RALEIGH, N.C. (CN) — In a case that could redefine the scope of absolute privilege, the North Carolina Supreme Court heard arguments Thursday in a libel suit filed by voters accused of committing voter fraud in the 2016 gubernatorial election.
The original main defendant in the case is William Porter, a Guilford County Republican official who — along with others — used flawed data to target voters with official election protests on behalf of former Republican Governor Pat McCrory.
Those protests claimed the voters had committed fraud, sowing doubt about the results of an election which McCrory lost. In the end, hundreds of voters were targeted.
The plaintiffs claim that Porter and others defamed them, interfered with their right to vote and subjected them to national media attention and public embarrassment. The defendants argue their participation in the fraud-reporting process grants them absolute privilege and immunity from libel charges.
Republican justices will decide the case, after the only two Democrats on the court, Associate Justices Anita Earls and Allison Riggs, recused themselves for having formerly represented the plaintiffs.
In court, Craig Schauer, lawyer for the defendants, argued that because the defendants were participating in official judicial proceedings in the form of election protests, they're shielded by governmental privilege and can't be held liable.
The state appeals court only partially agreed with these arguments in 2021 — finding that while Porter did indeed have absolute privilege, the others are subject to liability since they made statements outside of the official protests.
In court on Thursday, Schauer nonetheless argued that the benefits of allowing unfettered election protests nonetheless outweighed any harm.
“There are certain settings in which society has made a determination that we want information to flow to the government, because the interest in the government having that information — and [in] people being able to speak freely — outweighs the potential harm that information may have to an individual,” he said.
Pressly Millen, lawyer for the plaintiffs, instead argued that immunity is earned.
Aside from Porter, the defendants in this case did not participate in a quasi-judicial proceeding, as they didn’t file the fraud reports themselves, he noted. Instead, they identified Republican leaders and provided them with election protests to submit under their names.
The lawyers used these party leaders as a stalking horse, Millen argued, to do something they could not do: accuse his clients of felony voting. North Carolina election protest forms require the filer to be a registered voter in the election or a candidate on the ballot.
“This privilege does not exist to permit libel," Millen said: "The privilege exists to permit the fair and efficient administration of justice." He argued there needed to be safeguards to prevent third parties from interfering.
This defamation case was filed in early 2017, following the 2016 defeat of incumbent Governor Pat McCrory to Democratic challenger Roy Cooper, who is now the governor.
McCrory lost by more than 10,000 votes but refused to concede for 28 days. Before he finally conceded, McCrory’s campaign and legal representatives filed hundreds of voter fraud complaints in dozens of counties, challenging the integrity of the election.
Instead of signing his name to the election protests, McCrory’s campaign decided to use local registered voters to fill out the forms. The plaintiffs in this case were all voters who participated in absentee voting and were named by a local Republican official, William Clark Porter IV. Porter claimed the voters had committed felony voting fraud based on flawed information from the McCrory camp.
The accusations of fraud were littered with errors — with one voter incorrectly accused of voting as a felon when the voter was decades older than the named felon. According to the advocacy group Democracy North Carolina, the errors included information that could have been easily fact-checked against North Carolina’s criminal databases.
The protests were dismissed as largely unfounded, as McCroy’s team used a data-matching process that named over 100 people for allegedly illegally voting as felons or voting in multiple states. The protests also identified ballots cast by deceased voters as fraud, when in fact those voters had voted absentee and died prior to election day.
In a study on the election protests, Democracy North Carolina reported that out of the roughly 600 ballots challenged, 95% were legally filed. The state appeals court ruled in 2021 that the other defendants could be sued but found that Porter was protected by absolute immunity because he made his statements in “a quasi-judicial election protest proceeding.”
The defendants claim that they should all be shielded by absolute privilege because they participated in a quasi-judicial process by providing information to the voters who signed their names to the election protests.
In court on Thursday, Millen expressed concerns that by asking party leaders to file election protests for them and without proof, McCrory's legal representatives were attempting to defame his clients without assuming responsibility.
Millen also pointed out that the lawyers were not licensed to practice in North Carolina and didn’t request to be admitted pro hac vice. He argued that granting them absolute privilege could protect them from bar discipline for violating ethical rules.
“We were pleased to have the opportunity to present our argument," Jeff Loperfido, an attorney for the Southern Coalition of Social Justice who is also representing the plaintiffs, said. "This case was filed in 2017, and our clients have been looking forward to their day in court to push back against the reputational harm that the actions of defendants caused to them."
“We're pleased to see, through the questioning of the justices, their concern about the conduct of the defendants, in terms of questions around the role they're playing as attorneys in North Carolina," he added. He said the group expected a decision from the court within in three to nine months.
Lawyers for the defendants did not respond to a request for comment.
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