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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Thursday, September 13, 2018

Donald Trump is working to suppress the vote in North Carolina using monstrous new methods

Raw Story
September 12, 2018
Donald Trump is working to suppress the vote in North Carolina using monstrous new methods

As the recent Labor Day weekend approached, the voting police at President Trump’s Justice Department and ICE—Immigration and Customs Enforcement—picked up where his disgraced Presidential Advisory Commission on Election Integrity left off after they disbanded.

The U.S. Attorney in North Carolina, a Trump appointee, sent a storm of faxes at 5 p.m. on Friday on behalf of ICE and the DOJ seeking every record about voters and voting from 2010 to this year to 44 county Boards of Election, the statewide Board of Election and Ethics, and state Department of Motor Vehicles, which registers voters.

The move drew wide shock—some officials even thought the request was a hoax, due to its breadth (as many as 20 million documents), timing (as they were scrambling to finalize ballot preparation and printing after a summer of voting litigation and special legislative sessions) and the blatant partisan overtones (from a White House hell-bent on over-policing immigrants and Democratic voting strongholds).

Indeed, as Maine Secretary of State Matt Dunlap, who became a dissident member of Trump’s voting reform panel, noted in an August letter to co-chairs Vice President Mike Pence and Kansas Secretary of State Kris Kobach, “Kobach stated that ‘the mission of the commission was being handed off to [the Department of] Homeland Security’ and that he would ‘be working closely with the White House and DHS to ensure that the investigation will continue… more efficiently and more effectively.’”

Trump’s commission imploded after states flatly rejected Kobach’s demand that they turn over a similarly large amount of their voter files to a sloppy data-mining operation that he ran from his Kansas office—known for inaccurately flagging millions of registered voters as suspicious, which has become a GOP pretext to more aggressively police the process. However, these national contours of the Trump administration’s anti-voting effort, now resurfacing over Labor Day, barely scratch the surface of how corrupt and cynical the latest North Carolina voting power play actually is.

According to two now-retired senior North Carolina State Board of Elections and Ethics Enforcement (BOE) officials—Gary Bartlett, its former executive director who served for 20 years in that post, and Marshall Tutor, his top investigator—the federal prosecutors office and top federal prosecutor seeking those millions of records in North Carolina’s most heavily Latino counties on behalf of the DOJ and ICE refused to prosecute an elaborate ballot box stuffing case involving registering non-citizens a decade ago. That case, which the two North Carolina BOE officials referred to federal prosecutors, centered around an early campaign by one of North Carolina’s most powerful current leaders—its Senate Republican Majority Whip.

Protecting Republican Illegal Voting

“I would lead you in the direction of current state senator Wesley Meredith from Cumberland County,” said Marshall Tutor, who retired in March 2018 after many years as lead investigator for the North Carolina state BOE. “He ran for City Council in Fayetteville and he lost the first election and then he was elected. There are a lot of problems with that case. I spent a lot of time on fraudulent absentee ballot requests and non-citizens requesting absentee ballots.”

“And it was federal crimes involved because there were absentee ballot requests made for Fayetteville citizens who knew nothing about it, that were mailed over state lines into a drop box in Virginia,” Tutor continued. “We carried all the documentation, and there was an awful lot of it, to the U.S. Attorney’s office [for the Eastern District of North Carolina]… evidence showing that non-citizens tried to, and did register and vote, and vote early. We had enough [evidence] that, had it been thoroughly investigated, there would have had to have been charges on somebody.”

Meredith, North Carolina’s State Senate Majority Whip, did not respond to requests to comment about this history or the Justice Department’s new illegal voting expedition.

The ballot fraud accusations surrounding Meredith are not new. Democrats who have run against him have raised them to little avail. But the same U.S. Attorney’s office that took no action a dozen years ago, the Eastern District of North Carolina, is today headed by the very prosecutor to whom Bartlett and Tutor took their non-citizen voting and ballot stuffing investigation. This prosecutor, U.S. Attorney Robert J. Higdon Jr., and his U.S. Attorney’s office is now leading the latest federal illegal voter witch hunt in North Carolina.

“We had an investigation from Cumberland County that we went to the Eastern Office and he [Higdon] was the representative of the Eastern office; I think it would be best for you to get first-hand information about that case,” said Bartlett, who said to call Tutor.

“The U.S. Attorney’s office told us they would get back to us after they had time to go over the documentation,” Tutor said, picking up the story. “About 13 months later they sent an e-mail saying they didn’t have enough evidence to go forward with any kind of investigation. Keep in mind Meredith was a huge fundraiser for state Republican candidates during this time.”

A Bigger Nefarious Pattern

This mix of apparent corruption, partisan favoritism and disregard for enforcing the law from Republican-connected federal prosecutors is only one dimension of one of the strangest and most potentially far-reaching voter suppression gambits to recently surface.

After an outcry from state and local election officials—who said complying would upend preparations for the midterms—Higdon’s office delayed the deadline for the documents to be submitted to January 2019. The assistant U.S. Attorney, Sebastian Kielmanovich, addressed voting privacy issues, telling the state BOE by letter that county election officials should redact voters’ names “to the greatest extent possible.” That updated massive make-work directive suggested the administration was not backing down.

What appears to be going on is the simultaneous surfacing of voter suppression tactics that are not entirely new, but whose implications reach beyond North Carolina’s borders as two federal agencies are involved. To start, the Trump regime is demonizing voters in North Carolina’s most heavily Latino eastern counties, which is a continuation of its domestic war on aggressive random policing of immigrant communities.

“DOJ threats about checking the citizenship of voters are nothing more than pure scare tactics aimed at suppressing and diluting the Latino vote,” said Matt Barreto, co-founder of Latino Decisions, a polling firm and UCLA professor of Chicano Studies and Political Science. “If Section 5 of the Voting Rights Act were still around [and not gutted by the Supreme Court], these sorts of policies would be struck down as voter intimidation.”

“This [North Carolina voter data grab] is nothing but to discourage voting going into the 2018 election,” Tutor said. “Higdon has already backed down and said officials could wait… but the damage has been done. This was to throw ice water on the attempt to get Hispanics and even other minorities to vote. It is a fear tactic. It couldn’t have come at a more orchestrated time.”

“I truly believe that what they are doing is having a chilling effect on the voters, thinking there might be something terribly wrong, and they have not provided any insight—nor will they because they label it an investigation; so it’s supposed to be top secret until they come out with something,” Bartlett said. “That’s a chilling effect on the voters.”

Don Connelly, a spokesman for the U.S. Attorney’s office for the Eastern District of North Carolina, declined to comment on its latest subpoenas or related cases.

Sloppy Data and Over-Policing

But that’s not all that’s going on. It also appears the Trump regime is resurrecting a tactic used by Republicans in Florida in 2012 and 2014, and by Republicans in North Carolina in 2016. In both states, incomplete data and shoddy analysis was cited to fabricate an illusory claim that illegal voting was rampant—which became a pretext to crack down on the GOP’s perceived opponents.

There are telltale signs of this ruse in the DOJ and ICE subpoenas. To start, the feds are seeking data that does not exist—state voter files and ballots going back to 2010. Those records most likely do not exist anymore in all 44 North Carolina counties because federal law allows election officials to shred records 22 months after the election they’re from. But the purported evidence trail pursuing illegal voting gets even weirder. The porous voter information sought from counties and the state would be matched against federal ICE data that’s also incomplete, because there is no authoritative nationwide citizenship database. (These flawed information sources get even murkier, because North Carolina ballots cast on Election Day are anonymous; only absentee, early voting, overseas and military, and provisional ballots issued at polling places have voters’ names attached.)

“They will have nothing to connect,” said Bartlett, surveying this uneven and incomplete information landscape. “There isn’t a federal citizenship database.”

So what is going on when the feds are demanding data that doesn’t exist, to be matched to other data that’s incomplete—all to purportedly verify voters’ citizenship?

The answer is Republicans are setting up an intentionally flawed analysis that will create a multitude of inconclusive analyses about otherwise registered and perfectly legal voters. Those open questions serve a partisan purpose, because it allows the GOP to proclaim that the voting process is threatened and needs more policing. This framework and architecture is the crux of their voter suppression strategy.

This playbook based on missing data and sloppy analytics is not new to North Carolina.

In 2016, Kim Strach, the GOP-friendly executive director of state BOE, gave legislative testimony in support of a proposed stricter state voter ID law (which is back on the fall 2018 ballot) that cited an analysis from the voter data operation run by Kansas Secretary of State Kobach, the white nationalist who co-chaired Trump’s disgraced election commission.

Strach testified before her legislature’s House elections committee (where her husband was the chair’s personal counsel on voting issues), stating that 36,000 people had voted in North Carolina in 2012 and in another state. That figure came from Kobach’s operation that compared the names, partial Social Security numbers (last four digits) and birthdays of registered voters. That is a sloppy process because it yields big volumes of suspicious matches without further authentication, implying a vast problem where none exists.

“It was just bullshit,” Bartlett said. “I said at the time that was ridiculous, and in the end it was maybe eight or 10 people” voting more than once. “It is problematic nationally to do such things. There’s no telling how many Bill Smiths, or Paul Jones, there are—with the same birthday, and other things that come up erroneously in nationwide searches.”

This same cynical bad data ploy was also seen in Florida in 2012, where Ken Detzer, the Secretary of State appointed by Republican Gov. Rick Scott, claimed there were 180,000 possible non-citizen voters based on drivers’ license records. After pushback by voting rights activists, that number shrank to 2,600, and then to 200, and finally 85 voters were removed from Florida’s rolls. In 2014, Detzer tried again. This time, he wanted to use a federal Department of Homeland Security database to identify non-citizens, even though the agency said it was incomplete. (This was during the Obama administration.) While Detzer and DHS argued in court, Florida’s county election supervisors refused to accept purge lists from Florida’s state election director. Detzer finally backed off.

The GOP War on Voters

For years, the GOP has been painting false pictures of illegal voting by likely Democratic constituencies to block their partisan rivals. Before Florida’s 2000 president election, the Republican Secretary of State used intentionally sloppy data mining by a contactor as the basis to purge tens of thousands of voters—who were misidentified as former felons. In the past decade, Kobach’s operation has waved the fake flag of people registering and voting in more than one state. And in recent years and especially under Trump, the GOP focus has shifted to a more race-based phantom: illegal voting by non-citizens.

In all these cases, the real occurrence of illegal voting is less than minuscule. The right-wing Heritage Foundation’s post-2016 report of all national examples of false registrations, ineligible voting, fraudulent use of absentee ballots, and duplicate voting cited 492 cases and 733 convictions from 1982 through 2016. That is one case for every 2 million presidential election voters from 1984 to 2016 (roughly 980 million votes). If you count by convictions, where some people pleaded to more than one charge, that total was still less than one in a million illegal voters.

Needless to say, the Heritage Foundation’s 390-page report does not mention the apparent illegal registration of North Carolina voters and non-citizens, and apparent ballot box stuffing by current state senator and Republican Whip Wesley Meredith. However, the larger point is the GOP is abusing and misusing political power and law enforcement to discredit the voting process and to suppress likely Democratic voters.

“The now disbanded and discredited [Trump] voter fraud commission is proof that this entire right-wing effort has no factual basis,” Barreto said. “There is no illegal voting crisis and dozens of academic and government-commissioned studies have proven this time and again. Rather than try to conduct outreach and convince people to support their cause, it appears that [Attorney General Jeff] Sessions, Kobach and Trump are more interested in suppressing and reducing voter turnout in Latino communities, which is antithetical to the practice of democracy that these three men took an oath to protect.”

But back on the ground in North Carolina, it’s clear the GOP has signaled to Latino voters—some of whom may have extended family members without visas—that they should not vote in 2018 or 2020 if they want to escape federal scrutiny.

“All of these things, we feel, have a collective impact,” said Karina Martinez, spokeswoman for Mi Familia Vota, which is holding a national conference this week in Washington with the goal of increasing Latino voting in November 2018. “Every little extra additional thing does matter. Even if it’s in North Carolina, the fact that we hear it and it feels targeted, all of that impacts everyone… It doesn’t matter if it is North Carolina or Florida. The impact sticks with you regardless of the location.”

But in the twisted world of Republican voter suppression, there’s another twist to the North Carolina fishing expedition, according to former state BOE investigator Tutor.

“They absolutely never expected to get that information,” he said. “This is all to suppress the vote. Here’s the other thing to keep in mind. We have six state constitutional amendments that the right-wing Republican legislature has put on the ballot. And one of them is to require photo ID [to get a polling place ballot]… This will drive the right wing to turn out their people and vote for that ID amendment. That I can guarantee you is in play with all of this charade.”

For more information, go to: www.beverlyhillsimmigrationlaw.com

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