Records suit against NC elections board over federal voter fraud probe can continue

·4 min read

A North Carolina judge ruled Monday that a nearly two-year-old lawsuit by a coalition of media organizations against state election officials over records connected to a secretive Trump administration voter fraud probe can continue — at least for now.

The public origins of the case date back to the summer of 2018, when the U.S. Attorney’s Office for the Eastern District of North Carolina dropped a set of sweeping subpoenas on state and county election boards demanding documents on every registered voter in the state going back years. Complying with the subpoenas would have required election officials to turn over millions of pages of records just days before the midterm election.

Amid pushback, the U.S. Attorney’s Office quickly agreed to extend the deadline for production. But the demand also narrowed in scope with little explanation. Months later, the State Board of Elections quietly issued guidance to county boards to produce a much smaller trove of documents — this time focusing on about 800 specific voters.

Voter registration data is public in North Carolina. But when a reporter requested the documents that election officials eventually turned over to federal investigators, the state refused to release them.

They also refused to say why, noting they were “prohibited from providing a reason.”

Agencies are required under North Carolina law to cite specific exemptions when denying requests for public records. So in September 2019, a coalition of media organizations, including The News & Observer, WRAL News and The Washington Post, filed suit against the State Board of Elections and their counterparts in Wake County, arguing they were “knowingly and intentionally” violating the state’s open records law.

What followed was months of legal wrangling that eventually revealed a wide-reaching gag order surrounding the case, put in place by Chief U.S. District Judge Terrence Boyle. The federal judge also explicitly blocked disclosure of the records in the suit.

While those federal orders were in place, N.C. Superior Court Judge Allen Baddour put the state public records lawsuit on hold.

Secrecy around the federal probe largely persisted until March, when newly unsealed records of the grand jury investigation detailed a contentious legal battle between the U.S. Department of Justice and state officials, who sought to curtail a “dragnet” that would sweep up millions of North Carolina voters.

But with the federal investigation now largely closed and the judicial gag orders lifted for months, the State Board of Elections and the Wake County Board of Elections have still refused to turn over any registration data at issue in the media coalition lawsuit.

Lawyers argue for release of information

State attorneys seeking to dismiss the case told Baddour Monday that because a federal judge had forbidden release of the information, the records weren’t subject to disclosure at the time the suit was filed. That means the agencies couldn’t have violated public records law, Special Deputy Attorney General Paul Cox said.

With the federal order no longer in place, he said the original issue is essentially moot, requiring a new lawsuit on different grounds.

Media coalition attorney Mike Tadych argued that temporary order or not, the law still gives everyone the right to go to court when the request is denied.

“We did not receive the records,” Tadych said. “And we do not have the records that we have requested to this day.”

Baddour acknowledged there may be issues that will ultimately prevent the release of the information.

In April, for example, a State Board of Elections attorney refused again to provide the records — well after the lifting of the gag order — on the grounds that they amount to “records of a criminal investigation,” a broad exemption under the law.

But Baddour said those arguments are worth litigating “in the light of day.” Citing the federal judge’s sealing order, he said, wasn’t enough to end the suit on its own.

“To dismiss it because of that order is — to me — flipping the point of the public records litigation on its head,” Baddour said.

Baddour’s ruling means the suit can continue, and both sides are expected to file additional arguments in the coming weeks.

“I’m glad that Judge Baddour recognized that even after the unsealing of the federal matter, a dispute still exists here,” Tadych said in an interview Monday afternoon.

A spokesperson with the attorney general’s office declined to comment on the ruling.

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