Civitas lawyers in ballot case have ties to McCrory

The two lawyers bringing a case to throw out more than 3,000 ballots both have ties to the McCrory administration. The governor has turned down the state board's request to hire certain lawyers from the Brooks Pierce law firm.

Posted 8:08 p.m. Nov 30, 2016 — Updated 7:01 p.m. Dec 1, 2016

Mark Binker

RALEIGH, N.C. — While Gov. Pat McCrory isn't party to a federal lawsuit seeking to have ballots cast under same-day registration rules thrown out, the two lawyers representing the Civitas Institute in the case both have recent ties to his administration.

McCrory, a Republican, trails Attorney General Roy Cooper, a Democrat, in this year's gubernatorial race by about 10,000 votes.

The Civitas lawsuit is one of the last two major stumbling blocks left before state elections officials can finally declare this year's elections concluded. The conservative nonprofit is asking a federal court to require voters who cast same day registration ballots to meet certain eligibility hurdles – primarily going through an address verification procedure – contending that the early voting process is unfair to other voters who register in advance of the election.

While 90,000 voters cast ballots through the same-day process this year, the nonprofit estimates some 3,000 ballots are actually in question.

Lawyers in the case are supposed to have briefs to the court by Monday, and a hearing is scheduled for Dec. 8.

To press its case, Civitas has hired Josh Howard and Butch Bowers. Howard is a former State Board of Elections chairman whom McCrory appointed in 2013 and served through much of 2015. Bowers is a South Carolina lawyer who represented McCrory's office in litigation over the controversial House Bill 2 as well as the sweeping elections measure a federal appeals court struck down this summer.

Although neither McCrory nor his campaign is a party in the case, he would have a significant interest in the outcome. While 3,000 votes isn't enough for him to close the gap Cooper has opened up, it is part of a panoply of challenges that could give McCrory a slim and rapidly diminishing chance of pulling out the election.

"These lawyers have no conflict of interest," said Francis De Luca, president of the Civitas Institute. "You would be hard-pressed to find any lawyers with election expertise to represent us who probably have not had some kind of appointment or connection with Republican administration."

At the same time, McCrory blocked the State Board of Elections from hiring its choice of outside counsel to handle the case by rejecting lawyers associated wit the Brooks Pierce law firm. In a memo to the board earlier this week, General Counsel Joshua Lawson suggested that denial could hobble the state's defense.

"At the time, the state had zero attorneys and one day until the brief was due," said Patrick Gannon, a spokesman for the board.

Since then, he said, deadlines in the case have been moved back, and both Lawson and fellow state board attorney Katelyn Love have had a chance file necessary paperwork in the case.

At this point, Gannon said, the state isn't looking at hiring additional outside counsel to handle next week's hearing regarding a potential temporary restraining order in the case. Thomas Ziko, whom McCrory did sign off on, has not yet officially been hired by the board and won't be available next week because he is traveling, Gannon said.

Gannon declined to comment regarding links between the Civitas lawyers and the McCrory administration.

McCrory's press office did not respond to emails and phone calls seeking comment either Tuesday or Wednesday.

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