Larry Schwartztol, Counsel, Protect Democracy
It should come as little surprise that President Trump’s election integrity commission has, in its first official move, run afoul of longstanding legal norms. After all, the commission was founded on a false premise. And its vice chair and apparent intellectual architect is Kris Kobach, Kansas’ Secretary of State, who has made a name for himself as a connoisseur of voter suppression. (He was also recently sanctioned by a federal court for “deceptive conduct and lack of candor.”)
On June 28, Kobach signed a letter from the commission sent to every Secretary of State in the country. The letter sought incredibly broad, and highly sensitive, information about every American voter, including (among other things) names, social security number information, party affiliation, voting history since 2006, and records of any felony convictions. It asked to receive this information by July 14.
The inherent problems with this nationwide fishing expedition are clear: the information is far broader than any legitimate study of election integrity could warrant, reinforcing suspicions that the whole enterprise is a vehicle for voter suppression; it violates federal privacy protections for the government to assemble a master database of voting records, party affiliation and other sensitive information; in an era of Russian hacking of election systems, the centralization of this information – not the mention letter’s invitation to transmit it via email – creates a massive target for hackers foreign and domestic.
Dropping this sweeping request on the nation’s election officials also violated federal law. The Paperwork Reduction Act, a law with a longstanding pedigree (if an uninspiring name), governs agencies that want to issue potentially burdensome information requests. The statute covers requests that are mandatory or voluntary, aimed at individuals or organizations. The guiding idea behind the PRA is simple: before the federal government enlists individuals, companies, organizations, or state governments into potentially burdensome fact-finding, it should have a good justification and a well thought out plan.
To that end, the PRA requires federal agencies to satisfy procedural requirements designed to ensure a deliberative approach informed by the people who will feel the effects of federal action. Much of it is basic stuff. Before sending out an information request to more than ten people, a federal agency must articulate a justification for doing so. It must weigh any potential benefits to the government against the burdens that its requests will impose on recipients. It must have a plan for conducting the request and managing the information it receives. Perhaps most importantly, it must engage the public through two rounds of detailed public notification, coupled with opportunities for the public to weigh in. Only then may the agency seek final approval from the White House’s budget office, which oversees compliance with the PRA, to go forward.
The election commission didn’t do any of those things. It simply ignored the statute’s requirements. In other words, its request to every Secretary of State in the country violated federal law.
Kobach’s letter illustrates just why the PRA’s requirements are so important. Those requirements would have ensured that election officials and other interested parties could have explained why such an intrusive request should not have been approved. The individuals actually running state election systems, as well as voters whose data is at issue, could have scrutinized and responded to the commission’s purported justification for the request. Commenters also could have addressed the commission’s plan (or lack thereof) for collecting and maintaining information in a way that ensures data integrity and security. These comments would have been available to the White House budget office, and if the commission’s proposed data collection failed to pass muster it would be denied.
In other words, the Commission’s failure to adhere to the PRA isn’t a matter of mere technical non-compliance; it flouted a legal framework whose provisions would have offered a safeguard against a misguided, and potentially quite harmful, national fishing expedition for voter data.
The Director of OMB is legally obligated to address this problem, and he shouldn’t let it stand. Earlier this week, my organization, Protect Democracy, along with the Brennan Center for Justice, sent a letter to OMB laying out why the commission’s request violates the PRA. (Unsurprisingly, we’re not the only ones who think so.) As we explained, the statute charges OMB’s Director with remedying violations of the statute. He should act swiftly to do so.
But we don’t need to count on a White House official to nullify the commission’s requests. States should simply refuse to provide the requested data – as many already have. This is why we also sent copies of the OMB letter to every attorney general and secretary of state in the country. For state officials on the fence about whether to provide the data, the PRA should weigh significantly in their decisions. The Kobach letter was, after all, an unlawful request. State officials should pause long and hard before turning over such sensitive data – data that is foundational to the democratic process. They should also think about what they plan to tell voters in their state whose information would be transmitted to a haphazardly devised national database – and why they did so to accommodate a request that violated federal law the moment it went out.