RALEIGH, N.C. — Two years after federal prosecutors demanded a massive trove of information about voters from election officials across North Carolina, much of their investigation remains cloaked in secrecy.
Such secrecy is common in cases involving whistleblowers or threats to national security, legal experts say. But attorneys with decades of experience dealing with the federal courts have been at a loss to understand why the public has for so long been shut out of proceedings in two sealed cases linked to the subpoenas, which appear to involve a voting probe by Immigration and Customs Enforcement. And little further disclosure is expected until days after the election, a result of shifting court deadlines and the extension of a gag order that has prevented state and local officials from discussing the case.
A coalition of media organizations — including The News & Observer, WRAL and The Washington Post — has worked for more than a year to force additional transparency in open court. That challenge, now before the U.S. Court of Appeals, has moved forward despite little detail on the federal government's rationale for keeping the case secret.
"We're describing shadows," Mike Tadych, an attorney for the media coalition, said.
Officials with the Office of the U.S. Attorney for the Eastern District of North Carolina have been consistently tight-lipped on the probe since news of the subpoenas broke in early September 2018. U.S. attorney's office spokesperson Don Connelly declined to comment on pending litigation or investigations.
The original subpoenas, issued by the office of U.S. Attorney Robert Higdon, demanded years' worth of poll books, voting records and filled-out ballots from state and county election boards. Another demand went to the Division of Motor Vehicles for voter registration data for applicants with "a country of birth other than the United States." Combined, the subpoenas meant turning over data for every one of the 7 million voters registered in the state just weeks before the 2018 midterms to an ICE special agent based in Cary.
Election officials balked.
"We are deeply concerned by the administrative drain on county boards of elections in order to comply with the extensive subpoenas immediately prior to a federal election, including the necessary reproduction of millions of documents," Josh Lawson, the State Board of Election's general counsel at the time, wrote to Assistant U.S. Attorney Sebastian Kielmanovich on Sept. 4, 2018. "The subpoenas faxed to county boards are the most exhaustive on record."
What followed was months of wrangling between North Carolina election officials and federal prosecutors, who first agreed to delay the subpoenas' deadline until well after the election. Prosecutors also clarified that any ballots produced should have vote information redacted.
"In other words, we want to prevent disclosure of any voter's actual choice of candidates in any race," Kielmanovich wrote to Lawson Sept. 6, 2018. "That specific information is not relevant to our inquiry."
After requesting that North Carolina Attorney General Josh Stein work to quash the subpoenas, the State Board of Elections months later instructed county boards to turn over a substantially smaller set of documents on 289 specific voters spread across eastern North Carolina. State election officials, meanwhile, would turn over data on an additional 500 voters in other counties.
The details of how those subpoenas shifted focus from millions of North Carolina voters to fewer than 1,000 are unclear.
Stein moved in January 2019 to block the subpoenas in federal court, according to reporting by The Washington Post. That filing would normally create a paper trail, becoming an entry on a public docket, in a specific court, with a specific case number. But Chief U.S. District Judge Terrence Boyle sealed the case on Jan. 18, 2019, and no evidence of Stein's effort to block the subpoena exists publicly in the federal court's electronic records database.
Boyle's gag order, Tadych wrote in a court filing this year, was so extensive that neither the identities of the parties nor the case numbers are publicly available.
"Consequently, Appellants do not know whether the underlying matters are civil, criminal or otherwise in nature," Tadych wrote.
Another unknown: What the 789 voters state and county election officials targeted in the probe have in common.
Voter history and registration data are largely public in North Carolina. So in mid-2019, reporters requested any public data election officials turned over to federal prosecutors.
North Carolina officials denied that request, and wouldn't say why.
"As you know, there are multiple reasons why a records request might be denied, including exceptions to the Public Records Act, provisions of federal law, court orders, and sensitive public security information," Laura Brewer, a spokesperson for the state attorney general's office, wrote on June 23, 2019. "I'm prohibited from providing a reason in this matter."
The denial triggered a public records lawsuit eventually joined by eight different media organizations.
Months later, Boyle issued one of the few public filings related to "the ongoing sealed matter" in the Eastern District of North Carolina. His December 2019 written order "temporarily" blocked state and county officials from releasing related public records to the media. Extended again in May, that prohibition remains in effect through the end of November.
But Boyle's order did reveal some additional details. For the first time, it confirmed his January 2019 gag order blocking election officials "from publicly discussing or disclosing the matters at issue." Boyle also linked his order to two separate cases now pending before his court, both of which are sealed so tight that not even the docket numbers have been published.
Efforts by the media coalition to push back against secrecy in the cases have so far been unsuccessful, and its legal challenge is now pending before the U.S. Court of Appeals for the Fourth Circuit. The U.S. attorney's office is expected to file its response in the appeal just days after the election, although like most of the filings in the case, that response will be also sealed.
"There is a First Amendment right of access to the proceedings, especially if these are criminal, in our court," Tadych said. "That's a long-standing, recognized right, and I can't find any lawyer to explain to me why we're not being given that right."
Attorneys for the media coalition said it's been difficult to make the case for transparency given the lack of detail. It's unclear, for example, whether the cases are sealed for national security reasons, trade secrets or some other justification entirely.
"This case is a total mystery," said Hugh Stevens, also an attorney for the media coalition. "It's so secret you can't even determine what the nature of the cases is."
The level of secrecy puts the government at a significant advantage, said Jennifer Nelson, a staff attorney with the Reporters Committee for Freedom of the Press.
"It's always alarming to see a situation where entire dockets, including all the documents on those dockets, are sealed for two years without a public explanation as to why that's the case," Nelson said.
In a phone interview, Nelson repeatedly called the situation "unusual" — even compared to proceedings involving threats to national security or the protection of whistleblowers.
Such cases often require the federal government to publicly articulate why seals or gag orders are necessary. That gives the press and others the opportunity to push back, leaving the court to weigh and rule on the competing arguments.
"There are instances where the government needs to be able to keep certain information secret," said David Ardia, an associate professor at the UNC School of Law and a former attorney for The Washington Post. "But there's a recognition that we need to keep that to the absolute minimum."
One possible explanation for the veil of secrecy around the 2018 voter subpoenas could be that a federal grand jury investigation is still underway. Until such probes end in indictments, testimony, documents and other evidence are protected from release by strict rules. If there are no indictments, prosecutors won't release the information at all.
"If it's just strictly that it's grand jury material and the government has gone to court and obtained a nondisclosure order extending grand jury secrecy to the recipient of the subpoena — that's not unprecedented," Zachary Bolitho, an associate professor at the Campbell University School of Law and a former federal prosecutor, said in an email. "But the government would have had to demonstrate a compelling need for the order."
The U.S. attorney's office hasn't made such a claim publicly, Tadych said, even though he's had to address the possibility in the media coalition's arguments to the court. Absent specific orders from a judge, those strict secrecy rules apply to members of the grand jury and prosecutors — not witnesses or public documents.
"The fact that a document was used in a grand jury proceeding doesn't then make that document secret in all other instances," Ardia said. "It's not like a magic wand was waved over the document."
There have been clear signals that the lack of disclosure has rankled more than just the media.
In September, the N.C. Division of Motor Vehicles and the State Board of Elections — both recipients of the original subpoenas for voter data — attempted to file a friend-of-the-court brief in the U.S. Court of Appeals on the media coalition's behalf, arguing for the reversal of Boyle's decision to keep the public in the dark.
Almost every line of their 20-page brief — including most of their argument and even their case citations — has been redacted.
Officials with the DMV and the state attorney general's office declined to comment, and a spokesperson with the State Board of Elections did not respond to a request for comment.
Across his entire legal team, Tadych said, his fellow attorneys have decades of experience working in federal courts.
"None of us have ever run into anything remotely like this," Tadych said.
The details of the case — or lack of them — are enough to concern Ardia. When court procedures themselves are secret, he said, there's no way for the public to watch out for government overreach. And that lack of oversight can erode faith in the courts.
"I would say this: The law books are full of cases where the government has claimed secrecy in order to avoid embarrassment, or in order to achieve political goals," he said.
Seals and gag orders, Ardia said, can be legitimate.
"Whether that's the case here, I don't know."
