The law at the center of the legal dispute between O’Neill and Stein has its roots in the ugly 1928 presidential campaign in North Carolina | Policy


The state law — the source of the legal dispute between Democratic Attorney General Josh Stein and Republican District Attorney Jim O’Neill of Forsyth County — has its roots in the 1928 presidential campaign in North Carolina.

The law prohibits anyone from publishing or disseminating false and derogatory information about a candidate that could ruin their chances of being elected.

Established in 1931, the law is obscure and has been rarely used. But in 2020, O’Neill, who was running for attorney general against Stein, became angry over a political ad run by Stein’s campaign that alleged O’Neill had ignored 1,500 untested rape kits in his judicial district.

O’Neill said the ad was false and violated state law. He filed a complaint with the National Board of Elections, which investigated and found insufficient evidence that the law had been violated.

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The Elections Commission delivered its findings to the Wake County District Attorney’s Office, which filed criminal charges.

Stein’s campaign filed a federal lawsuit seeking to block enforcement. Recently, the Fourth Circuit of the United States Court of Appeals issued an order preventing, at this time, Wake County prosecutors from doing anything with state law.

The law apparently grew out of events that began in 1928. Democratic Governor Alfred Smith of New York and Republican Herbert Hoover, the U.S. Secretary of Commerce, campaigned for votes in Tarheel State .

Many conservative Democrats in North Carolina disliked Smith, the first Catholic to run for president, because Smith opposed prohibition. In addition, Smith and other Northern Democrats generally appointed black men to important positions in the state, although in small numbers.

Things turned sour for Smith after the organization, known as the Democratic Anti-Smith Committee, used anti-Catholic and racist appeals to turn mostly white Democratic voters in North Carolina against Smith.

Former Charlotte Mayor Frank McNinch and then U.S. Senator Furnifold McLendel “FM” Simmons of North Carolina, both Democrats, campaigned vigorously against Smith. McNinch served as chairman of the committee.

Historians say this strategy was effective because it led to the election of Hoover as President of the United States. Hoover won North Carolina and four other Southern states in his landslide victory.

However, Hoover’s triumph left bitter feelings among traditional Democratic leaders in North Carolina.

In February 1931, State Representative WC Ewing, D-Cumberland, introduced legislation known as the Corrupt Practices Act.

The measure “would make it impossible for a committee such as the anti-Smith McNinch group of 1928 to function without declaring its expenses”, reported The Fayetteville Observer on February 25, 1931.

The NC General Assembly ratified the bill on May 4, 1931, and it became state law. At that time, Democratic Gov. Max Gardner’s signature on the bill was not legally required for passage.

The legislation prohibited “any person from publishing or causing to be disseminated any derogatory report concerning a candidate for a primary or election, knowing that such report to be false or in reckless disregard for its truth or falsity, when such report is calculated or intended to affect the chances of such a candidate for nomination or election”.

Raleigh’s Pressly Millen, attorney for Attorney General Josh Stein, said the current law does nothing to promote truth in political speech.

“The best evidence of the law’s ineffectiveness is the fact that so far it has never been invoked against a candidate in over 90 years,” Millen said. “No one could argue that’s because political advertising in North Carolina has been scrupulously accurate for the past nine decades.

“The law may have been passed with the best of intentions in 1931, but there’s no evidence that it helped any candidate in an election,” Millen said. “Politicians accusing other politicians and politicians suing other politicians is a recipe for election chaos.”

O’Neill did not return several messages last week from a Journal reporter, seeking comment on the story.


Winston-Salem Journal research found only one reported use of the 1931 law, which occurred in the 1940s.

In September 1946, George E. Pritchard of Elizabeth City was convicted in Beaufort County, eastern North Carolina, on warrant, charging him with “publishing and circulating” during the Camden County primary election in May 1946, disparaging reports of WI Halstead, candidate for NC General Assembly, reported the Daily Advance of Elizabeth City on February 26, 1947.

A judge sentenced Pritchard to serve a year as a convict working along state highways, the newspaper reported.

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In 1928, the Anti-Smith organization brought in an out-of-state speaker, the Reverend John Roach Straton of New York, according to the NC Historical Review article on the North Carolina presidential election. North 94 years ago.

In Raleigh on September 3, 1928, Straton said the people marching with Smith were the “worst forces of hell in the land,” including “gunmen, gangsters, and onlookers; …gamblers, horse racing and touts; … burglars, pickpockets and strong men; …white junkies, dive keepers and slavers; and Sabbath breakers, scoffers and defiers of God.

On October 25, 1928, in Raleigh, Simmons gave a three-hour radio address against Smith, according to the North Carolina Historical Review.

Among his remarks, Simmons said he believed Smith’s election as president would upset the “satisfactory racial situation” of the South by encouraging legislation “in reference to the 14th Amendment that might be embarrassing.”

The 14th Amendment to the United States Constitution granted citizenship and legal rights to anyone born or naturalized in the United States, including former slaves.

Simmons pointed out that in the South, white nuns were teaching “colored” children, and that the Catholic Church everywhere accorded “an equality in dealings with the church that is not accorded to (blacks) by any other.” other religious organizations”.

The historical review also mentioned that a piece of widely circulated anti-Smith propaganda was a photo showing Ferdinand Q. Morton, a black civil service commissioner in New York, dictating with his secretary, who was white.

The text said Morton was evaluating “every white Democratic man and woman in New York” who wanted “position under the Democratic administration of Tammany.”

Tammany Hall was a powerful Democratic political organization in New York.

Simmons suspected the National Smith Organization of organizing “black clubs” in Winston-Salem in 1928, according to the Historical Review.

The Historical Review also pointed out that thousands of copies of Simmons’ speeches were printed and distributed; political advertisements, letters, telegrams and telephone calls were expensive.

Poll watchers were recruited and radio time purchased. The anti-Smith Democratic Committee of North Carolina had expenses totaling $30,906, according to the historical review.

This money, which McNinch did not report to state officials, inspired the Corrupt Practices Act.

In a speech in New Bern on October 12, 1928, McNinch said Smith’s nomination and eventual election threatened the Democratic Party with being controlled by the “urban communities dominated by the bosses of the North, East and of the West,” according to the North Carolina Historical Review.

In other public statements, McNinch criticized Smith for selecting black people for government offices in New York, according to The News Reporter in Whiteville, North Carolina.

McNinch said Smith appointed black people to his administration to draw support from black voters, and that white Democrats in North Carolina should oppose Smith at the polls because Smith threatened white supremacy in the South, said reported the newspaper.

On the eve of the 1928 election, Odus McCoy “OM” Mull, the chairman of the NC Democratic Executive Committee, publicly criticized McNinch, the former mayor of Charlotte, for his refusal to reveal the source of the money the anti-Smith committee was using to campaign against Smith, according to an article published by The (Raleigh) News and Observer on November 5, 1928.

Mull, who would play a role in bringing Wake Forest and Bowman Gray School of Medicine to Winston-Salem in the 1940s, described McNinch as having “sinister connections”, the News and Observer reported.


David Goldfield, a history professor at UNC Charlotte, said McNinch’s views were fairly common in 1928.

“The US Congress has used scientific racism to limit immigration from southern and eastern Europe,” Goldfield said. “Belief in a hierarchy of ‘races’ was common among many intellectuals in the 1920s, including in North Carolina.

“The Anglo-Saxon race was at the top of the heap, of course, and the Africans were at the bottom of the racial hierarchy,” Goldfield said. “It was, of course, a total misinterpretation of Darwin, but it gave a scientific patina to raw prejudices.”

Goldfield pointed to a Confederate memorial in Charlotte, which was erected in the 1920s and exalts the Anglo-Saxon race.

Goldfield described the 1928 presidential campaign as “particularly unpleasant, chiefly because the Democrats chose Governor Al Smith of (New York) as their candidate”.

Smith’s Catholicism was a key factor in breaking up the Solid South and putting Virginia, North Carolina, Tennessee, Florida and Texas in Hoover’s column, Goldfield said.

“Smith’s religion, especially at a time when the second iteration of the Ku Klux Klan was prominent – so prominent that Klansmen marched down Constitution Avenue in Washington, D.C. in 1928 – played a significant role in his defeat, and not just in some southern states,” Goldfield said.

In 1924, Congress passed a new immigration law that severely restricted immigration from southern and eastern European countries with large Roman Catholic and Jewish populations, Goldfield said.

“There was a particular fear and prejudice against Roman Catholic immigrants, who somehow owed their allegiance to the Pope and not to the (United States), and regarding their enjoyment of drinking alcohol in an era of Prohibition” , Goldfield said.

“Al Smith was an avowed ‘wet,’ seeking to overturn Prohibition, which reinforced that prejudice,” Goldfield said.

Smith lost the presidential election by a wide margin, Edmund A. Moore wrote in his book, “A Catholic Runs for President: The Campaign of 1928.”

“The religious factor is of particular importance both for 1928 and for the future course of American history,” Moore wrote.



Journal Reporter Michael Hewlett contributed to this story.


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