Donald Trump’s Presidential Advisory Commission on Election Integrity might get blown up from the inside. On Thursday, Maine Secretary of State Matthew Dunlap, a Democratic member of the voter fraud commission, filed a bombshell lawsuit against the commission and its chairs, alleging that the group has been violating federal law. Dunlap alleges the committee is a cynical partisan effort to exaggerate the frequency of fraudulent voting, that it flouts legal regulations, and that its token Democratic participants have been systematically shunned. Multiple civil rights advocates have already sued the commission for similar chicanery, but Dunlap’s suit is different. He isn’t just demanding access to potentially damning documents and information: He appears to be atoning for his mistake of joining the commission by fighting to expose the rottenness at its core.
Trump established the commission after claiming that 3 million to 5 million illegal votes were cast in the 2016 election. He appointed Kansas Secretary of State Kris Kobach, a Republican notorious for his nativist voter suppression schemes, as its vice chair. Kobach has a penchant for peddling easily debunked lies about voter fraud. He has claimed that 18,000 noncitizens are registered to vote in Kansas; although that’s a blatant fabrication, he’s used this claim to justify suspending the voting rights of about 35,314 Kansans. His pet project, Crosscheck, purports to identify voters who are registered in multiple states so election officials can purge them from the rolls. It has a 99.5 percent false positive rate.
By putting Kobach in charge, Trump made the commission’s true purpose—to vindicate his allegations of mass voter fraud—quite obvious. Kobach was happy to oblige but also had another goal in mind: Shortly after the election, he emailed Trump’s transition team proposing amendments to the National Voter Registration Act of 1993. As Kansas’ secretary of state, Kobach tried to force residents to provide proof of citizenship before they could register to vote, which the NVRA prohibits. In his emails and meetings with Trump, Kobach urged the president to push for an amendment to that legislation that would allow states to force voters to provide a passport or birth certificate before casting a ballot.
There was just one problem with Kobach using the commission to launch an attack on the NVRA: To pull it off, he would likely have to break the law. The Federal Advisory Committee Act, or FACA, governs the conduct of commissions like Kobach’s, and requires them to follow certain guidelines to ensure transparency and prevent bias. FACA stipulates that advisory committees have “fairly balanced membership” with different “points of view,” and that they not be “inappropriately influenced by the appointing authority” or “any special interest.” In addition, committees must provide timely public access to all “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents” that its members consult or prepare. These provisions have been interpreted to grant committee members “an enforceable right to obtain” these documents, and “to fully participate in the deliberations of the Commission.”
FACA’s guidelines are not mere suggestions; they are legal obligations. And under Kobach’s leadership, the commission brazenly flouted them. Dunlap, one of four Democrats on the commission—the other seven members are Republicans—says in his lawsuit that he was railroaded from the start. He claims he was notified that Kobach would request a vast amount of sensitive voter data just hours before the commission sent letters to all 50 states and the District of Columbia. He also says he was denied access to dubious and controversial documents distributed at the commission’s notorious first public meeting. And he was allegedly excluded from preparations for the group’s next public meeting, at which he sharply criticized Kobach’s erroneous claim in Breitbart that he had “proof” of voter fraud in New Hampshire. Following that meeting, Dunlap says, he was actively excluded from the commission’s work and denied access to documents shared by other members.
“Despite diligent efforts to gain access,” Dunlap’s suit complains, “Secretary Dunlap has been, and continues to be, blocked from receiving Commission documents necessary to carry out his responsibilities.” By “freezing Secretary Dunlap out from all substantive Commission activities and information,” Kobach and his allies clearly violated the plain letter of FACA.
Dunlap’s suit has even more incriminating material. It notes that “many commissioners,” including Kobach, “have used and continue to use personal and nongovernmental email addresses for Commission business.” In addition to compromising data security, this practice jeopardizes the commission’s ability to collect and index all of its communications—which a federal judge has ordered it to do pursuant to the Freedom of Information Act. The lawsuit continues:
Secretary Dunlap has asked commissioners to use his official Maine governmental email address for Commission business to ensure records are properly maintained. Despite repeated requests, commissioners and Commission staff continue to use Secretary Dunlap’s personal email address. Secretary Dunlap forwards each Commission email to his Maine governmental email address but other commissioners may not be as diligent.
Here, Dunlap strongly implies that his colleagues are violating a federal court order compelling the storage of their commission-related emails.
The tone of Dunlap’s lawsuit is notable: He is not bitter, just exasperated. It appears that he joined the commission out of a genuine desire to investigate election practices and, if necessary, suggest improvements to the nation’s voting system. But it didn’t take long for him to learn, he says, that he’d been invited “to afford the Commission and its prospective findings a veneer of legitimacy.” Dunlap cites an email from commission member Hans von Spakovsky, in which the disenfranchisement crusader insisted that the group include no Democrats. (The email’s initial recipient is unclear, but it was ultimately forwarded to Attorney General Jeff Sessions.) This email, the lawsuit notes, suggests that “the Commission’s superficial bipartisanship has been a facade” from the start.
Dunlap could have responded to the commission’s fundamental fraudulence by simply quitting. Instead, he has done something far more admirable, asserting his right to determine what, exactly, his colleagues are up to—what secrets they are so anxious to hide from his eyes. Dunlap helped to legitimize this commission. Now he appears eager to blow the whistle on its duplicity.
