President Trump may have killed his panel probing allegations of widespread voter fraud, but the controversy surrounding its mission appears destined to continue.
Upon issuing an executive order last week terminating the Presidential Advisory Commission on Election Integrity — which met only twice and faced a flood of lawsuits — Trump said he had asked the Department of Homeland Security to take a look at the panel’s work and “determine next courses of action.”
Boosters of the commission, including its vice chairman and driving force, Kansas Secretary of State Kris Kobach (R), are pushing for the DHS to focus on using data that the department collects on citizenship to ferret out illegal voters on state voting rolls.
In theory, such a massive undertaking could bolster the unproven — and widely derided — claim by Trump that launched the commission: that millions of illegally cast ballots cost him the popular vote against Hillary Clinton in the 2016 presidential election.
Critics of the panel — including some of its Democratic members — say such an exercise remains misguided regardless of who conducts it.
“This is just another wild goose chase and a bad idea,” said Alan King, a probate judge in Alabama who was one of the more outspoken Democrats on the 11-member commission, whose work he characterized as aimed at voter suppression.
“There’s an ideology that they only want people to vote who look like they do and think like they do,” King said of his Republican colleagues on the now-defunct panel.
In an interview, Kobach lamented the end of the commission, which he blamed on uncooperative Democrats and paralyzing lawsuits, but said shifting its work to the DHS is a “natural handoff.”
Kobach — who has aggressively sought to prosecute alleged voter fraud in Kansas, where he is running for governor — said he plans to advise both the White House and the DHS on how to proceed. “The Trump administration still wants to put the facts on the table,” he said. One of the commission’s unfilled tasks was delivering a report to Trump.
It remains unclear how broadly the DHS sees its mission and how much input it plans to take from Kobach.
“Mr. Kobach is not advising the Department on this matter,” DHS spokesman Tyler Houlton said in a statement Friday.
While the DHS’s role could evolve, Houlton said its main focus now is continuing its work supporting state governments “against those who seek to undermine the election system or its integrity.” In October, the DHS convened a meeting to coordinate with states about keeping election machines and other “critical infrastructure” secure.
Civil rights groups and other critics of the commission applauded Trump’s announcement Wednesday that he was disbanding the panel, which had nominally been led by Vice President Pence.
But in the days since, several groups said they plan to closely monitor what happens in the DHS and other areas of the administration on voting issues.
“With or without the commission, the president remains fixated on the lie about massive voter fraud,” California Secretary of State Alex Padilla (D) said. “We need to remain vigilant. . . . There’s a lot they could do that we would find troubling.”
To that end, the NAACP Legal Defense and Educational Fund last week filed a Freedom of Information request with the DHS aimed at discovering what communications have taken place between department officials and commission leaders.
“I think it’s very hard to know what to expect because there has been such a lack of respect for the transparency of the process,” said Sam Spital, the organization’s director of litigation.
The commission proved a magnet for controversy since its inception and sparked an uproar when it made a sweeping request for voter data from states that even some Republican officials said raise privacy concerns.
Kobach and others have said the controversy was overblown, given the commission was seeking only data that is already public. Part of the aim was to determine how many people registered and voted in multiple states.
The request sparked several of the lawsuits that the White House cited as a rationale for shutting down the commission. The panel was also sued by Maine Secretary of State Matthew Dunlap, one of its own members, who claimed he and other Democrats were being kept in the dark about Republican deliberations.
Kobach said that moving the commission’s work into the DHS should allow it to proceed unfettered by lawsuits from outside organizations.
“It’s hard for an outside organization to stop an agency from doing its work,” he said.
Kobach said he is optimistic that the DHS could move more quickly in particular on comparing citizenship data to state voter rolls.
It remains unclear whether the commission will transfer the data it has already collected from the states — about half have complied, at least in part — or whether the DHS would have to begin that process anew.
On Friday, representatives of nearly a dozen organizations that have taken legal action against the commission wrote to DHS in objection to the transfer of the data, saying the commission had no legal authority to do so.
Vanita Gupta, the former head of the civil rights division of the Justice Department during the Obama administration, said it is possible that the DHS could launch deportation proceedings against noncitizens it discovers have voted. Or such cases could be referred to the Justice Department for prosecution, she said.
But the process of matching data would probably provoke renewed controversy from the states and could run into resistance in Congress, she said.
“It’s not without significant complication,” said Gupta, now president of the Leadership Conference on Civil and Human Rights.
Dale Ho, director of the Voting Rights Project for the American Civil Liberties Union, said previous attempts by states to tap DHS citizenship data have been fraught with problems, including rampant “false positives” in matching names.
He pointed to the experience of Florida, where in 2012 officials launched a campaign to remove noncitizens from the state’s voter rolls using a DHS database.
Florida officials initially said that “nearly 200,000 registered voters may not be U.S. citizens.” That number was later revised downward dramatically and led to the secretary of state’s office sending a list of 2,700 possible noncitizens to county election supervisors for verification. Ultimately, only 85 citizens were removed from the rolls, according to PolitiFact.
Ho and others say Hispanics and Asians, who have more common surnames, are more likely to be falsely identified as noncitizens. An analysis conducted by the Miami Herald on Florida’s efforts indicated that 87 percent of those identified by the state as noncitizens on the rolls were minorities and 58 percent were Hispanic.
Kobach played down such concerns, saying that many past problems — partly a result from lags in updates to DHS data — have been solved.
King, one of the Democrats on the commission, said it defies logic to think that noncitizen voting is widespread.
Those who are in the country legally are not likely to risk their potential for becoming a citizen, he said. And those who are undocumented are not likely to call attention to themselves by trying to vote.
“These folks want to fly under the radar,” King said. “Are they really going to hold themselves out as U.S. citizens to go vote?”
J. Christian Adams, a Republican on the commission, has sought to disprove such notions during his career.
He leads an organization whose work includes a report titled “Alien Invasion II,” which details the presence of noncitizens on the voter rolls in Virginia.
In a statement, Adams said moving the commission’s work into the DHS — without participation from Democrats — was a positive step.
“Foes of election integrity lost their seat at the table,” he said. “Now the important work of improving the integrity of the election process will be done by people who believe in election integrity, not by those who seek to preserve vulnerabilities in the system. . . . Before long they’ll realize that advocates of election integrity have more stamina, support and perseverance than they realize.”