The states that won’t provide all of their voter data grew to a group of at least 44 by Wednesday, including some, such as California and Virginia, that said they would provide nothing to the commission. Others said they are hindered by state laws governing what voter information can be made public but will provide what they can.
Pushback has swept across red and blue states alike, drawing in Democratic critics of the president and Republicans uneasy about a broad federal request they suggest intrudes on states’ rights. That sentiment has been notable for including Republicans such as Arizona Secretary of State Michele Reagan, who called the commission’s request a “hastily organized experiment,” and Louisiana Secretary of State Tom Schedler, who described it as “federal intrusion and overreach.”
The backlash cast a shadow over a probe Trump said could lead officials to “strengthen up voting procedures.” In his executive order, Trump said the group would issue a report identifying “vulnerabilities … that could lead to improper voter registrations and improper voting.” He named Vice President Pence as the chair and Kansas Secretary of State Kris Kobach (R), a leading conservative voice on concerns about voter fraud, as vice chair.
The Trump administration has bristled at some of the recent criticism and media coverage. In a statement Wednesday, Kobach assailed media reports describing states as refusing to hand over data, calling them “more ‘fake news.’ ”
“Despite media distortions and obstruction by a handful of state politicians, this bipartisan commission on election integrity will continue its work to gather the facts through public records requests to ensure the integrity of each American’s vote because the public has a right to know,” Kobach said in the statement, released by the White House. He also emphasized that the commission’s letters had asked only for publicly available data and that many states are complying. “At present, only 14 states and the District of Columbia have refused the Commission’s request for publicly available voter information.”
More than two dozen states said they will provide some of the requested information, according to interviews, public statements and media accounts. Others have not announced decisions or elaborated on what they plan to provide.
Marc Lotter, a spokesman for Pence, said the commission will work with remaining states to obtain data through public-records requests or other means. He would not rule out the commission purchasing data from states, if such policies are consistent with how other parties seeking such information are treated.
Lotter said commission members knew from the outset that state laws vary and would affect their data collection.
“They’ve always known this is going to be a longer process in terms of doing the analysis,” Lotter said, noting that this is just one aspect of the commission’s work, which will also include looking at voter suppression and cybersecurity as it affects elections.
Partial responses from the states could lead to further problems, experts say, because the commission could assemble disparate — and incomplete — information in an effort to draw a national picture. The partial data could make it all largely worthless or misleading.
“There’s going to be a whole problem of uniformity and consistency that could create a lot of problems, even with the compiling of publicly available data,” said Vanita Gupta, former head of the Justice Department’s civil rights division during the Obama administration. “It’s hugely problematic to do this kind of thing and to do it with at least no explicit regard for existing privacy laws and concerns and no explicit mention of how this data will be used.”
Some experts and voting rights advocates have called the voting commission a “sham,” saying they fear it will lead to increased voting restrictions. It is unclear what the states’ actions could mean for the panel’s report, expected in 2018.
“What it says is some Republicans actually still believe in federalism and that our constitution still governs the way states hold their elections,” still Rick Wilson, a longtime GOP strategist and frequent Trump critic who called the resistance by Republican state-level officials “commendable.” He also pointed to the commission’s origins in Trump’s repeated — and unsubstantiated — claims that voter fraud is widespread and cost him the popular vote.
“If Trump’s theory is correct, that means these states allowed voter fraud to occur,” Wilson said. “By definition, it will have to include a bunch of Republican states, and they don’t like that. … Most elections in the states are run beautifully.”
The commission’s request also has been targeted by a lawsuit filed in federal court this week. In a complaint filed Monday, the Electronic Privacy Information Center (EPIC), a Washington-based nonprofit focusing on privacy and civil liberties issues, asked a federal court to prevent the commission from collecting state voter roll data. The Justice Department filed a response Wednesday saying that because the commission “has only requested public information from the states, EPIC could never show that a constitutional right to informational privacy – even if it were to exist – has been violated.”
Last week, the commission took its first public step by sending letters asking states for a wide swath of information, “including, if publicly available under the laws of your state,” names, dates of birth, addresses and political parties of voters, along with the last four digits of Social Security numbers, if available. The commission also asked officials to offer recommendations for changing federal election law, a list of convictions for election-related crimes, evidence of voter fraud and several other things, due by July 14.
Trump reacted angrily over the weekend to states refusing to provide the data, suggesting that officials might have nefarious motives and that he views the commission’s prime focus as voter fraud.
“Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL,” Trump wrote on Twitter. “What are they trying to hide?”
New York Gov. Andrew M. Cuomo (D) said his state “refuses to perpetuate the myth voter fraud played a role in our election.” Vermont Secretary of State James C. Condos, a Democrat, said he was bound by law to hand over publicly available information but would provide no extra information to a commission he called “a waste of taxpayer money.” Maryland will not provide data, a top state elections official said; in a statement, Attorney General Brian E. Frosh (D) called the request “repugnant,” and his campaign sent out that message in an email Wednesday along with a fundraising request.
Mississippi Secretary of State Delbert Hosemann, a Republican, had a more colorful response in a statement last week: “My reply would be: They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from.”
The voting commission’s request also has been partially rebuffed by Kobach and Connie Lawson, another Republican member of the panel and secretary of state in Pence’s native Indiana, both of whom said they could not fully comply with their own request.
Kobach told the Kansas City Star that his state won’t give Social Security information to the commission, while Lawson (R) released a statement saying state law prevented her from providing “the personal information requested by Secretary Kobach.”
Ohio Secretary of State Jon A. Husted (R) was among numerous officials saying he would provide publicly available information but not other things, such as driver’s license numbers and partial Social Security Numbers. Husted said he sees the commission as a way for state officials to tell the federal government ways they can help states conduct elections, including providing more funding for voting machines, which malfunctioned in multiple places on Election Day.
“I didn’t like it when the Obama administration wanted to use Homeland Security to declare our election system critical infrastructure,” Husted said in an interview after the commission’s letters went out. “I don’t want an increased federal role.”
“This information is ultimately in the hands of your state officials to manage,” he said. “What we will provide … is not going to be anything that isn’t already publicly available. We’re providing nothing to the federal government that we don’t have an obligation under Ohio law to provide.”
John McKager “Mac” Stipanovich, a longtime GOP campaign operative in Florida, said states might push back against such requests from any president, but noted that the intensity of the responses might vary.
“I think if it were a different president, you might not get a markedly different result,” Stipanovich said. “But what you would not get is some of the heartfelt explanations about why they’re not complying.”
Criticism of the commission’s requests is unlikely to sway Trump’s core supporters, he said.
“Is it a black eye for Trump? Yes, with most of America,” Stipanovich said. “But with 35 percent of America, it is another element in the vast conspiracy to subvert America and destroy the republic. … It won’t hurt Trump with those with whom he can’t be hurt.”
The pushback from states is a reminder that state officials are still in charge of their elections, said Michael Steel, a former senior aide to former House speaker John A. Boehner (R-Ohio).
“They protect those prerogatives and the privacy of their citizens zealously,” Steel said. “I don’t think there’s any doubt that there’d be fierce resistance, regardless of the party of the president. I think it’s clear the commission is going to have to narrow its inquiry if it’s going to get results.”
This story has been updated.