UPDATE, September 7, 11:15 a.m.: The Bipartisan State Board of Elections & Ethics Enforcement on Friday agreed to “authorize the Attorney General’s Office to take any and all necessary steps to quash the grand jury subpoena and any associated subpoenas in this matter,” meaning the state won’t cooperate with the Trump administration’s request.
In a move attorneys call “highly unusual and extremely disturbing,” the Justice Department last week issued subpoenas to boards of elections in all 44 counties in North Carolina’s federal Eastern District, as the information was made public on social media 60 days before the midterm elections.
The U.S. Attorney’s Office for the Eastern District of North Carolina subpoenaed the state records on behalf of Immigration and Customs Enforcement (ICE). The subpoenas seek “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 local board of elections “from August 30, 2013 through August 30, 2018.” This will include all “voter registration applications, federal write-in absentee ballots, federal post card applications, early-voting application forms, provisional voting forms, absentee ballot request forms, all ‘admission or denial of noncitizen return forms,’ and all voter registration cancellation or revocation forms,” according to the News & Observer.
North Carolina officials have until September 25 to provide five years’ worth of data, amounting to millions of documents. Officials are scrambling to make sense of the subpoenas, most of which were issued in U.S. Attorney Robert Higdon’s territory. In an exchange Wednesday that was published on WRAL, Wake County Commissioner John Burns wrote to Higdon, asking for transparency on “the scope and timing of this extraordinary request.”
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“I write to let you know that this investigation, launched 60 days prior to a general election of monumental importance … risks being viewed by the public as a partisan effort to interfere with the vote,” Burns wrote.
Higdon, a President Trump appointee, announced in August the formation of a Benefit Fraud Task Force in Raleigh, North Carolina, which pairs federal prosecutors with ICE, U.S. Citizenship and Immigration Services, the State Department, the Department of Labor, the Social Security Administration, and state and local law enforcement agencies to—in part—investigate “immigration fraud.” These task forces first emerged in 2006; there are 29 nationwide.
Josh Lawson, general counsel for the North Carolina State Board of Elections and Ethics Enforcement, instructed county commissioners to immediately notify their county attorney of the subpoena, according to email exchanges posted on social media. In an email to Sebastian Kielmanovich, the DOJ’s lead attorney behind the subpoenas, Lawson expressed his concern regarding the “administrative drain” required to comply with the “extensive subpoenas immediately prior to a federal election.” Lawson characterized the subpoenas as “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,” Lawson wrote.
There are more than 2.6 million registered Democratic voters in North Carolina, outnumbering registered Republicans by around 500,000, according to state records.
News of the subpoenas comes less than two weeks after a grand jury indicted 19 noncitizens on charges of illegal voting in the 2016 election, ICE reported. A Huffington Post investigation into the indictments found that some charged with illegally voting may not have known they were ineligible and may now face deportation “without the Justice Department proving they intended to break the law.” These cases are being prosecuted by Kielmanovich, an Argentinian immigrant.
“Several of the defendants—most of whom are legal permanent residents of the United States—required interpreters at their hearings, raising the question of whether they knew that their status as noncitizens did not allow them to vote,” the Huffington Post’s Sam Levine and Ryan J. Reilly reported. “Interviews with defendants indicated that they mistakenly believed they were eligible to cast ballots or believed that voter registration officials would register them only if they were eligible.”
The Justice Department handbook on prosecuting election crimes makes it clear that U.S. law does not require prosecutors to prove a noncitizen knew they were ineligible to vote because the criminal statute for voting by noncitizens “is directed at the act of voting, rather than the act of lying.”
In response to the indictments, North Carolina advocacy organizations are attempting to educate the public that noncitizens can’t vote—and this extends to U.S. citizens.
Huffington Post’s investigation outlined the case of Denslo Allen Paige, a Walmart worker based in Raleigh who is the only U.S. citizen facing charges in connection with the indictments. Paige registered her boyfriend to vote, not knowing legal permanent residents cannot legally vote. The 66-year-old former poll worker assumed someone would flag the application. She alleges that when she asked a poll worker if her boyfriend could vote, she was told he could cast his ballot. Paige had been indicted for “aiding and abetting” her boyfriend’s false claim of citizenship. If convicted, she faces five years in prison and a $250,000 fine. Her boyfriend, a 63-year-old immigrant from Mexico, faces up to six years in prison and a $350,000 fine. He is now also subject to deportation.
“To all organizations and institutions: non-U.S. citizens cannot vote. To register a non-U.S. citizen to vote is negligent and puts them at risk for deportation as trying to vote as a non-U.S. citizen is a federal crime,” Alerta Migratoria warned on their Facebook page. “All organizations and institutions and their respective employees/volunteers should strive to receive the proper training and educate themselves of the harm of registering non-U.S. citizens to vote which includes but is not limited to fines, imprisonment, inadmissibility, and deportation.”
Advocacy organizations question the timing of the subpoenas. Kareem Crayton, interim executive director of the Southern Coalition for Social Justice, said in a statement that the “timing and scope of these subpoenas from ICE raise very troubling questions about the necessity and wisdom of federal interference with the pending statewide elections.”
“With so many well-established threats to our election process from abroad, it is odd to see federal resources directed to this particular concern,” Crayton said.
The North Carolina State Board of Elections Enforcement will address the subpoenas during a September 7 conference call.