RALEIGH, N.C. (May 23, 2024) — The North Carolina Supreme Court sided with out-of-state political operatives Thursday in an opinion condoning agents of former state Governor Pat McCrory falsely accusing four North Carolina voters of fraud following the closely contested 2016 gubernatorial race.
The high court ruled in Bouvier, et al. v. Porter, et al., that the statements against the voters were privileged, despite the consequences those voters faced in the aftermath of the accusations, including having their lives and reputations upended.
The opinion states that defamatory statements are protected if they are “made in the due course of a judicial or quasi-judicial proceeding and is relevant and pertinent to the subject matter of the proceeding,” even if “mistakes [were] made” and the “aggrieved party . . . expos[es] the falsity of the statements” “which is exactly what happened in this case.” It adds that the plaintiffs were ultimately “vindicated” because the protests were either withdrawn or dismissed.
In November 2016, four North Carolina residents were among voters in dozens of counties falsely accused of voting in both North Carolina and another state by McCrory’s agents from the Pat McCrory Legal Defense Fund and the Virginia-based firm of Holtzman Vogel Josefiak Torchinsky PLLC. These accusations, filed as “Election Protests” before County Boards of Elections, were based on incomplete data and a flawed methodology and were ultimately dismissed by the State Board of Elections as legally improper. The voters, represented by Southern Coalition for Social Justice and pro bono attorneys from Womble Bond Dickinson (US) LLP, subsequently filed the defamation lawsuit.
The case was argued before the state Supreme Court in April.
“The North Carolina Supreme Court told us today that our lives and livelihoods do not matter in this state — we can be falsely accused of wrongdoing, paraded around as the poster children for fraudulent voting, and have our reputations damaged and degraded, and there is nothing we can do to stop it or prevent it from happening to anyone else,” said the three surviving plaintiffs in this case, Louis Bouvier Jr., Joseph Golden, and Samuel Niehans. “This decision sends a chilling message that powerful outsiders can meddle in our elections without facing any consequences. It’s a betrayal of the trust we place in our judicial system to protect ordinary citizens like us from malicious acts from those who seek to undermine our democratic process.”
Karen Niehans was also a plaintiff. She passed away last year, in 2023, before the conclusion of the nearly seven-year litigation.
“It is a sad day in North Carolina when its highest court gives the green light for out-of-state political operatives to falsely accuse North Carolina citizens of voter fraud,” said Jeff Loperfido, Chief Counsel for Voting Rights at Southern Coalition for Social Justice. “The ruling today is disappointing for many reasons, but most importantly because these voters were used by politicians as pawns in disturbing acts of political gamesmanship — they were accused of crimes and their reputations marred, for simply exercising their right to vote, and this confirms there will be no accountability for those in power who knew better.
“This decision declares an open season for losing politicians to engage in widespread defamation to see if a win sticks at the expense of the very voters they should be working to represent — all ahead of what we expect to be a contentious election season.”
The court’s repeated reliance on 19th century authorities in its opinion, including a case concerning the legal status of slaves and masters in the context of defamation, calls into question whether North Carolina is providing adequate protections for innocent 21st century voters.
“The ‘participant’ requirement found by the unanimous and bipartisan court of appeals panel is a part of the law of defamation found throughout our sister states,” said Press Millen, of Womble Bond Dickinson (US) LLP, who argued the case for the defamed voters. “It requires that a party seeking to invoke the absolute privilege to libel a North Carolina citizen have a recognized and sanctioned role within the proceeding at issue. The out-of-state political operatives who engaged in the defamation here were no more participating in the protest proceedings than an unruly fan who runs onto the field is a participant in a football game.”
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Southern Coalition for Social Justice, founded in 2007, partners with communities of color and economically disadvantaged communities in the South to defend and advance their political, social, and economic rights through the combination of legal advocacy, research, organizing, and communications. Learn more at southerncoalition.org and follow our work on Twitter, Facebook, and Instagram.
Womble Bond Dickinson is a transatlantic law firm with offices in North Carolina and throughout the US and UK serving clients across various a broad array of sectors.