Court ruling protects those seeking election integrity

In one sense, the North Carolina Supreme Court’s recent ruling in Bouvier v. Porter helped write the final chapter of a hotly contested election that ended eight years ago.

Yet the case has more than historical significance. It sets an important precedent promoting election integrity. That precedent arrives during another high-stakes election season.

The dispute started with North Carolina’s 2016 race for governor. Democratic challenger Roy Cooper unseated Republican incumbent Pat McCrory by 10,277 votes, or just 0.2% of 4.7 million votes cast.

Given the tight margin, McCrory’s campaign committee established a legal defense fund. That group “was tasked with obtaining and funding election consultants and overseeing their efforts to assess potential irregularities in the election,” according to the state Supreme Court’s May 23 opinion.

The defense fund hired the Washington, D.C.-based Holtzman Vogel law firm. The Republican National Committee and state Republican Party provided lawyers information about “potentially ineligible voters.” The defense fund instructed the lawyers to work with local residents to submit election protests. The protests challenged “votes cast by individuals who may have voted more than once.”

Four voters named in election protests “received negative media attention and adverse reactions in their respective communities.” Working with left-of-center activists, they filed a defamation lawsuit in 2017.

Originally targeting only William Clark Porter IV, who filed election protests in Guilford County, the suit later added the McCrory legal defense fund, Holzman Vogel and individual lawyers who helped prepare election protests.

A trial judge ruled against all the defendants. But the state Appeals Court dropped Porter from the case in 2021. A unanimous appellate panel determined that he had an “absolute privilege.” It protected him from defamation claims based on official election protests.

Yet appellate judges allowed the lawsuit to continue against the McCrory fund and the lawyers. Since they were not active “participants” in the protest process, they did not enjoy Porter’s legal protection.

When the case reached the state Supreme Court, only five justices were eligible to consider the dispute. Both Democratic justices had helped represent the disgruntled voters earlier in the case. They recused themselves.

The remaining Republican justices issued a unanimous ruling.

“In this case, we decide the breadth of protections afforded to individuals engaged in the pursuit of an election protest,” wrote Chief Justice Paul Newby. “Applying long-settled, bedrock principles, we hold that the absolute privilege broadly protects all individuals involved in any aspect of election protests from defamation claims.”

“This includes, but is not limited to, those who research, assess, strategize, approve, facilitate, direct, prepare, file or prosecute election protests,” Newby added. “In so doing, we reiterate what this Court has long held: the absolute privilege attaches by virtue of the proceeding in which the statement is published.”

“We therefore reject plaintiffs’ baseless attempt to constrict the absolute privilege’s protections,” the chief justice explained. “Accordingly, plaintiff’s lawsuit, which seeks to impose civil defamation liability for statements contained in election protests, thereby discouraging citizens from guarding the integrity of their elections, is absolutely barred.”

Newby cited basic constitutional rights. North Carolinians have the right to “free” elections. They also have the right to petition government.

“The General Assembly has recognized that free elections and the right to petition are vital to maintaining the public’s trust and confidence in our system of self-government,” Newby wrote. “Specifically concerning elections, the General Assembly has established various statutory processes by which North Carolina citizens may alert county boards of elections to perceived problems in elections.”

“One of these processes — known as ‘election protests’ — seeks to balance the public’s interest in achieving accurate election results with the need to finalize those results in a short period of time,” Newby explained.

Applying an absolute privilege to election protests “is rooted in the commonsense notion that in scenarios such as judicial and quasi-judicial proceedings, people must be able to communicate freely, uninhibited by the fear of retribution in the form of a defamation suit,” Newby wrote. Allowing “partisan advocacy” in the course of official proceedings “’best promote(s) the ultimate objective’ — truth and justice.”

Newby dismissed the argument that the privilege applied only to direct participants. “This baseless participation requirement concocted by plaintiffs has no foundation in this Court’s jurisprudence.”

“Without the absolute privilege, the specter of civil defamation liability would chill these individuals’ willingness — and undermine their ability — to engage in the election-protest process,” Newby explained. “Such an outcome is especially unacceptable because election protests are a valuable tool in safeguarding North Carolinians’ right to free elections.”

While revisiting events from eight years ago, Newby and his colleagues promoted safeguards for free elections in 2024.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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