Secret until now, records reveal clash over the Trump DOJ's demand for NC voter data

Feds said repeatedly they suspected "pervasive," "systemic" fraud, but in the end charged only 70 people out of millions of voters and found no conspiracy.

Posted 11:22 p.m. Mar 24, 2021 — Updated 3:47 p.m. Mar 25, 2021

Tyler Dukes, The News & Observer,

and

Travis Fain, WRAL statehouse reporter

RALEIGH, N.C. — Federal prosecutors have announced an end to a sweeping, four-year-long investigation into voter fraud in North Carolina, peeling back a veil of secrecy from a probe that pitted state and federal officials against each other over a massive demand for data on every one of the state’s registered voters.

The effort initiated by the Office of the U.S. Attorney for the Eastern District resulted in a range of charges related to immigration, registration and election rules against about 70 people – more than 40 of whom were accused of casting ballots illegally. Dates of those charges, which involved activity during the 2016 election and prior, range from July 2018 to mid-February 2021.

Many of the latest indictments were announced for the first time Friday, but the totals fall far short of early suggestions by the federal government of “pervasive” or “systemic” fraud, suspicions the U.S. Attorney’s Office put before a federal judge in an effort to keep details of its inquiry secret for years.

Hundreds of pages of now unsealed court files – which WRAL News, The News & Observer and other media outlets fought in court for more than than a year to obtain – shed light on the contentious relationship State Board of Elections officials had with federal investigators from the U.S. Attorney’s Office and Immigration and Customs Enforcement. The two sides repeatedly accused each other of either sabotage or incompetence, the court records show.

The filings also illustrate a shift in priorities for the then newly installed Trump Department of Justice, which grew increasingly focused on bringing criminal charges for voting irregularities among non-citizens. State officials, who relied on federal citizenship data for voter list maintenance, discovered that what once was a routine process could now spawn wide-ranging criminal investigations.

The fight wasn’t a partisan one.

Most of the back and forth came under U.S. Attorney Robert Higdon, an appointee of Republican President Donald Trump. The state’s election director for much of the DOJ’s probe was Kim Strach, named to the job during Republican Gov. Pat McCrory’s tenure. And the agency’s attorney was Josh Lawson, who previously worked in President George W. Bush’s administration.

A bipartisan State Board of Elections voted, unanimously, in September 2018 to authorize Democratic North Carolina Attorney General Josh Stein to fight several of DOJ’s sprawling subpoenas in the case, an action Stein took in early 2019. In the state’s court filing, attorneys called the subpoenas, seeking a trove of voter information just weeks before the 2018 midterm elections, “unprecedented.”

“The all-encompassing, ‘dragnet’ nature of the subpoenas would impose extraordinary burdens on the state and county boards,” attorneys wrote in their Jan. 8, 2019, filing, estimating the demand would mean the production of more than 15 million documents and that it could cost the state millions.

The DOJ subpoenas were eventually delayed and scaled back dramatically.

Strach and Lawson were replaced at the State Board of Elections in June 2019, as part of a changeover pressed by Democratic Gov. Roy Cooper’s appointees to the board. By then, most of the struggle between the DOJ and the state board was well documented in the court record, though that record remained largely sealed until last weekend.

Lawson, now working in the private sector, declined to comment Tuesday on the case. Strach didn’t return a phone message.

Higdon resigned from the U.S. Attorney’s Office in February, standard practice for top federal prosecutors when a presidential administration changes. Attempts to reach him were not successful.

A ‘covert investigation’

The public learned of the federal probe just months before the 2018 general election, when the U.S. Attorney’s Office served subpoenas on the State Board of Elections, the state Division of Motor Vehicles and 44 county boards of elections. In all, the demand covered records on every registered voter in the state.

The subpoenas, dated Aug. 31, 2018, originally sought everything from voter registration applications to executed ballots. Facing pushback, federal investigators quickly delayed the demand until after the election and clarified that they were interested only in redacted ballots.

After state officials took the matter to court, the subpoenas were significantly narrowed to a list of records for more than 700 voters identified by the State Board of Elections nearly two years earlier.

But the U.S. Attorney’s Office investigation, conducted alongside U.S. Immigrations and Customs Enforcement, actually started the prior year.

Months after the 2016 election, and amid accusations of voter fraud by the newly elected president and other prominent Republicans, the State Board of Elections released an audit report showing about 500 of the almost 5 million votes cast in North Carolina were potentially ineligible. That figure largely consisted of suspected felons who had not yet completed probation or parole, as well as 136 suspected non-citizens who cast ballots. Many of those cases were referred to local district attorneys, responsible for pursuing their own criminal charges in state courts.

Within weeks of that report, the U.S. Attorney’s Office issued a subpoena, kept secret from the public, targeting the non-citizens specifically.

But how they got to that point is very much in dispute.

In back-and-forth legal filings kept confidential until a judge unsealed them last week, the U.S. Attorney’s Office repeatedly accused the elections board of slow-playing the investigation by holding back documents.

“The board, in particular, has impeded this investigation at nearly every turn,” the Department of Justice said in a February 2019 filing asking the judge to impose a gag order on the board and others involved in the case.

Federal attorneys also complained to the court that the release of the audit to the public in April 2017, “provided just as much information about potential federal crimes to the news media as it had to federal law enforcement.”

But one of the DOJ’s chief complaints was that the state wrote, early in the audit process, to all 136 suspected non-citizen voters asking whether they could prove their eligibility. This was done over the federal department’s reservations, the U.S. Attorney’s Office said, and “disclosed a previously covert investigation.”

Shifting priorities

State election officials painted a different picture in their own filings

For years under the Obama administration, the State Board of Elections had a formal agreement to use federal citizenship and immigration data to update state voter rolls.

Part of that agreement meant communicating directly with alleged non-citizens identified in audits to give them the opportunity to “correct their record.” That happened with the 2017 audit, and 34 of the 136 voters identified provided “documentary proof that they were in fact citizens” – a signal that the federal data was, in many cases, outdated.

Board attorney Katelyn Love said in a court filing that this was discussed in a May 2017 call with the U.S. Attorney’s Office, which “expressly encouraged the State Board to continue its normal course of investigation and contact voters directly.”

But as conversations between state and federal officials continued in early 2017, things were changing at the U.S. Department of Justice.

Days after taking office in January, Trump pledged a “major investigation” into voter fraud. Vice President Mike Pence and Kansas Secretary of State Kris Kobach, a staunch Trump ally, were gearing up to launch a voter fraud commission that disbanded less than a year later with little to show for its efforts.

After a February 2017 meeting with ICE agents to discuss, at least in part, inaccuracies in the federal citizenship data, a North Carolina elections staffer who attended the meeting reported concerns to State Board of Elections lawyers directly.

“Rather than offering assistance in obtaining more updated data sets, the ICE agents had apparently asked our agency’s staff to turn over the State Board’s audit data,” Love wrote in a 2019 filing.

In an interview Wednesday, Love said such a move would mean a shift in focus for the board, which prioritizes investigations on more potentially serious violations that could impact election outcomes.

"If every time we do list maintenance it automatically becomes a federal investigation, it completely changes the tenor of what we're doing," Love said.

Some of what followed, the board said repeatedly in court filings, wasn’t the state stonewalling. It was federal incompetence.

The state says it sent ICE a data-sharing agreement to protect Social Security numbers and other sensitive information it would turn over. The feds, they said, failed to respond at all.

“It was the federal investigators who appear simply to have dropped the ball,” the N.C. Attorney General’s Office lawyer representing the board wrote in February 2019.

The Department of Justice accused the state board of communication failures too, including a promised April 2017 follow-up call that never happened because, when investigators reached out, “the calls went unanswered.”

In a letter to the U.S. Attorney’s Office on Monday morning, state election officials complained that a DOJ report summing up the investigation and the charges it produced included “a number of inaccurate claims.” The state also said that, despite a four-year probe, this report “was the first time we received any update from your office about the status of these investigations.”

The letter also asks the DOJ to name seven people the department says are still registered to vote despite being convicted of voting as non-citizens “so they can be removed from the voter rolls.”

The Attorney General’s Office said this week that election officials involved in the case “served the public well and struck an appropriate balance” between the needs of the investigation and the protection of voters’ rights.

“All government actors should be focused on ensuring that our elections are fair,” Laura Brewer, spokeswoman for the office, said in a statement. “The U.S. Attorney’s investigation included troubling and invasive requests, including requesting ballots showing who millions of North Carolinians voted for in the 2016 presidential election.”

The U.S. Attorney’s Office defended its work as well.

“The facts and arguments included in the United States’ court filings were vetted by the federal law enforcement officers, prosecutors and leadership involved in this investigation, and we stand by them,” Don Connelly, a spokesman with the U.S. Attorney’s Office for the Eastern District, said in an email Tuesday. “We remain committed to continuing to work with our state partners on protecting the integrity of elections.”

‘No charges of conspiracy’

The charges federal prosecutors ultimately brought never touched nearly as many people as suggested by the board’s initial estimate, a figure the DOJ repeated in multiple court filings.

That estimate, shared at a meeting with federal investigators in early 2017, was that around 700 “suspected non-citizens” had registered to vote, and that 136 of them “actually voted in North Carolina during the 2016 federal election.”

Even in 2019, the DOJ told a federal judge that its investigation suggested a “more pervasive” problem and that the grand jury process had “uncovered potentially more systemic voter fraud than the Board initially indicated.”

The U.S. Attorney’s Office went on to say its inquiry “revealed efforts by individuals, or groups of individuals, to assist non-citizens in registering to vote.” But as it described those efforts in sealed motions, it left the details vague as attorneys tried to convince a federal judge of the need for secrecy.

In the end, federal investigators in North Carolina brought charges against about 70 people since 2018, prosecuted by attorneys in both the Eastern and Middle districts.

Court filings and a February report from the U.S. Attorney’s Office for the Eastern District summarizing its investigation provide details on unsealed charges against 23 people in 2018, most of whom pleaded guilty and were ordered to pay fines of as little as $25. Four faced jail time, ranging from 14 days to just over a year.

The other half of the 50 or so total charges brought in the Eastern District, announced by the U.S. Attorney’s Office last week, are largely still pending in federal court. Three of these defendants were charged with “voting by an alien,” a misdemeanor punishable by up to a year in prison and $100,000 in fines. The remainder face a mix of charges related to false claims on voter registration documents, misuse of documents and naturalization fraud.

Another batch of related prosecutions in the Middle District of North Carolina, announced in September 2020, totaled 19.

The DOJ said in one of its filings that, for at least 210 of the more than 700 suspected non-citizens identified, the statute of limitations lapsed on some of their potential crimes. A handful of the cases remain sealed. About 30 others struck pre-trial diversion deals allowing them to avoid formal charges, although the exact number is unclear since several such deals are still in progress.

A release from the U.S. Attorney’s Office for the Eastern District on Friday announcing the latest round of prosecutions noted “there are no charges of conspiracy.”

As for whether the DOJ’s investigation substantiated its claims of “systemic” or “pervasive” fraud, State Board of Elections spokesman Pat Gannon was unequivocal.

"Absolutely not,” Gannon said in an interview Wednesday. “We have no evidence of rampant voter fraud in North Carolina – of any type."

The Department of Justice suggested, in a letter to the state board this week, that it could have gone further in its prosecutions but refrained because it determined some non-citizens registered to vote without knowing they shouldn’t. Acting U.S. Attorney for the Eastern District Norman Acker said in his letter that some of these people left the registration form’s citizenship statement blank or indicated on the form that they weren’t citizens, but still ended up registered.

“This appears to point out a problem with either training and/or internal controls at the BOE,” Acker wrote.

In response, Karen Brinson Bell, the State Board of Elections’ executive director, noted that the DOJ flagging 20 people registered to vote despite checking “no” on the citizenship question or leaving it blank is “a processing error of approximately 0.0000028% of the more than 7 million individuals who are currently registered to vote in North Carolina.”

Asked this week about the resources brought to bear in this saga, Connelly, spokesman for the U.S. Attorney’s Office, said federal prosecutors’ work speaks for itself.

“The integrity of elections is paramount, and the dedication of resources to protect them is worthwhile, regardless of how many (or few) prosecutions result. Those found to have clearly violated the law were prosecuted. Equally importantly, we did not pursue prosecution where the evidence did not support it,” Connelly said in an email. “That is justice.”

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Why we fought secrecy around the ICE voter probe

In the fall of 2018, just months before the midterm elections, news broke of a massive demand by the U.S. Attorney’s Office for the Eastern District of North Carolina and Immigration and Customs Enforcement for data on every North Carolina voter.

The U.S. Attorney’s Office relented days later, delaying the deadline for production of those records.

But following a federal court hearing, sealed from public view, state and federal officials reached an agreement to narrow the scope of those records to focus on more than 700 registered North Carolina voters. The State Board of Elections told county election officials to hand over records on those voters – but wouldn’t say who they were.

After denying public records requests for the documents turned over to federal investigators, state officials wouldn’t say why that information was off-limits to the public.

So, in September 2019, nearly a year after the original subpoenas, a coalition of news organizations, including The News & Observer, WRAL News and The Washington Post, sued, accusing state and county election officials of “knowingly or intentionally” violating state public records law.

What followed was more than a year of gag orders, sealed filings and unusual court secrecy in a lawsuit that went all the way up to a federal appeals court. The goal was to get clarity on why the public was shut out of efforts by North Carolina officials to fight a subpoena that originally impacted every registered voter in the state.

That secrecy largely ended March 21, with the release of hundreds of pages of court records documenting the back and forth between the State Board of Elections and the U.S. Department of Justice over the last several years. Blocking those details from public view, the federal government claimed, was necessary to protect the integrity of a grand jury investigation that spanned four years and ended in the prosecution of dozens of people for violations of immigration, registration and voting laws.

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