Sweeping ICE Subpoena Roils NC State, County Election Boards

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North Carolina’s State Board of Elections and boards in 44 counties have received a sweeping federal subpoena for tens of millions of voting documents – including ballots! – less than two months before the 2018 general election. The New York Times has more:

Representatives of ICE and the Justice Department officials involved declined to comment on the matter.

The subpoenas were issued on Friday, a week after federal officials announced that 19 noncitizens in North Carolina had been charged with casting illegal votes in the 2016 election. Those indictments arose from an investigation by a newly created federal task force focused on document and benefits fraud in the Eastern District of North Carolina, where the 44 counties are.

Setting aside the debate over voter fraud, the concern is that the extraordinarily broad nature of the subpoenas – when combined with their timing – will cripple election preparations for 2018:

Critics say that those arrests hardly constitute a wave of voter fraud worthy of such a broad demand for documents, which they said could overwhelm the budgets and staffs of small counties just when they need to be preparing for the November election. And they raised concerns about privacy: Among the prosecutors’ demands are millions of secret ballots cast by absentee and early voters whose identities could be easily traced.

Still, it’s the latest in a long line of controversies and surprises in North Carolina, which has seen way more than its share of heated rhetoric, party-line legislative votes and litigation:

North Carolina has had more of these controversies than most states. In 2016, a federal appeals court struck down a state voter identification law written by North Carolina Republicans, saying that it was aimed at African-American voters “with almost surgical precision.” On Election Day this year, voters will consider a Republican-backed constitutional amendment that would require voters to show a photo ID at the polls.

The state elections board audited the 2016 election and reported in April 2017 that it had found 41 suspected cases of noncitizens casting votes.

It’s also not clear whether this is a centrally-coordinated effort or if the local U.S. Attorney is acting alone:

Bryan D. Cox, an ICE spokesman, said on Wednesday that the investigation in North Carolina was “locally driven” by the office of the United States attorney for the Eastern District, Robert J. Higdon Jr.

In previous administrations, United States attorneys routinely sought approval from senior Justice Department officials before undertaking investigations that were likely to attract national attention or cause controversy, according to Vanita Gupta, who led the department’s Civil Rights Division under President Obama. “Given its atypical nature, it’s hard to imagine that main Justice was unaware” of the investigations and the subpoenas, she said.

A Justice Department official in Washington referred questions about the matter to Mr. Higdon’s office, which declined to comment.

In the meantime, state and local officials are trying to decide how to cope with the subpoenas’ breadth – including asking for more time or asking a court to block (“quash”) them entirely:

The subpoena to the state elections board requests documents from 2010 through August 2018, including voter registration applications, early voting application forms, and absentee ballot request forms.

Joshua Lawson, general counsel for the North Carolina State Board of Elections and Ethics Enforcement, estimated that it covered more than 15 million state documents.

The subpoena to the county boards requests “any and all poll books, e-poll books, voting records, and/or voter authorization documents and executed official ballots” for a five-year period beginning Aug. 30, 2013.

Mr. Lawson said that this would cover in excess of five million county documents.

The subpoena request, he said, was “probably the largest on record in North Carolina within our agency.” He, like others, said he was puzzled by the investigation’s goals.

“With the scope so broad, what is the particular interest of immigration authorities?” he said.

The state elections board plans to consider the subpoenas in a telephone meeting on Friday, and may discuss whether to resist them.

Mr. Lawson said he had written to the county boards, advising them to contact Mr. Higdon’s office directly if they wanted to ask for an extension of the Sept. 25 deadline. Sebastian Kielmanovich, an assistant United States attorney, told Mr. Lawson in an email that such requests would be considered “upon execution of a document to be provided committing to preserve/not destroy the requested information.”

Mr. Lawson had told Mr. Kielmanovich that his office was “deeply concerned by the administrative drain” counties would suffer from complying with the subpoenas. In an interview, Mr. Lawson said that the counties would have to scan millions of paper ballots.

In rural Nash County, John Kearney, director of the local elections board, said that producing records of past elections would be an overwhelming task for the board’s three clerks. “We’re going to have to have an extension, and call in a contractor with high-speed copiers to do it,” he said. “We don’t have the manpower or time in this small office.”

There will be special attention to the request for ballots, which raise privacy issues:

Of particular concern was the subpoena’s request for actual ballots that had been cast in prior elections. In North Carolina, votes cast on Election Day are anonymous and untraceable, but absentee ballots and those cast in early voting — a sizable share of the total — are marked with numbers that can be traced to the people who cast them.

Some election officials said they were unsettled at the prospect of handing over traceable ballots to federal prosecutors, and believed that their counties’ voters would be as well.

“I thought it was a hoax when I got it,” said Kellie Hopkins, the director of the elections board in Beaufort County. “A subpoena for ballots? I’d think they’d understand you don’t give out ballots.”

Ms. Hopkins said her office could produce computerized records showing which registered voters cast ballots in elections dating back several years. But she said the county board would meet this week to consider whether to turn over actual ballots.

Both she and Mr. Kearney said they worried that the subpoenas could further erode voters’ already low confidence in election security, and perhaps depress turnout in November as well.

“Most voters expect privacy when they come to the board of elections to vote,” Mr. Kearney said. “When this information gets out, and it will, voters are going to be upset that their ballots and the names tied to them are being given to a federal prosecutor.”