In the past week election officials in dozens of states have rejected a request from the newly-formed Presidential Advisory Commission on Electoral Integrity to provide voter records for a study on the extent (if any) of election fraud. Some of those officials have expressed great indignation that the commission would even ask. Yet many of those same officials would gladly sell those very same records — to campaigns, to candidates, to political consultants, even to you. It's a situation that baffles some political veterans.
President Trump created the commission by executive order on May 11. Vice President Mike Pence is the chairman, and the vice chairman is Kris Kobach, the Kansas secretary of state and gubernatorial candidate. Kobach is the one who sent the request to officials in all 50 states.
The purpose of the commission, Kobach wrote, is to identify "rules, policies, activities, strategies, and practices that enhance or undermine the American people's confidence in the integrity of federal elections processes." Kobach asked state officials to answer some straightforward questions, like "What changes, if any, to federal election laws would you recommend to enhance the integrity of federal elections?" and "What evidence or information do you have regarding instances of voter fraud or registration fraud in your state?" and "What recommendations do you have for preventing voter intimidation or disenfranchisement?
Nothing too controversial there. But then Kobach added the request that has set off a firestorm:
In addition, in order for the commission to fully analyze vulnerabilities and issues related to voter registration and voting, I am requesting that you provide to the commission the publicly available voter roll data for [your state], including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.
In response, state officials not only refused to provide Kobach the requested information — at least 45 have said no so far — but have tried to outdo each other in expressing patriotic outrage that the commission would even consider asking such a thing.
"My reply would be: They can go jump in the Gulf of Mexico," wrote Mississippi's Republican secretary of state, Delbert Hosemann.
"[The] Constitution ensures voters ballot choices will always be secret. Americans have died protecting this freedom," tweeted South Carolina's Republican governor, Henry McMaster.
"I find this request for the personal information of millions of Marylanders repugnant," said Maryland Attorney General Brian Frosh. "It appears designed only to intimidate voters and to indulge President Trump's fantasy that he won the popular vote."
"I have no intention of honoring this request," said Virginia's Democratic Gov. Terry McAuliffe. "This entire commission is based on the specious and false notion that there was widespread voter fraud last November."
For commission members, the responses are hard to understand. "The reaction to this has been absurd," said Hans von Spakovsky, a former Bush Justice Department official, former member of the Federal Elections Commission, and head of the conservative Heritage Foundation's Election Law Reform Initiative, who is now serving on the Trump commission. "The commission is asking for voter registration and other information that is publicly available. Not only do all of the political parties buy this information routinely from secretaries of states — so do candidates."
It's true. Just look at, say, the Department of Elections webpage in Terry McAuliffe's Virginia. The department lists "client services" that include the purchase of voter lists. To candidates, parties, campaigns, and "members of the public seeking to promote voter participation," the state of Virginia will sell:
Registered Voter List (RVL) and Newly Registered Voter List (NRV) — full name, residence address, mailing address, gender, date of birth, registration date, date last registration form received, registration status, locality, precinct, voting districts and voter identification number.
Want the data in slightly different form? Virginia also sells:
List of Those Who Voted (LTWV) — full name, residence address, mailing address, gender, date of birth, registration date, date last registration form received, registration status, locality, precinct, voting districts, voter identification number, election date, election type, and whether the voter voted in-person or absentee.
For another example, look at the state of Maine, which has also refused to cooperate with the commission, but which by law spells out the types of voter information it will sell:
The secretary of state or the registrar shall make available the following voter record information, subject to the fees set forth in subsection 2: the voter's name, residence address, mailing address, year of birth, enrollment status, electoral districts, voter status, date of registration, date of change of the voter record if applicable, voter participation history, voter record number and any special designations indicating uniformed service voters, overseas voters or township voters.
Notice that much of the information for sale in Maine and Virginia is similar, if not identical, to the data requested by Kobach. Many states have similar provisions. Which raises the question: If voter information is for sale, why is it a matter of principle to refuse to provide it to the Presidential Advisory Commission on Electoral Integrity?
"It's silly," said Chris Wilson, CEO of the political consulting group WPA Intelligence and former head of research and analytics for the Ted Cruz presidential campaign. "This is data that we can purchase online from multiple states and multiple sources."
Von Spakovsky added that, if the fact that states sell voter information were not enough, federal law requires states to keep and give out the same information. The National Voter Registration Act, also known as the Motor Voter law, includes a provision saying, "Each state shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters…" I asked von Spakovsky if that rather convoluted phrase covered voter rolls and information. "Yes," he answered.
There is one thing that Kobach asked states for — and it is important to note that Kobach's letter is a request, specifically asking only for information that is publicly available under state law — that is not for sale, and that is the request for the last four digits of a voter's Social Security number. Even though having the last four digits might be useful to researchers trying to distinguish between voters with the same names, it might be that states could reasonably refuse to give the commission that one bit of information. But that doesn't account for the across-the-board denials from so many states.
Of course, the big reason many state officials, particularly Democrats, are refusing to provide information is that they simply do not believe voter fraud exists, or exists in anything other than the tiniest numbers. But von Spakovsky points out that there are respected studies pointing to problems with the nation's voter rolls that deserve further study.
In 2012, for example, Pew Research published a study on the nation's voter registration system, which it concluded was "inaccurate, costly, and inefficient." Pew found that:
Approximately 24 million — one of every eight — voter registrations in the United States are no longer valid or are significantly inaccurate.
More than 1.8 million deceased individuals are listed as voters.
Approximately 2.75 million people have registrations in more than one state.
The problem with the Pew study, as von Spakovsky sees it, is that Pew did not study whether those registration problems actually resulted in voting problems. "We know for a fact that people who aren't U.S. citizens are registering and voting in U.S. elections," he said. "How extensive is that problem? I don't know because no one has ever done the work to find that out."
Now the Trump commission is seeking answers. To do so, it needs the information that, until now, many states routinely gave out to interested parties. Now, however, the states appear to be spoiling for a fight. Given the amount of public posturing involved so far, it's not at all clear the commission can succeed.