A federal judge in Washington heard arguments Friday on whether to block President Trump’s voting commission from collecting voter data from 50 states and the District, as government lawyers announced that Arkansas is the only state so far to turn over requested data.
U.S. District Judge Colleen Kollar-Kotelly of the District said she would rule as quickly as possible on the request for a temporary restraining order to halt the data collection sought by the Electronic Privacy Information Center (EPIC) in its lawsuit against the commission.
EPIC, a watchdog group, late Friday formally added the Department of Defense — which operates a website to which the commission asks states to send their information — as a defendant to its lawsuit that already challenged the commission over what the group argues is an “unprecedented” White House invasion of Americans’ privacy.
In its complaint, EPIC asked the court to bar the creation of “a secret database stored in the White House” of national voter registration information, saying the move posed “staggering” privacy implications. The organization contends the electronic data collection lacked legal authorization and is the type of government system that should be subject upfront to a full privacy impact review.
In a June 28 letter to the states, Kansas Secretary of State Kris Kobach (R), vice chairman of the Trump panel and a leading conservative voice on concerns about voter fraud, requested that they turn over “publicly available voter-roll data” by July 14, including name, address, date of birth, party registration, partial Social Security numbers and voting, military, felony and overseas history, among other data.
EPIC said the proposal to gather the voter information nationwide would expose every registered voter to risks, including military families whose home addresses would be revealed, people whose partial Social Security numbers are used as passwords for commercial services and people who have felony convictions in their backgrounds.
“What the administration describes as public information is in fact highly regulated and rarely disclosed,” EPIC President and Executive Director Marc Rotenberg told reporters after an hour-long hearing. The commission “took none of the steps it was required to take prior to making the request, and has done nothing to ensure” that voter privacy is protected.
Government lawyers Friday rejected EPIC’s contention, saying the voting commission was requesting data that was already publicly available, and would “de-identify” or anonymize sensitive information before releasing documents.
Justice Department attorney Elizabeth Shapiro added that the commission was a presidential advisory panel, not a federal agency subject to the privacy review requirement, and that the Pentagon was the only federal agency she knew to be currently working with the commission. She said the Pentagon arrangement was only a temporary “conduit” for voter data that ultimately would be downloaded by the White House.
President Trump formed the Presidential Advisory Commission on Election Integrity by executive order in May after repeatedly suggesting that millions of illegal voters cost him the popular vote against Democratic presidential nominee Hillary Clinton last fall.
Studies and state officials of both parties have found no evidence of widespread voting fraud.
The voting commission’s request for information on the more than 150 million registered voters has set off a wave of opposition from state leaders from both major parties, with critics citing its implications on privacy, states’ rights, and possible voter suppression.
At least 44 states have indicated that they won’t provide all of their voter data, with some saying they would provide nothing and others providing what information they could under state laws.
Vice President Pence’s office said that 20 states have agreed to share at least some data and 16 more are reviewing the request.
Trump has championed the commission’s work as a way to “strengthen up voting procedures” by identifying “vulnerabilities . . . that could lead to improper voter registrations and improper voting.”
“I think the public interest is there is a priority that has been set, that important work is to be done by the commission, and it should be allowed to do work the president indicates ought to be done,” Shapiro said in court.
Although the May 11 executive order stated the commission would be supported by the General Services Administration — a federal agency subject to privacy requirements — the administration said Thursday in court filings that data would be downloaded onto White House servers and systems, with an employee of Pence’s office and White House information technology staff responsible for collecting and storing it.
The commission set a July 14 deadline for states to send data by email or a website for data transfers operated by the U.S. Army Aviation and Missile Research Development and Engineering Center.
Judge Kollar-Kotelly, who was appointed by former president Bill Clinton in 1997, pressed both sides. She questioned whether EPIC could show its members were harmed by the commission’s request, but also seemed to acknowledge arguments that its work informing and responding to the public, seeking government records and counteracting government incursions on privacy could be affected.
The judge noted she had ruled in the past that at least some components of the White House were not subject to certain requirements, such as public records requests. But she also asked “If I decide DOD is a federal agency connected to the commission . . . do they have to be a defendant?” — a statement that then left EPIC to add DOD as a defendant Friday.
The judge did not say when she would issue her decision on a temporary restraining order.