State seeks to quash federal subpoenas for voting records
By Steve Herring
Published in News on September 9, 2018 7:24 AM
The State Board of Elections and Ethics Enforcement Friday authorized state Attorney General Josh Stein "to take any and all necessary steps to quash a grand jury subpoena -- and any associated subpoenas" -- for state voting records.
It also authorized Stein's office to do the same for the subpoenas affecting the 44 county boards within the Eastern District of North Carolina.
The Wayne County Board of Elections is among the 44 boards the U.S. attorney's office in Raleigh subpoenaed for voting records on behalf of U.S. Immigration and Customs Enforcement.
The Wayne County board will meet at 4 p.m. Tuesday in the Board of Elections office, 309 E. Chestnut St., to discuss the matter. The meeting is open to the public.
The U.S. attorney's office also issued a subpoena to the State Board of Elections and Ethics Enforcement seeking records going back to 2010, including voter registration applications, absentee ballot request forms and provisional balloting forms from all 100 of the state's counties.
Also on Friday, Congressman G. K. Butterfield was joined by top congressional Democrats in voicing strong concerns about the scope of the subpoenas and called for an investigation into the legality and political motivation behind what they called an "unprecedented request for private voter information."
The letter also calls on the Inspectors General of the Department of Justice and Immigrations and Customs Enforcement to promptly undertake an investigation to determine the legal implications of and rationale for the subpoenas.
"These subpoenas are overly broad, request private voter information, and appear to target voters of color," the members write.
The members note that President Trump "has continually repeated false claims regarding widespread voter fraud in the 2016 election," leading to the creation of his Advisory Commission on Election Integrity that was disbanded in January after being the subject of endless controversy and litigation.
Despite this, President Trump subsequently charged the Department of Homeland Security to "continue investigating the myth of widespread voter fraud," they write.
"This document request by ICE appears to pick up where the Commission left off and seeks to use allegations of widespread voter fraud to justify voter suppression and intimation practices," they said in the letter.
"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."
Wayne County Elections Director Dane Beavers said he wanted to see what the state board did on Friday and what action his board might take before commenting further.
On Thursday, Beavers voiced concern over the subpoena not so much as being unreasonable, but rather because it infringes on a person's constitutional right to privacy as a voter.
He also was concerned it might frighten voters away from the polls for the Nov. 6 midterm election.
Allison Riggs, senior voting rights attorney for the Southern Coalition for Social Justice, has called the subpoenas "a fishing expedition."
During a Friday morning meeting Joshua Malcolm, vice chairman of the State Board of Elections and Ethics Enforcement called the subpoena "overly broad, unreasonable, vague and clearly impacts significant interests of our voters."
Malcolm said that despite a letter from the U.S. Attorney's Office offering a possible compromise, the subpoena had not been withdrawn.
Malcolm said that over the past five years he has served on the state board that it has routinely referred matters to the Eastern District of North Carolina for investigation, even when not required by law, policy or otherwise.
"I know this to be true because in many of those circumstances, I've made motions to refer those matters," he said. "To be clear, it's my belief this board stands ready to assist any appropriate federal/state law enforcement/prosecutorial agency in pursuit of any suspected illegal activity involving the voting process.
"But, this board will, as required by our fiduciary responsibilities as state election officials, 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 subpoenas, sent by fax on Aug. 31, directed that the information -- which the state elections board estimates would exceed well over 20 million documents -- be provided to a Wilmington grand jury by Sept. 25, or before that to a Raleigh-area immigration agent.
But a follow-up letter this past week from the U.S. Attorney's Office offered to extend the deadline to January if the state and local boards agreed to preserve the subpoenaed documents.
The letter also addressed privacy concerns, "... We ask that the actual vote information be redacted, to the greatest extent possible. In other words, we want to prevent disclosure of any voter's actual choice of candidates in any race. That specific information is not relevant to our inquiry."
Even with the offered extension the local office does not have the equipment or manpower to supply the documents that could top 200,000, Beavers said.
"I don't have the ability to do what they are asking me to do without spending taxpayer money on it," he said Friday. "I don't have any way to provide them with what they are asking for."
Also, redacting does not reduce the number of documents it doubles it while tripling the amount of work, Beavers said.
"You have to copy the original, because obviously we can't redact an original," he said. "So you have to copy the original, redact the copy and then copy the copy because redacting doesn't cover the information unless you run it back through a copier.
"If you take a black marker and run it across a document, nine times out of 10 you can still read what is under it. So that part of the redacting process is only half of it. Then you have to copy it again to completely remove any trace of what was under the black marker."