Access to voter data is not getting any harder

Just last week, we described several lawsuits that the Electronic Information Privacy Center (EIPC), Public Citizen, American Civil Liberties Union (ACLU), and Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) filed against various entities in the Trump Administration, seeking to stop execution of President Trump’s May 11, 2017 Executive Order on the Establishment of Presidential Advisory Commission on Election Integrity (Commission). The EIPC filed its complaint and motion for a temporary restraining order on July 3, 2017, and the others filed their cases a week later.

Courts are starting to rule on those actions, as happened this week with the EIPC’s case.

Federal collection of voter data

The EIPC wanted to block the Commission’s demand “for millions of state voter records” by way of a preliminary injunction. On July 13, 2017, it amended that motion by naming new defendants, and there was supplemental briefing to inform the court of certain factual developments, which triggered an amendment to the original motion.

On July 24, 2017, the federal court denied the EIPC’s amended motion. Because it was a decision on a preliminary injunction, the court did not address the merits of the case. Though it found that the plaintiffs had standing on some claims, but not all of them, the court stated that it could not “presently exert judicial review over the collection process.” It reasoned that the defendants are not subject to the provisions that plaintiffs cited as justification for the injunction. Thus, the plaintiffs were not able to show that success on the merits was likely.

Where voter data goes in Ohio

Notwithstanding this federal result with the EIPC, or any other setbacks for it or the remaining plaintiffs, at least one lawmaker in Ohio is working to increase the safeguards on the Buckeye State’s personal voting information, which appears to be flowing more freely than most Ohioans understand. A mid-July Minority Caucus blog explains that Rep. Kathleen Clyde (D-Kent) is calling for Jon Husted, Ohio’s Secretary of State, “to stop sharing Ohio voters’ personal information through any channel with Kansas Secretary of State and Commission leader Kris Kobach.” Kansas officials have been at the forefront of expanding access to voter data, as detailed below.

Pointing to a 2013 measure, SB 200, that Gov. Kasich signed into law in December of 2013, the Minority Caucus’s blog asserts that voter suppression is nothing new in Ohio, while SB 200’s sponsor cheered it for “making elections simpler [and] fairer” by “modify[ing] Ohio’s election law to create more accurate voter registration rolls.” Among other things, SB 200 requires state agencies, like the Ohio Department of Health and the Bureau of Motor Vehicles, to share data with the Secretary of State “so the voter registrations can be cross-checked for accuracy.”

This cross-checking process is where the Kansas officials come in. In its blog, the Minority Caucus noted that also in 2013, Secretary Husted joined the Interstate Crosscheck program (Crosscheck), pursuant to which, Rep. Clyde claims, “states trade voter data and falsely flag millions of voters as suspicious.” Kansas was, and remains at the center of Crosscheck; the program calls for each participating state to send a file containing its voter registration data to the Kansas Secretary of State. After each participating state’s data is checked against all the others’ data to determine whether there is any duplication, the Kansas Secretary of State returns the data, along with the results of the inquiry, back to the states. Thus, all the voter data of each participating state is being transmitted, “at a minimum of once per year,” back and forth to Kansas.

At the National Conference of State Legislators meeting last month, Rep. Keith Esau of Kansas presented a Crosscheck update showing that in 2005, there were just four states participating, and now most are. In 2006, Kansas officials analyzed 9 million voter recorders, and in 2016, that number had increased almost 11 fold, to 98 million.

Rep. Esau’s presentation provides a more detailed look at the journey of the voter data:

1. Each state pulls data in January of each year using a prescribed data format;
2. That data is uploaded to a secure FTP site (hosted by Arkansas);
3. The Kansas IT department pulls data, runs comparison, and uploads the results to FTP site;
4. Each state downloads the results from the FTP site, and processes them according to state laws and regulations;
5. Kansas deletes all other states’ data.

The precise data that Crosscheck looks at is the following:

• Voter status (active or inactive)
• Date generated
• First name
• Middle name
• Last name
• Suffix name
• Date of birth
• Voter ID number
• Last 4 social security number digits
• Mailing address
• County
• Date of Registration
• Voted in 2016 (yes or no)

Rep. Clyde contends that, “the matching system yields millions of false positives, [and] label[s] black voters as suspicious at a disproportionately higher rate compared with white voters. Some states use the results to purge their voter rolls.”

The Representative has called on Secretary Husted to “end Ohio’s participation in the anti-voter Kansas Interstate Crosscheck and stop giving Secretary Kobach Ohio voters’ personal information.”