News: CJ Exclusives

GOP: State’s top law officer flouting public records law in elections suits

Attorney General Josh Stein, during a January 2017 swearing-in ceremony at the Executive Mansion. (CJ photo by Don Carrington)
Attorney General Josh Stein, during a January 2017 swearing-in ceremony at the Executive Mansion. (CJ photo by Don Carrington)

N.C. Attorney General Josh Stein is hiding something, say Senate Republicans challenging a back-room, Democrat-led deal to rewrite state election laws. 

Stein — a Democrat who’s running for re-election and is the state’s top law enforcement officer — might learn something about government transparency from the N.C. State Board of Elections, legislators say. 

The NCSBE recently turned over thousands of documents to the General Assembly. The documents were related to a September settlement Republicans say opens the door to voter fraud. Parties in the North Carolina Alliance of Retired Americans v. North Carolina State Board of Elections filed a joint motion calling on a judge to approve a settlement in the case. The lawsuit, led by Democratic election lawyer Marc Elias, challenged several changes lawmakers made to the absentee ballot process in June. Democrats wanted to eliminate the witness signature requirement for absentee ballots, among other things. But that’s akin to changing the rules after the game has begun. Nearly half a million voters have already mailed in their ballots. 

The Republican-led General Assembly, which crafted the bipartisan elections law, was locked out of the agreement between Stein, Elias, and the state board. Two lawsuits filed by N.C. voters and candidates for office — one backed by the General Assembly and the other by the Republican National Committee — are pending. So is the N.C. Alliance of Retired Americans lawsuit.

The two Republican members of the Democrat-led state board resigned immediately after the deal was announced. Stein misled them, they said. 

Deputy Senate leader Ralph Hise, R-Mitchell, was one of a handful of senators to send records requests to the NCSBE and Stein. In their letter, Republican lawmakers asked for copies of “all communications” between the NCSBE and the plaintiffs’ Democratic lawyers. The letter also asked for all communications between NCSBE and the Democratic Party and Democratic Party candidates. 

“All the requested documents between defendants, plaintiffs, and their counsels are public records because attorney-client privilege does not exist between opposing parties of a lawsuit,” says a news release from Senate leader Phil Berger, R-Rockingham. 

While the state board redacted much from the documents it sent legislators, those documents may well be protected under attorney-client privilege, said Brooks Fuller, director of the N.C. Open Government Coalition and Sunshine Center at Elon University. 

Ultimately, that’s a matter for a judge to decide, Fuller told Carolina Journal. In general, as long as communications remained between lawyers and their clients, no waiver in attorney-client privilege exists. 

The important point, Fuller said, is that the state elections board was responsive to the legislature’s records request. The board asked follow-up questions and tried to discover how it could be more helpful to lawmakers.

“I wish more public agencies did this to help citizens better narrow their requests,” Fuller said. 

Stein’s office has been less accommodating, Republicans say. CJ reached out with its own questions Monday, Oct. 12. We cited the General Assembly’s records request. 

“Do you have a date for compliance?” CJ asked. “The elections board also redacted a good deal of the information, citing attorney-client privilege that lawmakers say doesn’t apply in these communications. Does your office plan to make a similar claim of privilege, and under what justification?”

To its credit, the attorney general’s communications office responded by our 4 p.m. deadline. The response failed to help.

“Our office receives a high volume of records requests that often require a significant investment of time from our attorneys,” wrote Nanzeen Ahmed, a spokeswoman for Stein. “We answer them in the order they’re received unless there’s some specific request or requirement to rush the response. General turnaround time varies, but it can take several months to fulfill a request with the scope and complexity of the one you mentioned. At present we cannot predict how long it may take to respond to this request.” 

Sen. Warren Daniel, R-Burke, co-chairs the Senate Elections Committee. He condemned Stein’s response in a news release Monday. 

“It’s a sad day when our state’s top law enforcement officer refuses to comply with the law,” Burke said. “Exactly what written communications between Josh Stein and Marc Elias does the Attorney General want to hide from the public? If Attorney General Stein’s attempt to undo state election fraud laws by secretly settling with a Democratic Party power lawyer weren’t bad enough, it now seems like he’s covering it up by refusing to comply with state transparency laws.”