From the outset, voting rights advocates warned that President Trump’s creation of a shady “elections integrity”commission would be used as cover for his bogus claims that 3-5 million people voted illegally and exacerbate overblown allegations for voter fraud.
Trump himself removed any remaining doubt about the commission’s true purpose over the July 4 holiday weekend when he called it the “VOTER FRAUD PANEL.”
Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?
— Donald J. Trump (@realDonaldTrump) July 1, 2017
Since its unveiling, the commission has also managed to elevate some of the most notorious vote suppressors in the country, put usually under-the-radar state elections officials in political crosshairs and trample over the privacy rights of millions of voters. It’s also living up to and exceeding the expectations by election law experts that the stage was being set for a push for more restrictive voting laws.
“It’s even worse than what I thought it would be in terms of commission’s composition and the job it’s going to do,” Rick Hasen, the UC-Irvine Law School professor who runs “Election Law blog,” told TPM Friday. “It really seems like they’re not even trying to give the veneer of bipartisanship or a serious effort.”
The commission is lurching along, with its first in-person meeting planned for this month. The commission members, almost entirely Republicans, are being vetted and new additions are being announced. But even in its infancy, it’s set off alarm bells across the voting rights community
A letter to all 50 states requesting that they hand over voter data—ranging from date of birth and address to military status and party ID—has provoked a firestorm of criticism and reinforced predictions that the commission, which is being vice chaired by Kansas of Secretary of State Kris Kobach, will be about pushing voting restrictions.
“The commission seems, from all external appearance, it seems to be attempting to find a fig leaf to put on conclusions it already arrived at,” said Justin Levitt, a top DOJ voting rights attorney under President Obama who now is a professor at Loyola Law School.
The problems elections experts have with the request are aplenty. From a logistical standpoint it’s extremely impractical to expect state elections officials to turn over such a broad swath of personal voter data in just two weeks, said the Brennan Center’s Myrna Perez, and from a legal perspective, the request is problematic.
“Even though this information is available for public inspection, states have made differing choices about how to balance the sharing of information to promote political mobilization and people’s privacy and this completely upends that,” Perez told TPM.
A privacy advocacy group sued Monday to block the voter data request, calling it “both without precedent and crazy.”
Adding to the concerns is just who is seeking it, and to what ends. Kobach has for years championed restrictive voting laws, including a proof-of-citizenship voter registration requirement that has been tied up in court for several months. A federal judge last month fined Kobach $1,000 for “patently misleading representations” as part of the litigation.
As Kansas’ top elections official, he lobbied for and was granted prosecutorial powers to pursue voter fraud convictions, an extremely unusual authority for a state’s secretary of state.
“I don’t think anyone who knows Kris Kobach and his history with voting rights will be at all surprised by the letter,” said Vanita Gupta, chief executive of the Leadership Conference on Civil and Human Rights, who previously led the DOJ’s Civil Rights Division under Obama.
She raised the possibility that the data collection is the first step towards a widespread voter purge, a national version of Kobach’s state-level “Crosscheck” program that has been riddled with inaccuracies and false positives.
Likewise, Dale Ho—an ACLU attorney who has squared off with Kobach in the courtroom—predicted Kobach was plotting a Crosscheck “on steroids.”
“We know it’s wildly inaccurate. He is going to use these topline exaggerated numbers to claim there’s massive amounts of fraud when actually the number of people double registered is much smaller than the numbers he is going to say,” Ho said.
The program lets participating states check their voter rolls against other states’ to find people who are double registered or ineligible to vote. A Stanford analysis found that for every one case of double voting the program identified, it yielded 200 false positives that would purge registrations of people legitimately eligible to vote.
Voting rights experts are gearing up for a “findings” report that will be used as justification to promote more restrictive state election laws or even national legislation to roll back voter protections.
“The end game is going to be to try to pass federal legislation that makes it harder to register people,” Hasen said. He predicted the National Voter Registration Act—the so-called “Motor Voter” law that streamlines the process by which Americans can register at DMVs or other government agencies—would be the ultimate target. Kobach was photographed last year with Trump holding a proposal to amend it.
“The NVRA currently provides a precise surgical way to clean the voter rolls,” Levitt said. “He is looking to go after the voter rolls with a chainsaw, and the data that he’s compiling, I strongly suspect he will use to make his argument for that chainsaw.”
Even Maine Secretary of State Matt Dunlap, one of a small handful of Democrats on the commission, told TPM Thursday that he had concerns that the data analysis could overplay the threat of fraud, though it hadn’t been discussed in depth when he was on a teleconference call with the commissioners last week.
“I was alert to that, because one of the things we want to be mindful of is the tone that we set,” Dunlap said. “It’s great to emphasize security and integrity, but let’s make sure we people have access to the process as well.”
Marc Lotter, a spokesperson for Vice President Mike Pence, the chair of the commission, in a statement defended the commission’s moves so far:
The Commission is seeking publicly available information according to state laws. No personally identifiable information will be made public. The information will be analyzed in hopes of identifying best practices and recommendations for state to be able to take to ensure the principle of one person, one vote.
Already state elections officials have pushed back at Kobach’s request. At least two dozen states said they would be either refusing his request or handing over only some of the data he is seeking.
Many of the states have flagged privacy concerns, but others were wary of the final product the data would be used to build.
“Given Secretary Kobach’s history we find it very difficult to have confidence in the work of this Commission,” Connecticut Secretary of State Denise Merrill said.