Donald Trump’s attempt at voter suppression through his “election integrity” commission is a voting rights nightmare that is being enacted so clumsily it just might backfire.
Both before and after the election, Trump made wild and unsubstantiated claims about voter fraud and the system being “rigged.” Before the election, many of the claims were about voters voting five, 10, or 15 times by impersonating other voters. The ridiculous and unproven charges of voter fraud had a racial tinge, with suggestions the fraud would happen in majority minority communities.* According to the New York Times, he told an audience in Wilkes-Barre, Pennsylvania, a few weeks before Election Day: “I just hear such reports about Philadelphia. … I hear these horror shows, and we have to make sure that this election is not stolen from us and is not taken away from us.” He added for emphasis: “Everybody knows what I’m talking about.”
After the election, he shifted his unsubstantiated fraud talk from rumormongering about voter impersonation to claims of massive noncitizen voting. Trump said repeatedly that 3 to 5 million illegal voters had cast ballots, a claim so outlandish it is hard to know where to start to refute it. (We could start with a Brennan Center report which, so far, has found a total of 30 cases nationwide of possible noncitizen voting. That’s 30, not 300, 3,000, 30,000, 300,000, or 3 million.) He claimed that “none” of the supposed fraudulent votes went to him.
In hindsight, the focus on noncitizen voting makes sense, and the endgame is about passing federal legislation to make it harder for people to register and vote. The noncitizen focus fits in with Trump’s anti-immigrant rhetoric as well as the rhetoric of Kris Kobach, the Kansas secretary of state who has been advising Trump on voter fraud issues. Kobach has repeatedly lost in lawsuits against the American Civil Liberties Union on account of his actions to make it harder for people to register and vote. Just last week, a federal magistrate judge fined him $1,000 for misleading the court by attempting to shield a document regarding his advice to Trump on how to make voter registration harder.
Trump has put Kobach in charge of a commission that is supposed to examine problems with voter fraud and report back to the president. (Vice President Mike Pence is the formal head, but it is clear Kobach is the one calling the shots.) Back in January, when Trump announced he would launch an investigation into voter fraud, I laid down some markers here at Slate for what a fair commission would look like. It would have bipartisan elder statesmen heads (like earlier voting commissions); it would have professional staff and rely on people with experience in running and analyzing elections; it would look for areas of bipartisan consensus.
Trump’s commission is none of these things. There is no professional staff, a B-list of token Democrats to give the commission a bipartisan veneer, and the work is being done out of the Executive Office of the President. (Given that Trump is an announced candidate for the next presidential election, he’s hardly a person who can be counted on for a fair and impartial review.)
Most importantly, the commission includes a rogue’s gallery of the country’s worst voter suppressors. Not just Kobach, but former Ohio Secretary of State Ken Blackwell, who was notorious for rejecting Ohio voter registration forms because they were not printed on heavy enough paper. And on Thursday, Trump added Hans von Spakovsky, one of the original leaders of what I termed the Fraudulent Fraud Squad.
Von Spakovsky has a history of making false and unsupported claims of voter fraud, and using them to argue for voting laws that make it harder to register and vote. In one notorious incident, chronicled in an excellent 2012 New Yorker profile by Jane Mayer, von Spakovsky claimed impersonation fraud was a major problem, pointing to a 1982 New York grand jury report. At the time von Spakovsky made the claims, I had been researching the topic of impersonation fraud for my book, The Voting Wars. I couldn’t find a single election anywhere in the United States since the 1980s where impersonation fraud was used to swing an election. (That’s because it is an exceptionally dumb way to try to steal an election: Pay people to go to the polls claiming to be someone else, not know how they voted, hope they don’t get caught by poll workers who may know the people being impersonated, and do it in large enough numbers to swing your candidate from defeat to victory.)
Despite my repeated requests, von Spakovsky would not turn over the grand jury report. When Mayer asked von Spakovsky why he’d refused to give me the document, he told her he was not my “research assistant.” We were finally able to track it down, and it unsurprisingly did not support his case in the slightest.
Kobach, Blackwell, von Spakovsky—this is a list meant to send a message to those who care about voting reform on both sides of the aisle that this is not a serious effort to propose bipartisan solutions. (Indeed, if you want bipartisan solutions, just turn to the 2014 report of the Presidential Commission on Election Administration, which was headed by Mitt Romney’s lawyer Ben Ginsberg and Obama’s lawyer Bob Bauer. But don’t look at the government website which used to host the report—Trump took it down.)
Here’s the likely endgame. Kobach has requested that every state send detailed voter information to the commission. Never mind the privacy concerns or the fact that this intrudes on what the right always refers to as states’ rights to run elections as they see fit. If a left-wing Obama appointee requested this information, it would prompt a federal investigation and be at the top of every Fox News segment for months.
Kobach’s likely going to use this information to try to “match” voters and show there is bloat on the voter rolls, such as dead voters and people who have moved but have not been removed from the rolls. He’ll also likely find a small number of noncitizens who are registered to vote. Doing this kind of matching well is tough business: It is easy to claim that two people with the same name are the same person, or that someone is a felon because he has the same name as a felon. But Kobach will not be relying on election administration professionals to do that work; he’s going to use the president’s staff.
The report will likely conclude that even if there is no evidence of actual voter fraud, the potential for voter fraud and noncitizen voting is there because of inaccurate rolls. Accordingly, they will argue it is necessary to roll back the 1993 National Voter Registration Act (or “motor voter” law)—a law which folks like Kobach hate because among other things it requires states to offer voter registration at public service agencies. They’ll want federal law to do what federal courts have so far forbidden Kobach to do: Require people to produce documentary proof of citizenship before registering to vote. In other words, show us your papers or you can’t register.
Repealing the enfranchising parts of the motor voter law would be a terrible thing, but the good news is that the “electoral integrity” commission’s efforts are already so outlandish and lacking in credibility that it will do nothing to help get the law repealed. Serious Democrats and Republicans know this effort is a sham. This is a faux commission that is not following sound social science or bipartisan principles.
That’s not to say there won’t be an attempt to kill the motor voter law. Indeed, the move toward voter suppression is proceeding apace. Just this week, a House committee voted to defund the United States Election Assistance Commission, a federal agency which is charged with certifying the security of voting machines and coming up with best practices for election administration. And the U.S. Department of Justice is looking to make states enforce the voter purge provisions of the 1993 motor voter law.
But the Trump commission process has been so poorly handled that whatever it concludes will be likely ignored by serious people, even while the president latches onto it to make it harder for people to register and vote. He’s overplayed his hand, and we should be thankful for that.
*Correction, July 2, 2017: This article originally mischaracterized Donald Trump’s “unproven charges of voter fraud” in the 2016 election as “unproven charges of voter suppression.” (Return.)