Legal Actions Taken Against Trump’s “Voter Fraud” Commission
Last Updated December 26, 2017
Even before the Commission’s first meeting, organizations filed legal challenges against its work on a variety of transparency, privacy, and administrative policy grounds. Some groups’ actions are targeted specifically at the blocking the Commission’s request for voter file data, while others challenge the Commission’s operations and membership more generally.
Legal Actions to Block Voter File Data Request
Brennan Center and United to Protect Democracy Letter to OMB (Paperwork Reduction Act)
On July 3, 2017, the Brennan Center and United to Protect Democracy wrote a letter to the director of the Office of Management and Budget, asking him to protect against sweeping requests by the Commission for extensive personal information about voters. The letter notes that the panel’s ask violates the Paperwork Reduction Act, which exists to protect the public — including state governments — from burdensome requests, especially those that don’t provide adequate safeguards for sensitive information.
EPIC v. PACEI et al. (Fifth Amendment, E-Government Act, Federal Advisory Committee Act)
On July 3, 2017, the Electronic Privacy Information Center (EPIC) filed a lawsuit in Washington, D.C. asserting that the Commission’s request for voter file data is an unconstitutional invasion of privacy under the Fifth Amendment. Additionally, EPIC argues the Commission violated the due process clause of the Fifth Amendment by asking for private information without providing notice to individuals, or allowing time for individuals to challenge the collection of their personal data. This lawsuit also asserts that the Commission violated the E-Government Act’s requirement that agencies conduct a Privacy Impact Assessment outlining how information will be collected, used, shared, and secured before collecting information. Further, the lawsuit notes that the Commission has violated the Federal Advisory Committee Act (FACA) by not making records available for public inspection.
EPIC asked the court to issue a temporary restraining order, and to order the Commission to delete any data it may have already received. On July 7, the court heard arguments for the temporary restraining order. This hearing led the Commission to ask states to hold off on submitting voter file data until the court issued a ruling. On July 24, the court denied the motion for a temporary restraining order, and EPIC appealed that ruling. On December 26, the appeals court upheld the lower court's denial.
Public Citizen v. U.S. Army (Privacy Act)
On July 10, 2017, Public Citizen, Inc. filed a lawsuit in Washington, D.C. against the U.S. Department of the Army asserting that the department violated federal law by collecting voter data requested by the Commission. The lawsuit notes that the federal Privacy Act prohibits agencies from “collecting, using, maintaining, or disseminating records describing how any individual exercises rights guaranteed by the First Amendment.” Public Citizen, Inc. requested that the court enjoin the Army from collecting, maintaining, using, or disseminating voting records, and that the court order the Army to expunge any records that it had already collected. On July 25, Public Citizen voluntarily dismissed the case.
Common Cause v. PACEI et al. (Privacy Act)
On July 14, 2017, Common Cause filed a lawsuit against the Commission, the U.S. Department of Homeland Security, and the United States Social Security Administration. The lawsuit contends that by seeking to collect private voter information, all three agencies violated the Privacy Act, which prohibits federal agencies from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual.” Common Cause asked the court to issue a temporary restraining order, and to order the Commission to delete any data it may have already received. On August 1, the court denied the motion for a temporary restraining order.
Protect Democracy et al. v. PACEI et al. (Paperwork Reduction Act)
On September 29, 2017, United to Protect Democracy filed a lawsuit against the PACEI, OMB, and Mick Mulvaney (OMB Director) in the District Court for Washington, D.C. They challenged the Commission’s efforts to collect sensitive voter information from state officials around the country on the grounds that the requests sent by the Commission were not compliant with the Paperwork Reduction Act of 1980. On October 11, 2017, Protect Democracy filed a motion for preliminary injunction against the Commission and OMB. The motion seeks to ensure that the public can assess the Commission’s plans for their voter information before it is collected from the states. In the filing, Protect Democracy sounds the alarm that thousands of voters are cancelling their voter registrations, rather than expose themselves and their data to the Commission’s collection efforts.
Brennan Center Letter to States on Legal Risks of Providing Voter File Data (Various state laws)
On July 4, 2017, the Brennan Center sent a letter to state election officials and attorneys general outlining the legal risks of providing voter file data to the Commission. The biggest concern is voter privacy and laws designed to protect those privacy interests. Providing the data may be problematic both because the Commission said it will make the information public, and because the Commission itself may be otherwise using the files in a manner not provided for under state law.
Lasker v. Gardner (New Hampshire state law)
On July 6, 2017, the ACLU of New Hampshire and two state legislators filed a lawsuit against New Hampshire Secretary of State Bill Gardner seeking to prevent him from providing statewide voter data to the Commission. The lawsuit alleges that transferring the data would violate restrictions on the production of voter information. On August 7, Gardner resolved the lawsuit by pledging to only send PDFs of town voter checklists to the Commission — he will not submit the statewide electronic voter database, which is subject to more stringent privacy requirements.
League of Women Voters IN v. Connie Lawson (Indiana state law)
On July 11, 2017, the Brennan Center and co-counsel filed a lawsuit on behalf of the League of Women Voters of Indiana and the Indiana NAACP against Indiana Secretary of State Connie Lawson. The challenge seeks to prevent Lawson from producing voter registration information to the Commission in a manner that does not comply with state law and could potentially harm millions of registered Indiana voters. More information can be found on the Brennan Center’s website.
Bert Marley v. Lawrence Denney (Idaho state law)
On July 11, 2017, the Idaho State Democratic Party (with chairman Bert Marley) filed a lawsuit against Idaho Secretary of State Lawrence Denney seeking to prevent him from providing any voter file data to the Commission. The challenge asserts that providing data would violate state law, which allows only a “person” (not a commission) to demand public records. Additionally, Idaho law prohibits the use of records for commercial use, which the lawsuit states will inevitably happen when the Commission makes these records public. The lawsuit also states that the Commission is violating another Idaho law which requires that the transfer of public records be secure and that an inquiry be made about security. The Party asked the court to issues a temporary restraining order.
Democratic officials reached a settlement with the state stipulating that Denney must provide 10 days’ notice prior to releasing any information to the Commission. On August 1, the Party announced that it would not re-file its lawsuit following the ruling in EPIC’s federal challenge of the request.
League of Women Voters TX v. Rolando Pablos (Texas state law)
On July 20, 2017, the Brennan Center and co-counsel filed a lawsuit on behalf of the League of Women Voters of Texas and the Texas NAACP against Texas Secretary of State Rolando Pablos. The challenge seeks to prevent Pablos from producing voter registration information to the Commission in a manner that does not comply with state law and could potentially harm millions of registered Texas voters. On October 3, plaintiffs secured a temporary restraining order preventing the Texas Secretary of State from disclosing certain voter data to the Commission. More information can be found on the Brennan Center’s website.
LULAC UT, League of Women Voters UT et al. v. Spencer J. Cox (Utah state law)
On July 26, 2017, the Brennan Center and co-counsel filed a lawsuit on behalf of the League of United Latin American Citizens of Utah, the League of Women Voters of Utah, and individual plaintiffs against Utah Lieutenant Governor Spencer J. Cox. The challenge seeks to prevent Cox from producing voter registration information to the Commission that does not comply with state law. Utah limits access to individualized voter registration data to certain entities and purposes, and Cox’s sharing of information with the Commission could potentially expose data belonging to over 1.5 million registered Utah voters. More information can be found on the Brennan Center's website.
Legal Challenges to the Commission’s General Operations
ACLU et al. v. Trump (Federal Advisory Committee Act)
On July 10, 2017, the American Civil Liberties Union (ACLU) filed a lawsuit in Washington, D.C. asserting that the Commission has violated the Federal Advisory Committee Act (FACA) by holding meetings without providing public notice or opening the meetings to the public. The ACLU also contends that by filling the Commission with individuals who have consistently worked to disenfranchise voters, President Trump violated FACA’s requirement that an advisory committee’s membership be “fairly balanced in terms of the points of view represented.” The ACLU is asking the court to issue a temporary restraining order and require the Commission to open its meetings to the public and make its records available for public inspection. On July 18, the court denied the motion for a temporary restraining order and preliminary injunction.
Joyner et al. v. PACEI et al. (Federal Advisory Committee Act, U.S. Constitution, Paper Reduction Act, Florida state law)
On July 10, 2017, the ACLU of Florida and the Florida Immigrant Coalition teamed up with several individuals to file a case in Florida detailing a variety of ways the Commission has violated the law. The groups argue that the Commission violated the Federal Advisory Committee Act (FACA) by failing to make its meetings open to the public, failing to provide opportunities for public input, and failing to make documents available to the public. The lawsuit also asserts that the Commission exceeds the authority of Trump’s executive order, as the order only allows the Commission to study registration and voting processes and identify vulnerabilities in voting systems; it “does not empower the Presidential Advisory Commission to amass and centralize a federal database of voters and then publicize it.”
The lawsuit notes that the Commission violated constitutional separation of powers because Article I of the U.S. Constitution gives Congress the exclusive federal power to make laws and regulate elections. Further, the plaintiffs argue that the Commission violated the Paperwork Reduction Act of 1995 by failing to get approval from OMB prior to the collection of information and because the Commission did not provide notice in the Federal Register. Additionally, the lawsuit contends that the Commission violated Floridians’ constitutional privacy rights and a Florida law which requires that voter file data remain confidential.
On July 20, the court denied the plaintiffs’ motion for a temporary restraining order.
Lawyers’ Committee for Civil Rights Under Law v. PACEI (Federal Advisory Committee Act)
On July 10, 2017, the Lawyers’ Committee for Civil Rights Under Law filed a lawsuit in Washington, D.C. asserting that the Commission violated the Federal Advisory Committee Act (FACA). The Lawyers’ Committee asserts that FACA requires the Commission to: 1) open all meetings to the public; and 2) publicly disclose all its records before or during its meetings. The lawsuit contends that the Commission has violated this law by holding its June 28 meeting without public notice or the ability for the public to get involved. To ensure public accountability and transparency, the Lawyers’ Committee for Civil Rights Under Law is seeking a temporary restraining order, and is asking the court to order the Commission produce its records and open its July 19 meeting to in-person public attendance and participation. On July 18, the court denied the motion for a temporary restraining order, and the Lawyers’ Committee appealed that ruling on July 21.
NAACP Legal Defense & Educational Fund, Inc. v. Donald J. Trump (U.S. Constitution, Federal Advisory Committee Act)
On July 18, 2017, the NAACP Legal Defense Fund (LDF) and the Ordinary People Society filed a lawsuit in the Southern District of New York against the Commission, President Trump, Vice President Pence (Chair of the Commission), and Kris Kobach (Vice Chair of the Commission). The lawsuit seeks, among other remedies, a permanent halt to the Commission’s activities — or, alternatively, court action to compel compliance with certain statutes. The plaintiffs allege a series of constitutional and statutory violations. Among those, they contend that the president lacked the authority to create the Commission, because it was created for more than advisory purposes; that the Commission was designed to target and discriminate against African-American and Latino voters; and that it fails to comply with the Federal Advisory Committee Act (FACA) because its composition is not fairly balanced with regard to the views represented.
Brennan Center and Protect Democracy v. DOJ et al. (Freedom of Information Act)
On August 21, 2017, the Brennan Center and Protect Democracy filed a lawsuit in the Southern District of New York to compel the Department of Justice, Department of Homeland Security, and Office of Management and Budget to disclose information to which the public is entitled pertaining to the president’s “Election Integrity” Commission. The organizations filed suit after their requests to the agencies under the Freedom of Information Act went unanswered.
The Commission has released very few details about its operations, methods, or intentions. Plaintiffs had requested all communications and documents relating to the Commission and its members, or any similar effort to establish a body to study voter fraud. The Brennan Center and Protect Democracy now ask the court to order the government to search for and produce the records to which they are entitled. More information can be found on the Brennan Center’s website.
On November 9, 2017, Matthew Dunlap – the Secretary of State of Maine and a member of the Commission himself – filed a lawsuit against the PACEI, Vice President Mike Pence, Kansas Secretary of State Kris Kobach, GSA, the Offices of the President and of the Vice President, and against the Office of Administration. In his complaint, he alleges that the Commission has not provided him with documents and communications that were provided to other Commissioners, and that the Commission is not complying with FACA’s mandate that its membership reflect a diversity of viewpoints. Secretary Dunlap alleges that he has been left out of the agenda-setting and decision-making processes the Commission has undertaken. On December 22, District Court Judge Colleen Kollar-Kotelly ruled that the Commission must provide Dunlap with better access to Commission documents moving forward.
Legal Actions to Prevent Individuals from Serving on the Commission
On July 3, 2017, the Lawyers’ Committee for Civil Rights Under Law wrote a letter to the Office of Special Counsel requesting that Kris Kobach be investigated for violating the Hatch Act, a federal law which prohibits federal officials from engaging in political activities. The letter argues that Kobach is using his role as vice chair of the Commission to promote his candidacy in the 2018 Kansas gubernatorial election and solicit campaign contributions.
Fair Elections Legal Network Letter to EAC Inspector Gen. (Help America Vote Act)
On July 10, 2017, the Fair Elections Legal Network (FELN) wrote a letter to the U.S. Election Assistance Commission’s (EAC) Office of Inspector General asserting that Christy McCormick cannot serve simultaneously on the “Voter Fraud” Commission and the EAC. FELN argues that the Help America Vote Act, which prohibits EAC Commissioners from engaging in other businesses or vocations, precludes McCormick from serving on the panel.