States rebuff Kobach’s request for voter data, but a trap may await


The Daily Kos Elections Voting Rights Roundup is written by Stephen Wolf and edited by David Nir.

Leading Off

• Voter Suppression: Last month, Donald Trump’s “Election Integrity Commission,” led by notorious voting rights opponent Kris Kobach, sent alarms through the political world when it sent a letter to every stateseeking an extraordinary swath of data on every registered voter in the country. The request included names, addresses, birth dates, the last four digits of their Social Security numbers, party affiliation, the history of which elections they’ve voted in over the last decade, their registration status other states, their military status, and even whether they have felony convictions.

This move marked an opening gambit in the commission’s efforts to undermine confidence in the electoral system as a way to build support for new voting restrictions. In addition, because the commission is bound by federal laws that could require it to make all data it receives public, its request immediately raised privacy and security concerns because any such releases could violate state laws. (Kobach claims that individual voter registration records will not be made publicly available. This is the same man who was just fined by a federal court for making “patently misleading representations.”)

The reaction among state election officials has been merciless and bipartisan: More than 40 states have refused to share private data such as Social Security numbers with Kobach, while over a dozen more say they won’t provide any information whatsoever, calling the commission a sham. Mississippi’s Republican secretary of state even told Kobach he could “go jump in the Gulf of Mexico.” And get this: Kobach himself cannot submit private voter data as secretary of state under Kansas law.

This near-universal refusal to help Kobach create what would amount to a national voter registration file with extensive personal data might seem like a victory for voting rights, and some observers have argued that Kobach’s incompetence could be sabotaging his effort to create a pretext for voter suppression. However, others have urged caution, and we’ll explain below why even the states’ refusal to accede to Kobach’s demands will help him diminish public trust in the integrity of our election system.

Mike Pence nominally serves as chair of the commission, and his office recently confirmed that Kobach, the vice chair, would take the lead on running the registration info it receives against federal databases to check for supposedly fraudulent registrations. Kobach and his fellow Republicans have been doing this same thing for years at the state level, comparing registration records with other sources using overly simplistic algorithms that produce plenty of false positives. That in turn allows them to claim widespread voter fraud and use these matching errors as an excuse to push new voting restrictions.

As secretary of state in Kansas, Kobach has successfully convinced over 30 other states to adopt his system, known as Crosscheck. However, Crosscheck is notoriously inaccurate, and using limited data such as just names and birthdates has been estimated to produce as many as 200 false positives for every actual improper registration record. In a nation with roughly 200 million registered voters, there are bound to be many people named James Smith or Maria Garcia who share the same birthdate.

A good-faith effort to eliminate duplicate registrations would need to examine a broader array of data points, like Social Security numbers and registration dates. However, as voting expert professor Michael McDonald warns, even the Social Security Administration itself has told states that its own database is not sufficiently reliable such purposes. Of course, Kobach is not engaged in anything resembling a good-faith effort. Instead, he purposefully wants to produce yet more false positives to lend credence to Trump’s utterly false claim—which Kobach agrees with—that there were millions of fraudulent ballots cast in 2016.

McDonald further cautions that even the states refusing to submit private data to Kobach could unwittingly be playing into his hands by making false positives more likely, since their records would contain fewer data points. Kobach unquestionably knew that many states—including his own—could not fully comply with his request, so he’ll wind up getting data that will only help him make his own bogus case more easily.

It has been obvious from the beginning that the commission’s sole purpose is to provide a pretext to introduce new voting restrictions, no matter how flimsy. These restrictions are likely to take shape in the form of amending the National Voter Registration Act, better known as the “Motor Voter” law. These amendments would likely include a burdensome proof-of-citizenship requirement, purges of voter rolls, and a requirement that people re-register—and we know all this because Kobach was literally photographed holding a sheet of paper with talking points that included a line about amending the NVRA. (Kobach’s reprimand about his “patently misleading representations” came in a lawsuit over the contents of that very document.)

Voting rights advocates are looking into legal action against the commission, and the Lawyers’ Committee for Civil Rights Under the Law has already filed a legal complaint against Kobach himself. They allege that he has violated the Hatch Act by using his federal position as commission vice chair to promote his 2018 election campaign for Kansas governor. Meanwhile, the Electronic Privacy Information Center has filed for a temporary restraining order against the commission itself, alleging that it’s failed to comply with federal privacy laws. Indeed, the commission could be in violation of several other federal laws as well.

And while the commission wants to make all kinds of data about voters public, it’s been extremely taciturn about its own makeup. Kobach’s role had been known for some time, but only on Thursday did we learn the names of all 10 members. The only two prominent Democrats are Maine Secretary of State Matthew Dunlap and New Hampshire Secretary of State Bill Gardner. Two obscure members, former Arkansas state Rep. David Dunn and West Virginia’s Wood County clerk Mark Rhodes, round out the Democratic delegation. The rest are all Republicans. All of these Democrats should never have joined the panel in the first place, but with Kobach’s latest affront making it clearer than ever that this is all just a brazenly partisan witch-hunt to restrict voting rights, they need to quit immediately.

Voter Registration

• Massachusetts: Massachusetts currently requires voters to register at least 20 days ahead of an election, and a new ACLU-backed lawsuit targeting this deadline went to trial this past week. Last fall, three plaintiffs had registered after the deadline and would have been barred from voting in November if not for a state court issuing an emergency injunction allowing them to cast provisional ballots. If the courts rule that this 20-day deadline violates Massachusetts’ state constitution, that could have the effect of enabling same-day registration in the Bay State.

Aside from Rhode Island, which offers same-day registration for only the presidential ballot, all other New England states enable voters to register and cast a ballot on the same day, up to and including Election Day. However, state Attorney General Maura Healey, a Democrat, is nevertheless defending the current law, saying she favors passing same-day registration legislatively instead. While Democrats have held veto-proof majorities in the legislature for decades, they still have not advanced a same-day registration bill, although a separate automatic registration proposal has recently been gathering steam.

• Rhode Island: Rhode Island is poised to become the latest state to adopt automatic voter registration after its heavily Democratic legislature overwhelmingly passed a bill that would register every eligible voter who interacts with the Division of Motor Vehicles, unless they opt out. This bill would also expand automatic registration to other state agencies once they have met standards to verify voter eligibility requirements, a crucial addition since many low-income urbanites might never have reason to go to the DMV in the first place. Democratic Gov. Gina Raimondo supports the measure and is expected to sign it.

Voter Suppression

• North Carolina: Democratic Gov. Roy Cooper is currently suing to block a new law, passed over his veto by the GOP-dominated legislature, from going into effect, one that would remove Democratic majorities from the state and county elections boards. (We have previously covered the topic in detail.) A trial-level court dismissed Cooper’s lawsuit early last month, and both that court and the heavily Republican state Court of Appeals have refused to issue an injunction while Cooper appeals.

At the end of June, Cooper appealed to the state Supreme Court, asking it step in and issue the injunction that the lower courts have turned aside, and the high court will likely soon issue its decision in the matter. Although Democrats hold a majority on North Carolina’s Supreme Court, there is no guarantee that Cooper will obtain a favorable outcome.

The governor has pledged to finally appoint members to the now-vacant state board following the high court’s decision, though it remains to be seen whether Cooper will be permitted to name a Democratic majority, as permitted under the old law, or whether he’ll be required to install an evenly divided panel based on the GOP’s new one.

• Texas: Just as many feared when Jeff Sessions became attorney general, the Justice Department has dropped its opposition to a key state voting restriction, telling a court on Wednesday that Texas’ new voter ID law is no longer discriminatory. A federal court had struck down Texas’ previous strict voter ID law in 2016 for having a discriminatory effect and temporarily required GOP legislators to “soften” its requirement for last year.

Republican legislators made those temporary measures permanent in May, but a federal district court recently ruled they passed their original law with discriminatory intent, which could be grounds for throwing out the voter ID law entirely if that ruling survives appeal.

Redistricting

• North Carolina: The U.S. Supreme Court struck down North Carolina’s Republican-drawn state legislative districts as unconstitutional racial gerrymanders in early June, but it waited until the last day of the month to return jurisdiction over the case back to the district court that will oversee the process for redrawing these maps. This delay has enabled Republican legislators to drag their feet over producing new lines, likely precluding any possibility of holding 2017 special elections under new maps, which the district court had originally ordered until the Supreme Court overruled it.

North Carolina law gives the legislature at least two weeks to produce a new map in scenarios like this, and Democratic Gov. Roy Cooper had called a special session in June in an effort to start the clock, but the GOP-dominated legislature rejected the call. Legislators adjourned their regular session at the end of last month, but Republicans have already planned two special sessions in August and September, and they’ve set a deadline of Nov. 15 to produce new legislative maps.

The candidate filing period for the state’s regularly scheduled municipal elections this November runs from July 7 to 21, so the district court might ultimately conclude that holding legislative special elections would be too disruptive given that we’re already in July. That would mean these unconstitutional districts would remain in effect until the regularly scheduled elections in November 2018, which is what Republicans are attempting to ensure.

In other state redistricting news, Republican legislators forced through a new law over Democratic opposition that requires the progressive bastion of Asheville to switch from holding at-large races for city council to electing all of its members by districts. However, unlike the legislature’s gerrymanders of local government districts in Greensboro, Raleigh’s Wake County, and other jurisdictions, Republicans did not force a particular district map on Asheville. City officials nonetheless vehemently oppose the new law as a violation of local rule, and litigation is possible.

• Utah: Republicans have dominated Utah’s state government for decades and have mercilessly gerrymandered the Beehive State’s congressional and legislative districts, but a new reform organization is seeking to change that. Former Salt Lake City Mayor Ralph Becker, a Democrat, and Republican Jeff Wright, who served in a leadership position in ex-Gov. Jon Huntsman’s 2012 presidential campaign, are spearheading a ballot initiative drive that would create an independent redistricting commission and take away the legislature’s control over the redistricting process.

This initiative faces a tough path to the ballot, since Utah requires organizers to submit voter signatures equal to 10 percent of votes cast in the last presidential election in 26 of 29 state Senate districts. That means Becker and Wright will have to gather signatures in sparsely populated and dark-red seats, which will be costly, time-consuming, and require GOP support, given how conservative Utah is. Furthermore, Utah voters can only initiate statutes, not state constitutional amendments, so Republican lawmakers could simply repeal the law if the initiative passes.

However, the results could be significant if the initiative succeeds. Daily Kos Elections has previously demonstrated how nonpartisan redistricting would likely give Democrats a new, strongly blue congressional seat in Salt Lake County. Republicans have currently divvied up (or “cracked,” in redistricting lingo) the county between three different House district to ensure every seat remains safely in GOP hands.

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