Posted by Ryan Suto on September 14, 2017 in Blog

An afternoon Tweet, only weeks after the 2016 election, re-launched an important conversation about voting rights in the United States: “…I won the popular vote if you deduct the millions of people who voted illegally” Unfortunately, no assertion in that Tweet is supported by evidence. Nonetheless, President Donald Trump empaneled the “Presidential Advisory Commission on Election Integrity” to investigate voter fraud in the United States based on his personal assertion that ‘illegal votes’ were cast against him. The Pence-Kobach Commission, as it is known, reinforces repeated conservative claims of rampant voter fraud that have been either completely unsubstantiated or supported by evidence that has been routinely undermined.

While blatant lies from the White House is certainly a new low, misleading claims from some Republican politicians and pundits who seek to gain political advantage are not new for this election cycle. A decade ago election law Professor Rick Hasen chronicled the agenda and disappearance of the American Center for Voting Rights (ACVR), a Karl Rove-allied attempt to “give ‘think tank’ academic cachet to the unproven idea that voter fraud is a major problem in elections. That cachet would be used to support the passage of onerous voter-identification laws that depress turnout among the poor, minorities, and the elderly—groups more likely to vote Democratic.” While the ACVR is no more, the broader strategy has had success across the country: since 2010 the legislative onslaught to restrict and suppress voting has led to 23 states passing restrictive voting laws. Fourteen of these state laws were introduced for the 2016 election, potentially contributing to the “pervasive decline in 2016 minority voter turnout” that Brookings has found. Strict voting identification laws have been found to depress voter turnout for “Hispanics, Blacks, and mixed-race Americans”, often specifically target African Americans, and skew the vote toward conservative candidates. No wonder why Trump has taken up the cause of strict voter identification.

This most recent episode of voter suppression stars Commission Vice Chairman Kris Kobach, Secretary of State of Kansas. The ACLU noted that “The U.S. Court of Appeals for the 10th Circuit… found that Kobach had engaged in “mass denial of a fundamental right” by blocking 18,000 motor voter applicants from registering to vote.” He has also pushed requirements for voters to present a passport or birth certificate when registering to vote, documents which up to 7% of Americans, disproportionately minorities, do not have readily accessible.

Seeing through the façade of civic concern, forty-five states and Washington, DC either declined the Commission’s request for voting data or only proved what is otherwise publicly available, prompting the Commission to modify their approach and issue a second request, which has been met by at least sixteen denials thus far. The Commission has faced other hurdles, as well. Before the first meeting a US District Judgeadmonished the panel for a lack of transparency and potentially violating federal disclosure laws.

Before the Commission’s second meeting on Tuesday September 12, Kobach claimed that “out of state” voters influenced New Hampshire’s 2016 senate race. He ignored the simple reality that new residents and out-of-state college students are eligible to vote in New Hampshire and are not required to have New Hampshire driver’s licenses to vote, as settled in the 2015 case Guare v. New Hampshire. The article was subject of some pushback at Tuesday’s hearing. 

Days before the September 12 meeting the New York Times reported that William Gardner, New Hampshire Secretary of State and a Commissioner appointed by Trump, has spoken positively about Jim Crow-style policies, writing, “[Gardner] added that when burdens like poll taxes and literacy tests were imposed on citizens and registering often required a trip to the local courthouse, voter turnout was far higher than it is now.” The witness list for the meeting was composed entirely of white men, and one presentation to the panel suggested requiring all voters undergo the same federal background check system required to purchase firearms. In fairness, that suggestion was reportedly met with some resistance.

While the Pence-Kobach Commission is searching for justifications for voter suppression across the country, the U.S. Election Assistance Commission (EAC) held a less publicized, expert-driven and bipartisan Technical Guidelines Development Committee meeting from September 11 through 12 to discuss important topics such as voting system guidelines, cyber security, and voting infrastructure. Also, the Federal Election Commission (FEC) has only four commissioners, after a Democratic commissioner resigned in March and Trump nominated a Republican Commissioner to the federal bench. Four members is the minimum number required for official action, with six being a full slate. Trump’s lack of urgency to nominate replacements is worrisome, as current FEC members have expressed desires to resign. Without a capable FEC, federal-level investigations or penalties for elections violations cannot occur, even as the 2018 midterm campaigns are set to begin in earnest early next year.

If the Trump Administration were seriously concerned about the integrity of U.S. elections, it could have highlighted the work of the EAC, giving political credence to the findings of actual experts on real issues facing our voting framework, or simply appointed commissioners to the FEC, an existing institution charged with monitoring our most important right. However, the president has instead chosen to continue to undermine public trust in, and understanding of, our electoral system in the interest of furthering voter suppression tactics by some on the right which disproportionately disenfranchise minorities across the country.