The board unanimously voted not only to fight the subpoena on the state level, but also on behalf of 44 counties who were similarly subpoenaed
The decision was made during a public meeting, although the board met in closed executive session for roughly 40 minutes before returning to the public session and voting on their motion.
Board Vice Chairman Joshua Malcolm announced the decisions of the board for the vote, calling the subpoena "overly broad, unreasonable, vague, and clearly impacts significant interests of our voters." Malcolm noted that the board for decades has "routinely" referred anything that might be illegal with voting to the US attorney's office for investigation, and the board "stands ready" to continue to assist law enforcement.
But he said the board will "not stand idly by and consent to any agency attempting to obtain records and documents that violate the principles of overreach by the federal government, as in this circumstance."
The move comes after the request from ICE and the Justice Department raised eyebrows among Democratic lawmakers and privacy, civil rights and immigration advocacy groups.
ICE and the US attorney's office declined to comment.
To kick off the public hearing and before the closed discussion, board Chairman Andy Penry described the situation at hand, with a perceptible sense of frustration.
He said the subpoena arrived "out of the blue" at 5 p.m. on Friday, August 31, heading into a holiday weekend. He noted multiple times that the US attorney's office did not reach out prior at any point to discuss it, even though the board's general counsel's contact information is posted online. He said other county boards had already started receiving the notices, and only some of them have actually been properly "served" with the subpoena legally. He said the board had received a fax, not service, on Friday.
"The subpoena ... seeks documents that would disclose very confidential information about the voters, including what their ballots actually looked like," Penry said. "We have not been given a reason as to why ICE wants that information, and candidly I cannot think of why they'd want that information."
He said that the board staff and county boards had "a lot of energy used" over the weekend to respond, including calculating that there are more than 15 million documents that would have to be produced.
He said they told the US attorney how many documents it would take, especially at a busy time.
"We made sure that they knew that there was an election on November 6, 2018, and the job of this board and the county board is to administer elections, and we made sure that they knew that there were lawyers here who could have been contacted in advance and could still be contacted to discuss this matter," Penry said.
He did note the US attorney's office on Thursday sent a letter acknowledging the concern, after press coverage of the subpoena, and delayed the deadline until January 2019, but their vote made clear that was not enough and they would fight the subpoena. They did agree, however, to preserve any documents until the matter is resolved.
"We are pleased that the US Attorney's office finally decided to actually contact us," Penry said. "They decided that it wasn't as urgent as their subpoena said and they would accept January 2019 for these documents ... Most of the documents are already online, we don't have any intention of destroying the documents and we don't have any intention of putting our servers on a plane to Ecuador or some other country that doesn't have a treaty with the United States, the documents are going to be there."