Rather than accept that he won the presidency via the electoral college but not the popular vote, Donald Trump has insisted for months that anywhere from 3 million to 5 million people voted illegally in the 2016 elections.
Despite having no evidence to back up this ludicrous statement, Trump has nevertheless moved full steam ahead on investigating why he lost the popular vote. To that end, he issued an executive order last week establishing the Presidential Advisory Commission on Election Integrity. The purpose of the commission is to study “vulnerabilities in voting systems and practices used for federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.”
Presumably, Trump hopes that the investigation will substantiate his thus far unprovable claims about those millions of illegal votes. Most sentient beings, however, see the commission for what it is: a farce.
And the primary reason that it’s a farce is that he has appointed Kris Kobach as the commission’s co-chair.
Maybe you’re not familiar with the voter suppression antics of Kris Kobach, whom attorney Dale Ho of the ACLU’s Voting Rights Project—who has been battling Kobach’s tactics in court for years—has called “the king of voter suppression.”
As Kansas’ secretary of state, Kobach has concocted myriad schemes to disenfranchise voters. With the establishment of the election integrity commission, we can expect that his strategies, which failed miserably in Kansas, will be rolled out on a national level, only to hopefully fail there as well.
In 2013, for example, Kobach was instrumental in prompting the Kansas legislature to pass a law that required state voters to provided documentation of proof of citizenship before registering to vote.
In Fish v. Kobach, the U.S. Court of Appeals for the Tenth Circuit said in a unanimous opinion that the National Voter Registration Act (NVRA), also known as the motor voter law, preempted Kansas’ law requiring documentary proof of citizenship. The NVRA requires state governments to permit people to apply to register to vote for federal elections when they apply for or seek to renew a driver’s license. The Tenth Circuit also said that by requiring proof of citizenship, Kobach was disenfranchising 18,000 motor voter applicants and called it a “mass denial of a fundamental constitutional right.”
Kobach insisted that the law was necessary due to the hundreds, if not thousands, of “aliens” on the voter rolls, but the Tenth Circuit Court of Appeals called his assertion “pure speculation.”
After being smacked down in federal court, Kobach attempted to implement a two-tier voting system in order to skirt the Tenth Circuit’s ruling. The appeals court may have barred Kobach from forcing Kansan voters to provide proof of citizenship to vote in federal elections, but what about state and local elections? Kobach set about implementing a dual registration system in order to prevent people who use the federal voter registration from also voting in state and local elections unless they provide proof of citizenship.
Kobach was rebuffed again. In the state case, Brown v. Kobach, the court blocked the two-tier voter registration system, finding that Kobach had overstepped his legal authority.
Kobach would continue to lose in court.
In June 2015, Kobach received the ultimate in judicial smackdowns: Kobach and Arizona Secretary of State Michele Reagan had wanted a special form so they could bar voters who were unable to obtain documentary proof of citizenship from voting in state and local elections. They asked the U.S. Election Assistance Commission (EAC) to change the federal motor voter form, which doesn’t require proof of citizenship, to require it just for Kansas and Arizona. The EAC said no, and when Kobach and Reagan appealed, the U.S. Supreme Court refused to hear it.
A month later, Kobach convinced the Kansas legislature to grant him authority to prosecute voter fraud cases. He became the only secretary of state in the country with that sort of prosecutorial power. He claimed that he knew of 100 such cases in Kansas, according to the Brennan Center. Finally, he’d have the opportunity to show the world just how rampant voter fraud was.
Except it wasn’t.
After a year and a half of trying, Kobach came up so woefully short that the editorial board of the Kansas City Star called him “a big fraud on Kansas voter fraud.” Of the 100 cases, Kobach prosecuted only six. Only four prosecutions were successful.
In addition, Kobach reviewed 84 million votes cast in 22 states in order to look for duplicate registrants. His investigation uncovered about a dozen instances of fraud, which amounts to a 0.00000017 percent fraud rate. Not exactly rampant.
If that weren’t enough, Kobach is also the architect of the Interstate Voter Registration Crosscheck Program, a program intended to detect voter fraud by preventing voters from voting in more than one state.
Election officials in more than two dozen states used the program to attempt to identify citizens who might be registered in more than one state and therefore able to cast multiple ballots. The goal was to purge those voters from the rolls. According to investigative journalist Greg Palast, who wrote an exposé on the GOP’s “stealth war” on voting for Rolling Stone, nearly 7.2 million suspected double voters who cast ballots twice ended up on the Crosscheck list. But according to Rolling Stone, “we found no more than four perpetrators who have been charged with double voting or deliberate double registration.” Nevertheless, of those 7.2 million voters, 1.1 million voters of color were purged from the voter rolls in GOP-controlled states, according to Palast’s report.
The Crosscheck methodology of uncovering double voters is inherently biased, as Rolling Stone found out when it enlisted Mark Swedlund, a database expert, to look at some of the data the outlet obtained.
“God forbid your name is Garcia, of which there are 858,000 in the U.S. and your first name is Joseph or Jose,” he told Rolling Stone. “You’re probably suspected of voting in 27 states.”
Indeed, Swedlund analyzed the data and found that surnames common to Blacks, Latinos, and Asian-Americans predominate among those flagged by the Crosscheck matching process. According to Rolling Stone, the U.S. Census Bureau showed that people of color are overrepresented in 80 of 100 of the most common last names. Given those numbers, it becomes clear that bias is built into the Crosscheck program.
Rolling Stone’s investigation found that “one in six Hispanics, one in seven Asian-Americans, and one in nine African-Americans in Crosscheck states” landed on the list. When asked whether the system was designed to target voters of color, Swedlund said, “I’m a data guy. I can’t tell you what the intent was. I can only tell you what the outcome is. And the outcome is discriminatory against minorities.”
Once a voter’s name ends up on the Crosscheck list, the state sends that voter a postcard that is “covered with minuscule text,” according to Rolling Stone.
If the voter fails to verify their address and mail back the postcard to their secretary of state, it triggers a process that can result in that voter being purged from the rolls. Notably, this stage of the purge also has a built-in bias. As Rolling Stone points out, “white voters are 21 percent more likely than Black or Hispanic voters to respond to their official requests; homeowners are 32 percent more likely to respond than renters; and the young are 74 percent less likely to respond than the old.” And more transient folks—like students, poor people, and homeless people who often move from place to place or don’t have homes at all—probably won’t even get the postcard in the first place.
All of this is to say that you should worry that the King of Voter Suppression is at the helm of Trump’s new commission. Kobach’s long crusade to disenfranchise voters, particularly voters of color, all but ensures that his position as co-chair of the election integrity commission will lead to further disenfranchisement and voter purges. After all, Kobach supported Trump’s nonsense claim that millions of votes were cast illegally in the 2016 election.
Still, Kobach insisted in a CNN interview that the commission is “not set up to disprove or to prove President Trump’s claim, nor is it just looking at the 2016 election.”
“We’re looking at all forms of election irregularities, voter fraud, voter registration fraud, voter intimidation, suppression, and looking at the vulnerabilities of the various elections we have in each of the 50 states,” Kobach continued.
“If there’s a recommendation for federal legislation, that may come out too,“ Kobach added.
That’s the money quote: This commission is likely a precursor to launching national legislation. That could be a national voter ID law, for instance, that will strip more voters of color of their votes. No longer will there be a need for individual states to pass regressive voter laws and then defend them in court. The federal government will take care of it.
If Trump and Kobach were truly concerned about electoral integrity, the commission would focus on voter suppression laws that make it difficult for people to exercise their right to vote. It could start by undoing the voter ID laws that North Carolina and Texas courts have said were passed intentionally to disenfranchise voters of color, and the commission could make sure such laws don’t spread to other states.
But that won’t happen because the election integrity commission is a farce. The notion that Kobach is going to focus on the actual problems undermining our electoral integrity—that voter intimidation and suppression result in fewer voters of color casting their ballots—is far-fetched.
That’s not what Kris Kobach is about. He’s about amassing power and toeing the Republican party line. In order to do that, he just can’t have so many people of color, students, and elderly folks voting for Democrats.