Voter fraud defamation case heard at NC Supreme Court could have implications for 2024 elections
A timely constitutional question, as the 2024 elections ramp up: Should people who falsely accuse North Carolina voters of committing voter fraud be immune from being sued for defamation, if they go through the state’s formal process for making the accusations?
The North Carolina Supreme Court considered the issue Thursday in a case that focuses on just a few voters — but which could also have significant ramifications for how future allegations of voter fraud are handled in this closely watched swing state.
The lawsuit dates to 2016, when backers of then-Gov. Pat McCrory's reelection campaign falsely accused dozens of North Carolinians of committing voter fraud. McCrory, a Republican, lost to now-Gov. Roy Cooper, a Democrat, by a razor-thin margin of just a few thousand votes. The fraud allegations came just days after the election and were intended to potentially sway the results. But they were thrown out as baseless by elections officials who had been appointed by McCrory himself, and a recount confirmed Cooper’s victory.
The case heard Thursday doesn't involve McCrory personally. It’s about whether his lawyers and other supporters behind the voter fraud claims can be sued for defamation by the wrongfully accused voters they named. The voters won at trial, and then won a partial victory in the state Court of Appeals, before the case went up to the Supreme Court.
Politically connected lawyers and operatives packed the high court Thursday as lawyers presented oral arguments.
Based on the questioning from justices, the Supreme Court appears primed to reverse those prior decisions and rule in favor of the GOP operatives. No matter how the justices rule, it could impact the 2024 elections and their aftermath in North Carolina.
A ruling in favor of the McCrory staffers could give political operatives on either side of the aisle more leeway to weaponize false accusations in future elections, lawyers for the Democratic voters say.
But a ruling in favor of the voters could chill future attempts by people on either side of the aisle to shine a light on legitimate concerns of voter fraud, lawyers for the Republican operatives say. It could also threaten lawyers or other professionals such as doctors who help write sensitive documents that could be deemed defamatory, they say.
The same pattern behind the 2016 case — false claims of voter fraud, made by a losing Republican campaign —would later repeat in the national 2020 election when Republican President Donald Trump falsely claimed his loss to Democrat Joe Biden was due to fraud.
Unlike other swing states, Trump didn’t target North Carolina with claims of fraud in 2020; the state voted for him. But this year, if the count is close, North Carolina could find itself in the spotlight — just as Arizona, Georgia and Pennsylvania were in 2020.
Trump has even already previewed what that might look like: The only Democrat to win a presidential race in North Carolina in recent history was Barack Obama in 2008. Trump said in 2016 that Obama’s win in the Tar Heel State was only because of immigrants voting illegally, a disproven claim Trump made without evidence.
‘Dangerous public policy’
The state Supreme Court has a 5-2 Republican majority. Both of the court’s Democratic justices — Anita Earls and Allison Riggs — recused themselves from hearing this case. They had represented the voters making the defamation claims before they became judges. That left only the court’s five Republican justices to hear the case Thursday.
Justice Trey Allen indicated he was leaning in favor of granting immunity against defamation lawsuits, for people involved in election law proceedings like the ones that led to this case. It would do more harm to the electoral process, he said, to potentially scare people with real evidence into keeping quiet about it.
“We want people to come forward if they have information about unlawful voting practices,” Allen said.
Press Millen, a lawyer for the Democratic voters, told Allen he agreed for the most part but said the state has to draw a line somewhere. He argued that people who make knowingly false statements need to be held accountable. He warned the court against ensconcing legal immunity for that sort of behavior.
“It’s a very dangerous public policy prospect, to do what has been done here,” Millen said.
'Not seeing how you can win'
There's no deadline for the court to issue its rulings, but the justices typically try to do so within less than a year. That leaves plenty of time for this ruling to be published ahead of this November's general elections for president, governor and hundreds of other races.
Justice Richard Dietz told Millen on Thursday he understands why the falsely accused voters are upset but thinks they should’ve filed a different type of lawsuit, rather than defamation.
Each side was given 30 minutes to make their arguments. One minute into Millen’s time, Dietz interrupted with a line of questioning that ended with him telling Millen he was facing an uphill legal battle.
“I’m just not seeing how you can win this case without completely upending all of the case law we have,” Dietz said.
That doesn’t necessarily guarantee a loss, however. The Supreme Court hasn’t been shy about overturning precedent in other recent elections law cases. After the new GOP majority took power in 2023, two of its first actions were to overturn high-profile voting rights rulings, on gerrymandering and voter photo identification, that had been issued by the previous Democratic majority.
And when Republican lawmakers passed a law last year taking away Cooper’s power over election administration — a strategy ruled unconstitutional by the state Supreme Court as recently as 2017 for violating the separation of powers — GOP leaders said they trusted the court’s new majority would overturn that ruling and allow the changes to take effect this time.
House Speaker Tim Moore repeated those hopes as recently as Wednesday, telling reporters: “I believe the court will ultimately rule for us. It’s going to require the Supreme Court to overturn some bad precedent.”
