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State Board, county boards of elections will fight ‘unreasonable’ federal subpoenas

The State Board of Elections and Ethics Enforcement will fight broad federal subpoenas requesting an unprecedented amount of voter information.

The nine-member State Board voted unanimously at a meeting Friday morning to allow the state Attorney General’s Office to start it’s defense by making a motion to quash the federal subpoena. They also voted unanimously to have the AG’s Office represent the 44 county boards of elections and similarly try to quash their subpoenas.

“The subpoena we’ve received was and remains overly broad, unreasonable, vague and clearly impacts significant interests of our voters, despite the correspondence received from the U.S. Attorney’s Office … to Mr. [Josh] Lawson,” said member Joshua Malcolm. “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.”

He made clear the State Board would stand ready to assist any agency with an investigation into illegal activity but that the subpoenas were just too broad.

The Board’s votes authorize the Attorney General’s Office to “take any and all necessary steps to quash the grand jury subpoena — and any associated subpoenas in this matter.”

Board Chairman Andy Penry started the meeting by giving a timeline of events. He said the State Board was faxed a subpoena at 5 p.m. the Friday before Labor Day weekend. They were told prior to that some county boards of elections had received subpoenas, but there was some concern they weren’t legitimate and might just be an attempt to get voter information.

The subpoenas sent to the 44 county boards of elections in the eastern part of the state 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 [44] County Board[s] of Elections from August 30, 2013, through August 30, 2018.”

The subpoena sent to the State Board requested “any and all voter registration applications” in addition to federal write-in absentee ballots, one-stop (early voting) application forms, provisional voting forms, “admission or denial of non-citizen return forms,” and voter registration cancellations or voter revocation forms, among other documents.

Penry said the U.S. Attorney’s Office never reached out to the State Board or its General Counsel Josh Lawson before sending the massive requests — which would have required generating in excess of 15 million documents in 20 days. He pointed out that Lawson’s phone number is online and that if there had been a call prior to the subpoenas being sent out, the Board might not be in the position they were in.

It wasn’t until after extensive media coverage that the U.S. Attorney backed down and discussed any sort of compromise, Penry noted.

NC Policy Watch reported Thursday morning that the federal requests would have compromised the privacy of more than 2.2 million voters. A few hours later, the Assistant U.S. Attorney who made the requests, Sebastian Kielmanovich, wrote a letter to Lawson outlining a compromise that would protect voters’ confidentiality while also preserving the information his office really needed for its investigation. That was the letter Malcolm referred to in his earlier Board motion.

The letter was first publicly obtained by NC Policy Watch and then made available to others.

While the letter offering a compromise would narrow the scope of the federal requests and extend the deadline for which documents would be due, there are still concerns about why the requests were made in the first place. There have also been concerns that the proposed narrower scope is still too broad.

National news outlets have cited anonymous sources saying the requests were connected to an investigation in which 19 foreign nationals were recently indicted for voting illegally, but election experts have said there was a much more narrow way to go about it if that were really the case.

Voting rights organizations speculate the broad requests were just a way for the Trump Administration to interfere with North Carolina’s upcoming midterm elections. The U.S. Attorney for the Eastern District of North Carolina, Robert Higdon Jr., was appointed by President Donald Trump.

Penry didn’t make any guesses at Friday’s meeting about what the subpoenas were about, but he did confirm the State Board did not know why the requests were made in the first place and particularly why the requests were made for confidential information, including how voters’ ballots were cast.

“We have not been given a reason as to why [U.S. Immigration and Customs Enforcement (ICE)] wants that information, and candidly, I can’t think of any reason for it,” he said.

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