//  5/12/17  //  Commentary

Repeatedly, throughout the 2016 presidential campaign, Donald Trump claimed that the 2016 election was “absolutely being rigged.” Not only in the sense of an allegedly distorted media narrative, “but also at many polling places.”  He specifically claimed, for example, that there was “large scale voter fraud happening on and before election day.”

The assertions persisted after the election, not merely from a candidate but from the President-Elect and then President of the United States.  He stated that there was “serious voter fraud in Virginia, New Hampshire and California” (all states in which he did not prevail).  He further stated that he lost the popular vote only because 3-5 million peoplevoted illegally.” 

State and local officials actually supervising the election process have, in bipartisan fashion, consistently rebutted these claims.  In litigation over recount proceedings, the President’s own attorneys consistently rebutted these claims. 

And despite repeated requests from officials, nonprofit organizations, and reporters, President Trump has offered absolutely no credible evidence to substantiate his assertions. As White House Press Secretary Sean Spicer has explained, the source is simply “a longstanding belief” the President “continues to maintain.”  This belief appears to be an article of faith, rather than a hypothesis. Thus far, it has been impervious to fact.

Yesterday, President Trump took action based on his belief, directing federal resources to follow the path blazed by his earlier assertions. He signed an executive order widely reported as creating a Commission to investigate the extent of voter fraud.

 The Commission is to be led by Vice President Pence and co-chaired by Kansas Secretary of State Kris Kobach. Kobach has also frequently promulgated exaggerated claims of widespread voter fraud, including the assertion that there were “probably in excess of a million” fraudulent votes in the 2016 election. Indeed, Kobach specifically backfilled President Trump’s specific target number, claiming that projections from a thoroughly debunked statistical analysis would support the notion that “in excess of 3 million aliens” are voting in American elections.

If the Pence-Kobach Commission intends to investigate the extent of voter fraud — at taxpayer expense, despite Sen. Mitch McConnell’s preference to the contrary — there is little reason to think that its findings or methods will be credible.  The President has already come to a widely publicized conclusion with respect to the issue. The Co-Chair of the Commission has done the same.  If an “investigation” starts with its own firm conclusion, it is not an investigation. It is either a witch hunt or a snipe hunt.  Or both.

I have spent substantial time investigating various claims of voter fraud. I have created a guide for others who wish to perform similar due diligence on their own. Voter fraud exists, in certain guises more than others, though its incidence is frequently exaggerated. It takes considerable care to separate real incidents of fraud from simple mistake, and to separate both from allegations that simply evaporate upon closer inspection.  Unfortunately, this Commission does not appear designed to act with the care necessary to conduct a credible investigation into the real facts on voter fraud.

And indeed, that’s not even its mandate. 

The actual executive order asks the Commission, by studying the registration and voting process, to identify policies and practices that “enhance the American people’s confidence in the integrity of the voting process,” policies and practices that “undermine the American people’s confidence in the integrity of the voting process,” and vulnerabilities that “could lead” to improper registration and voting.

Did you catch that?  You needn’t worry about the Commission taking insufficient care with the data.  It’s not designed to seek data at all.

Instead, the Commission’s mandate is to ponder hypothetical weaknesses in the system, whether they are actually exploited or are likely to be exploited, or not.  And to pontificate on practices that may enhance or undermine confidence in the integrity of the process, whether they actually contribute to the integrity of the voting process or not.  The Commission’s job is to manufacture security theater, to confront manipulable fears about problems that don’t yet exist.

 Evidence suggests that the Commission’s conclusions are also already preordained.  Kris Kobach, co-chair of the new Commission, met with President-Elect Donald Trump in November 2016, in an apparent interview to become Secretary of the Department of Homeland Security.  He carried with him a memo, photographed by the press, labeled “Kobach Strategic Plan for First 365 Days.”  The last bullet on the page, number 23, read “Draft Amendments to National Voter …” — and the remainder was covered by Kobach’s sleeve. The full bullet almost certainly read “Draft Amendments to National Voter Registration Act,” the federal law that governs how Americans register to vote in federal elections. We’ll soon know for sure: Kobach has been ordered to turn the page over to plaintiffs in a pending lawsuit, by the end of this week.

 What all of this likely means is that the person chosen as the new co-chair of the new Commission using federal resources to research and investigate potential election policies had, six months ago, already prepared a wish list of policies to implement.  This Commission is just the process of purporting to justify what has already been decided. 

 Moreover, there is absolutely no mention in the executive order of any potential costs of the policies the Commission is supposed to consider: no mention that the Commission should investigate the extent to which its preferred security theater policies actually make it more difficult for real, live Americans to exercise the franchise.  That’s a dangerously one-sided calculus for tinkering with a fundamental right.

 Ten years ago, the Supreme Court of Missouri recognized the problem with making policy about voting rules around mere perceptions about voter fraud. “Perceptions,” it said, “are malleable. While it is agreed here that the State’s concern about the perception of fraud is real, if this Court were to approve the placement of severe restrictions on Missourians’ fundamental rights owing to the mere perception of a problem in this instance, then the tactic of shaping public misperception could be used in the future as a mechanism for further burdening the right to vote or other fundamental rights.”

 In other words, it would be wrong to impose policy with real costs based merely on the perception that the policy could increase confidence in the perceived integrity of the voting process. Because someone might attempt to manipulate public confidence in the integrity of the system in order to justify their pre-baked policies.  By, say, repeatedly exaggerating, without evidence or cause, the extent of voter fraud in American elections.


Versus Trump: Updates, Y'all!

11/9/17  //  Commentary

You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

The First Amendment and Soliciting Crimes of Migration

11/2/17  //  In-Depth Analysis

By Daniel I Morales: Can the federal government make it a crime to encourage or induce a noncitizen to illegally enter or reside in the United States?

Take Care

A Free Press Requires a Strong and Independent Judiciary

10/20/17  //  In-Depth Analysis

A free press and a strong judiciary are among the best bulwarks against authoritarianism, and we need one to have the other.

Nancy Leong

Sturm College of Law