Legal Actions Taken Against Trump’s “Voter Fraud” Commission
Last Updated July 27, 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 Ctr. 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.
Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity 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.
Pub. Citizen, Inc. v. U.S. Dep't of the 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. is requesting 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 the Army has already collected.
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.”
Brennan Ctr. 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 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.
League of Women Voters of Ind. 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.
ACLU of N.H. et al. v. New Hampshire (New Hampshire state law)
On July 11, 2017, the ACLU of New Hampshire and two individuals filed a lawsuit against New Hampshire Secretary of State Bill Gardner seeking to prevent him from providing any voter file data to the Commission until the judge rules on EPIC’s request for a temporary restraining order.
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 is asking the court to issues a temporary restraining order.
League of Women Voters of Tex. 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. More information can be found on the Brennan Center’s website.
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.
Legal Challenges to the Commission’s General Operations
American Civil Liberties Union 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.
Joyner et al. v. Presidential Advisory Comm'n on Election Integrity 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.
Lawyers’ Comm. for Civil Rights Under Law v. Presidential Advisory Comm'n on Election Integrity (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 judge denied the motion for a temporary restraining order.
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.
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 “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.