An elections watchdog is calling for a criminal investigation into whether the campaign of former North Carolina Gov. Pat McCrory, the N.C. Republican Party and their attorneys falsely accused hundreds of citizens of voter fraud in the wake of last year's election, which McCrory narrowly lost to Democrat Roy Cooper.
At the scandal's center is Holtzman Vogel Josefiak Torchinsky (HVJT), a prominent Virginia law firm that filed most of the voter challenges. It's headed by Jill Holtzman Vogel, a three-term Virginia state senator from Fauquier County who's running for lieutenant governor in the June 13 primary. The firm's other principals include a former chair of the Federal Election Commission and a former assistant attorney general for the U.S. Justice Department's Civil Rights Division.
Last week Democracy North Carolina released "The Deceit of Voter Fraud," a report documenting how in the aftermath of the November 2016 gubernatorial elections the McCrory-NCGOP-HVJT team had filed legal paperwork charging about 600 voters with committing fraud or casting suspect absentee ballots. Nearly all of the accusations proved false, and the watchdog group wants state and federal officials to look into whether the protest filings may have violated state and federal laws against harassing and intimidating innocent voters, corrupting the election process and obstructing an election canvass.
"The crusade did not stop even after McCrory's attorneys were told by some elections officials that their claims were wrong, that they were confusing voters' names with other people, that they were using bad data," the report says. "Instead of stopping, the attorneys caused more charges to be filed that maligned more innocent voters."
HVJT, which has offices in Warrenton, Virginia, and Washington, D.C., offers expertise in elections law, lobbying and government ethics. Politico has described the firm as "specializing in untraceable pressure groups for conservative causes." Its client roster has included Karl Rove's American Crossroads, U.S. Sen. Marco Rubio's presidential campaign and the National Republican Congressional Committee.
Vogel has long experience working for GOP groups going back to 1996, when she served as staff counsel for the 1996 Republican National Convention. She went on to serve as counsel in the Florida presidential recount of 2000, acting on behalf of the Bush-Cheney campaign in West Palm Beach and Osceola County, and as chief counsel of the Republican National Committee. She also served as deputy counsel at the Department of Energy under President George W. Bush.
Her firm has been recognized as among the top in its field by Washingtonian, Politico and Campaigns & Elections. But Democracy North Carolina documented sometimes careless errors on the part of its attorneys, which in some cases resulted in innocent people being named as suspected wrongdoers in media reports.
"It's very suspicious, the behavior of her law firm," said Democracy North Carolina Executive Director Bob Hall. "It looks like a calculated disinformation campaign."
Tainting a fair election
Jill Holtzman Vogel's name does not appear in the Democracy North Carolina report, but those of several of her employees do.
They are Erin Clark, who before joining HVJT worked for Senate Majority Leader Mitch McConnell's 2014 re-election campaign as assistant to the senior advisor; Gabriela Fallon, a former litigator who's worked on presidential, gubernatorial, and congressional races; Steve Roberts, a former fundraiser for the Republican National Committee; and Steven Saxe, an associate with a background in state and federal electoral politics.
The report also notes that HVJT partner Jason Torchinsky served as counsel for the Pat McCrory Committee Legal Defense Fund, which led the fight over the 2016 gubernatorial vote count. Torchinsky formerly served as deputy general counsel to the Bush-Cheney 2004 campaign. He was also counsel to the American Center for Voting Rights, a group set up in 2005 by key players in the Bush-Cheney operation and Republican National Committee to publish reports claiming massive voter fraud by Democrats that necessitated strict voter ID laws like the one championed by McCrory and other North Carolina Republicans but rejected by the courts as racially discriminatory.
Back on election night 2016, McCrory appeared to be winning until late returns from Durham County put Cooper ahead by about 5,000 votes out of 4.7 million cast. For the next month, the McCrory campaign and NCGOP — with help from the HVJT attorneys — fought to give McCrory the win. Their weapon was the "election protest," a legal proceeding to address mistakes, misconduct and other "irregularities" that could affect the election's outcome. The Democracy North Carolina report states:
Through open records requests and interviews, Democracy NC determined that a majority of the protests were prepared and sent by email to the county boards of elections by attorneys retained by the McCrory campaign from the Warrenton, VA-based law firm of Holtzman Vogel Josefiak Torchinsky (HVJT). The attorneys also prepared a smaller number of similar protests that local Republican officials hand-delivered to their county board of elections. Disclosure reports on the State Board of Elections' website indicate the Pat McCrory Committee and Pat McCrory Committee Legal Defense Fund paid the HVJT law firm $98,000 in late November and December 2016.
Democracy North Carolina speculates that the effort may have been aimed at sowing enough confusion about the election's fairness to trigger a state law that would allow the Republican-controlled General Assembly to determine the winner. U.S. Rep. G.K. Butterfield, a Democrat representing eastern North Carolina, told The News & Observer that there appeared to be a correlation between counties selected for protests and those with active black political groups.
However, the protests were rife with problems. They "were apparently hurriedly produced and often contained sloppy errors, incorrect references, and false or misleading information," the report found. "A minimum level of research would have revealed that dozens of the individuals charged with voter fraud in the protests were completely innocent."
Some of the protests involved mistaken identities, such as confusing a Jr. with a Sr. Others accused people of having felony records or voting in multiple states when that was not the case. In some counties, protests were lodged over having one person witness multiple absentee ballots, which is not illegal. And in a few cases, the attorneys continued to pursue legal proceedings against individual voters even after county elections officials informed them that an allegation of voter fraud was false.
For example, HVJT lodged a protest with the Stokes County elections board over a ballot cast by one Larry G. Smith, charging that he had a felony record and thus was ineligible to vote. In response to the board's request for more information, Clark sent an email with a link to a felon named Larry D. Smith. When the board's director pointed out her error, Clark emailed back thanking him for "the open dialogue." However, she did not withdraw the protest, which the elections board discussed and dismissed at its next meeting.
In that proceeding as in most others, the HVJT attorneys did not follow up on the protests by appearing at the hearing. The no-shows led county elections boards to dismiss some protests for lack of evidence and raised red flags for Democracy North Carolina.
"The lack of follow up raises questions about the real purpose of filing a blitz of protests," the report says. "Was it was only a show to bolster the intense publicity about voter fraud tainting a fair election?"
A trail of defamation charges
Vogel did not respond to Facing South's request for comment. But NCGOP Chairman Robin Hayes told the Associated Press that Democracy North Carolina is the one trying to bully voters, calling the group's actions "nothing short of voter and citizen intimidation." McCrory described the group's actions as "Orwellian" and said it should release its list of financial supporters, which it already does.
However, the N.C. State Board of Elections appears to be taking Democracy North Carolina's criticisms seriously: It has added the information the group documented to the board's ongoing investigation into the protests, said spokesperson Pat Gannon. The board is also in the process of revamping the protest form to require protestors to swear under penalty of perjury that the information submitted is true and accurate, make clear it's a felony to submit a fraudulent form, and disclose when a candidate, political party or organization has requested or financed the filing. (See the proposed changes here.)
Back home in Virginia, Vogel is under growing pressure for her role in another case involving defamatory statements, this time against state Sen. Bryce Reeves, one of her Republican rivals for lieutenant governor.
Last fall, an email sent to some of Reeves' supporters accused him of having an affair with a campaign aide, which the senator has denied. Reeves, a former undercover police officer, filed a lawsuit and obtained subpoenas for internet records associated with the email, which was sent out under the name "Martha McDaniel." Here's how the Washington Post described what those subpoenas turned up:
According to records provided by Google and two service providers, the Gmail account used to send the message was set up with a certain cellphone number — one belonging to Vogel's husband, Alex Vogel. The account was accessed via two IP addresses, one associated with the Vogels' Upperville estate and the other with their neighbors, who share a wireless, non-password-protected Internet system with the Vogels because of the lack of high-speed access in their rural area.
Alex Vogel, who also has extensive experience as an attorney for Republican causes, is a partner in his wife's law firm and managing partner of VogelHood Group, a policy research and consulting firm. The Vogels have denied sending or authorizing the sending of any such emails, releasing a statement saying that "there are many ways a person can send an anonymous email and make it appear to have originated from another sender." Vogel told her local newspaper that she was "horrified" by the email.
Reeves offered to help pay for a third-party forensics analysis to shed light on what happened, but the Vogels didn't respond. Reeves has since hired a prominent defamation attorney who has warned Vogel to preserve her computer, cellphone and other records. He also has asked a judge to allow his attorney to depose Vogel as well as her neighbors and two campaign supporters.
Meanwhile, four residents of Guilford County, North Carolina, who had their votes falsely challenged after last year's election have filed a civil defamation lawsuit — though the action doesn't name Vogel's law firm. Instead, it targets local Republican Party official William Clark Porter IV for submitting post-election protests that contained inaccurate and defamatory statements. But underneath Porter's signature on the protests are the words "authorized by / spr" — as in Steve P. Roberts, the HVJT attorney who submitted the protests to the county election board.
That's why Democracy North Carolina believes it "will likely take a criminal investigation to go behind the local protest filer to uncover a larger pattern of illegal activities and, as appropriate, hold accountable the attorneys and other architects of the McCrory-NCGOP crusade."