Commentary Law and Policy

Dear Election Commission: I Have Questions

Jessica Mason Pieklo

This whole line of argument is really about attacking the federal gun registry, isn’t it?

On Tuesday, President Donald Trump’s much-touted “Advisory Commission on Election Integrity” met to hear testimony on the nonexistent specter of voter fraud.

A decent amount of one panel’s testimony came from John Lott Jr., founder of the Crime Prevention Research Center, a pro-gun rights think tank who has dabbled in voting rights issues. So naturally, this is one of the guys Republicans want to hear from on “electoral reform,” am I right?

Lott’s visual presentation, submitted along with a written report as part of his testimony to the commission, states that Republicans are deeply concerned about “ineligible” voting while Democrats, he claims, are making up concerns of voter suppression and roll purging. He recommends that state and local governments, and presumably the federal government, should help make sure fewer people actually get to the polls and have their votes counted.

First and foremost, the visual presentation and his brief testimony before the commission revolved around applying the current federal background check system for gun purchases to voting rights. Lott named the National Instant Criminal Background Check System (NICS), the system that requires FBI background checks on some gun purchases. And by many accounts, it is pretty toothless.

If NICS doesn’t interfere “in any way” with people’s constitutional right to self defense, doesn’t it follow that it would work for the right to vote, Lott asks?

The rationale is pretty transparent from a political optics standpoint. As his presentation suggested, Democrats have long lauded background checks on gun purchases as simple, accurate, and in complete harmony with the Second Amendment right to own guns. Clearly, Lott is taking those talking points on guns to turn them around on voting.

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But I have questions about this whole line of argument. That isn’t surprising, given that the commission is grounded in murkiness, and Lott set the framing for the rest of the panel. To just start us off:

-Republicans hate background checks on gun purchases. While it’s giving Lott a lot of credit here, are he and his Republican supporters, by extension, baiting Democrats into a fight that could undo the limited regulations currently in place on gun purchases?

-What would states do with this background check information beyond decrease voter turnout? Will they share it with the commission? And will the commission share it across all agencies? What protections exist to ensure the privacy of all voters who will now be subject to such a check?

-Also? If you don’t think background checks prevent gun violence, why would you think they would protect against nonexistent voter fraud?

-NICS also delays or denies firearm sales, in theory, for anyone who is under indictment for a crime punishable by imprisonment for a term exceeding one year. This sounds like it could be potentially problematic for some of Trump’s closest allies, and perhaps even the president himself. So: Should the commission take Lott’s recommendation, would it really intend to exclude white-collar criminals from the voter ranks? Or, like the limited prohibitions on convicted abusers owning firearms, would the commission allow states to opt out of this requirement as well, or at least limit the kinds of crimes in question in order to avoid, oh—I don’t know—treason, or financial crimes like racketeering?

-NICS also prohibits gun sales to those who are an unlawful users of, or addicted to, any controlled substance. What does this mean exactly for the commission? How would they find this information out? Does the entire country take a pee test before being granted permission from the government to vote?

-Also, in Lott’s presentation, he claimed that voter turnout would not be chilled under his proposed reforms. He provided the race and gender breakdown of electoral participation by registered voters. Strangely, this data ended at 2004 for general elections and 2006 for primaries. This is, of course, prior to both the 2010 Census and eventual gerrymandering by Republicans to try and achieve electoral dominance in the coming elections. It also fails to include the 2013 U.S. Supreme Court decision Shelby County v. Holder that largely gutted the Voting Rights Act. Those two events helped usher in voter ID laws as part of some of the most aggressive voter purges and restrictions in history. Why does the data in his presentation end in 2006, I wonder?

-When questioned by members of the committee about the cost of these changes, Lott answered that he didn’t have the actual cost to both implement his organization’s suggested reforms but “would guess” it was minimal. Okay, sincerely, I ask this as a wonk: Are you serious? Are you really suggesting a massive shift in voting policy and rolling back constitutional rights based on a “guess”?

-OK, one last question, for now. I know as much as members of the commission like Kris Kobach would love to round up every non-white male Republican voter so they can hold on to the last grasp of political power they still have, this whole line of argument is really about attacking the federal gun registry, isn’t it?

I don’t expect the members of the commission to get around to addressing these questions. But they should. Because some of the most notorious anti-voting, anti-civil rights operatives are using this commission—including hearings like Tuesday’s and any in the future—to create a record of “findings.” These findings will, in turn, support future federal legislation like national voter ID laws.

Operatives will also likely issue specific recommendations to the states on how to manage their own elections, and those run by conservatives will happily implement them.

All this means that so long as conservatives retain power, it’ll be up to advocates and the courts to protect voting rights. Because not only is it clear from Tuesday’s hearing that the Trump administration is coming hard for voting rights, it looks like—given Lott’s role—it might be using the commission as a way to try and get Democrats hung up on gun control measures, too.

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