Photo by Alex Lee under Creative Commons Attribution 2.0 Generic licence
The state Attorney General’s office should take “any and all necessary steps” to quash federal subpoenas seeking more than fifteen million voter records, including executed ballots, the North Carolina State Board of Elections and Ethics Enforcement voted unanimously this morning.
“This board will, as required by our fiduciary responsibilities as state elections officials, not stand idly by and consent to an agency attempting to obtain records and documents that violate the principles of overreach by the federal government as in this circumstance,” said Joshua Malcolm, the board's vice chairman.
The requests for records from the state board as well as forty-four county elections boards were “apparently issued on behalf of” Immigration and Customs Enforcement, Andy Penry said in a conference call with fellow board members Friday morning. Both Assistant U.S. Attorney Sebastian Kielmanovich and Homeland Security/ICE Special Agent Jahaira Torrens appear in the subpoenas.
“We have not been given a reason as to why ICE would want that information and candidly I can’t think of any reason for it,” he said.
In a letter to Kielmanovich, Josh Lawson, general counsel for the elections board, called the sweeping request “the most exhaustive on record” and said complying would hinder the state board’s ability to prepare for the November 6 election.
Despite that correspondence, Malcolm said, the subpoena has not been withdrawn and “remains overly broad, unreasonable, vague and clearly impacts significant interests of our voters.”
Penry said the subpoenas “simply came out of the blue” on August 31, adding that some counties had been contacted about turning over records prior. Some even wondered “whether it was legitimate or a fake effort to obtain voter information,” he said.
Penry questioned whether the subpoenas had properly been served; some were faxed, other counties have received no formal requests, he said.
Penry said some of the information sought is public “and would have been accessible to the U.S. Attorney’s Office without a subpoena.” Other items involve “very confidential information about the voters including what their ballots actually looked like.”
The subpoenas to forty-four Eastern North Carolina counties seek all “poll books, e-poll books, voting records, and/or voter authorization documents, and executed official ballots (including absentee ballots)” from August 30, 2013, through August 30, 2018 – a request that covers more than five million ballots, the state board estimates. Of those ballots, about two million could be traced back to individual voters, revealing how they voted during early voting periods. Another three million ballots, cast on Election Day, couldn’t be traced back to voters.
Another request of the state elections board covers more than fifteen million documents and images spanning eight years – including voter registration and early voting application forms, absentee ballot request forms, “any and all ‘admission or denial of non-citizen return forms'” and records of any voter registration canceled or revoked by the board.
Before voting to direct the state Attorney General's Office to move to quash subpoenas directed at both the state and the forty-four counties, state board members consulted with representatives from the AG’s office during a nearly hour-long closed session.
The documents were originally supposed to be returned September 25, but following media reports, Kielmanovich agreed to grant an extension to January, as long as the elections boards preserve the subpoenaed records.
“The subpoenas were served on behalf of the federal grand jury on a timetable designed to avoid the possible destruction of documents under state law and Board of Elections procedures,” Kielmanovich wrote Wednesday to the state elections board’s general counsel. In the conference call, Penry said the state board has “no intentions” of destroying the requested records.
Kielmanovich added that officials were willing to discuss the scope of the requests and that “disclosure of any voter's actual choice of candidates in any race… is not relevant to our inquiry.”
On Thursday, Democratic Congressional representatives David Price and G.K. Butterflied demanded the Department of Justice and ICE immediately rescind the subpoenas.
Price and Butterfield said they intend to request an investigation within the House of Representatives, the Inspectors General of the Department of Justice and the Department of Homeland Security into the legality and motive behind the subpoenas.
In a joint statement, Price and Butterfield called the probe a massive waste of resources “in search of fraud that does not exist.”
“This alarming and unprecedented request from President Trump’s Department of Justice (DOJ) and Immigration and Customs Enforcement (ICE) 60 days prior to an election is appalling. In these subpoenas, ICE has failed to demonstrate its legal authority to request voting records and to reveal the rationale for the production of this information. This massive request of voter data seems clearly designed to disenfranchise and intimidate voters and to disrupt the administration of an impending election with major state and national implications,” the statement reads.
Last summer, the now-disbanded Presidential Advisory Commission on Election Integrity sought information on all registered voters in North Carolina and other states, including partial Social Secutiry numbers and voter histories. Then, the North Carolina’s Bipartisan State Board of Elections and Ethics Enforcement said it must comply with the parts of that request considered public record, but refused to turn over Social Security numbers, birth dates or driver’s license numbers.
Update: As of Friday afternoon, the following legislators have joined representatives Price and Butterfield in signing a letter to the Homeland Security and Justice departments seeking an investigation into the subpoenas: Alma S. Adams, Ph.D. (D-NC), Committee on House Administration Ranking Member Robert A. Brady (D-PA), Oversight and Government Reform Committee Ranking Member Elijah E. Cummings (D-MD), Homeland Security Committee Ranking Member Bennie G. Thompson (D-MS), and Judiciary Committee Ranking Member Jerrold Nadler (D-NY).