State elections board to challenge federal voter records subpoenas

According to Andy Penry, chairman of the State Board of Elections and Ethics Enforcement, the process by which U.S. Attorney Robert Higdon issued the subpoenas to 44 counties and the state board was haphazard, violating both protocol and legal requirements for process service. He said some counties had yet to receive theirs at all.

"We found about the subpoenas when the county boards started calling us and thinking that it was fake – I mean, is this a Russian plot to get the ballots? We didn't know anything about it," Penry said.

The state board's attorney never received any advance notice of the demand for information, which arrived via fax at 5 p.m. on the Friday before the Labor Day weekend, Penry added.

"It simply came out of the blue," he said. "They were requesting the production of in excess of 15 million documents within 20 days."

The subpoenas include sensitive information like dates of birth, Social Security numbers and even the actual voted ballots of millions of people.

The subpoenas are linked to a grand jury meeting in Wilmington and as part of an investigation involving at least one U.S. Immigration and Customs Enforcement agent. A Wilmington grand jury last month charged 19 foreign nationals with voting in the 2016 U.S. elections.

"We have not been given a reason as to why ICE wants that information, and candidly, I can’t think of any reason for it," Penry said. "Our General Assembly has told us by statute that we are prohibited from disclosing that information to anybody, absent a court order. That’s a good statute, and it’s there for a really good reason. So we are not going to disclose that information at this point."

After more than a half hour in closed session, the board voted unanimously to direct the state attorney general to move to quash the subpoena in federal court. Member Josh Malcolm, a Democrat, said the board "stands ready" to assist any federal, state or local investigation into illegal activity, "but this board will not stand idly by and consent to an agency overreach by the federal government."

A second unanimous motion unified all 44 counties under the attorney general's challenge.

"I think all of us, regardless of party, thought that was just outrageous," Penry said of the unanimous votes, which are rare on the board divided between four Republicans, four Democrats and one independent.

The state board is always ready to help federal prosecutors investigate an actual crime, he said, but not if the subpoenas are for some other purpose.

"We're not happy to help if the purpose of the investigation is to advance a false narrative of voter fraud, if it's to propagandize a voter ID amendment, if it's to suppress African-American votes, if it's to intimidate Hispanic voters," he said. "If that's the purpose of the subpoena, we're not interested in helping that."

However, Penry noted, the subpoenas have not yet been withdrawn, which is why the board wants to fight them.

"Their subpoena requires us to produce actual voted ballots. State law says thou shalt not, that you shall not give the actual voted ballots to anyone, and if you do so, you've committed a crime," he said.

Also Friday, North Carolina's Democrats in Congress made good on a promise to request inquiries into the subpoenas, filing letters with inspectors general for the Department of Justice and the Department of Homeland Security. Reps. David Price, G.K. Butterfield and Alma Adams were joined on the letters by a handful of other Democrats in key positions, including Committee on House Administration Ranking Member Robert Brady and Oversight and Government Reform Committee Ranking Member Elijah E. Cummings.

The members asked the inspectors general who monitor the DOJ and ICE, which is part of DHS, to investigate "the legality and political motivation behind this unprecedented request." Among the questions they want answered: Why was the deadline initially set for Sept. 25 and whether DHS is following President Donald Trump's directive to investigate voter fraud.

"This new North Carolina document request by ICE appears to pick up where the Commission left off and seeks to use allegations of widespread voter fraud to justify voter suppression and intimidation practices," the letter states.