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To hear Kansas Secretary of State Kris Kobach tell it, President Trump’s move to dissolve his voter fraud commission and shift its work to the Department of Homeland Security was actually an own on the libs — who effectively sued the commission into oblivion.
“The investigations will continue now, they won’t be able to stall it through litigation,” Kobach bragged to Breitbart. However the DHS itself is distancing itself from Kobach, who as vice-chair of the commission sought to continue his crusade to gin up fears of mass voter fraud, and the White House hasn’t be able to supply much information in terms of next steps.
“Mr. Kobach is not advising the Department on this matter,” DHS spokesman Tyler Q. Houlton said in a statement vaguely alluding to work the department “continues” to do helping states administer secure elections.
White House Press Secretary Sarah Huckabee Sanders told reporters that the administration was sending “the preliminary findings from the commission to the Department of Homeland Security and make determinations on the best way forward from that point.”
Election experts tell TPM what the DHS can do to pick up on Kobach’s quest is a mystery at best, and the agency is likely to run into the same issues the commission itself did, if not thornier ones.
Toxic politics
DHS hasn’t been eager to tout any cooperation with the commission — despite Kobach’s desire to get his hands on the department’s data — and putting the commission’s mission squarely under the DHS won’t make those politics less toxic.
State officials who balked at handing over their voter rolls to Kobach aren’t likely to feel much more comfortable with the DHS handling them, given the blowback the DHS received from election administrators when it previously deemed elections to be critical infrastructure it needed to protect from foreign threats.
According to MIT political scientist and elections expert Charles Stewart, the DHS has finally begun making progress with election officials on the critical infrastructure issues.
“Do you want to put progress on that side at risk because you’re going to be chasing one of Kris Kobach’s wildest fantasies?” he asked.
It’s perhaps not surprising then that in the filings for the litigation surrounding the commission, the DHS played down whether it would turn over the data Kobach hoped to use from it.
Jurisdictional questions
One of the biggest questions surrounding the voter fraud panel’s new life under the DHS is where it would fit jurisdictionally.
Much of the data that Kobach was seeking, such as from the Systematic Alien Verification for Entitlements (SAVE) program, exist under U.S. Citizenship and Immigration Services. But Kobach has also suggested that the work could be connected to DHS’ critical infrastructure initiative, which could put it under the National Protection and Programs Directorate.
Kobach has also hinted the commission’s work will be handed over to Immigration and Customs Enforcement (ICE), leading some to speculate that it would be taken over by its investigative arm. Even still, it’s not clear whether a criminal investigation into mass voter fraud is something ICE is equipped to take on.
“Where you would want to put this effort? I don’t know,” said Justin Levitt, a top DOJ voting rights attorney under President Obama who now is a professor at Loyola Law School. “There is not a bureau designed to do this large scale matching.”
The logistical issues remain
The skepticism over how Kobach intended to use DHS data to investigate voter fraud hasn’t disappeared now that the DHS is running the show.
According to comments made by Kobach and other GOP commissioners, it is believed they wanted access to data DHS maintains on non-citizens to run against state voter lists, under the belief that non-citizens plague the registration rolls.
Using DHS data to check against voter rolls could result in a slew of false positives, voting experts have warned, and the DHS itself has cautioned states against using its SAVE data for voter list maintenance.
The lawsuits won’t just go away
As the Kobach commission faced lawsuits challenging its lack of transparency and potential privacy violations, a common argument its defenders would made is that it was not a federal agency and thus wasn’t subjected to the laws that applied to agencies.
Putting its work squarely under DHS undermines that argument. DHS is subject to the Freedom of Information Act, the open records law the commission lived outside of. It is also subject to additional protocols regarding how it handles private data, as well as to congressional oversight — which, come 2019, may be run by Democrats.
“[I]t may actually be more transparent as the federal employees will be conversant in what they are required to provide under the law,” Tammy Patrick, a senior advisor for the Democracy Fund who served on the Presidential Commission on Election Administration, told TPM.
Corrected: This story has been corrected to reflect that Tammy Patrick is no longer at the Bipartisan Policy Center.
