DOJ: Kobach Can’t Speak To What Will Be Done With Voter Fraud Panel’s Data

New Hampshire Secretary of State Bill Gardner, right, introduces one of the speakers at a meeting of the Presidential Advisory Commission on Election Integrity on Tuesday, Sept. 12, 2017 in Manchester, NH. Kansas Secretary of State Kris Kobach, center, and former Ohio Secretary of State Ken Blackwell, left, also attend. Gardner opened the meeting by defending his participation and the panel’s existence, saying it hasn’t yet reached any conclusion. (AP Photo/Holly Ramer)
Holly Ramer/AP

The Justice Department, in court filings Thursday, pushed back on a federal judge’s order that Kris Kobach file a declaration clarifying how his now-defunct voter fraud commission is handling state voter roll data.

The filing claimed that since the commission was disbanded by President Trump last week, Kobach should not be considered a defendant in the relevant lawsuit — which was brought by the ACLU of Florida — and that the DOJ attorneys should not be considered his counsel. The Kansas secretary of state had served as the commission’s vice chair and de facto leader.

“Even if Mr. Kobach were to provide the Court with an updated declaration, his declaration would not assist the Court in resolving plaintiffs’ motion,” the filing said.

U.S. Magistrate Judge Jonathan Goodman had ordered the DOJ to file a Kobach declaration to update a letter he had sent to Florida in July about how the commission would use the data. Instead, the DOJ argued Thursday, the court should look to a declaration being filed by Charles Herndon, the director of White House Information Technology.

“The forthcoming declaration will fully resolve the concerns plaintiffs raise in their emergency motion about the disposition of the state voter data that the State of Florida sent to the Commission,” the filing said, adding that only Herndon and four members of his staff have had access to it.

“Thus, Mr. Kobach does not have the ability to transfer or utilize the state voter data the State of Florida provided to the Commission,” the filing said.

Kobach and President Trump himself — in his statement announcing he was terminating the commission — have suggested that the Department of Homeland Security would be taking over the commission’s work, which included a controversial request for state voter roll data that Kobach said he wanted to compare to DHS data on non-citizens.

The ACLU-Florida sued the commission in July 2017 over its request, as well as the state of Florida, for handing over the data.

The DOJ in its filing included a declaration from Herndon that had been filed earlier this week in the lawsuit tha.t a Democratic member of the commission had brought against it

“The state voter data has never been transferred to, or accessed or utilized by, the Department of Homeland Security (‘DHS’) or any other agency,” Herndon said.  “The state voter data will not be transferred to, or accessed or utilized by, DHS or any other agency, except to the National Archives and Records Administration (‘NARA’), pursuant to federal law, if the records are not otherwise destroyed.”

Confusion also arose, after the dissolution of the commission, over a claim that Sarah Huckabee Sanders made that the commission’s “preliminary findings” were also being handed over to the DHS for it to assess.

“The Commission did not create any preliminary findings. In any event, no Commission records or data will be transferred to the DHS or another agency, except to NARA, if required, in accordance with federal law,” Herndon said in his declaration.

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