Consent of the Governed
States Declare Independence From Trump’s Voter Fraud Commission
Some states laws just flatly prohibit release of some of the information. Guess which state prohibits the release of voters’ Social Security information? Kris Kobach’s Kansas.
History sometimes has a droll sense of timing. This past weekend, the country celebrated the Declaration of Independence, which proclaims that government is legitimate only when it rests on the “consent of the governed.” That was the very moment the Trump administration chose to launch a fusillade of attacks on voting rights.
But things have not gone as planned. When the White House’s “Voter Fraud Panel”—as President Trump calls it—sought the personal information of tens of millions of Americans, it provoked a roaring backlash. This Fourth of July weekend, state voting officials rebelled. Trump’s allies are flailing. Late today the commission’s de facto leader Kris Kobach denounced media reports as, what else, “fake news.” The panel has not yet convened its first meeting, and already it’s a debacle.
How did we get here?
On the campaign trail, of course, Donald Trump loudly warned the 2016 election would be “rigged.” As president-elect, he insisted he actually had won the popular vote, after you subtract 3 to 5 million illegal voters. (Think for a moment. Millions of lawless voters, not a century ago, but just a few months ago. Nobody saw them: not police, not the GOP, not Fox News. Perhaps they were special invisible voters.)
To justify these absurdities, he launched a Presidential Advisory Committee on Election Integrity. It makes no pretense of bipartisanship. Vice President Mike Pence chairs it. Kobach, the Kansas secretary of state, its vice-chair and guiding spirit, is one of the country’s busiest proponents of laws to make it harder to register and vote. Most other members are Republican. Some seem puzzled as to why they were named. Just last week, Hans von Spakovsky, the Heritage Foundation senior fellow who has spent over a decade retailing ever more lurid claims of election misconduct, joined. In his book Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk, he warned of a “spreading” contagion of “election fraud.” Amid the din of criticism, Kobach announced he was running for governor in the Republican primary.
The first ever federal commission to prove a delusional presidential tweet was off to a shaky start. Then things got worse.
On June 28, Trump’s panel wrote to all 50 state governments requesting the names and addresses of everyone registered to vote. It said it sought publicly available information, including birthdates, party affiliations, voting records, and even the last four digits of their Social Security numbers.
State officials met the data grab with incredulity. Mississippi Secretary of State Delbert Hoseman, a Republican, scalded Kobach. “My reply would be: They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from.” Kentucky secretary Allison Lundegran Grimes, a Democrat, said there is “not enough bourbon here in Kentucky to make this request seem sensible.”
All told, 19 states have rebuffed Kobach’s request outright. Delaware, Maryland, and Wyoming refused over the holiday weekend. Arizona, Connecticut, Maine, Vermont, and Washington at first seemed ready to go along, then changed their minds. Seven more imposed conditions, such as a fee or formal request process. Only 16 have said they would fully comply. Some laws just flatly prohibit release of some of the data. Guess what state prohibits the release of voters’ Social Security information? Kris Kobach’s Kansas.
Attorneys at the Brennan Center for Justice at NYU School of Law spent days poring over statutes and rules. They found myriad examples of where it would be improper under state law to give Kobach what he wants (PDF). In North Carolina, for example, state law generally prohibits officials from giving out a voter’s date of birth without express written permission. And the Electronic Privacy Information Center sued in federal court, charging that the move violated federal privacy law and would make it easy for hackers.
These pratfalls would be funny, if they weren’t so alarming. Kobach has endorsed Trump’s claims. Likely he wants to take the notoriously flawed federal list of citizens, compare it to typo-ridden state voter lists, and proclaim he has found proof of wide misconduct. All this would spur a legislative push to curb voting rights and protections.
And last week, the administration and its allies took after voting rights on other fronts.
The Justice Department sent all states a stiff letter demanding answers about how they planned to purge voter rolls (PDF). The next step, in all likelihood, would be to sue to force purges. Such purges often delete many more eligible voters than ineligible ones. And House Republicans put out an appropriations bill that eliminated funding for the Election Assistance Commission. That’s the one agency in the Federal government charged with certifying voting machines—among other things, to make sure they are not vulnerable to hacking by, say, Russia.
This is maddening on several levels. Officials should protect and expand the right to vote. And they should shun partisanship when it comes to the real threats to election integrity—such as the risk that Russia and other malevolent actors will be back, trying to interfere in our elections.
Perhaps all this will yield a surprise. Republican officials are now speaking up to rebut the wilder claims. Agitated voters could see the move as a threat not only to privacy but to basic democratic rights. Maybe Trump’s overreach will discredit the drive for restrictive voting laws.
So maybe the Fourth of July weekend was a good moment for this clash after all. Let’s hope even more state officials heed Thomas Jefferson, who wrote, “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. He is the author of The Fight to Vote, published in paperback this spring.