Its formal charge was to investigate ways to improve confidence in the electoral system and to investigate “those 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.”
The commission’s first formal act was to request the states to send it their voter registration lists, including personal information such as Social Security numbers. This request was met with bipartisan opposition. Although some states did send some information, no state fully complied with the request; most states replied as they would have replied to any public request for voter registration lists. The request for the voter file lists, along with the secrecy that surrounded committee decision-making, led to a number of lawsuits.
Why disband the commission?
The White House cited the failure of the states to comply with data requests and ongoing lawsuits as the reason for disbanding the committee.
But more generally, the commission had become an issue for those who wished to aggressively pursue charges of voting fraud. Despite the high-minded charge given to the commission, it was clear all along that it had a narrower mission: vigorously pursue the claim that there were millions of double-voters and noncitizen voters in the 2016 election.
This mission — which would have involved labor-intensive work in large voter databases — was beyond the capacity of the vice president’s office, which was managing the commission. In addition, the commission format is constrained by Federal Advisory Committee Act, which made it easy for skeptics of the commission’s work to criticize its every move. This is why the commissioners themselves could criticize what Kobach and his allies wished to accomplish.
Is this a real victory for those who argued against the commission and its work?
It’s a tactical victory, but the conflict has shifted from the open battlefield to trench warfare.
When the commission was appointed, I was puzzled why the administration hadn’t just created a task force from the Justice and Homeland Security departments. The DOJ already has authority to oversee implementation of the National Voter Registration Act, which might give it the ability to solicit the private information in voter registration lists. In fact, the DOJ already sent letters requesting detailed information from states about how they maintain voter lists. And the DHS has immigration databases that could be used to identify any noncitizens in voter lists.
Now, the Trump administration says that DHS will take over, which enables the work to continue without the public scrutiny that a commission attracts.
This won’t end the lawsuits, however. There are already questions about whether the voter lists sent by the states to the commission can just be shipped over to DHS or DOJ. Moreover, I and others have argued that the voter lists that the commission has are inadequate for high-quality database matching.
Finally, remember that opposition to the commission was bipartisan. The most pungent retort to the commission’s request for the voter lists — “go jump in the Gulf of Mexico” — came from Mississippi’s Republican secretary of state, Delbert Hosemann. The Republican and Democratic secretaries of state who opposed the commission’s efforts will oppose efforts within the executive branch to do the same work.
Does this change anything about the broader politics surrounding voter integrity?
Yes and no. The “no” part is that there are still serious and profound differences between Democrats and Republicans about these issues. Democrats are more likely to believe that access to the polls is a bigger problem than security; Republicans believe the opposite. Those beliefs will be hard to change.
The “yes” part is that the divisive tactics of the commission’s leadership have unified the states’ election administration leadership, including both Democrats and Republicans. State election administrators have worked to protect the prerogatives of the states in the administration of election laws. The steady growth of the Electronic Registration Information Center is evidence that states are serious about maintaining clean voter lists — although there is still work to do to ensure that states are performing their obligations.
What comes next?
The battles will continue. Kobach believes that DHS has the authority to investigate charges of illegal voting because election systems are now considered part of the nation’s critical infrastructure. This opens a new conflict between the states and DHS precisely at the moment when they were beginning to work together on protecting elections from cyberthreats. Meanwhile, private groups, most notably the Public Interest Legal Foundation, continue to try to accomplish what the commission couldn’t.
Finally, charges about voter fraud will probably be at the center of the 2018 midterm elections. Whether those charges will do any more damage, beyond what has already been done, is unclear. Roy Moore certainly tried to play the “fraud card” in his loss in the special election in Alabama. It didn’t work. However, if control of the U.S. House or Senate comes down to a couple of close elections in November, I’m sure the question of “who voted?” will be front and center.
Are there important issues in election administration that are underplayed or ignored because of all these fights over voter integrity?
The two most important issues right now are replacing the nation’s aging voting machines and making the information systems surrounding elections more secure and resilient in the face of mounting threats.
Voting machines need to be more usable and accessible so that they can facilitate modern auditing techniques that can assure us that the vote was counted accurately. I think the VSAP project in Los Angeles County is a model. (Full disclosure: I’m on the technical advisory committee for VSAP.) But, more needs to be done.
Securing voter information systems against cyberthreats is more a political and administrative challenge than a technical one. The decentralized nature of election administration provides some protection against certain threats, but it also opens up thousands of soft spots. There are important efforts to plug those gaps, such as the Defending Digital Democracy project. However, this is just one small program.
Finally, issues of integrity and voter-list maintenance are important. My criticism of the commission was not that it was taking on these issues, but that it did so in a partisan fashion. All election administrators, Democrats and Republicans, lose sleep over noncitizens getting on the voting rolls. They would like to find better ways to cooperate with the federal government over this issue.
The National Voter Registration Act of 1994, which governs virtually everything in the voter registration realm, was written for a world of pencil-and-paper record-keeping. Voter registration has moved into the Internet age in fits and starts. Without a truly bipartisan effort to modernize the NVRA, we’re not going to get there.