the two Democrats on the court have recused themselves in the case because of ties to the plaintiffs, so only the Republicans will hear the case.
“I fear this Supreme Court will be partisan enough that they will give protection to the McCrory defense side and that out-of-state law firm,” he said. The stakes are high for N.C. voters, according to McCorkle.
The plaintiffs haven’t ruled out considering a federal appeal, depending on the state high court’s actions, according to Loperfido.
“That’s probably unlikely,” he said. “Our hope is that the court will be troubled by what was done to the defendants.”
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