North Carolina’s attorney general is authorized to fight subpoenas the Trump administration issued last month to the state and 44 counties, the state elections board voted unanimously Friday.
After an executive session held behind closed doors, the State Board of Elections and Ethics Enforcement voted Friday to authorize Attorney General Josh Stein’s office to fight the subpoenas sent to the state and county elections boards from the U.S. attorney’s office for the Eastern District of North Carolina on behalf of Immigration and Customs Enforcement.
“The subpoena we’ve received was and remains overly broad, unreasonable, vague, and clearly impacts significant interests of our voters,” said Joshua Malcolm, vice chairman of the state board. “This Board will ... not stand idly by and consent to any agency attempting to obtain records and documents that violate the principles of overreach by the federal government, as in this circumstance.”
The nine-member state board has four Democrats, four Republicans and one independent.
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The U.S. attorney’s office responded to the board with a letter on Friday afternoon, which was first posted on Twitter by Greg Flynn, a member of the Wake County Board of Elections. The letter reminded the board and the county boards of their obligation to preserve the records, saying that the board could destroy records Saturday in accordance with document retention policies in place now.
Stein, in a letter to the U.S. attorney’s office, asked the office to withdraw the subpoenas and issue new ones “that are appropriately tailored to documents relevant to your inquiry.” Stein said if the matter is not resolved by Monday, Sept. 10, “we will have no option but to request judicial relief.”
The subpoena requested from the state board all voter registration applications, federal write-in absentee ballots, federal post card applications, early-voting application forms, provisional voting forms, absentee ballot request forms, all “admission or denial of non-citizen return forms,” and all voter registration cancellation or revocation forms from Jan. 1, 2010 through Aug. 30, 2018.
More than 15 million documents would have to be turned over, said Andy Penry, the chairman of the state board.
Separate subpoenas sent to the 44 counties covered by the Eastern District of North Carolina asked for more information. The Wake County subpoena, for example, requested “any and all poll books, e-poll books, voting records, and/or voter authorization documents, and executed official ballots (including absentee official ballots), that were submitted to, filed by, received by, and/or maintained by the Wake County Board of Elections from August 30, 2013 through August 30, 2018.”
Originally, the date for producing the documents was Sept. 25.
Sebastian Kielmanovich, the assistant U.S. Attorney for the Eastern District of North Carolina, wrote to the state board Thursday offering to push the deadline for the voting records to January if the board and the 44 county board of elections promised to preserve the requested records. Penry said the state board “doesn’t have any intention of destroying the documents. ... The documents are going to be there.”
The original request, the state board said, would have included more than 2.3 million “traceable” ballots, meaning voters’ actual ballot choices would have been identifiable. In his letter, Kielmanovich asked that “actual vote information be redacted,” claiming the inquiry was not interested in who voters voted for. Penry said Friday that laws passed by the state General Assembly prevent North Carolina from disclosing that information.
Stein’s letter indicated redacting information from at least 2.2 million ballots would be “an extraordinarily burdensome task for the State Board and county boards to undertake.”
Penry said the board, which has worked with the Eastern District of North Carolina in the past on potential criminal violations, received no advance warning of the subpoena. The subpoena arrived via fax at 5 p.m. on Friday, Aug. 31, the start of the three-day Labor Day weekend.
“We had lawyers here that could have been contacted in advance and could still be contacted to address this matter,” Penry said.
He said the board has not been given a reason as to why ICE wants the documents.
The Southern Coalition for Social Justice sent a memo to the state board of elections Thursday evening, outlining its objections to complying with the request and urging the board to “aggressively resist” against the subpoenas. The Durham-based nonprofit which aids those working for social justice applauded the board’s decision on Friday.
“We commend the State Board for taking steps to defend the privacy interests of North Carolina voters and to prevent likely unlawful fishing expeditions by the federal government that tends to fuel voter suppression and intimidation efforts,” said Allison Riggs, the group’s senior voting rights attorney.
The office of the U.S. Attorney for the Eastern District of North Carolina has declined all requests for comment or information this week. Robert Higdon, Jr., a Trump appointee, was sworn in as the U.S. attorney for the district in October.
Higdon’s office brought charges against 19 non-U.S. citizens for voting illegally in the 2016 presidential election in North Carolina, The News & Observer reported in August. All were charged with voting by a non-citizen, according to Higdon’s office. The foreign nationals hailed from 13 different countries and ranged in age from 26 to 71.
President Donald Trump has claimed repeatedly that as many as 5 million people voted illegally in the 2016 election, one reason he says he lost the popular vote to Democrat Hillary Clinton by nearly 2.9 million votes. In May of 2017, Trump issued an executive order to create the Presidential Advisory Commission on Election Integrity, a voter fraud task force, to root out the problem. But the commission ran into resistance from states in handing over voter information and was disbanded in January without bringing evidence of widespread voter fraud.
North Carolina handed over some of the data the commission requested, according to previous coverage in The News & Observer. The commission asked for the full first, middle and last names of all registered voters, addresses, dates of birth, party affiliations, last four digits of their Social Security numbers and voting history, as well as felony convictions and military status of voters. In June 2017, the state board said it would provide some of the data, but not Social Security numbers, birth dates or driver’s license numbers.
The commission was led by Vice President Mike Pence and Kris Kobach, Kansas’ secretary of state and the GOP nominee for governor in 2018.
Democratic Rep. G.K. Butterfield, a member of the Congressional Black Caucus, said the subpoenas were an attempt to advance President Trump’s anti-immigrant agenda and to suppress voters from minority communities, which typically vote for Democrats.
“They’re trying to make a case against immigration reform, they’re trying to make a case to build a wall and I think they’re trying to use it as a technique for voter intimidation. And I think it’s going to transcend beyond the immigrant population. I think it’s intended to target minority groups to find ways to discourage people from voting and to find technical violations that that would prevent people from voting such as change of address,” Butterfield said Thursday.
Butterfield and fellow North Carolina Democratic Reps. David Price and Alma Adams signed a letter to the Department of Justice and Department of Homeland Security asking for inspector general investigations into the legal implications of and rationale for the subpoenas.
“Given what we know about the scope of the subpoenas, and the counties that were targeted, we strongly suspect that this is part of the Trump administration’s dangerous and anti-democratic strategy of voter suppression and intimidation to limit equal access to the ballot box,” the letter says.