Well this is interesting:
SOUTHERN COALITION for SOCIAL JUSTICE
September 6, 2018
Andy Penry Joshua Malcolm Ken Raymond Stella Anderson
Stacy “Four” Eggers IV Jay Hemphill
Valerie Johnson John Lewis Damon Circosta
Kim Strach, Executive Director Josh Lawson, General Counsel
North Carolina State Board of Elections and Ethics Enforcement 430 N Salisbury Street
Raleigh, NC 27603
RE: Memorandum of Law as Applicable to Subpoenas Recently Issued to Both the North Carolina State Board of Elections and 44 North Carolina County Boards of Elections
Dear Members and Staff of the State Board of Elections and Ethics Enforcement,
We write to you today to urge you to aggressively resist unjustified, overly broad efforts of the federal government to obtain sensitive voter data. Our grave concerns persist notwithstanding the letter the Assistant U.S. Attorney sent to you today apparently suggesting that his office does not actually want all of the personally identifiable and ballot information previously requested.
The U.S. Attorney’s Office for the Eastern District of North Carolina, via Assistant U.S. Attorney Sebastian Kielmanovich, acting on behalf of Immigration and Customs Enforcement (ICE), has issued subpoenas to the North Carolina State Board of Elections and Ethics Enforcement (SBOE) (upon information and belief, on August 31, 2018) and the forty-four county boards of elections within the federal Eastern District of North Carolina (upon information and belief, on September 4, 2018). The subpoenas seek multiple years of records. This memorandum is intended to address the legal problems with these subpoenas and compliance with them, and to encourage this Board to stand up for voters against privacy violations and potential intimidation by federal entities.
To review the subpoenas at issue, for the SBOE, the subpoena seeks, for the period from January 1, 2010 through August 30, 2018:
1. Standard Voter Registration Application forms
2. Federal Post Card Applications (FPCA)
3. Federal Write-In-Absentee Ballots (FWAB)
4. One Stop (Early Voting) application forms
5. Provisional Voting forms
6. N.C. Absentee Ballot Request forms
7. Any and all “Admission or Denial of Non-Citizen Return Form” that were generated by the North Carolina State Board of Elections, or were caused to be generated by the North Carolina Board of Elections, and/or the Ethics Enforcement Office.
8. Any and all Voter Registration Cancellation or Voter Revocation forms that have been generate by the North Carolina State Board of Elections, and/or the Ethics Enforcement Office.
It is unclear whether “forms” would include actual ballots cast in the case of provisional and absentee ballots.
For the county boards, the subpoenas seek:
Any and 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 [County] Board of Elections from August 30, 2013, through August 30, 2018.
As a primary matter, the U.S. Attorney for the Eastern District of North Carolina does not have unlimited authority to impose any burden on boards of the election in the course of a grand jury proceeding. Rule 17 of the Federal Rules of Criminal Procedure reads in relevant part:
Rule 417. Subpoena.
(c) PRODUCING DOCUMENTS AND OBJECTS.
(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.
F. R. Crim. P. 17 (emphasis added).
Notwithstanding his letter today to this board indicating some willingness to narrow the scope of the subpoena and allow redaction of how voters actually voted, we still vigorously urge you to take appropriate legal action to preserve your right to seek relief in court from the incredible burden imposed upon you and forty-four of this state’s counties, many of which are
among the state’s most impoverished and under-resourced. The U.S. Attorney’s willingness to make “some” concessions does not change the fact that the subpoenas served, as written, seek information that the federal government is not entitled to have, and the promise of future behind- the-scenes negotiations between Joshua Lawson, general counsel to the SBOE, and the U.S. Attorney for the E.D.N.C. are not sufficient guarantors of the privacy rights of North Carolina citizens.
Even assuming that Mr. Kielmanovich were willing to accept all of the many required redactions of the requested records (described in detail below), the amount of time, person-power and money that it would require to produce literally millions of redacted voter records is completely unjustified, and a Court should quash or severely restrict the scope of the subpoenas. See United States v. Nixon, 418 U.S. 683, 698, 700 (1974) (Rule 17(c) “was not intended to provide a means of discovery for criminal cases” and a subpoena must “clear three hurdles: 1) relevancy; 2) admissibility; and 3) specificity.”) Furthermore, “[i]n considering motions to quash on the grounds of unreasonableness, courts have considered the length of time covered by the documents, the specificity of the request, the nature of the investigation, the relevance of the request to the investigation, the expense of the compliance relative to the resources of the subpoenaed party, and the collateral consequences, such as civil or criminal penalties, of compliance.” In Re Grand Jury Subpoena Duces Tecum, Etc., 436 F. Supp. 46, 50-51 (D. Md. 1977) (citing United States v. United States District Court, 238 F.2d 713 (4th Cir. 1956), cert. denied, 352 U.S. 981). See also Under Seal v. United States (In re Grand Jury Subpoena), 175 F.3d 332, 340 (4th Cir. 1999) (affirming a motion to quash a DOJ subpoena on the grounds that the subpoena was issued for irrelevant evidence and for a predominantly illegitimate purpose). The legitimacy of the purpose and the relevance of the information requested are certainly far from clear here. It is thus appropriate to take legal action to restrict the scope of the subpoenas before beginning to engage in the monstrous task of redacting millions of voter records.
Categories of Protected Information
Regardless of what future negotiations between Mr. Lawson and Mr. Kielmanovich yield, it is clear that nothing in Mr. Kielmanovich’s letter, dated September 6, 2018, substantially alters the request for an unprecedented volume of voter records, many of which contain highly sensitive information about voters—information that is protected under federal and state law.
1. The Subpoenas Request Substantial Amounts of Protected Personally-Identifiable Information on Every North Carolina Voter
The subpoenas do not limit the information sought from each of the requested documents and do not state that information may be redacted. The Assistant U.S. Attorney’s letter only contemplates potential redaction of how a voter actually voted to the extent possible. But to the extent the subpoenas demand that the state or county boards hand over voters’ social security numbers (SSNs) and dates of birth, the subpoenas are likely unconstitutional under the First,
Fourth, and Fourteenth Amendments. State and federal statutes also protect certain personal identifying information from disclosure.
1. The First and Fourteenth Amendments Protect Personally-Identifying Voter Information
To start, individuals’ SSNs receive heightened protection both because an SSN is “a unique identifier,” Havemann v. Colvin, 537 F. App’x 142, 147 (4th Cir. 2013), and because the broad use of the SSN today means that “the disclosure of an SSN to an unscrupulous individual is alarming and potentially financially ruinous.” Greidinger v. Davis, 988 F.2d 1344, 1354 (4th Cir. 1993). Dates of birth may also “function as unique identifiers because they can be combined with other available information to identify specific individuals.” Havemann, 537 F. App’x at
147. Dates of birth “can be used to obtain—both legally and improperly—a host of other highly personal information about an individual, particularly in this day of computers with vast searching powers.” True the Vote v. Hosemann, 43 F. Supp. 3d 693, 736 (S.D. Miss. 2014).
Greidinger in particular held that Virginia’s state constitutional requirement to provide an SSN in order to register to vote, coupled with a statute that made voter records public, created an “intolerable burden” on a citizen’s right to vote as protected by the First and Fourteenth Amendments. 988 F.2d at 1355. After discussing the statutes and case law finding that SSNs implicate special privacy interests, the court found that “[t]he statutes at issue compel a would-be voter in Virginia to consent to the possibility of a profound invasion of privacy when exercising the fundamental right to vote.” Id. at 1354. The Fourth Circuit reaffirmed the holding of Greidinger in Project Vote / Voting for Am., Inc. v. Long, in which the court upheld the public disclosure of voting records under the National Voter Registration Act (NVRA) only after the district court had ordered the SSNs to be redacted from the disclosure. Project Vote / Voting for Am., Inc. v. Long, 682 F.3d 331, 339 (4th Cir. 2012). The federal subpoenas here seek disclosure of voters’ SSNs on a massive scale, and the analysis in Greidinger applies. Disclosure in these circumstances – where the subpoenas are an apparent part of a wide-scale fishing expedition – would place an unconstitutional burden on North Carolina citizens’ access to the ballot. The SBOE and county boards should refuse to produce SSNs in response to the subpoenas, and, as described above, the effort that it would take to make such redactions require an extreme narrowing of the subpoenas.
2. Statutory and Public Policy Provide Protections for Personally-Identifiable Information
As noted in Greidinger, a range of federal and state privacy laws protect SSNs from disclosure. The statutes provide an additional basis for the SBOE and county boards to object to the disclosure and force a limiting of its scope.
Through the Privacy Act of 1974, Congress made it unlawful to deny “a right, benefit, or privilege by a government agency because of an individual’s refusal to disclose his Social
Security number.” Int’l Brotherhood of Elec. Workers Local Union No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir. 1988) (citing Pub. L. 93-579, § 7, 88 Stat. 1896, 1909 (1974), reprinted in 5 U.S.C. § 552a note). Based on serious privacy concerns, SSNs have been found to fall under an exception to the federal Freedom of Information Act (FOIA). Id. Courts have also found that the public policy expressed in the Privacy Act means that SSNs can be protected from disclosure in civil discovery absent a “substantial showing of particularized need.” Entral Grp. Int’l, LLC v. YHCL Vision Corp, 436 F. Supp. 2d 404, 406 (E.D.N.Y. 2006). These statutes and cases provide support for an argument that ICE should not be able to obtain SSNs absent a heightened showing that the federal subpoenas lack.
Like SSNs, dates of birth have been held exempt from disclosure under broad FOIA requests for many of the same reasons. Although a date of birth is not unique, it “can be combined with other available information to identify specific individuals.” Havemann, 537 F. App’x at 147. In Havemann, the Fourth Circuit held that individuals’ privacy interests in information such as dates of birth outweighed the public interest behind a massive request for data on more than 140 million individuals. Id. at 148. Other courts have also held that both dates of birth and SSNs may be redacted or withheld from FOIA disclosures. See, e.g., Schoenman v. FBI, 575 F. Supp. 2d 136, 164 (D.D.C. 2008); Oliva v. United States, 756 F. Supp. 105, 107
In True the Vote v. Hosemann, the federal district court held that dates of birth should also be redacted from a broad request for voter information under the NVRA. 43 F. Supp. 3d at 736. The court found that dates of birth raised serious privacy concerns in the context of a bulk request for voter data such as the one made in the federal subpoenas:
The Court is persuaded that disclosure of individuals’ birthdates raises serious concerns similar to disclosure of SSNs, particularly when the birthdate disclosures are in conjunction with the disclosure of individuals’ full names and current addresses. Birthdates, when combined with other identifying information available in voter registration records, can be used to obtain—both legally and improperly—a host of other highly personal information about an individual, particularly in this day of computers with vast searching powers. . . . Also problematic is that individuals may use their birthdates as a password or personal identification number for their bank, credit card, and internet-based accounts. Companies often use birthdates as a security measure to verify an individual’s identity.
Id. at 736 (citations omitted). The same considerations apply here, and the SBOE and county boards likewise should protect voters from the disclosure of their dates of birth in response to these extremely broad subpoenas.
Additionally, North Carolina state law creates the following exemption from its Public Records Act, applicable to both SSNs and dates of birth:
Nothing in this Chapter shall be construed to require or authorize a public agency or its subdivision to disclose any information that:
(4) Reveals the electronically captured image of an individual’s signature, date of birth, driver’s license number, or a portion of an individual’s social security number if the agency has those items because they are on a voter registration document.
N.C.G.S. § 132-1.2. A complementary provision in the state elections laws also exempts this same information from public disclosure. N.C.G.S. § 163A-871. These statutes provide a state law basis to object to the disclosures. They also indicate that individual voters have an expectation of privacy in the personal information shared with the boards in the process of voter registration. For all these reasons, the SBOE should seek aggressively to limit the scope of the subpoena in order to minimize the redaction burden on this board and those forty-four counties.
3. The Fourth Amendment Protects Against Disclosure of Information for Which Individuals Have an Expectation of Privacy
In a recent decision dealing with historical cell phone tower information, the United States Supreme Court held that the Fourth Amendment’s protection against unreasonable searches and seizures applies to federal subpoenas, rejecting a dissent that would have recognized a categorical exemption. Carpenter v. United States, 138 S. Ct. 2206, 2221-22 (2018). The decision in Carpenter also affirmed that the Fourth Amendment applies to documents and information held by a third party, and that a warrant supported by probable cause is required when an individual has a legitimate privacy interest in such records. Id. at 2222. Given the policy considerations and statutes described in Section B above, a voter has a legitimate interest in and reasonable expectation of privacy in SSN information shared with the boards as part of the voter registration process. Given the lack of any particularized showing of probable cause in the federal subpoenas, any voter would have a strong argument for blocking disclosure of her SSN pursuant to the federal subpoenas.
Even though the fact that a voter sharing her SSN with a third party (here, the BOE) may somewhat reduce that privacy interest, on the facts here, the voter still very likely has a cognizable privacy interest in preventing disclosure to another party. For example, in different circumstances, the Supreme Court has held that a depositor at a bank has no protected privacy interest in checks and deposit slips, which “are not confidential communications but negotiable instruments to be used in commercial transactions.” United States v. Miller, 425 U.S. 435, 442, 96 S. Ct. 1619, 1624 (1976). The existence of the Bank Secrecy Act did not change the Court’s analysis. Id. at 443, 96 S. Ct. at 1624. However, the Court in Carpenter distinguished Miller and Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577 (1979) (a case dealing with telephone pen registers) on the basis that the information sought in those cases did not share the “revealing nature” of cell site location information. Carpenter, 138 S. Ct. at 2219. The fact that there are
many cases and statutes dealing specifically with SSNs provide a strong argument that they should also receive the protection extended to cell site location information in Carpenter.
Once one recognizes that a voter has a privacy interest in the SSN data contained in voter registration files, the remainder of the Fourth Amendment analysis is straightforward. The Fourth Amendment protects against “unreasonable” searches. “Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant,” which may only be obtained upon a showing of probable cause. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S. Ct. 2386, 2390 (1995). Probable cause “usually requires ‘some quantum of individualized suspicion’ before a search or seizure may take place.” Carpenter, 138 S. Ct. at 2221 (quoting United States v. Martinez-Fuerte, 428 U. S. 543, 560-561, 96 S. Ct. 3074 (1976)). “In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Riley v. California, 134 S. Ct. 2473, 2482 (2014). The extremely broad federal subpoenas clearly lack probable cause or any amount of “individualized suspicion,” and they fall under no recognized exception. Thus, the Fourth Amendment protects against the disclosure of voter SSN information here.
2. Compliance with the Subpoenas Creates a Substantial Threat to the Secrecy of the Ballot
Although the Assistant U.S. Attorney has indicated that as of today, he is not seeking information as to how a voter voted because it is “not relevant to our inquiry,” the federal subpoenas as worded plainly do seek actual ballots, including absentee and provisional ballots. Although ballots cast on Election Day cannot be linked to actual voters, both absentee and provisional ballots allow the identification of an individual voter along with the votes he or she has cast. Disclosure of this information would defeat ballot secrecy.
While the U.S. Attorney in his letter dated September 6, 2018, does contemplate some redaction of actual votes cast, he noted that this could be done only “to the greatest extent possible.” Moreover, that same letter states that this Board has indicated it does not represent each of the forty-four counties to which a subpoena was issued. The apparent independence of the county boards from SBOE authority throughout this process raises enormous concerns about inadequate redaction of actual votes cast, either due to lack of resources on the county boards’ part or simple human error. Remember, many of these same counties unanimously chose to reduce early voting opportunities this year because of cost and staffing concerns. These same boards will now be asked to independently conduct a massive redaction program. Even allowing for redactions, the risk that the secrecy of the ballot will be compromised is too great for this Board not to vigorously challenge the scope of the subpoenas (and to direct the county boards to do exactly the same).
The United States Supreme Court has recognized the secret ballot as the product of a “persistent battle against two evils: voter intimidation and election fraud.” Burson v. Freeman,
504 U.S. 191, 206, 112 S. Ct. 1846, 1855 (1992). Thus, the government has a “compelling interest in securing the right to vote freely and effectively.” Id. at 208, 112 S. Ct. at 1856. Although the Court has not recognized a specific constitutional right to ballot secrecy, the Court has described the secret ballot as “the hard-won right to vote one’s conscience without fear of retaliation.” McIntyre v. Ohio Elections Commission, 514 U.S. 334, 343, 115 S. Ct. 1511, 1517 (1995). The Eighth Circuit, after surveying this law, has held that “there is a strong and clearly established privacy interest in a secret ballot” sufficient to justify an exception to FOIA. Campaign for Family Farms v. Glickman, 200 F.3d 1180, 1188 (8th Cir. 2000).
1. The State’s Compelling Interest in Protecting Secret Ballot
The Supreme Court’s decision in Burson addressed a First Amendment challenge to a Tennessee law establishing a “campaign-free” zone around polling places. The opinion is notable because, although it held that the regulation must survive “strict scrutiny” in order to pass muster under the First Amendment, the Court found that government had “such a compelling interest in securing the right to vote freely and effectively” that the regulation survived even without objective proof of intimidation within the “campaign-free” zone. 504 U.S. at 208, 112 S. Ct. at 1856. The Court began this analysis by quoting its own observation in Reynolds v. Sims, 377
U.S. 533, 555, 84 S. Ct. 1362 (1964) that “right to vote freely for the candidate of one’s choice is of the essence of a democratic society.” Burson, 504 U.S. at 199, 112 S. Ct. at 1851. The Court then recounted at length the history of the secret ballot and polling place protections, concluding that “widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.” Id. at 206, 112 S. Ct. at 1855. Thus, as a general matter, this State has a powerful, well- recognized interest in protecting the secrecy of the ballot and taking measures that will prevent voter intimidation and secure free elections.
Moreover, North Carolina law closely guards each voter’s right to cast a secret ballot. The North Carolina Constitution provides that all elections by the people shall be “by ballot.”
N.C. Const. Art. VI § 5. The North Carolina Supreme Court has long held that this language means a secret ballot, and “the elector in casting his ballot has the right to put it in the box and to refuse to disclose for whom he voted, and that he cannot be compelled to do so.” Jenkins v. State Bd. of Elections, 180 N.C. 169, 171, 104 S.E. 346, 347 (1920). The right is personal to the voter, and may be waived, but “before a voter can be charged with a waiver of his constitutional rights he must have full knowledge of those rights and of all the surrounding facts which will enable him to take effectual action to protect himself.” Withers v. Bd. of Comm’rs, 196 N.C. 535, 538, 146 S.E. 225, 226 (1929). In Withers, the North Carolina Supreme Court voided the results of an election where votes were cast by openly placing ballots in a box with separate slots for affirmative and negative votes on the measure in question. Although there was no evidence of undue influence or intimidation, and no protest by any voter, the Court held that there was “a denial of that secrecy guaranteed by the Constitution, and the election ought not to stand.” Id. at 537, 146 S.E. at 226.
In 1997, the N.C. Attorney General’s Office issued a legal opinion that the constitutional right to a secret ballot in North Carolina must trump the statutes that treat provisional ballot applications as public records. The Gaston County Board of Elections requested the opinion after a mayoral election ended in a tie, with a provisional ballot becoming the deciding vote. The media requested the provisional ballot application. The Attorney General advised that the North Carolina Constitution prohibited disclosure of any information that would identify the voter:
Ordinarily, applications to vote provisionally are viewed as public records which must be disclosed pursuant to Chapter 132 of the North Carolina General Statutes. This is so because these documents are separate from the ballots and there are a sufficient quantity of provisional ballots that no vote could be attributed to any particular provisional voter. In the instant situation, however, there is only one provisional voter. That voter has an overriding and personal right to a secret ballot under Article VI, Section 5 of the North Carolina Constitution. In Withers v. Board of County Comm’rs, 196 N.C. 535, 146 S.E. 225 (1929), and Jenkins v. State Board of Elections, 180 N.C. 169 (1920), the North Carolina Supreme Court held that a voter is entitled to cast a secret ballot and has the right to keep the vote secret after it is cast. Under these circumstances, the Gaston County Board of Elections is prohibited from disclosing any information that would identify the provisional voter. You may release a copy of the voter’s application to vote provisionally if you remove any information that could be used to identify the voter.
1997 N.C.A.G. 67 (11/6/97) (emphasis added).1 The Attorney General’s opinion not only confirms that Withers and Jenkins remain the governing law, but also applies the logic of those opinions to limit disclosure of information that would compromise the secret ballot even when the information would otherwise be available as a public record.
North Carolina elections laws and regulations provide numerous safeguards for ballot secrecy. Voting enclosures must contain at a minimum a “sufficient number of private spaces for all voters to mark their official ballots in secrecy.” N.C.G.A. § 163A-1132. In the limited circumstances (such as physical disability) when another person may assist a voter, the “person rendering assistance shall not, directly or indirectly, reveal to any person how the assisted voter marked ballots” unless called upon to testify in a judicial proceeding for a violation of the election laws. N.C.G.S. § 163A-1139(c)(3). In reporting returns, a county board “shall not compromise the secrecy of an individual’s ballot.” N.C.G.S. § 163A-1079(a). For absentee ballots, “persons in whose presence the ballot is marked shall at all times respect the secrecy of the ballot and the privacy of the absentee voter[.]” N.C.G.S. § 163A-1310(a)(5). When a voter returns an absentee ballot by facsimile, the ballot must contain a statement that the voter waives
1 Now, of course, the provisional application and the ballot itself are separate, such that the provisional application can be produced without revealing any indication of how the voter voted.
only “a portion of the secrecy of my ballot to the extent necessary to process my ballot, but expect that my vote will be held as confidential as possible.” 8 N.C. Admin. Code 12.0104.
Thus, the SBOE and the county boards have a recognized and compelling state interest in opposing the federal subpoenas to the extent they seek information that would allow the identification of individual voters with the votes they cast. A refusal to provide this information would find support in the North Carolina constitution, state case law, and the legal opinion of our Attorney General. The refusal to disclose would also defend the integrity of our state election laws and regulations, and avoid undercutting procedures that serve to guarantees voters that their privacy will be protected to the greatest extent possible.
2. Ballot Secrecy and the Federal Right to Vote Freely
The subpoenas’ apparent requirement that the SBOE turn over voted absentee and provisional forms, unclear as to whether that excludes the actual ballots, further threatens rights afforded by the United States Constitution and federal law. Even with instructions that “the actual vote information be redacted, to the greatest extent possible,” this compelled disclosure creates enormous risk that the First Amendment rights of North Carolinians to their political privacy will be inadvertently violated. “Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). And casting a ballot is the ultimate manifestation of such political expression and association. See, e.g. Williams v. Rhodes, 393 U.S. 23, 30 (1968). The Supreme Court has recognized that the First Amendment also affords the right to express political views anonymously, see McIntyre, supra 8 , as well as the right to hold previous expression of political views in confidence, see Sweezy, 354 U.S. at 250 (“to summon a witness and compel him, against his will, to disclose the nature of his past expressions and associations is a measure of governmental interference in these [protected freedoms]”). Absent a narrowly tailored justification, these rights cannot be abridged. McIntyre, 514 U.S. at 347 (“When a law burdens core political speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest”).
Further, government agencies that possess information that could compromise voters’ right to ballot secrecy have a duty to protect that information from disclosure. The Glickman case applied these considerations to the U.S. Department of Agriculture’s (USDA) handling of a petition that included the names, addresses and phone numbers of over 19,000 pork producers who signed it. The producers brought a reverse FOIA suit to prevent disclosure. Glickman, 200 F.3d at 1182. The court found that, as the petition was a declaration as to how individuals would vote, disclosure “would vitiate petitioners’ privacy interest in a secret ballot,” which is “of paramount importance to our system of voting.” Id. at 1187-88 (citing Bunson, 504 U.S. at 206). The court held that, although individuals signing the petition would have expected “a limited number of like-minded individuals” to have seen their names during circulation of signature cards, they did not waive their privacy interests. Id. at 1188. The court then reversed the USDA’s
prior determination that the information was not protected and directed the trial court to issue a permanent injunction preventing its release. Id. at 1189.
That this potential inquiry into the personal, political expression of North Carolina voters comes in conjunction with a criminal investigation, without more, does not serve to justify the request. In Sweezy, the New Hampshire Legislature passed a statute authorizing the Attorney General to investigate and prosecute “subversive persons,” and afforded him subpoena power in that role. 354 U.S. at 238. The petitioner, a professor, was called before the Attorney General to testify; however, the petitioner refused to answer questions as to his past political expressions on the basis that the First Amendment protected this information from disclosure. Id. at 244. A New Hampshire Superior Court held the petitioner in contempt. Id. In reversing the contempt finding, the Supreme Court of the United States noted:
It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas . . . .
Id. at 245. The Supreme Court found that the broad investigation that the Attorney General had undertaken at the direction of the state legislature, which had led to the questioning of petitioner, could not in itself provide sufficient justification to infringe on petitioner’s First Amendment rights. Id. at 251 (“There was nothing to connect the questioning of petitioner with this fundamental interest of the State”). Absent a narrowly tailored justification, the First Amendment protected petitioner’s ability to withhold the answers to the Attorney General’s questions, and thus the contempt finding violated his right to due process under the Fourteenth Amendment. Id. at 254-55.
The same is true here, even where disclosure and thus First Amendment violation may be inadvertent. Regardless of whatever broad investigatory authority has been granted to the United States Attorney in issuing this subpoena, “exacting scrutiny” or any scrutiny at all reveals that there has been no justification provided, let alone a compelling justification, for potentially infringing upon the First Amendment right of North Carolina voters to express their political views through a secret absentee or provisional ballot. In fact, in his letter dated September 6, 2018, Assistant United States Attorney Kielmanovich explicitly noted “[t]hat specific information is not relevant to our inquiry.” The overbroad inquiry is no different than the sweeping efforts of the 1950’s to root out “subversives” or dissidents that the Supreme Court discussed in Sweezy. Absent a showing that the Assistant Attorney General’s voluminous request, that may ultimately result in the disclosure of First-Amendment-protected secret political speech, is narrowly tailored to serve some compelling state interest, these agencies have a duty, as described in Glickman, to protect the secret ballots of North Carolina voters. Therefore, the SBOE and county boards should and must decline to participate willingly in an exercise that will almost inevitably result in the unjustified and unwarranted violation of North
Carolinians’ constitutional rights. To do otherwise would be to jeopardize the very fabric of our democracy. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined”).
Complying with this aspect of the subpoena would not only create substantial risk that the principles of our constitution will be offended – it would also have the practical effect of intimidating and deterring voters in violation of federal statutes enacted to protect them. As noted above, the secrecy of the ballot is crucial to preserve each American’s “right to vote without fear of retaliation,” McIntyre, 514 U.S. at 343, and serves to battle against the “evil” of “voter intimidation.” Burson, 504 U.S. at 206. It stands to reason, then, that requiring any disclosure of a ballot cast under promise of secrecy creates a sense of fear and intimidation in voters that violates not only dearly held democratic principles, but also federal law. Section 11(b) of the Voting Rights Act of 1965 states in pertinent part:
No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten or coerce any other person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote . . . .
52 U.S.C. 10307(b). Compelling the widespread disclosure of absentee and provisional forms (which may inadvertently include ballots given the scope of the subpoena and the limited resources of the county boards), where such ballots are traceable to the voter by design, and without any apparent justification is objectively intimidating to voters and violates the rights afforded to them by the Voting Rights Act. In fact, the mere suggestion that such disclosure might take place has already placed fear in the hearts of many North Carolinians.
As previously discussed, the Assistant United States Attorney’s request “that the actual vote information be redacted, to the greatest extent possible” implies a great deal of discretion on the part of those doing the redacting, as well as significant room for human error, and hardly guarantees the secrecy of the ballot that North Carolinians have come to rely on in exercising their right to vote. Absent any real guarantee that their choice will not be indiscriminately subject to scrutiny by individuals with prosecutorial power and discretion, there is a substantial risk that disabled, elderly, and military voters, among others, will be deterred from voting mail-in absentee ballots, which may be their only voting option. Likewise, we fear that voters will also be deterred from taking advantage of the robust early voting period for which the SBOE and countless concerned citizens have fought to provide – as the ballots cast during this period are all traceable absentee ballots. Though voting a regular ballot on Election Day can guarantee the secrecy of the ballot to voters who feel too threatened to cast a one-stop absentee ballot, the reality is that voting on Election Day is not a viable option for every voter. Many voters are
physically unable to be at the polls on Election Day, either by virtue of age, disability, or service to our country. Election Day is not a federal holiday, and many North Carolinians’ work schedules do not accommodate taking time to wait at the polls on a Tuesday. Still other North Carolinians committed to public service find themselves in positions crucial to the free and fair administration of elections, and cannot make their way to their home precinct on Election Day. And frankly, North Carolina’s elections infrastructure is no longer able to support this level of Election Day participation. Furthermore, voter may be too fearful to take advantage of the fail- safe provisional voting system that serves to enfranchise voters who would be otherwise unable to cast a regular ballot on Election Day, usually as a result of innocent administrative error. Should the SBOE fail to take aggressive steps to resist this overly broad subpoena and preserve the secrecy of North Carolina voters’ ballots, it is likely that many voters unable to cast Election Day ballots will be disenfranchised by fear of further disclosure. This is a result that our time- honored democratic institutions and Section 11(b) of the Voting Rights Act clearly prohibit. Despite the concession by the Assistant United States Attorney that such ballots may be redacted, we strongly urge the State Board against taking any action that would cast doubt on the secrecy of the ballot, to call out the U.S. Attorney’s egregious abuse of power, and actively reassure North Carolina voters that it will do everything within its substantial power to fight this outrageous fishing expedition.
3. Fourth Amendment Protections for Ballot Secrecy
As noted in Section I.C above, the Fourth Amendment protects individuals from unreasonable searches of information held by a third party when the individual has a privacy interest in that information. Carpenter, 138 S. Ct. at 2221-22. North Carolina voters have a “strong and clearly established privacy interest in a secret ballot.” Glickman, 200 F.3d at 1188. Voters also have a reasonable expectation that their votes will remain secret pursuant to the state laws that prohibit county boards and individual witnesses from compromising the secrecy of the ballot. See N.C.G.S. §§ 163A-1079(a), 163A-1310(a)(5). State constitutional law tightly guards the secrecy of the ballot and will not infer a waiver a voter’s constitutional rights in the absence of “full knowledge of those rights and all of the surrounding facts which will enable him to take effectual action to protect himself.” Withers, 196 N.C. at 538, 146 S.E. at 226. Thus, ICE and the
U.S. Attorney’s Office should not be able to access information about voters’ cast ballots in the absence a warrant based on probable cause and “some quantum of individualized suspicion.” Martinez-Fuerte, 428 U. S. at 560-561.
The privacy interests protecting disclosure of information that could link individual voters to the votes that they have cast are at least as significant, and of more central importance to our democracy, than the weighty interests that protect personal information from disclosure. See Reynolds, 377 U.S. at 555 (“The right to vote freely for the candidate of one’s choice is of the essence of a democratic society.”) On the other side, it is plain from the Assistant U.S. Attorney’s letter today that they have no interest in this information. But with the service of a grossly overbroad set of subpoenas, they have set up a scenario that almost guarantees that some secret ballots will be produced to them. The federal government has advanced neither probable
cause nor any legitimate interest in the regular, absentee or provisional ballots that North Carolina voters have cast. The federal subpoenas are therefore an unreasonable search for protected, private information, and we strongly urge the SBOE and county boards to resist these requests in defense of voters’ Fourth Amendment rights.
For the reasons articulated above, the Southern Coalition for Social Justice demands that this Board take aggressive action to quash or otherwise formally limit these overly broad, burdensome, privacy-threatening, and intimidating subpoenas, and aggressively assist the forty- four counties also subjected to this harassment in resisting it. An extension of time is not sufficient to deal with the significant legal problems presented by the subpoenas themselves, nor is a vague indication that the U.S. Attorney does not really want cast ballots (despite their explicit inclusion in subpoenas intended to carry the force of the law). Failing to act would pose serious threats to the interests of individual voters along with this Board’s ability to maintain a fair and accessible election system—both of which we believe are your duties to address under state and federal laws.
We also believe that many individual North Carolina voters have standing and legally- cognizable interests in the information being sought that allows them to intervene to quash the subpoenas. However, we do not believe that they should be forced to bear that burden. This Board owes a duty to each voter and to the county boards under its control to ensure that attempted compliance with these unprecedented subpoenas does not cause any undue burden or result in the production of protected information with which the boards have been entrusted. When confronted with an unexplained, unjustified, and unprecedented federal government fishing expedition, this Board must act decisively to protect North Carolina’s voters and reassure a justifiably concerned electorate that you will protect their personally identifiable information and the secrecy of the ballots cast in this state.
If you have any questions, please do not hesitate to contact us.
Sincerely, Allison J. Riggs
Senior Attorney John F. Carella
Jaclyn A. Maffetore Jeffrey Loperfido
cc: Assistant U.S. Attorney Sebastian Kielmanovich Sebastian.Kielmanovich@usdoj.gov