This article is part of TPM Cafe, TPM’s home for opinion and news analysis. The following was adapted from Election Meltdown: Dirty Tricks, Distrust, And The Threat To American Democracy, by Rick Hasen, out today.
As the 2020 election approaches, we are seeing intensifying attempts to suppress the vote. There’s an irony in these attempts, which come after four years during which arguments that such laws are needed to combat phantom voter fraud have collapsed under the weight of evidence. Even the White House’s own relatively high-profile foray into the voter fraud fever swamp sputtered to an inglorious ending. President Trump established the “Presidential Advisory Commission on Election Integrity” in May 2017, but the following January he dissolved it with none of its work completed. It never issued a report.
The commission was started to back up Trump’s unsupported claims of massive voter fraud, which he advanced as the reason Hillary Clinton won the popular vote in the 2016 presidential election. Trump named Vice President Mike Pence the nominal chair of the commission, but then-Kansas Secretary of State Kris Kobach, the vice chair, was the driving force behind its operation. Kobach is one of the country’s leading public figures contending that voter fraud is a major problem in the United States. He is one of a small group of public figures I’ve dubbed the “fraudulent fraud squad,” who built up the myth of rampant voter fraud that Republican legislatures have used to justify severe rules making it harder to register and vote. Kobach ran the meetings of the commission and seemed to dictate its agenda.
The collapse of the Pence-Kobach fraud commission was a watershed moment in the modern history of voter fraud mythmaking and attempts at voter suppression. For years, people like Kobach and the Heritage Foundation’s Hans von Spakovsky had spun stories of voter fraud by relying upon anecdotal accounts, innuendo, falsehoods, and accusations that almost never panned out. Most of this cheap talk was not subjected to cross-examination or rigorous study. The trial and commission fiasco changed all that.
The commission looked like nothing that had come before it. After the 2000 election debacle that culminated in the Supreme Court case of Bush v. Gore, former presidents Jimmy Carter and Gerald Ford headed a blue-ribbon bipartisan commission looking for ways to improve the elections process. After more problems at the polls in 2004, Carter and former Republican secretary of state James Baker headed another commission. After long lines and still more problems in 2012, President Obama established a commission headed by his campaign lawyer, Bob Bauer, and Mitt Romney’s campaign lawyer, Ben Ginsberg. Each of these commissions was led by a prominent Democrat and a prominent Republican, with bipartisan representation and a professional staff. They received expert advice from the top social scientists in the United States studying elections.
The Bauer-Ginsberg commission, aided by its research director, Stanford law professor Nate Persily, issued a set of bipartisan proposals for shortening lines at the polls, ensuring that voter registration rolls were accurate, and making sure that eligible voters would be able to vote in an efficient way. It was no accident that Brian Britton, vice president of Global Park Operations and Initiatives at Walt Disney World Company and an expert in queue management at Disney’s theme parks, sat on the commission.
It was clear from the beginning that Trump’s commission was different. As soon as Trump took office, his administration removed from government servers, without explanation, the website and research of the Bauer-Ginsberg commission. In May 2017, he announced his new commission to look into voter fraud. Gone was bipartisan balance: the Republican Pence was appointed chair and the Republican Kobach was vice chair.
The names of the commissioners were rolled out over weeks rather than announced all at once, as had been done with the other commissions. Eventually, four of the most notorious proponents of the myth of rampant voter fraud — Kobach, von Spakovsky, J. Christian Adams, a former Department of Justice lawyer, and former Ohio secretary of state Kenneth Blackwell — all joined. The Lawyers’ Committee for Civil Rights under Law dubbed them “President Trump’s Four Horsemen of Voter Suppression.”
Adams, a frequent Fox News guest who warned of the dangers of voter intimidation by repeatedly citing the actions of a couple of “New Black Panthers” at a single Philadelphia polling place in 2008, now headed the Public Interest Legal Foundation. Among its other activities, PILF issued a report warning of an “alien invasion,” complete with an illustration of “a 1950s-style flying saucer approaching bucolic Virginia,” and giving the names of purported noncitizens on the Virginia voting rolls. Some of those falsely named “noncitizens” sued Adams for defamation, and Adams apologized to settle the suit. Blackwell was perhaps best known for his decision in 2004, which he later reversed under pressure, to have Ohio election officials reject some voter registration forms because the applications were not printed on heavy enough paper.
I myself received a shout-out from Adams in documents released in litigation after the commission closed. In an email exchange with von Spakovsky and some PILF employees at the time of the commission’s founding, Adams commented on my earlier criticism of their work perpetuating the voter fraud myth: “Rick Hasen is a raw enemy activist… He is the central organizing location of our foes. He is going to get very ugly toward me and Hans when/if we are nominated by the President to the Voter Fraud Commission.” Logan Churchwell, the spokesperson for PILF, urged Adams to “push” my “buttons” so I would become “unhinged.” “Sick of him being the elder statesman in the eyes of the MSM [mainstream media].”
When fully constituted, the commission had seven Republicans and five Democrats. Three of the five Democrats were unknown nationally in the election administration field. The other two were Bill Gardner, the secretary of state in New Hampshire, and Matt Dunlap, Maine’s secretary of state. Some Democrats who had long viewed Gardner with suspicion thought their doubts were confirmed when he agreed to serve on the commission. Dunlap claimed he joined in order to watch the process from the inside, a stance several election experts, including me, thought was naïve, but he later played a key role in the commission’s downfall.
We later learned from partially redacted documents, released through a Freedom of Information Act request, that the lack of partisan balance on Trump’s voter fraud commission was a feature and not a bug. Before Trump named any members, von Spakovsky sent an email, which later got forwarded to Attorney General Jeff Sessions, laying out the case for excluding Democrats, academics, and “mainstream Republicans” from the commission. He and Adams were offered spots on the commission soon after.
Once it got going, the commission immediately ran into problems. Kobach directed staff to request individual voter registration records from each state, including names, addresses, dates of birth, and Social Security numbers. Apparently he meant to look for registered noncitizens by comparing those data to citizenship records at the Department of Homeland Security. Many states balked.
Some Democratic officials expected the matching procedure to be flawed and suspected the commission’s work would be used as a pretext for tougher federal or state voter registration rules. California secretary of state Alex Padilla released a statement reading in part: “California’s participation would only serve to legitimize the false and already debunked claims of massive voter fraud made by the President, the Vice President, and Mr. Kobach. The President’s Commission is a waste of taxpayer money and a distraction from the real threats to the integrity of our elections today: aging voting system and documented Russian interference.”
Some Republican officials thought the federal request was an intrusion on state sovereignty. Before he even received the commission’s letter, Mississippi secretary of state Delbert Hosemann said in a statement: “They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from…. Mississippi residents should celebrate Independence Day and our state’s right to protect the privacy of our citizens by conducting our own electoral processes.” Colorado citizens began canceling their voter registrations after the state agreed to comply with the request because they did not want the Trump administration to have access to their data. They reasoned that they could use Colorado’s same-day registration policy to reregister whenever they wanted to vote.
Then there were the lawsuits. Common Cause and others sued the commission for violating the Privacy Act, which bars government collection of sensitive personal information under certain circumstances. The suits eventually led to the destruction of all collected voter data after the commission disbanded. Other suits argued that the commission’s rules violated the federal Paperwork Reduction Act as well as various state laws protecting the privacy of voter information.
Maine secretary of state Dunlap, one of the two prominent Democrats on the commission, sued it for violating a federal law governing transparency and fairness in the operation of presidential advisory commissions. He and other commissioners alleged that Kobach was acting in secret and without input from Democratic commissioners. Dunlap won and eventually obtained several commission documents he had not been allowed to see — which he then publicly posted. The released documents showed that even before they joined the commission, von Spakovsky and Adams were providing specific suggestions to Kobach and commission staff (but not its Democratic members) about the exact information to request from each state regarding its voter registration practices. The documents also show the commission never uncovered any evidence of significant voter fraud. The failure to find evidence supporting the need for laws to combat noncitizen voting and voter impersonation is the only plausible reason for the commission’s lack of transparency.
The members met only twice. After their first official opening meeting, in Washington, D.C., in July 2017, they met in September 2017 in New Hampshire, where they were hosted by Secretary of State Bill Gardner. In that meeting, Kris Kobach presented and then walked back unsupported assertions he had first floated on Breitbart, that bused-in Massachusetts residents illegally voted in the Granite State.
Another meeting was planned for late January 2018, but President Trump pulled the plug on the entire enterprise, blaming “endless legal battles at taxpayer expense” and lack of cooperation from Democrats. He did not mention Republican resistance or Mississippi secretary of state Hosemann’s suggestion about local swimming spots. Kobach told Breitbart that the effort to find evidence of noncitizen voting would continue at the Department of Homeland Security, without Democratic interference and lawsuits: “The investigation will continue, and it will continue more efficiently and more effectively … By throwing their food in the air, they just lost their seat at the table.” He told NPR that he would remain as an “outside adviser” on the project. That announcement was quickly rebuffed by DHS officials, who said Kobach would play no role. As far as we know, DHS conducted no subsequent investigation of noncitizen voting.
One White House adviser, or perhaps it was Vice President Pence himself, told CNN that the commission was a “s[hi]t show” that had gone “off the rails.” The adviser suggested that the vice president’s “team … should have seen that assignment as a s[hi]t sandwich and treated it like a book report … Avoid trouble, cite real instances of voter fraud, address structural and technology problems, make recommendations and move on.”
The only rational conclusions to be drawn from the collapse of the Pence-Kobach fraud commission and another, subsequent watershed moment, the Fish v. Kobach trial in Kansas, is that voter fraud is extremely rare, and that spurious claims more likely serve as a pretext for passing laws aimed at making it harder for people likely to vote for Democrats to register and to vote. Kobach rejected this premise, telling NPR’s Robert Siegel after the collapse of the commission that “critics were making a bizarre and frankly idiotic argument. They were claiming that by looking at the issue of voter fraud, that was going to cause state legislatures to pass laws that would, in their view, make voting more difficult.”
But it was Kris Kobach, meeting with Trump during the 2016 presidential transition period, who used false claims of massive voter fraud as a basis for recommending legislation amending the federal motor voter law to allow states to require documentary proof of citizenship before voting. And the commission that Trump picked Kobach to head was designed to provide cover for such legislation. A sharp-eyed AP photographer captured a picture of Kobach holding a briefing outline after his meeting with Trump that included that recommendation; a $1,000 fine Kobach later received in the Fish case was for misleading the court and the ACLU about the outline’s content. He apparently had modeled his proposed amendment to match what the ACLU, in a 2016 legal brief, wrote that the motor voter law would have to look like if it in fact allowed Kansas to require documentary proof of citizenship before voting.
Fish and the commission’s work showed that noncitizen voting and voter impersonation fraud weren’t icebergs, or even icicles. They were puddles that evaporated in the sunlight of public inspection and legal examination.
Alas, the intellectual collapse of the voter fraud myth has done little to slow down the pace of laws, passed almost exclusively in Republican states, that make it harder to register and vote. Instead, green lights from the Supreme Court have accelerated the pace and deepened the reach of these laws, even as lawsuits and the commission’s failure undermined their premises, and even as some lower courts have rejected or softened some of the more extreme attempts.
In early 2019, the Texas attorney general Ken Paxton issued a “voter fraud alert,” declaring that up to fifty-eight thousand noncitizens voted in Texas, an announcement that coincided with the increase in Latino voter turnout in the state. Right after Paxton made the announcement, President Trump tweeted: “58,000 non-citizens voted in Texas, with 95,000 non-citizens registered to vote. These numbers are just the tip of the iceberg. All over the country, especially in California, voter fraud is rampant. Must be stopped. Strong voter ID! @foxandfriends.” Trump did not issue any corrective when, as was inevitable, Texas quickly walked back its claims, which relied upon faulty data. The early evidence suggested that almost none of the fifty-eight thousand people on Paxton’s list were noncitizens.
Kris Kobach ran for governor of Kansas in 2018, barely winning a primary against the incumbent Republican governor, Jeff Colyer, who took office when President Trump nominated Kansas’s governor Sam Brownback to an ambassadorship. After public pressure, Kobach stepped aside as secretary of state from overseeing a potential recount of his own primary race.
During the general election, Kobach’s opponents unsuccessfully tried to get Judge Robinson to publicly release the video of Kobach’s deposition in Fish v. Kobach, which, according to Kansas City Star reporter Bryan Lowry, “shows Kobach to … appear uncomfortable during some portions of the deposition, rubbing his eyes and crossing his hands as the ACLU peppered him with questions.” The video had been played in court, but the court allowed release of only a transcript. Even without the video, Kobach lost the governor’s election to Democrat Laura Kelly, raising the possibility that he might join the Trump administration in some capacity related to immigration or voting. He seemed to blow his opportunity to become Trump’s immigration czar when he made ten demands, including 24/7 access to a government jet, walk-in privileges into the Oval Office, and a promise that the president would nominate him to be DHS secretary within six months if Kobach wanted the position.
As the post-truth 2020 election season began, there was no indication that the Republican drumbeat of voter fraud might subside. Instead, more states passed new laws aimed at curtailing voter registration drives in the face of high African American turnout in recent elections. Armed with no more than an icicle, purveyors of the voter fraud myth, including President Trump, stood ready to undermine voter confidence in the election by simultaneously convincing Republicans that Democrats were trying to steal the election and convincing Democrats that Republicans were trying to do so.
Rick Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. In 2013 he was named one of the 100 most influential lawyers in America by the National Law Journal, and his previous books include Voting Wars, Plutocrats United, and The Justice of Contradictions. He lives in Studio City, CA.
Excerpted from Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy by Richard L. Hasen. Copyright © 2020. Reprinted by permission of Yale University Press. All rights reserved.