Voting access gains new significance in the Trump era

On May 11, 2017, the White House put out a press release announcing its Executive Order on the Establishment of Presidential Advisory Commission on Election Integrity (Commission). The Commission’s stated purpose is to “study the registration and voting processes used in Federal elections.”

“[S]oley advisory” in nature, the Commission’s task is to create a report for the President identifying the following:

1. The laws, rules, policies, activities, strategies, and practices that both enhance and undermine the American people’s confidence in the integrity of the voting processes used in Federal elections; and
2. The 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.

Citing authority under this Executive Order, on June 28, 2017, Commission officials sent letters to all 50 Secretaries of State, and the District of Columbia, requesting a trove of voter data information: the first, last and middle names or initials of all voter registrants, addresses, dates of birth, political party (if recorded), last four digits of voters’ social security numbers, voter history from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.

The letter also posed these questions to the Secretaries:

1. What changes, if any, to federal election laws would you recommend to enhance the integrity of federal elections?
2. How can the Commission support state and local election administrators with regard to information technology security and vulnerabilities?
3. What laws, policies, or other issues hinder your ability to ensure the integrity of elections you administer?
4. What evidence or information do you have regarding instances of voter fraud or registration fraud in your state?
5. What convictions for election-related crimes have occurred in your state since the November 2000 federal election?
6. What recommendations do you have for preventing voter intimidation or disenfranchisement?
7. What other issues do you believe the Commission should consider?

The letter asked for the responsive data to be either emailed or uploaded to the Safe Access File Exchange (SAFE) system that the federal government uses for transferring large data files.

As has been widely publicized, the request triggered outrage from many state officials, for reasons ranging from intrusion into state’s rights, invasion of privacy, cost, and vulnerability of information. In addition, many states have statutes prohibiting the provision of some of these details, though the letter does request the information only to the extent that it would not violate any laws. Nevertheless, many states have agreed to share all publicly available information, and posted such compliance on their website.

For example, in response to the Commission’s request, Ohio’s Secretary of State John Husted, posted statement on the website, part of which is reproduced here:

“After each of the last three federal elections, I instructed the bipartisan boards of elections to conduct a review of credible allegations of voter fraud and voter suppression. The results of this review are already in the public domain and available to the Commission. Additionally, voter registration information is a public record and is available online. The confidential information, such as the last four digits of a voter’s Social Security number or their Ohio driver license number is not publicly available and will not be provided to the Commission.”

Secretary Husted also promised to “make it clear that we do not want any federal intervention in our state’s right and responsibility to conduct elections,” and posted voter fraud reports from Ohio’s elections in 2012 through 2017. Nevertheless, it is not clear from his statement whether Secretary Husted will provide publicly available information or force the Commission to go get it itself.

The lawsuits

Several privacy advocates have taken legal action against various entities in the Trump Administration, including the Electronic Information Privacy Center (EIPC), Public Citizen, American Civil Liberties Union (ACLU), and Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee). EIPC filed their lawsuit on July 3, 2017, and the others all filed on July 10, 2017.

In the EIPC’s complaint, the group seeks injunctive relief “to halt the collection of state voter data” by the Commission. In addition, the EIPC “challenges the Commission’s intent to collect the personal data of millions of registered voters and to publish partial [social security numbers] as an unconstitutional invasion of privacy and a violation of the agency’s obligation to conduct a Privacy Impact Assessment (“PIA”). Furthermore, the EIPC contends, the Commission’s collection of such data would be unprecedented.

Public Citizen wants to stop the collection of the information in the first instance, asserting that the “collection and dissemination of the information violates the Privacy Act, which prohibits the collection, use, maintenance or distribution of any “record describing how any individual exercises rights guaranteed by the First Amendment.” Public Citizen sued the Department of the Army, under whose authority the SAFE system falls.

The ACLU’s suit “charges the [C]ommission with failing to comply with the Federal Advisory Committee Act, which is designed to ensure public accountability of all advisory committees.” The ACLU’s website reasons that “[o]ur election process must be secure, fair, and transparent…Yet the [C]ommission is conducting its work deep in the shadows, making it alarmingly suspect. The [C]ommission is legally required to conduct the people’s business in the light of day.”

Similarly, the Lawyer’s Committee’s concern is the secret nature of the Commission’s proceedings: “The suit comes after the Commission failed to respond to a Lawyers’ Committee request sent one week ago for documents regarding the Commission’s upcoming July 19th meeting—a meeting that will not be open to the public…We filed today’s lawsuit because the so-called Election Integrity Commission has been operating covertly and its actions, to date, have been shrouded in secrecy.”

The Lawyer’s Committee website set forth a number of other actions it has undertaken to challenge the Commission.  These include:

• The launch of a hotline for the public to report instances of voter suppression (866-OUR-VOTE);
• Letters sent to Secretaries of State demanding they not comply with the request for voter roll data;
• Filing a Hatch Act complaint against Kris Kobach, the Secretary of State of Kansas and the Vice Chair of the Commission, regarding his repeated exploitation of his Commission role to solicit campaign contributions and promote his candidacy for Governor of Kansas;
• Requesting Commission related documents pursuant to the Federal Advisory Committee Act; and
• Urging Secretaries of State to adopt a bipartisan resolution condemning the so-called Election Integrity Commission

Both the ACLU and the Lawyer’s Committee cite an upcoming July 19, 2017 meeting the Commission is holding, that is not open to the public.

Perhaps in response to the backlash, on July 10, 2017, the Commission sent a letter to the states asking them to hold off on submitting the requested information.

Concerns of voter suppression

There has been much speculation that the Commission will be used not to study the registration and voting processes, but to repress voters’ rights. This is not such a far-fetched worry, as governments are already doing it. Indeed, a Vox story described measures that former President Obama and his attorney general, Eric Holder, are taking to call attention to gerrymandering, defined as “the drawing of wildly unnatural congressional districts to maximize partisan gain.”

And in the case Cooper v. Harris, decided on May 22, 2017, the United States Supreme Court found active voter suppression through the impermissible use of race as the main factor in drawing voting districts.

Gerrymandering is a significant problem, but not the only one. Next term, the High Court will hear the case Husted v. A. Philip Randolph Institute, out of Ohio. In the cert petition, the Secretary of State, John Husted, argues that under the under the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA), the state is entitled to use voter inactivity as one of the ways in which it maintains accurate voter rolls.

In the cert petition, Secretary Husted explains that “[s]ince 1994, Ohio has sent voters who lack voter activity over a two-year period the [change of address] confirmation notice that the NVRA and HAVA both reference. If these voters do not respond to that notice and do not engage in any additional voter activity over the next four years (including two more federal elections), Ohio removes them from the list of registered voters and requires them to reregister if they otherwise remain eligible to vote.”

At issue is the lawfulness of forcing voters to reregister. In their own brief, the respondents, the Ohio A. Philip Randolph Institute, and the Northeast Ohio Coalition for the Homeless, assert that in the 2016 election, thousands of eligible voters would have been denied their constitutional right to vote had the court not intervened.

One can imagine circumstances under which reregistering could pose insurmountable obstacles. For instance, providing the necessary documents can be especially onerous for certain citizens, like the elderly or physically handicapped, who, through no fault of their own, do not have the required paperwork on hand and have no way to get it.

On the other hand, some voters have removed themselves from their state’s roles in the wake of President Trump’s formation of the Commission, out of fear that their voting information will be misused for nefarious purposes. In a July 12, 2017 article, the Washington Examiner reported that “[s]everal county clerks in Colorado said they’ve seen hundreds of people withdraw their voter registrations following the state’s announcement that it would comply with President Trump’s voter fraud commission.” Public Citizen’s effort is captured this sentiment: “There is little doubt that the overriding purpose of the data collection effort, and of the deceptively named Commission on Election Integrity itself, is to intimidate voters, particularly people of color, and to suppress voting on a massive scale.”

Finally, even if one does not assign improper motives to the formation of the Commission, there is yet another reason to worry: the potential for the data that the Commission collects to be hacked. In a July 5, 2017 piece, Michael Chertoff, the former U.S. homeland security secretary from 2005 to 2009, argues that, “Trump’s voter data request poses an unnoticed danger.” Highlighting the fact that the Commission has not answered questions about encryption, administrative and other access to the storage site, and audit procedures, among other things, the former security secretary is concerned.

Referring to the theft of more than 20 million personnel files from the U.S. Office of Personnel Management, and the hacking of more than half a billion Yahoo accounts, Chertoff points out that “[w]e know that a database of personal information from all voting Americans would be attractive not only to adversaries seeking to affect voting but to criminals who could use the identifying information as a wedge into identity theft.”