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Look but don’t touch: Trump requests voter data, states and civil rights groups push back

The Presidential Advisory Commission on Election Integrity has received harsh criticism after requesting voter information from each state in order to investigate voter fraud during the November election.

Every election should result in a peaceful transfer of power from one administration to the next; it is the cornerstone of a strong and healthy democracy.  The United States prides itself on its long history of peaceful transfers, and last November was another example of this track record; however, despite the peaceful transfer of power, the election itself has come under much scrutiny over the past seven months.  The two main issues plaguing November’s election are hacking and voter fraud.

Specifically in response to alleged voter fraud, President Trump created the Presidential Advisory Commission on Election Integrity whose purpose is to collect voter data and ensure that only people who were eligible to vote were the ones who voted in the past election.  Kansas Secretary of State Kris Kobach, vice chair of the new commission, sent a letter requesting that all 50 states turn over their voter data.  44 states have since refused to comply with the request, issued on June 29.  Their refusal prompted President Trump to tweet, “Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?”  Echoing the President’s tweet, vice-chairman Kobach stated, “Despite media distortions and obstruction by a handful of state politicians, this bipartisan commission on election integrity will continue its work to gather the facts through public records requests to ensure the integrity of each American’s vote because the public has the right to know.”

A study found…that the incident rate for voter fraud is between 0.003 percent and 0.0025 percent….  [a]nd found only ten cases of voter impersonation from 2000-2012 across the nation.

Voter fraud gained national attention during the 2000 presidential election between George W. Bush and Al Gore when Florida issued a recount of its ballots.  Accusations of noncitizen voters and voter impersonations impacted how the nation structured its future elections.  Although voter registration roll purges and restrictive voter I.D. laws were implemented as a means to combat voter fraud, these methods instead disenfranchised thousands of people, particularly people of color, without truly addressing the issue of voter fraud.  A study by the Brennan Center for Justice at the New York University School of Law found that the incident rate for voter fraud is between 0.003 percent and 0.0025 percent.  Arizona State University conducted two studies regarding voter fraud and found only ten cases of voter impersonation from 2000 to 2012 across the nation.

States are required to maintain voter rolls for several reasons, including election integrity and jury pools.  The type of information each voter roll collects varies by state.  While vice chair Kobach’s letter only asked for publicly available information, the letter specifically requests certain information, such as name, address, political party, and the last four digits of one’s Social Security number.  The letter requested some more controversial information as well, such as military status, felony convictions, and voter history.  However, the voter rolls may not record such data either in its publicly available rolls, or in any of its rolls at all.  As a result, some states are only providing information that is publicly available, or limiting what publicly available information they will provide the commission.

The Board’s decision to comply has caused some North Carolinians to call and cancel their voter registration, due to privacy concerns. 

The North Carolina State Board of Elections and Ethics Enforcement announced it would comply with the request by providing their public voter rolls, but only in part.  The Board will not provide more sensitive information such as Social Security numbers, birthdates, or driver’s license numbers.  The Board’s decision to comply has caused some North Carolinians to call and cancel their voter registration, due to privacy concerns.  Cancellation of voter registration is not recommended by the Board, stating the information given to the Commission is already available to the public and the Board is required to comply with the request under state law.  Other states, by varying degrees, have also reported concerned citizens cancelling their voter registration.

The Commission’s requests have drawn the ire of state leaders and civil rights organizations. California Secretary of State Alex Padilla stated, “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.”  North Carolina Governor Roy Cooper echoed the concerns of other state leaders saying, “ [w]e should not participate in providing sensitive information beyond what is public record as it is unnecessary, and because I have concerns that it is an effort to justify the President’s false claims about voter fraud.”  Some states are outright refusing to send even their public voter rolls.  Governor Terry McAuliffe of Virginia stated he had no intent of honoring the Commission’s request.  Mississippi Secretary of State Delbert Hosemann made a particularly pointed statement saying, “They can go jump in the Gulf of Mexico, and Mississippi is a great state to launch from.”

The American Civil Liberties Union (ACLU) is suing the Commission over its lack of transparency.  The Federal Advisory Committee Act requires all committees to make their meetings available to the public, unless otherwise stated by an Act of Congress.  The Commission responded that they did comply with the Act by providing a video link to the telephonic meeting.  This link was insufficient, according to the ACLU, “because it does not provide the opportunity for sufficient public oversight as required by law, and is notably inaccessible to any citizens without a computer and a broadband internet connection.”  The Act does not state how or to what extent the committee is to make their meetings open to the public; however, the Act does state, “[t]he records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection….”

Vice-chairman Kobach sent a subsequent letter asking states not to send any further data.

At the same time, the Electronic Privacy Information Center (EPIC) also sued the Commission and requested a temporary restraining order to prevent its data collection.  The lawsuit concerns the way in which voter data is collected and published.  According to the EPIC, “The Commission had already committed egregious security blunders, including (1) directing state election officials to send voter records to an unsecure web site and (2) proposing to publish partial SSNs that would enable identity theft and financial fraud.”  Further, the Commission failed to follow the E-Government Act of 2002.  The Act requires any agency that is starting a new collection of data to do a Privacy Impact Assessment (PIA).  The PIA must be conducted, reviewed by the chief information officer or its equivalent, and made available to the public via the agency website, publication in the Federal Register, or by other similar means.  Thus far the Commission has yet to conduct a PIA.  The EPIC filed its complaint in the U.S. Federal District Court for the District of Columbia on July 3.  The court has since granted the temporary stay.  Vice-chairman Kobach sent a subsequent letter asking states not to send any further data.

Moving forward, the Commission should be cautious in future interactions with the states and their citizens.  The U.S. has had peaceful transitions of power because there is a level of trust that the voting system works and is fair to the American people.  While the Commission’s goal may be to ensure that trust, its actions may instead weaken it, thereby weakening the overall system in the process.  Voting is held sacred in the U.S.  Our war for independence was fought in part to ensure the ability of Americans to elect their leaders and have their voices heard.  Likewise, our military has fought overseas so that others may have that same freedom.  Civil rights marches were walked and bitter legal battles fought to protect and expand voting rights to all Americans.  Any further investigation into the election should be done with respect to the states and citizens of this nation.

Claire Scott
About Claire Scott (12 Articles)
Claire Scott is a third year law student and serves as a Senior Staff Writer for the Campbell Law Observer. Originally from Chesapeake, VA, Claire is a Campbell University alumi. After her 1L summer, she worked in the Harnett County NC District Attorney's Office as well as the District 11A Veteran Treatment Court. Her legal interests include estate planning and veteran law.