The district attorney's office sent a fax to the state board notifying it of the grand jury subpoena, Penry said. He said the county boards had also told the state board they received the subpoenas.
Penry spoke about the state’s intended response to the subpoenas.
“At this time, we are not sure if we have actually been served with (the subpoenas) in the manner required by the rules,” Penry said. “There are documents that relate to absentee voters. And the subpoena, which was apparently issued on behalf of ICE, seeks documents that would disclose very confidential information about the voters.”
While ICE investigates matters of undocumented immigration, the Federal Elections Commission is charged with investigating matters of voter fraud. Penry said he noticed this discrepancy in the conference call.
“We have not been given a reason as to why ICE would need that info, and candidly, I can’t think of a reason,” Penry said. “Our General Assembly has told us by statute that we are prohibited from disclosing that information for any reason. We are not going to disclose that info at this time.”
Penry summarized the next steps the state will take to respond to the request by ICE.
“We did provide the U.S. attorney’s office with information, much of which was already public anyway,” Penry said. “We also made sure that they knew they were requesting over 15 million documents in two days, and that isn’t likely to happen. After hearing that we had an election to run in November, they agreed that they could wait until January to receive the documents.”
The board went into a closed session and came back with a unanimous vote to direct N.C. Attorney General Josh Stein to fight the subpoena in federal court.
“The subpoena we’ve received was and remains overly broad, unreasonable, vague and clearly impacts significant interest of our voters,” said Joshua Malcolm, board vice chairperson, during the board's Friday meeting about the subpoena.
The N.C. Office of the Attorney General subsequently sent a letter to the district attorney’s office asking it to withdraw the subpoena.
“We estimate that the amended request would require redaction of at least 2.2 million ballots, an extraordinarily burdensome task for the state board and county boards to undertake,” the letter said.
The letter concluded by stating the office's intention to fight the subpoena in court if it was not withdrawn.
“Given the untenable nature of the subpoenas as currently drafted, even if amended in accordance with your Sept. 6 letter to extend the compliance date and to allow for redaction of voters' choices on ballots, we must request that the subpoenas be withdrawn immediately.”
The state board instructed county boards to preserve documents that could be related to the subpoena.
“If we are unable to resolve this matter by Monday, Sept. 10, we intend to move to quash these subpoenas,” the letter said.