Kobach’s article was thoroughly debunked when it was revealed that the out-of-state voters were college students and others legally entitled to vote. “The fact that he continues to stand by his laughable Breitbart column after its clear errors were mentioned at the meeting tells you all you need to know about this sham effort,” says Rick Hasen, an election law guru.
Things went from bad to worse on Tuesday when a memo sent by email surfaced to Attorney General Jeff Sessions from Hans von Spakovsky, a controversial member of the panel, that objected to seating Democrats or mainstream Republicans on the commission. Von Spakovsky initially denied seeing the letter (let alone writing it) but was outed when his think tank, the Heritage Foundation, sought to distance itself from a blatantly partisan initiative.
Trevor Potter, president of Campaign Legal Center (which obtained the email through a Freedom of Information Act request) and a former Republican chairman of the Federal Election Commission, released a scathing statement, declaring that the Von Spakovsky correspondence should “add to the mounting evidence that the commission has no interest in true bipartisanship or an open discussion of how to solve the real problems in our elections.”
It seems candor is in short supply on the commission. This June, Kobach was lambasted and fined for misleading a court. “The judge wrote that while the court could not say that Kobach ‘flat-out lied,’ the ‘defendant’s statements can be construed as wordplay meant to present a materially inaccurate picture of the documents.'” (A state bar complaint was lodged against him in Kansas, where he holds the job of secretary of state.)
The entire outfit is plainly unserious and unfit to conduct any credible study. Walter Shaub, senior director of ethics at the CLC and former director of the U.S. Office of Government Ethics, tells me: “They’re not even working hard at the pretense of fairly balanced proceedings. It’s clear they’re trying to leverage governmental authority to lend credibility to implausible claims of widespread voter fraud, while downplaying the urgent issue of foreign interference in our elections.”
Kobach’s commission has already been rebuked by a court. In late August, a representative of the commission was chastised by a judge and forced to apologize for failing to comply with open records laws. The Post reported:
[U.S. District Judge Colleen] Kollar-Kotelly said the panel’s after-the-fact argument was “incredible” when it said it did not believe documents prepared by individual commissioners for the July meeting had to have been posted in advance.“You didn’t completely live up to the government’s representations,” Kollar-Kotelly told Justice Department lawyers at Wednesday’s hearing. “I want to know what things are not going to be covered” by the government’s pledges, she said.
Much as critics of the commission would like nothing better than to mock and berate the commission, exposing the illogical and flimsy arguments it is attempting to advance, it is well past the time to shut down this circus.
We have an entity operating under the auspices of the federal government funded by taxpayer dollars for obvious partisan purposes.
Former Republican ethics counsel Richard Painter tells me, “There’s more than enough evidence of a Hatch Act violation,” referring to the law that prohibits government officials from politicking on the job or using government resources for partisan ends. He notes that while Cabinet officials may get dinged for appearing at a political event, this is “a hundred times worse.”
He argues that a commission dealing with something as serious as voting was flawed from the start. “It’s absolutely critical that these be bipartisan,” Painter says. “If not, they’ll be subject to abuse. And here when you dig down it’s clearly an abuse.”
He is emphatic: “We’ve reached the point where you’re using taxpayer dollars to influence a partisan election.” (He also observes that there are existing, statutorily created entities such as the Federal Election Commission or the Voting Section of the Justice Department that should be doing an investigation and/or putting out recommendations for improvements to the voting system.)
Former Justice Department spokesman Matt Miller says Congress needs to act. “This commission was conceived from a lie — that millions of fraudulent votes were cast in last year’s election — and everything it has done since has been in furtherance of that lie,” he says. “We now know that one of its leading members sees it as a partisan instrument aimed at helping the Republican Party, writing in plain language what has always been obvious. It’s time for Congress to step in and shut this commission down or they own its assault on democracy.”
In short, the commission is a farce. “Instead of addressing the numerous serious issues facing our democracy, the commission met today for a second time to discuss the same tired anecdotes and debunked methodology that it has already decided to use to justify new restrictive voting laws,” Potter said in his statement. “These farcical meetings continue to validate the worst suspicions about the commission: that it is designed to shrink the electorate for partisan advantage.” Hence, the commission should be an easy target for an enterprising litigator seeking a slam-dunk Hatch Act win.