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Judge considering whether to dismiss defamation suit involving voters falsely accused of election fraud

North Carolina voters were duped into defaming other voters by lawyers working with former Gov. Pat McCrory to undermine the gubernatorial election he lost, according to a class-action lawsuit.

“The plaintiffs are really the collateral damage of an ill-conceived and reckless enterprise in which these new defendants in particular, I would say, took a very cynical approach to how we’re dealing with the reputations of individual people,” said Pressly Millen, an attorney for the plaintiffs — four retiree voters, three from Guilford County and one from Brunswick, who were falsely accused of voting in two different states.

He and attorneys for the defendants, the Pat McCrory Legal Defense Fund and Virginia-based law firm Holtzman Vogel Josefiak Torchinsky argued Wednesday about whether the lawsuit should be dismissed.

Fifty-three election protests claiming voter fraud were filed across the state in the wake of the 2016 gubernatorial election — most, if not all, by Republicans defending McCrory after he refused to concede the race to current Gov. Roy Cooper. The Republican-controlled State Board of Elections ultimately dismissed all the protests.

It was revealed after some of the protests were challenged that those Republicans were supplied information to file the protests by attorneys with the McCrory Legal Defense Fund, which had hired the Holtzman Vogel law firm.

The plaintiffs, in an amended lawsuit, also claim civil conspiracy. Information obtained during discovery led the plaintiffs to believe that the defendants were part of a scheme that resulted in the defamation of multiple voters, according to the suit.

Attorneys from the Southern Coalition for Social Justice also represent plaintiffs in the case.

Charles Marshall, attorney for the Holtzman Vogel law firm (and four of its named attorneys), and Philip Isley, attorney for the McCrory Legal Defense Fund, argued before Judge Allen Baddour that the plaintiffs failed to show defamation and the defendants were immune from suit because the protests were part of a quasi-judicial proceeding.

“You can’t actually challenge the outcome or results of an election unless you can challenge the ballots and whether they were cast lawfully,” Marshall said.

Isley said there is nothing in the complaint that alleges his client or two of the attorney defendants named from the Holtzman Vogel law firm defamed voters.

“There is not a single allegation of who was allegedly defamed, when they were defamed, where they were defamed, the contents of any alleged defamation,” he said. “Nothing.”

He also pointed out, and Millen conceded, that the defamation case could be the first of its kind in terms of it being a class action. Isley argued that “the class action vehicle” is not used for defamation, which has such personalized damages.

“This would be a disaster, from my standpoint, of how a court could actually manage this,” he said.

He asked if all the punitive class members would be giving the court their medical records from the last 10-15 years to evaluate claims of emotional stress and other harms, and said class action lawsuits should be formulaic and easy to figure out.

Millen said nothing about the plaintiff’s case was normal. He said there was class-wide intent and class-wide injury, and there can be class-wide relief.

“As we get into this case, I’m going to be very surprised if any of the defendants personally knew of, or even knew of the existence of any of these particular plaintiffs,” he said. “A typical libel case would mean he’s got it in for me and he’s been saying these things about me. That’s not this case. The object here was not to libel [the plaintiffs] in particular; the object was to make them part of a statewide class of scapegoats, felony voter fraudsters, in order to taint the election results.”

Baddour said he would make a ruling in the case at a later time. You can read the motions to dismiss here and here.

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