McCrory blocks state board's effort to hire outside lawyers in election dispute
Posted November 29, 2016
Raleigh, N.C. — Gov. Pat McCrory’s office has turned down the State Board of Elections’ request to hire lawyers from the Brooks Pierce law firm to defend the state against a federal lawsuit by the Civitas Institute.
McCrory, a Republican, appears to have narrowly lost his re-election bid to Democratic Attorney General Roy Cooper. Normally, Cooper’s office would defend the state in such cases. However, given the interest by both McCrory and Cooper, the state board decided Sunday to seek outside help.
While Thomas Ziko, a long-time litigator in independent practice, did get approved, a trio of lawyers who work for Brooks Pierce – Charles Marshall, Craig Schauer and Jessica Thaller-Moran – was rejected. Marshall, Schauer and Thaller-Moran, have all either worked for Republican judges before coming to the firm or worked on behalf of GOP causes.
A federal court hearing in the Civitas case, which challenges how voters who use same-day registration are handled, is scheduled for Friday. While the board has its own lawyers and will have Ziko on hand, the denial hamstrings the state board as it runs up against deadlines to file briefings in the matter.
"The notification we received gives no legal basis for the denial of the Brooks Pierce lawyers," said state board member Joshua Malcolm, a Democrat.
One possible explanation is that McCrory had concerns that lawyers at the firm could be influenced by Jim Phillips, a partner in the firm’s Greensboro office who is serving as co-chairman of Cooper’s transition team.
"It is my opinion these lawyers don’t have any conflict," Malcolm said, adding that the full five-member board discussed the potential for conflicts in closed session Sunday. He said the board wanted to hire the four lawyers in question because they all brought different skills to the table. Ziko, who was approved, for example is known as a litigation specialists, while Marshall, who was rejected, is know for his prowess in elections law.
Republicans and the McCrory campaign have peppered the State Board of Elections and local county boards with challenges over the past month. However, the biggest questions standing in the way of finishing the election are the Civitas case and a potential recount in Durham.
McCrory’s general counsel, Bob Stephens, did not explain himself in an email dated Nov. 29.
"The request to retain the firm of Brooks Pierce and the other individual Brooks Pierce lawyers referenced in the letter is not approved," Stephens wrote.
In an earlier email, he did ask if the law firm had done a conflict check, but did not explicitly say what conflicts he might be concerned about.
In a statement, the State Board of Elections confirmed it was briefed about possible real and perceived conflicts of interest and that the board, with three Republicans and two Democrats, "voted unanimously to approve Brooks Pierce as its counsel in the DeLuca case regarding same-day registration." Phillips, they said, would have been "fully screened" from the case.
"We are working urgently to ensure this agency has adequate legal representation to defend its administration of same-day registration in this election," said Kim Westbrook Strach, executive director of the State Board of Elections.
McCrory's office did not respond immediately to requests for comment Tuesday morning. During a phone call Monday, Cooper attorney Marc Elias, who is overseeing issues with regard to recounts, said that Phillips' position did not present a conflict of interest. Brooks Pierce is a large law firm.
"I don't think there's even a potential conflict," Elias said.
In a memo to election board members, General Counsel Joshua Lawson says the state's case will be "materially prejudiced absent immediate action
to secure additional representation in this case."