NC Supreme Court takes defamation case linked to 2016 governor’s race

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  • The N.C. Supreme Court has agreed to hear a defamation case connected to protests of the 2016 gubernatorial election.
  • Defendants in the case first asked in November 2021 for the state's highest court to take up the issue.
  • The case revolves around whether the contents of election protests enjoy an "absolute privilege" against legal liability.

The N.C. Supreme Court has agreed to take up a defamation case stemming from election protests tied to the 2016 gubernatorial election. The court’s decision arrived almost a year-and-a-half after defendants in the case asked for a high court review.

An order issued Thursday granted discretionary review to hear the case. It also included a “writ of superseadas” blocking the state Appeals Court’s 2021 decision in the lawsuit.

Current Gov. Roy Cooper, a Democrat, unseated incumbent Pat McCrory, a Republican, in November 2016.  Cooper secured 49% of the vote, compared to McCrory’s 48.8%. The margin of victory was 10,277 votes out of 4.7 million total votes cast.

“In the wake of that close contest, the Pat McCrory Committee Defense Fund engaged the law firm Holtzman Vogel Josefiak Torchinsky PLLC to assist with post-election activities,” according to a petition filed Feb. 6 with the state Supreme Court. “The Law Firm Defendants consulted data analysts from the Republican National Committee to identify potential instances of double voting.”

Based on RNC data, the law firm’s associates helped prepare and file election protests in Guilford and Brunswick counties. Those protests named Louis Bouvier Jr., Karen Andrea Niehans, Samuel Niehans, and Joseph Golden “as having potentially voted in more than one jurisdiction,” according to the petition.

The voters targeted in the protests “sued Petitioners for defamation based solely on the statements in those election protests filed with the Boards.”

A Superior Court judge rejected the defendants’ request to have the lawsuit thrown out. The N.C. Court of Appeals reversed that decision for one defendant but allowed the lawsuit to proceed against the law firm, four associates, and the McCrory committee.

The defendants argue that the contents of their election protests are protected from legal action by an “absolute privilege.”

“Under this Court’s decisions, determining whether absolute privilege immunizes a statement from defamation liability entails two inquiries: the statement must be ‘made in the due course of a judicial proceeding’ and ‘relevant or pertinent to the subject matter of the action,’” the defendants’ lawyers wrote.

“The Court of Appeals acknowledged that the statements here satisfied both,” the petition added. “This holding — perfectly consistent with North Carolina law — made the resolution of the appeal straightforward. The only statements at issue were made in the course of election protests filed with election boards. Therefore, no defendant could be liable for defamation.”

Yet the Appeals Court determined that only one of the original defendants enjoyed protection from liability because of absolute privilege.

The remaining defendants initially requested a state Supreme Court review in November 2021. The following month, they asked for an expedited review.

With no action from the state’s highest court for more than a year, the plaintiffs in the case pressed forward in January 2023. They asked a Superior Court judge to move forward with the case. One of the original plaintiffs, Karen Niehans, had died while the case moved through the courts.

The defendants’ Feb. 6 petition asked the state Supreme Court for a temporary stay and a “writ of superseadas,” which would block the Appeals Court ruling.

Plaintiffs in the case objected to those requests on Feb. 16. “The Court of Appeals applied North Carolina precedent correctly, concluding that Defendants’ statements were not protected by the absolute privilege,” plaintiffs’ lawyers wrote. “Thus, Defendants are attempting to manufacture a question of law for this Court’s review where none exists.”

“Defendants’ belated effort to seek supersedeas more than fourteen months after requesting that this Court engage in discretionary review of the opinion of the Court of Appeals is yet
another attempt to delay the resolution of this case. The continued delay of this matter (which has seen three general elections come and go since the filing of the Complaint based on the events during the 2016 election) has already resulted in the abatement of one plaintiff’s claim by death and risks additional unfortunate circumstances if this delay continues.”  

With Thursday’s orders, the case now is on track for review by North Carolina’s highest court.