In a victory for those who care about fair administration of elections, both to enfranchise all eligible voters and to prevent fraud and other election chicanery, the President has announced the disbanding of his controversial voter fraud commission. The commission was headed by one of the country’s most prominent voter suppressors, Kris Kobach, the Secretary of State of Kansas who has made it his business to make it harder to register and to vote in the name of preventing voter fraud. (The amount of voter fraud stopped by laws such as voter id laws and proof of citizenship laws appears to be miniscule. More on that in my 2012 book, The Voting Wars.) Also on the commission were other notorious vote suppressors, including Hans von Spakovksy. Kobach was the only prominent election official I’m aware of who has said, like Trump, that perhaps millions of people voted fraudulently in the 2016 election.
My expectation (as indicated in this June Slate piece), given the lopsided nature of the commission (many more Republicans than Democrats, the top Republicans who spew voter fraud lies and exaggerations, few Democrats with national experience, few election professionals) was that the commission would issue a report which would say that even if there was no *proof* of significant voter fraud, holes in the registration system and elsewhere made it a serious problem, and therefore there needed to be new laws, such as stricter voter id laws and proof of citizenship requirements to register to vote, in order to deal with potential problems. The report could have been used as a basis for federal and, more likely, red state legislation to make it harder to register and to vote.
So what explains the Commission’s demise, a demise coming only a few days after Kobach announced there would be another meeting in January?
The President’s statement, below, named the failure of some states to cooperate in providing data for the commission, data which was apparently going to be used to engage in some matching exercise to look for duplicate voting and registration. (I assume the reference to “Homeland Security” in the President’s message has to do with handling non-citizens who could vote. It could also refer to Russian hacking, but that seems less likely from the President.)
Surely the resistance of states (even Republican states that were protecting state sovereignty in elections) has something to do with it. But it was much more.
The Commission was poorly organized and conceived. It tried to operate to a large extent in secrecy, without recognition that doing so would violate the federal laws that govern presidential commissions and that protect privacy. It made rookie, boneheaded mistakes about handling documents used by the Commission, again in violation of federal law. It did not seem to have an end-game. It sounded more like a scheme cooked up around a kitchen table by Kobach, Adams, and von Spakovsky who saw an opportunity with Trump to take the national voter fraud hysteria show to a national stage.
The lawsuits helped, and it helped that Secretary of State Matt Dunlap of Maine, the most prominent national Democrat on the Commission, loudly protested what was going on in secret and eventually sued. I was critical of Dunlap (and everyone else) for participating in this sham commission, but thought he did the best job possible once he decided to participate.
It was also the light of publicity and the intense scrutiny the press and many of us gave the Commission. If they were going to provide a predicate for voter suppression, they were not going to be able to do it without a fight. What seemed possible at the beginning of the Trump Administration became less possible with constant publicity and scrutiny.
So what now?
Almost a year ago in Slate I wrote about what a fair commission would look like, to deal with serious problems in our elections, especially the problem of foreign hacking and interference:
First, members of the commission should be bipartisan and well-respected on all sides. This was the model of the Carter-Ford commission that investigated problems with the 2000 election, the Carter-Baker Commission that investigated problems with the 2004 election, and the Presidential Commission on Election Administration that was led by leading Democratic lawyer Bob Bauer and leading Republican lawyer Ben Ginsberg and that investigated problems with long lines and election administration after the 2012 election.*Legal commentator Andrew Cohen has suggested a commission headed by retired Supreme Court Justices Sandra Day O’Connor, David Souter, and John Paul Stevens, with a staff led by former U.S. attorney Patrick Fitzgerald. (All are Republicans, though Souter and Stevens leaned pretty liberal when they were on the court.)
Second, the commission should have professional staff with experience dealing with election administration aimed at searching for the truth through an examination of credible evidence. The Bauer-Ginsberg commission’s research director was Nate Persily, a Stanford law and political science professor who is known for his careful and even-handed research. Back in 2000 there were few political scientists and law professors studying the details of election administration. Now there are many and a large set of peer-reviewed studies on these issues, including questions of voter fraud. There are plenty of ways to try to examine these issues, and the precise claim of President Trump that 3 million to 5 million votes could have been cast illegally in a massive conspiracy without detection should be probed in a fair and scientific way.
Third, the commission should include people who actually run elections. It is the people who understand the nuts and bolts of voter registration and voting processes who can best work with social scientists in explaining the safeguards in place to protect against illegal voting and point to where holes and flaws in the system might be. The earlier commissions all included election officials who understand these processes.
Fourth, the commission should be careful to examine each allegation separately and to issue conclusions on each allegation. Is there any evidence of millions (or even thousands or even hundreds) of noncitizens voting in American elections? Is there any evidence of millions (or even thousands or even hundreds) of people voting in the name of dead people or otherwise impersonating eligible voters? Is there any evidence of double voting, and if so is it on a scale to influence the outcome of a presidential election? Is there any evidence of voter registration fraud, and if so, is there any evidence that voter registration fraud leads to actual fraudulent voting on a scale to influence the outcome of a presidential election? Or are many of the errors in the voting rolls due to harmless bureaucratic issues, such as top presidential advisers being registered in multiple states?
Fifth, the commission should look not only at the potential for fraud, but also at the potential for purported anti-fraud measures to suppress legitimate voters. How much voter fraud would any proposed strict voter identification laws prevent? Would restrictions on early voting and same-day voter registration deter voting more than they deter fraud? Is it possible that these laws are passed in order to give a partisan advantage to one party or the other rather than to prevent voter fraud?
It’s not too late to do this. Trump is not the one to organize it. But a serious reckoning is necessary.
But not tonight. Tonight is a night to pop champagne.
[This post has been edited.]
President’s statement:
POTUS does away with voter fraud commission citing states refusing to provide data. The commission was never able to point to any specific examples of widespread voter fraud. pic.twitter.com/xIauYUTGEP
— Katherine Faulders (@KFaulders) January 3, 2018