Media coalition sues NC election boards for voter records linked to secretive federal probe

A group of local and national news organizations is suing North Carolina election officials for records connected with 2018 federal subpoenas that targeted hundreds of voters across the state.

Posted 9:30 p.m. Sep 27, 2019 — Updated 9:30 p.m. Sep 27, 2019

Tyler Dukes

, WRAL investigative reporter

RALEIGH, N.C. — A group of local and national news organizations is suing North Carolina election officials for records connected to 2018 federal subpoenas that targeted hundreds of voters across the state.

The suit seeks public voter data gathered by state and county election boards months after they received subpoenas from U.S. Attorney Robert Higdon's office in a secretive voter fraud probe. Both the Wake County Board of Elections and the State Board of Elections are named in the suit, filed Friday afternoon by a media coalition that includes WRAL parent company Capitol Broadcasting Co., The News & Observer and The Washington Post.

The complaint says the two boards are "knowingly and intentionally" violating North Carolina public records law and have been unable to identify any justification for refusing to produce the records, originally requested by WRAL News in May.

Spokespeople with the State Board of Elections and the North Carolina Attorney General's Office said the agencies would review the filing after receiving it late Friday afternoon. Wake County spokeswoman Dara Demi declined to comment until county attorneys could read the complaint.

State and local officials have been largely silent on the federal subpoenas issued in August 2018, which originally sought millions of records – including ballots themselves – just two months before the midterm elections.

Higdon's office has declined to comment on the case or the subpoenas. But the documents listed the name of a U.S. Immigration and Customs Enforcement special agent who had previously worked a case involving voter fraud charges against 19 foreign nationals.

Federal prosecutors quickly backed down from their original subpoenas after state and county election officials pushed back over concerns about the volume of the demand and its potential threats to voter privacy.

The U.S. Attorney's Office delayed the subpoena deadline until after the election, and prosecutors also clarified they would accept redacted ballots.

After the State Board of Elections formally asked North Carolina Attorney General Josh Stein last fall to intervene in the case to block the subpoena, the board announced in February it would turn over data on 789 North Carolina voters.

Of that total, 289 were registered in 32 counties in the federal Eastern District of North Carolina. The other 500 came from elsewhere across the state. Most hadn't voted in several election cycles, state election officials said.

Other than that, there's been little clarity on who the voters are or why the state instructed county boards to collect several years of their voting histories, signed poll books and redacted ballots to deliver to federal investigators.

The State Board of Elections' then-general counsel, Josh Lawson, told county election leaders in May they must "avoid any disclosure that could reveal the identity of the registrant(s) transmitted" on the advice of the Attorney General's Office.

WRAL News' original record request, issued to the state and 32 eastern county election boards, sought the same digitized voter data they gathered for federal investigators, excluding traceable ballots.

Voter data is largely public record in North Carolina.

But a Wake County spokesperson told WRAL News in May that the board was "prohibited under both federal and state law" from releasing the requested information and forwarded subsequent questions to County Attorney Scott Warren. Warren's office didn't return multiple messages left at his office.

About a month later, State Board of Elections spokesman Pat Gannon also said the agency was prohibited from releasing the records. Laura Brewer, a spokeswoman for the Attorney General's Office, provided a similar statement.

"As you know, there are multiple reasons why a records request might be denied, included exceptions to the Public Records Act, provisions of federal law, court orders, and sensitive public security information," Brewer said. "I'm prohibited from providing a reason in this matter."

The media coalition lawsuit notes that state law requires that, if a records request is denied, "the denial shall be accompanied by an explanation."

In addition to seeking the records and any rationale for withholding them from the public, the lawsuit also seeks an unspecified amount of attorney fees.

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