Danielle Lang // 7/7/17 //
By Danielle Lang and Samir Sheth
The backlash against Kansas Secretary of State Kris Kobach should have been expected. The so-called “election integrity commission” (dubbed by President Trump as the “very distinguished VOTER FRAUD PANEL”) has been a partisan driven effort to undermine our democracy from the start and is showing its true colors.
Last week, Kobach, chair of the commission, sent a request to all 50 states to hand over their voter files within two weeks. While the letter limited the request to “publicly available” data, it asked for sensitive information including the last four digits of social security numbers.
The letter was so sloppy and poorly considered that Kobach himself had to admit that even he could not turn over all the requested data under Kansas law. So far, 14 states and the District of Columbia have refused the request entirely. Many other states have criticized the effort and indicated that they will not turn over some of the requested data because it is not publicly available.
There are multiple reasons why Kobach’s letter missed the mark. The letter did not provide for proper security safeguards for sensitive data. It did not account for state law restrictions on the use of this data, even where publicly available. And its formulation demonstrates a failure to understand the mechanics of collecting this data and properly conducting any meaningful analysis.
All of this indicates that Kobach is not interested in conducting a careful inquiry, which should be no surprise. After all, a recent study of Kobach’s poorly designed Interstate Crosscheck Program – which he promoted well before his appointment to this Commission – found that it would “impede 200 legal votes” for “every double vote prevented.” Not a great look for an effort supposedly aimed at improving rather than dismantling our election system.
But this commission’s problems did not begin with last week’s false start; they’re foundational. The commission lacked all credibility from its inception.
First, the commission was founded on a big lie to the American public: Donald Trump’s baseless allegation that 3-5 million illegal votes were cast in the 2016 election. While Kobach disputes that the commission’s goal is “to prove or disprove what the President speculated about in January,” those false allegations were, in fact, the impetus for the commission. A meaningful report on the best improvements to our electoral systems should not and cannot begin by looking for evidence to support predetermined answers.
Second, the commission is hardly bipartisan, as Kobach claimed on CNN. Real bipartisanship requires bipartisan leadership with commitment to bipartisan principles. Finding a single Republican or Democrat to join an effort does not make it bipartisan. Instead, the makeup of the commission erodes significant national, state, and local norms of bipartisan cooperation in analyzing and addressing issues of election administration.
Indeed, bipartisan cooperation is an absolute necessity for effective election administration reform. Yet, this commission seems intent on impugning local election officials’ abilities by alleging rampant fraud —and stripping the term “bipartisan” of any meaning in the process – rather than engaging in meaningful bipartisan efforts to improve our elections.
Thus far, this commission fails every relevant test of bipartisanship. The commission is chaired by Vice President Mike Pence and Kobach, a Republican secretary of state from Kansas. Not only is this not bipartisan leadership, it is extremist leadership that should instill confidence in no one.
Mike Pence is inextricably tied to Trump’s false voter fraud allegations, and Kris Kobach is notorious for his extreme and unsupported views on voter fraud and his repeated attempts to suppress the right to vote—which have been consistently rebuffed by federal courts.
The commission is stacked with other individuals with similarly extreme and preordained views on the matters at hand, including Hans von Spakovsky. While there are four Democrats currently on the commission, two are largely unknown and have little to no experience in election law. Democratic Secretary of State Dunlap of Maine has said that he agreed to join the commission to try to ensure that Democrats have a seat “at the table.” While that may be a worthy goal, without equality in numbers or any power in leadership, his Democratic credentials simply give a fig leaf of credibility to a purely partisan effort.
Notably, the executive order creating the Commission on Combating Drug Addiction and the Opioid Crisis requires that “members of the Commission shall be selected so that membership is fairly balanced in terms of the points of view represented.” President Trump chose not to include any such requirement for his “voter fraud” commission. The results are obvious.
The commission’s sham “bipartisanship” hollows out the term and will likely do lasting damage to the long tradition of true bipartisan cooperation in election administration. In the past two decades, there have been several bipartisan commissions that have produced reputable reports on improving our elections. The differences between those efforts and the Kobach effort are stark.
In the wake of the 2000 election, the Carter-Ford Commission – co-chaired by former President Carter (D) and former President Ford (R) – was created to conduct a nonpartisan investigation and issued many uncontroversial findings and recommendations.
That commission was succeeded in 2004 by the bipartisan Carter-Baker Commission – co-chaired by President Carter and former U.S. Secretary of State Baker (R) – which included members from across the political spectrum. That commission tackled, on a bipartisan basis, an increasing lack of confidence in election integrity as well as access to the ballot. It then issued nonpartisan recommendations for improving election administration.
Most recently, former President Obama established the Presidential Commission of Election Administration by executive order in May 2013. The commission was formed partially in response to the verified problem of voters forced to wait in long lines to vote in 2012. The order called for two co-chairs, and President Obama promptly appointed well-known election law attorneys from both sides of the aisle, Ben Ginsburg (R) and Bob Bauer (D), to lead a group that spanned the political and business communities.
Ginsburg and Bauer are widely respected election law experts who have each served as counsel to Presidential political campaigns. This decidedly bipartisan commission produced a report that focused on addressing aging voting machines, increasing access to the polls by expanding voting sites and the voting period, modernizing the registration process, and ensuring the accuracy of voter rolls. Several of the commission’s recommendations were embraced on both sides of the aisle, leading to significant reform in several states.
The current Trump-Pence-Kobach commission represents an unfortunate breakdown in this tradition of bipartisan election analysis and reform. That is particularly concerning because this commission will almost certainly push harmful voter suppression policies, and also because it erodes any remaining commitments we have to true bipartisan problem-solving in election administration.
The commission will undercut any serious efforts to address the true issues of the day, including the cybersecurity of our election systems and the growing need for better election infrastructure. Unfortunately, this commission will only harm the national dialogue about improving our election administration systems, a conversation we need to have.
And Kobach’s first step – a thoughtless attempt to create a national voter file for dubious purposes – is not the type of diplomatic outreach likely in order to bring local election administrators to the table, or to create real solutions to real problems. The entire effort is a disappointing blow to a spirit of bipartisan cooperation that has been fundamental to our entire electoral structure.