On Nov. 9, I filed a complaint in U.S. District Court in Washington, seeking to obtain the working documents, correspondence and schedule of the Presidential Advisory Commission on Election Integrity. What’s remarkable about my lawsuit is that I’m a member of the commission, and apparently this is the only way I can find out what we’re doing.
The commission was formed in May to answer monster-under-the-bed questions about “voter fraud,” but the implicit rationale for its creation appears to be to substantiate President Trump’s unfounded claims that up to 5 million people voted illegally in 2016. Chaired by Vice President Pence, the commission has the chance to answer questions about potential fraud and to highlight best practices to enhance voter confidence in our election systems. Yet it isn’t doing that. Instead, the commission is cloaking itself in secrecy, completely contrary to federal law. Recommendations for changes in public policy — whether you agree with them or not — ought to come through an open, public discussion where any American can weigh in.
As the secretary of state in Maine, I was asked to serve on this 12-member commission by Pence’s office. Although I’m a Democrat, I accepted because I believed that membership would allow me to defend the election process from a position of authority, as a fully informed and engaged participant in the president’s review.
The commission has met just twice, but it’s made some waves anyway. Even before we first convened, a June 28 memo, signed by commission Vice Chairman Kris Kobach, prompted fury by requesting detailed voter information from the chief elections officers of all 50 states. The Mississippi secretary of state, Republican Delbert Hosemann, invited the commission to “jump in the Gulf of Mexico,” one of many colorful responses. Perhaps more striking is that the memo wasn’t written by staff — it was written by individuals who were later named to the commission but who were working outside of government at the time. The letter went out immediately after our first conference call, indicating that Kobach’s data-gathering effort was underway before the commission formed. But no one told members of the commission that; I learned about it from the press.
At our first meeting, at the White House complex in July, Trump made clear his motivation for convening the commission: “This issue is very important to me because, throughout the campaign and even after it, people would come up to me and express their concerns about voter inconsistencies and irregularities, which they saw. In some cases, having to do with very large numbers of people in certain states.”
The second meeting, held in New Hampshire in September, was electrified by unsubstantiated charges of rampant voter fraud in that state leveled by Kobach, a longtime proponent of the theory that voter fraud is a pressing danger, who also serves as Kansas secretary of state. Strangely, his charges had less to do with how voters in New Hampshire had conducted themselves than with the structure of the state’s election laws, which Kobach apparently dislikes. But neither the agenda for that meeting nor the list of witnesses invited to speak was vetted by the commission as a whole before the public session — it just appeared. I’ve served on many boards and commissions in my nearly 20 years in politics. I’ve never seen a session where members learned about what would happen in a meeting only when the agenda became public.
Since that meeting, there has been total silence from the leaders and staff of the commission about work happening behind the scenes. After repeated instances of learning about the commission’s activities only because reporters asked me about them, I sent a letter to Executive Director Andrew Kossack on Oct. 17 asking for information — including communications between the commissioners and federal agencies — about what the body I’m supposed to be a part of is doing. My request was simple: “I am seeking information because I lack it; I am asking questions because I do not know the answers. I am a keen observer of the public discourse, and it has been made manifestly clear that there is information about this commission being created and shared among a number of parties, though apparently not universally. Thus, I am in a position where I feel compelled to inquire after the work of the Commission upon which I am sworn to serve, and am yet completely uninformed as to its activities.”
More than a week later, on Oct. 25, I received the following reply: “I am consulting with counsel regarding a response to your request to ensure any response accords with all applicable law.”
That same day, I was forwarded a fundraising email from the conservative Minnesota Voters Alliance touting its invitation to present at our December meeting — the first I had heard that such a meeting was even being contemplated, much less scheduled. When I asked Kossack about our future meetings, he replied that no meeting was scheduled for December. I have yet to hear anything further
Our itinerary isn’t the only thing I can’t get clear information about. More than a month ago, The Washington Post reported on the arrest in Maryland of a researcher for the commission on charges of possession of child pornography. I can’t get answers about the disposition of the case: Is this researcher still employed by the commission? Has he been placed on leave? Has he resigned? I have no idea, as I have not received a response to my query to the commission.
The commission was established by executive order under the auspices of the Federal Advisory Commission Act (FACA), which requires notice of our public meetings, disclosure of our work product and the opportunity for public participation. FACA was written precisely so Americans would know what the government is doing and what it is considering, so we could participate in that process.
One of the agencies that some commissioners have been reportedly working with is the Department of Homeland Security, which oversees the implementation of the Real ID Act and has designated state election systems as “critical infrastructure.” DHS may decide to enter the field of elections management, under the ubiquitous mantle of “national security.”
Without transparency about the commission’s actions, how can you find out if a policy is being developed that may require you to have a Real ID-compliant driver’s license to vote? Or whether you’ll have to prove American citizenship at the polls? How will you know about proposed changes to voter registration deadlines or new restrictions on absentee balloting?
Of course, this is politics. But remember, we as American citizens are supposed to own the process. The desire to prevail in an election campaign has led to some sad episodes of voter intimidation and suppression in our country’s history. The Presidential Advisory Commission on Election Integrity should endeavor to challenge those fears and answer them, not add to them.