State Elections Board vows to fight federal subpoena of voter records

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Friday, September 7, 2018
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State elections officials vowed to fight a federal subpoena asking for millions of records.

During a Friday morning teleconference, state elections officials vowed to fight a federal subpoena asking for millions of records.

"The subpoena we received was and remains overly broad, unreasonable, vague, and clearly impacts significant interest to our voters," said Joshua Malcolm, the Vice Chairman of the North Carolina State Board of Elections and Ethics Enforcement

NCSBOE Chairman Andy Penry said they received the request at 5 p.m. on Friday, August 31, right before the Labor Day weekend from the US Attorney's Office for the Eastern District of North Carolina. He explained they were given no prior notice of any possible investigation.

Prior to the NCSBOE receiving their subpoena, county elections officials had received subpoenas for their voting records.

"They had called us, some of them wondering if it was legitimate or if it was a fake effort to obtain voter information," Penry explained.

The subpoena is also directed at 44 counties, including Wake, Johnston, Harnett, and Cumberland. As of Friday morning, Penry was unsure the State Board had formally received their subpoena as required by the rules but acknowledged he was aware of it.

In the subpoena to the NCSBOE, federal officials sought Standard Voting 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," Any and all Voter Registration Cancellation or Voter Revocation Forms form January 1, 2010, through August 30, 2018.

"It's a very, very broad net. It's not a targeted kind of records request, where they say they're looking for one county, or one precinct, or even this type of person. It's just 44 counties," explained Andrew Taylor, a political science professor at North Carolina State University.

While Penry acknowledged some of the requested information is publicly available, other portions are confidential.

"Subpoena which was apparently issued on behalf of ICE, seeks documents that would disclose very confidential information about the voters," explained Penry.

An unredacted voter registration form includes a person's date of birth, last four digits of their social security number, driver's license number, and signature. State law deems all that information as protected unless forced to disclose it as part of a court order.

Taylor says the volume of requested records creates a challenge for departments to handle, especially prior to the November midterm elections.

"It's a significant burden, and it's a time when election administration officials are gearing up," said Taylor.

Originally, the deadline to produce the requested documents was September 25. In a follow-up letter obtained by ABC11, the US Attorney's Office offered to push the deadline to January 2019, as long as the state promised not to destroy any records.

"You've already given your information to the state. The question is - do you trust the state to be more private with it, or do you trust the feds? Because the state has the information. The question is do they want to give it to the feds," said Taylor, adding North Carolina has fairly transparent voting record information.

Several North Carolina lawmakers have called for federal officials to withdraw the subpoena, and for a follow-up investigation into the legality of such a subpoena.

In response to the request, state elections officials directed Attorney General Josh Stein to fight to quash the subpoenas on behalf of the state and the 44 individual counties impacted.