The power of concerned, mobilized citizens, legal action and bipartisan rebuke forced President Trump to shut down his phony, flawed-from-the-start Pence-Kobach voting commission last night. Although this is a victory for everyone who cares about strengthening democracy, we must remain ready to fight just as hard when the Trump administration pushes policies that attack the fundamental right of every American to vote and have their vote counted as cast.
Last fall, Common Cause published “Flawed from the Start,” which detailed much of the commission’s dysfunction: it was stacked with the wrong people pushing the wrong agenda. The report detailed how the commission lacked the legitimacy and credibility of previous presidential commissions on election administration issues — and posed real threats to the right to vote.
We were close this month to publishing an updated snapshot of the commission’s most recent problems. And while we were thrilled to stop the presses last night, it’s important to preserve a record of its errors so that they never happen again.
One of the commission’s members sued the commission and won a court victory in December
In October, Maine Secretary of State Matt Dunlap — a member of the commission — wrote to the commission’s executive director, Andrew Kossack, complaining that he had “received utterly no information or updates from Commission staff or leadership about ongoing active research, inquiries for research requests, documents for consideration during future meetings, or indeed any information about whether or not the Chair has plans on convening another meeting.”
{mosads}In November, having received no response from Kossack, Dunlap took the extraordinary step of suing the commission, alleging that he is being “blocked from receiving Commission documents necessary to carry out his responsibilities.” He wrote that his suit was intended to “salvage a process that, at present, risks becoming exactly the kind of one-sided partisan undertaking the Federal Advisory Committee Act was designed to prohibit.”
Writing in The Washington Post, Dunlap explained that at its second in-person meeting, “neither the agenda for that meeting nor the list of witnesses invited to speak was vetted by the Commission as a whole before the public session – it just appeared.” Moreover, “since that meeting, there has been total silence from the leaders and staff of the Commission about work happening behind the scenes.” His only knowledge about purported future meetings came from outside sources, Dunlap said.
In late December, Dunlap scored his first victory; a federal judge ordered the commission to provide him with the necessary documents. The court wrote that he “has a right, as a commissioner, to ‘fully participate’ in the proceedings of the commission,” and without the documents, his “right to fully participate in the commission would be irreparably harmed.”
High-ranking national security and intelligence officials filed a legal brief raising cybersecurity concerns about the commission’s work
In support of Common Cause’s lawsuit against the commission, which challenges its violations of the Privacy Act, nine former high-ranking national security officials — including former Director of National Intelligence James Clapper and former National Counterterrorism Center Director Matt Olsen — filed an amici brief warning about the national cybersecurity risks of the commission’s planned private voter information database and its vulnerability to hacking.
The commission “has provided no meaningful assurance about measures that it is now using to secure [the] pool of data” that it is collecting, they wrote. “This suggests an overall lack of attentiveness to the magnitude and gravity of the cybersecurity risks posed.”
The officials also warned, that “in sharp contrast to the requirements of the Privacy Act, the commission does not appear to have established any rules or procedures governing access to the database or any rules governing ongoing safeguards.”
The Government Accountability Office opened an investigation after the commission ignored congressional requests for information
At the request of three U.S. senators, the Government Accountability Office (GAO) opened an investigation in October into the operations of the commission. The GAO is an independent, nonpartisan federal agency that acts a watchdog for accountable government. The Democratic senators — Michael Bennet of Colorado, Amy Klobuchar of Minnesota and Cory Booker of New Jersey — requested:
- a review of the funds being used to support the commission’s work;
- its efforts to address voter participation;
- the steps the commission has taken to protect voter information;
- the steps the commission has taken to adhere to regulations governing its activities; and
- the methodology and analysis that the commission employs to reach its conclusions.
Their request came after the commission “ignored numerous requests from Members of Congress” amid questions “about the partisan motives and actions of the Commission.”
A high-profile member of the commission opposed the appointment of Democrats and “mainstream Republican officials” to the commission
Before the White House announced the commission’s membership, Hans von Spakovsky, an election law attorney with a long record of support for limiting access to the ballot, said that including Democrats or “mainstream Republican officials” on the commission would “guarantee its failure.”
He made the comments in an email obtained by the Campaign Legal Center through a Freedom of Information Act request. Von Spakovsky argued that there are “only a handful of real experts on the conservative side of this issue,” and that “if they are picking mainstream Republican officials and/or academics to man this commission it will be an abject failure because there aren’t any that know anything about this.”
The von Spakovsky email eventually was forwarded to Attorney General Jeff Sessions.
New lawsuits and complaints against the commission or its members
In shutting down the commission, the White House cited the multiple lawsuits against it.
The commission is the named defendant or subject of at least 10 ongoing lawsuits and complaints brought by public interest organizations, voters and public policy experts, as tracked by the Brennan Center for Justice. The complaints challenge a range of important matters, including the commission’s plans for storage and protection of voter data and its lack of legal authority to seek data from some states to hand over to the White House.
Protecting our resilient democracy – proactive reforms for secure, accurate, accessible elections
The commission’s demise leaves many unanswered questions. What will happen to the data it has collected? What did the president mean when he said that he has “asked the Department of Homeland Security to review these issues and determine next courses of action”? Will the data be transferred and used to purge eligible voters off of the rolls?
Here is what’s clear: Americans will continue pushing — and some states already have embraced steps — to make our elections more secure, accurate and accessible. Reforms like online voter registration and automatic voter registration help ensure that our voter registration lists are more accurate and up-to-date — and save money. “Risk-limiting” audits adopted last year in Colorado and coming soon to Rhode Island ensure election outcomes are consistent with voters’ intent. A suit pushing back against illegal efforts to purge millions of eligible Americans from the rolls will be heard in the Supreme Court next week.
When we work together, we can advance a democracy that is resilient and that works for us all.
Stephen Spaulding is chief of strategy for Common Cause; he previously served as special counsel to former Commissioner Ann M. Ravel at the Federal Election Commission. Follow him on Twitter at @SteveESpaulding.