On Monday, Donald Trump’s election integrity commission paused its collection of voter data in response to the latest in a series of lawsuits and complaints alleging the controversial task force is breaking the law. The commission, which is led by Vice President Mike Pence and Kansas Secretary of State Kris Kobach, recently asked every state for an immense amount of sensitive voter information. In its rush to get the data, it seems, the commission has ignored any number of statutes and agency rules, an oversight that could ultimately prevent the group from getting its hands on any of the information it wants.
Monday’s abrupt halt in data collection is a direct response to a lawsuit filed by the Electronic Privacy Information Center. EPIC alleges that the commission is violating the E-Government
Act of 2002, which requires federal agencies to establish adequate data protections before collecting personal information using information technology. Specifically, an agency must prepare and publish a Privacy Impact Assessment that explains its methodology, outline how it would secure its data, and state whether the data would be disclosed to others. EPIC claims the Pence-Kobach commission has ignored this safeguard while storing voter records on an unsecure system that is not designed to protect personal data. By doing so, EPIC insists, the commission has run afoul of federal law.
EPIC urged a federal judge to block the commission from gathering more data until it complies with the E-Government Act. The commission has now voluntarily ceased data collection until the judge renders a decision on EPIC’s request.
The ACLU also filed suit against the Pence-Kobach commission on Monday, arguing that the task force is also violating the Federal Advisory Committee Act. FACA requires advisory committees to hold their substantive meetings in public with advance notice, and to make all records and reports “prepared for or by” the committee “available for public inspection.” Yet the Pence-Kobach commission has kept its records secret and held at least one meeting in private while planning a future meeting in a building with very limited public access.
Moreover, FACA requires a committee’s membership to be “fairly balanced in terms of the points of view represented.” The Pence-Kobach commission appears to be staffed exclusively by individuals who believe, contrary to the evidence, that voter fraud is a serious problem in the United States. Thus, the ACLU believes the commission does not comport with FACA’s standards.
The Lawyers’ Committee for Civil Rights Under Law filed a similar FACA suit on Monday. It has also alleged that Kobach himself has violated the Hatch Act, which prevents executive branch employees from using their “official authority” to influence elections. Kobach has declared his candidacy for the governorship of Kansas, and according to the Lawyers’ Committee, he is using his role in the commission to solicit contributions and attract support. His official campaign website highlights his role on the commission, as do his campaign social media feeds. Kobach has also discussed his work on the commission in television interviews that are then disseminated through his campaign platforms. These actions clearly flout the Hatch Act, the Lawyers’ Committee claims.
But that’s not all! Last Monday, Wendy Weiser of the Brennan Center for Justice and Larry Schwartztol of United to Protect Democracy sent a complaint to the Office of Management and Budget alleging that the commission is violating the Paperwork Reduction Act of 1980. Under the PRA, a federal agency must follow certain procedural requirements before sending an information request to more than 10 people. In particular, the agency must explain why it’s asking for data regarding the public, weigh the benefits and burdens of its request, articulate its plan for conducting the request and storing information, give public notice of its intentions, and accept commentary from the public. The process can take months. At no point has the Pence-Kobach commission even gestured toward compliance with the PRA.
These alleged legal transgressions are especially odd in light of the commission’s stated goal of protecting elections from fraud and interference. The Pence-Kobach group’s startlingly slapdash procedures may actually heighten the likelihood that previously secure voter data will be compromised. If the commission simply slowed down, it could probably find a way to comply with the various federal laws governing its conduct. Instead, it has made virtually no effort to follow the law in its mad rush to collect as much data as possible. That kind of recklessness can only heighten the widespread suspicion that the commission is interested in something other than “election integrity.”