Justin Levitt: Pence-Kobach “Election Integrity” Commission Requests May Violate Federal Law

Justin at Take Care on the requests for voter information I expressed concern about yesterday:

In the abstract, the information itself isn’t the real problem.  There are ways that careful researchers engage voter files that can assist and enlighten.  But those researchers don’t just jam hundreds of millions of partial records willy-nilly into a wide-open public pot and stir.  It is wildly irresponsible for a federal entity to ask for all of this information without first discussing how it will be used, and whether collecting it for those purposes is a good idea.

And leave aside, for just a moment, what the commission actually plans to do with the data.  (Kobach apparently thinks he can match the information he collects with other sources to assess the state of the voter rolls.  With the information he’s likely to get, he’ll have profound problems with the accuracy of any conclusions.  More on that here and here, from people who know.  And here, from me.)

What Kobach is asking may also be illegal.

We’ve long had privacy and security concerns about government recordkeeping in this country.  Back in 1974, Congress passed the Privacy Act, regulating how federal government entities keep records.  There are a number of substantive requirements for a body like the Kobach commission.  Those actually include specific limits on data that Kobach has asked for, like voting history and party affiliation.

And there are also a bunch of procedural requirements, including the requirement to publicize some basic facts on the records you’re collecting – and even to run it by specific Congressional committees.  Things like who you’re getting information about, what information you’re getting, where you’re getting it from, how you’re going to use it, how you’re going to regulate access to it, how you’re going to secure it, and how you’re going to protect people from being embarrassed or harmed by your inevitable misuse of it.



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