State election board fights federal subpoena of voting records

In a rare show of unity, the state elections board unanimously agreed during a Sept. 7 teleconference to challenge federal subpoenas of millions of voter records.

The board said state law barred it from sharing information from individual voters to the extent requested in the subpoenas. The office of U.S. Attorney Robert Higdon hasn’t said why it wants the records, but an election attorney who’s prosecuted voter fraud cases said the request is related to recent arrests of illegal immigrants who voted in North Carolina.

On Aug. 31, Higdon issued subpoenas to 44 county elections boards requesting documents including voting records, voter authorizations, and executed official ballots from Aug. 30, 2013, to Aug. 30, 2018. The subpoenas also called for absentee official ballots during that time frame.

The state elections board received its own subpoena for all voter registration applications and documents dating to 2010.

The subpoenas were issued on behalf of the U.S. Immigration and Customs Enforcement Service.

“The subpoenas represent an unprecedented fishing expedition,” said Chris Brook, the American Civil Liberties Union Of North Carolina’s legal director. “It’ll jeopardize the privacy of millions of voters and distract from more urgent challenges to our voter system.”

Brook said the subpoenas seemed designed to intimidate minority voters.

“ICE still hasn’t offered any explanation for why it wants this data,” Brook said. “Our perspective is that county officials should do everything in their power to protect the rights of voters.”

J. Christian Adams, president and general counsel at the Public Interest Legal Foundation, said the subpoenas are to investigate illegal voting activity. Last month, 19 North Carolinians were indicted on charges of voting illegally in the November 2016 election.

“They are conducting a criminal investigation into alien voting crimes,” Adams said in an email. “This really isn’t a story. One thing is for sure, it is a problem in North Carolina.”

Andrew Penry, who chairs the Bipartisan State Board of Elections and Ethics Enforcement, told board members at the Sept. 7 teleconference the board would alert federal investigators of any illegal activity. But, Penry said, the subpoenas are requesting information that’s protected legally.

“Our General Assembly has told us by statute that we are prohibited from disclosing that information to anybody, absent a court order,” Penry said. “That’s a good statute, and it’s there for a really good reason. So, we are not going to disclose that information at this point.”

Penry said federal investigators gave no notice before issuing the subpoena or called any of the board’s lawyers to discuss the matter. Several of the subpoenas arrived via fax right before Labor Day weekend.

It was so sudden that a few county boards contacted the state officials with concerns that they were being targeted by a scam in an effort to obtain confidential voting information.

NCSBE officials expressed concern over the scope and timing of the subpoenas, as well.

“They were requesting the production of in excess of 15 million documents within 20 days,” Penry said during the Friday teleconference.

Originally, the subpoena imposed a deadline of Sept. 25. But NCSBE staffers informed the U.S. attorney it was impossible to comply within that time frame, especially with an upcoming election to consider.

A new deadline was set for January 2019, but with a caveat the state elections board and the county elections boards promise to preserve the requested records. Penry said they have no intention of destroying any documents.

But the NCSBE doesn’t plan to comply with the subpoenas, either. Instead, board members voted to direct the state attorney general’s office to challenge them in court. They also voted to include all 44 county elections boards in the challenge.

Board Vice Chairman Joshua Malcolm said the board would notify the U.S. attorney’s office of any illegal voting activity, but would not “stand idly by and consent to an agency overreach by the federal government.”

Brook said the N.C. chapter of the ACLU was happy to hear that the state elections board unanimously voted to direct the state attorney general to quash the subpoena.

“The fact that the bipartisan board stood unanimously in opposition to this request speaks volumes about how far beyond the pale the request is,” Brook said.

Brook said the constitution protects voters’ right to a private ballot.

“There’s nothing wrong with auditing our elections to ensure they are accurate and only eligible voters are participating, but subpoenaing these records in the midst of an election season seems like overkill at the very best,” Brook said.