Subpoena of election records challenged

Published 10:19 am Monday, September 17, 2018

RALEIGH – North Carolina elections officials are challenging a request made by a federal grand jury that sought eight years of election records from the state and 44 counties – including all those in the Roanoke-Chowan area.

Last week, the U.S. Attorney’s Office for the Eastern District of North Carolina issued subpoenas to the State Board and 44 county boards of elections in the eastern part of the state, seeking millions of records of Tar Heel voters.

On Friday, Sept. 7 during a called meeting of the Bipartisan State Board of Elections and Ethics Enforcement, they unanimously authorized the N.C. Attorney General’s Office to take necessary steps to quash recent grand jury subpoenas.

“The subpoena we’ve received was and remains overly broad, unreasonable, vague, and clearly impacts significant interest of our voters,” said Joshua Malcolm, board vice chairman, during Friday’s meeting.

The State Board also instructed county boards not to destroy election documents that may be subject to the federal subpoenas and reminded county elections officials that it is a Class 1 misdemeanor for elections officials to knowingly disclose voted ballots without a court order [G.S. § 163A-1105(e)]. State law protects the right of voters to a secret ballot.

The R-C News-Herald obtained a copy of a generic subpoena sent to the state board and the 44 counties, which apparently came by way of a request from Immigration and Customs Enforcement (ICE).

The subpoena specifically asks for, “Any and all voter registration applications and/or other documents, as identified below, that were submitted to, filed by, received by, or maintained by the North Carolina State Board of Elections from January 1, 2010, through August 30, 2018, within any of the counties in North Carolina.”

That documentation is to include, but not limited to, Standard Voter Registration Application forms, Federal Post Card Applications, Federal Write-In-Absentee Ballots, One-Stop (Early Voting) application forms, Provisional Voting forms, N.C. Absentee Ballot Request forms, any and all “Admission or Denial of Non-Citizen Return Form” that were generated by the North Carolina State Board of Elections, or were caused to be generated by the North Carolina Board of Elections, and/or the Ethics Enforcement Office, and any and all Voter Registration Cancellation or Voter Revocation forms that have been generated by the North Carolina State Board of Elections, and/or the Ethics Enforcement Office.

For the local Board of Elections offices in the Roanoke-Chowan area, all of which have a small number of employees, the request for this large volume of documents stretched over an eight-year period is a mountainous task. Additionally, the request comes at a time where election boards across the local area and statewide are in their final preparation stages for this year’s General Election on Nov. 6. Early voting for that election begins in mid-October.

As for Friday’s decision made by the state board, Shelia Privott, Director of the Hertford County Board of Elections, said that was what she and other county election officials were waiting for prior to acting on the materials requested by the subpoena.

Subpoenas were also sent to the board of elections offices in Bertie and Gates counties. Other counties receiving the subpoenas were Beaufort, Bladen, Brunswick, Camden, Carteret, Chowan, Columbus, Craven, Cumberland, Currituck, Dare, Duplin, Edgecombe, Franklin, Granville, Greene, Halifax, Harnett, Hyde, Johnston, Jones, Lenoir, Martin, Nash, New Hanover, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Pitt, Robeson, Sampson, Tyrrell, Vance, Wake, Warren, Washington, Wayne and Wilson.

It is not known whether the subpoenas have any ties to a press release sent Aug. 24 from Higdon’s office detailing criminal charges filed against 19 foreign nationals for casting ballots by an alien during the November, 2016 General Election.

Those charges were filed after a federal grand jury in Wilmington returned indictments against those foreign nationals for allegedly filing false claims of United States citizenship in order to register to vote, and voting by an alien.

In their Sept. 7 decision, the state board said North Carolina law barred it from sharing information from individual voters to the extent requested in the subpoenas.

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

“The subpoenas represent an unprecedented fishing expedition,” Chris Brook, the American Civil Liberties Union of North Carolina’s legal director, told the Carolina Journal in an interview. “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.”

According to the Carolina Journal, 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.

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

About Cal Bryant

Cal Bryant, a 40-year veteran of the newspaper industry, serves as the Editor at Roanoke-Chowan Publications, publishers of the Roanoke-Chowan News-Herald, Gates County Index, and Front Porch Living magazine.

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