'Fishing expedition' could compromise privacy of millions of NC voters
Published September 6, 2018
by Melissa Bought, NC Policy Watch, September 6, 2018.
If North Carolina election officials are forced to comply with federal subpoenas for election data, the government would have information about how more than two million people voted over the past eight years.
The U.S. Attorney’s Office for the Eastern District of North Carolina on behalf of U.S. Immigration and Customs Enforcement (ICE) sent subpoenas for eight years’ worth of information to the State Board of Elections and Ethics Enforcement and five years’ worth of information to 44 individual county election boards.
From the county boards they asked for “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.”
From the state they asked for “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.
The sheer breadth of the requests are unprecedented. The State Board keeps in excess of 15 million documents and images stored in its voter registration database. The information it would be forced to release includes 2,268,167 early voting ballots that would be traceable to the individuals who cast them and 3,367,012 Election Day ballots that would not be traceable.
Right to privacy
The State Board is planning to address the subpoenas in a Friday meeting. Several county boards are currently conferring with county attorneys about how to proceed, but they are worried about what the requests will mean for voters’ privacy.
“Secrecy is very important,” said Beaufort County Board of Elections Director Kellie Hopkins. “If [voters] know if somebody knew how they voted, they would not vote. I’ve heard that.”
Hopkins’ office was faxed a subpoena Friday but she didn’t see it until Tuesday, after the Labor Day holiday. She said the request for her office alone – which employs two people, including her – would require producing hundreds of thousands of documents in a little over two weeks. That’s in addition to preparing for absentee and early voting, which begin soon.
“I just don’t think it’s possible – even if we started right now to get them what they asked for,” she said.
She has turned the matter over to the county attorney but said she also has to think about how it would be logistically possible to proceed if it comes to that.
Hopkins added that she and other county election directors are worried about the type of information they’re being asked to hand over. Voters, she said, have a right to privacy and it’s her job to see to that.
“I’m concerned about the voter’s perception of our office,” she said. “I don’t want voter’s confidence to be destroyed because we have to hand over their ballots to the federal government.”
Nash County Board of Elections Director John Kearney expressed a similar sentiment. His board similarly turned their subpoena over to the county attorney and then called an emergency meeting set for Friday.
“We had several concerns and questions we relayed to the county attorney,” Kearney said.
He explained that absentee ballots and early voting ballots are retrievable but sealed, which means providing the documents that were asked for would allow them to match information to a particular voter.
The State Board also explained in its Wednesday news release that the ballots are traceable by number.
“[Example] Jane Doe who votes early is assigned an individual number that appears also on the top of her cast ballot,” the release states.
Kearney said he and every other director he had spoken to was concerned about that.
Policy Watch requested comment from each of the 44 county boards of elections that received a federal subpoena – 21 responded. Most just confirmed they received a subpoena and were awaiting guidance from attorneys.
Wake County Board of Elections Director Gary Sims wouldn’t comment specifically about voters’ data being traceable but pointed to a state law that prevents counties from releasing confidential ballot information.
The law (G.S. 163A-1105) mandates that voted ballots and paper and electronic records of individual voted ballots shall be treated as confidential and that no person other than elections officials performing their duties may have access to them except by court order or order of the appropriate board of elections as part of the resolution of an election protest or investigation of an alleged election irregularity or violation.
It’s unclear if that statute would actually trump a federal grand jury subpoena – typically federal law is supreme – but county agencies, such as county boards of elections do operate under state law. The subpoenas in this instance are not signed by a judge, which could be interpreted to mean they aren’t court orders.
Sims said there are still questions that need to be answered, but any action the Wake County office takes with regard to the subpoenas would be “100 percent under the direction and advice of our attorneys working in coordination with our Board.”
“We just want to make sure we’re doing everything properly,” he said, adding that all their actions would also be made public.
‘A burdensome request’
Sims, like other county boards of elections directors, said the size of the request was very large – he pointed out that there were over 530,000 voters in Wake County in the 2016 presidential election and that ballots were 17-inches and double-sided.
Cumberland County Board of Elections Director Terri Robertson said their county attorney was working to see what relief, if any, they could get from the request.
“It is a burdensome request and the impact on this office would be astronomical as we are preparing for the November election,” she said.
Robertson added that since the request includes absentee ballots that could be traced back to individual voters, they were also very concerned about the privacy of their voters.
Several county boards of elections directors said they would have to bring in additional employees to fulfill the requests.
The Robeson County Board of Elections Interim Director, Tina Bledsoe, said Wednesday she hadn’t even received the subpoena to her office yet.
“I don’t even know what the subpoena entails,” she said, adding that because she hadn’t seen it, she couldn’t comment on what burden it might create for the small office.
Only one county board of elections office said Wednesday that staff had begun fulfilling the request and didn’t see any reason they couldn’t get it done.
“We have begun the process of pulling the information, scanning and preparing for submission,” said Warren County Board of Elections Director Debbie Formyduval. “Our office has three full-time staff and two part-time that are used as needed and have been called in to work on the project. … We will do whatever we can to meet the deadline in submitting the information that was requested.”
She added that she did not expect to make any request for an extension.
Josh Lawson, General Counsel to the State Board of Elections and Ethics Enforcement, called the subpoenas to the county boards “the most exhaustive on record.”
“In our view, compliance with the subpoena as-written will materially affect the ability of county administrators to perform time-critical tasks ahead of absentee voting and early voting,” he wrote in an email to Sebastian Kielmanovich, the Assistant U.S. Attorney who issued the records requests. “We are not, however, counsel to individual county boards and are not authorized to make requests on their behalf.”
Kielmanovich responded that they would consider extensions for county boards that made requests, but would expect the documents on deadline from everyone else.
“Requests will be considered upon execution of a document to be provided committing to preserve/not destroy the requested information,” he wrote. “For those counties that do not wish to make a request, we will expect production of the documents by the deadline.”
‘A fishing expedition’
A spokeswoman for the U.S. Attorney’s Office for the Eastern District of North Carolina declined to comment Wednesday about the subpoenas.
The motive for the subpoenas was unclear, but it was not unnoticed that they were made on behalf of ICE.
CNN reported Wednesday that a federal law enforcement official confirmed the requests were related to indictments announced in late August by the same U.S. Attorney’s Office that they charged 19 foreign nationals with voting illegally.
A federal grand jury from Wilmington indicted nine of them, all of whom come from countries across the globe.
President Donald Trump has been spouting false rhetoric about voter fraud since he was elected – voting rights advocates say this is just another avenue for him to pursue to throw a wrench in North Carolina’s important midterm elections.
“This is clearly a fishing expedition that picks up where the Pence-Kobach Commission stopped,” said Allison Riggs, Senior Voting Rights Attorney for the Southern Coalition for Social Justice. “This administration appears to be outsourcing the Commission’s discredited agenda to U.S. Attorneys, thus wasting our local election administrators’ valuable time and resources, many of which had been focused on ensuring our upcoming elections are free from foreign interference. It’s ironic, and clearly a political exercise, that an administration that has benefited from foreign election interference is now seeking to burden local election administrators in a way that will impede them in their efforts to safeguard against that same interference in the upcoming election.”
Professor Rick Hasen of the University of California, Irvine School of Law, who is an elections law expert, similarly expressed concern that the subpoenas could be a Trump Administration effort to depress turnout in the name of preventing voter fraud.
“Certainly the timing is terrible for election officials who have to start running the 2018 elections,” he said.
North Carolina election officials just received the green light to prepare and print ballots after some delay over litigation about constitutional amendments and an illegally gerrymandered congressional map. Absentee voters in the state have already had their voting period cut short.
Democracy NC Executive Director Tomas Lopez said the subpoenas timing was not ideal in the middle of election season, noting that registration is in full swing, absentee ballots will soon be available and early voting begins in weeks.
“Our election officials have critical work to do right now,” he said. “This only gets in the way.”
Lopez added that ICE’s involvement raises the concern that the federal government is attempting to revive similar schemes against voters as those of the now-disbanded Pence-Kobach Commission before it.
Myrna Pйrez, deputy director of the Brennan Center for Justice’s Democracy Program, said the subpoenas were reflective of the Trump Administration “being right back at it again.”
“This kind of pursuit over fraud when study after study and effort after effort demonstrates it is rare is a distraction from the very real problems we are experiencing in our elections today,” she said.
Some of those problems she described included election administrators not being appropriately equipped with resources and the Russians interfering in elections.
She added that the subpoenas needed to be viewed in the context of what has been happening in the country: Trump falsely claiming voter fraud; children being locked in cages because of their parents allegedly violating immigration laws and courts interfering with voter suppression efforts.
“North Carolina is a focal point – there are clearly political interests at play,” she said, highlighting the ongoing legal battles between the Governor and the legislature, the anti-voter laws passed and court interference and “now this.” “There’s clearly a lot of interest in North Carolina and it is ground zero for a number of the controversial election matters that we’ve seen as of late.”
Pйrez and Wake County’s Sims both took the subpoena opportunity to remind North Carolina voters to check their voter registration information to make sure it’s up to date.
“This is a time where voters are going to have to make sure that they are being vigilant about their rights and sound the alarm if they think their rights are being impinged,” Pйrez said.
The deadline to respond to the subpoenas is Sept. 25. The State Board telephone meeting that will address them is scheduled for 10 a.m. Friday and the public can access documents online here.
