Breached ballots investigation could yield misdemeanor charges

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Misdemeanor charges could be filed against individuals who did not immediately notify elections officials of voted absentee ballots and confidential information unintentionally made publicly accessible.

During a Dec. 11 meeting of the New Hanover County Board of Elections, Chairman John Ferrante discussed his plan to work with county attorneys to investigate the actions of the parties who found the information on the county’s public email server and shared it with the media before sharing it with county elections officials.

A Nov. 19 press release from the Derrick Hickey for New Hanover County Commissioner campaign announced a “disturbing” discovery of “a stockpile of voted absentee ballots, many from members of the military and their family” on the public email server, where anyone can access the email correspondence of county staff and elected officials. The release stated the emails were found while trying to uncover information about the reactions of the elections board or other elections personnel to the protest John Christian Anderson filed Nov. 18.

Catherine Fleming, Dr. Derrick Hickey’s wife, disseminated the press release, which says members of the campaign were reaching out to state and national elected officials “to ensure this matter is dealt with appropriately.”

Anderson filed an incident report about the ballots with the county board of elections Nov. 20, when the board was scheduled to hold a countywide ballot recount and a preliminary hearing on his elections protest. County elections director Marvin McFadyen said he learned of the ballots’ availability the morning of Nov. 20 from members of the press.

Ferrante cited N.C. General Statute 163-165.1, which states “any person who has access to an official voted ballot or record and knowingly discloses … how an individual has voted that ballot is guilty of a Class 1 misdemeanor.” To uncover the answers to his questions and concerns, he said he plans to send interrogatories to Fleming, Anderson and the Hickey campaign to find out more about the group’s discovery of the ballots.

Questions in an interrogatory must be answered under oath.

“There are a lot of unanswered questions about where these ballots came from and how they were accessed, who accessed them, and when. …. Until we know the facts, we really can’t come up with a solution,” Ferrante said.

McFadyen said county staff took immediate action Nov. 20 to remove around 300 emails sent or received June through Election Day with requests for absentee ballots, changes in voter registration, and 46 ballots voted by military members and overseas voters. He said it is possible those emails contained the last four digits of each voter’s social security number, driver’s license number, date of birth or signature.

All of McFadyen’s emails were temporarily removed from the public server following the discovery. Ongoing discussions with the county manager’s office and county information technology staff will lead to a formal policy, McFadyen said, but in the meantime, the elections board voted to indefinitely keep McFadyen’s emails off the public server. Emails without confidential information will still be available through a formal public records request.

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