Analysis Law and Policy

Voting Fraud Commission Is Gone, but Homeland Security May Pick Up Its Work

Jessica Mason Pieklo

And that means the fight is far from over, says the NAACP Legal Defense and Education Fund.

Last week, President Trump closed shop on his “voter integrity” commission, unceremoniously ending one of the administration’s most visible efforts to restrict national voting rights and access since he took office.

As voting rights advocates celebrated the commission’s demise, its vice chair and Kansas Secretary of State Kris Kobach called the administration’s move a “tactical shift.” The voter suppression “expert” said that officials from the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) would take over the commission’s work by, for example, comparing state voter rolls with federal immigration databases to try to find noncitizens who are registered to vote.

Kobach’s statement confirmed what voting rights advocates had claimed from the commission’s founding: The administration plans to target voters of color for intimidation and suppression.

But voting rights advocates are ready for the fight.

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“I think it was a positive development that the commission was disbanded,” said Sam Spital, director of litigation for the NAACP Legal Defense and Education Fund (LDF), in an interview with Rewire. 

“The flip side of that is the statement from the White House itself that the commission’s initial findings would be sent to the Department of Homeland Security and that DHS would then determine what the next course of action would be,” Spital said.

“And that was concerning for a couple reasons.”

Firstthe shift to DHS—which has been a key agency in the Trump administration’s attempts to weaponize institutional power against communities of color—appears to confirm the racially motivated nature of the voting commission. Trump established the commission in May 2017, empowering Kobach and Vice President Mike Pence to find evidence to support the president’s claim that he lost the popular vote in the 2016 election due of millions of “illegal” voters, presumably voters of color.

The commission was unable to do so.

“LDF was very concerned even before the commission was put in place about the president’s repeated statements that millions of illegal votes had cost him the popular vote, and in particular the way that he had used racially coded language [about illegal voters] on the campaign,” said Spital.

“That DHS in particular was assigned this task now is troubling because it suggests that there is a potential to target new citizens, to target disproportionally communities of color, and I think that needs to be understood in the context of the president saying repeatedly that illegal voters cost him the popular vote.” 

The initial calls by the commission for state voter data information also tipped advocates off that Kobach and the commission were likely targeting voter rolls for purging. That’s because Kobach is a champion of a Kansas data collection program known as the Interstate Crosscheck System. It is designed to find double-registered voters and, presumably, purge them from their rolls. 

But Crosscheck has been shown to be wrong about 90 percent of the time.

“It is unclear why [checking voter registrations] is an issue for DHS,” Spital continued. “It suggests that the administration continues to be looking for evidence to support a conclusion [that in-person voter fraud is rampant] rather than acknowledging what the evidence actually says [which is that in-person voter fraud presents  a very minor legal threat to election integrity]” he said.

“We’re supposed to live in a country where facts matter.” 

But if the last year has shown us anything, it is that the Trump administration exists almost entirely in a fact-free zone. As a result, it has largely been up to the federal courts to find those facts and hold the administration accountable to them. To that end, LDF first filed a lawsuit in July 2017 on behalf of several plaintiffs challenging the commission and its authority. That lawsuit is still ongoing. It is not clear what, if any, effect disbanding the commission will have on that litigation.

Another issue raised by the commission’s disbanding is that nobody knows what the commission’s initial findings were. That’s because those findings have not yet been released to the public. In response to the news the commission was sharing information with DHS, LDF immediately filed a Freedom of Information Act (FOIA) request to discover just what information the agency would now be able to access. 

“None of us are even in a position to respond to the findings the commission has made,” said Spital.

LDF’s FOIA request gets to the heart of the smoke-and-mirrors game the administration is playing with voting rights and asks the court to bring that commission’s work into the daylight. 

“We requested a number of things, including what the commissions findings were, what information had been sent from the commission to DHS,” Spital said. “We also asked about what Secretary Kobach’s role was going to be.”

The request also demands the administration explain what it is doing with those state voting files that were sent to the commission. Approximately 20 states complied with the initial request for information, and so far there has been no administration statement about whether that information was passed along to DHS. 

The administration has not yet answered the FOIA request. Nor has Trump elaborated on his plans for policing the vote going into the midterm elections beyond tweets calling for national voter identification laws such as the kind the U.S. Department of Justice is currently defending in federal court in Texas. That Texas voter ID law, by the way, is so bad even the Fifth Circuit Court of Appeals has found it was passed specifically to disenfranchise voters of colors. Nevertheless, the administration persists in supporting the law and may even try to push Congress toward similar national legislation this year. 

Meanwhile the U.S. Supreme Court will hear arguments this week in Husted v. Randolph Institute, a case that looks at Ohio’s practice of purging voters from its rolls in what advocates argue is a violation of the National Voter Registration Act of 1993, otherwise known as the Motor Voter Act. Not surprisingly, the administration has taken Ohio’s side and defended states’ ability to aggressively purge registered voters from their polls, even if it later disenfranchises that voter. The case could be one of the most important voting rights cases in decades and should Ohio win, it could set the stage for states more aggressively restricting access to the polls in November. Just how much help those states get from the Trump administration remains to be seen.

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