On May 11, 2017, President Donald Trump signed an executive order creating the “Presidential Advisory Commission on Election Integrity.” Vice President Mike Pence is the chair, and Kansas Secretary of State Kris Kobach — one of the nation’s leading promoters of the myth of voter fraud and laws restricting access to voting — is the vice chair. Its members include Hans von Spakovsky of the Heritage Foundation and J. Christian Adams of the Public Interest Legal Foundation, two of the country’s most notorious advocates for voter suppression.
The Commission was created in the wake of President Trump’s repeated assertions that millions voted illegally in the 2016 election. For years, exaggerated claims of fraud have been used to justify unwarranted restrictions on voting access. The president’s invented legions of illegal voters are the most extreme such claims in recent memory. His statements have been almost universally rejected; for example, a recent Brennan Center survey of local election officials found just 30 suspected incidents of noncitizen voting out of over 23 million ballots cast in the surveyed jurisdictions.
There is strong reason to suspect this Commission is not a legitimate attempt to study elections, but is rather a tool for justifying discredited claims of widespread voter fraud and promoting vote suppression legislation. Election experts are concerned the Commission will highlight isolated incidents of fraud, which constitute a tiny fraction of ballots cast, as a maneuver to recommend suppressive laws at the state and federal level.
Basic Facts and Background
What led to the Commission’s creation?
The executive order was the culmination of months of unfounded charges of voter fraud by President Trump and his surrogates, dating back to the campaign. In the run-up to Nov. 8, President Trump asserted the election was “rigged” and warned of “large scale voter fraud.”Twenty days after being elected, he claimed he would have won the popular vote “if you deduct the millions of people who voted illegally.”
These false assertions continued after he was sworn into office. During his first official meetings with congressional leaders in January, President Trump stated that between 3 to 5 million unauthorized immigrants had voted in the election. A few days later, the president declared via Twitter that he would “be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and… even, those registered to vote who are dead (and many for a long time).” He then announced during a February interview that Vice President Pence would chair the investigatory body, which eventually became this Commission.
President Trump added a new element to his fraud narrative later in February, telling a group of senators that “thousands” were bused in from Massachusetts to vote illegally in New Hampshire. He and other administration officials have repeatedly defended his baseless claims in the months since.
What reasons has the administration provided for why the Commission was created?
The executive order states the Commission was formed “in order to promote fair and honest Federal elections.” Vice Chair Kris Kobach said in May that the Commission “is not set up to disprove or to prove President Trump’s claim… We’re looking at all forms of election irregularities, voter fraud, voter registration fraud, voter intimidation, suppression, and looking at the vulnerabilities of the various elections we have in each of the 50 states.”
However, Kobach’s expressed reasons do not square with President Trump’s statements regarding the Commission. The president’s initial call for an investigation in January focused specifically on voter fraud (though it also conflated voter registration problems with fraudulent votes). When announcing that Vice President Pence would chair the Commission, President Trump again solely discussed the need to address voter fraud and registration issues. The president reaffirmed this focus on fraud in a July tweet, in which he called the Commission a “VOTER FRAUD PANEL.”
What is the Commission’s stated mission?
The executive order charges the Commission with identifying the “rules, policies, activities, strategies, and practices” that both “enhance” and “undermine” the American people’s confidence in the integrity of federal elections. It is also tasked with identifying “vulnerabilities in voting systems… that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.” The mission does not mention voter intimidation, suppression, voting technology, or foreign attempts to interfere in elections.
Who is on the Commission?
The Commission can have up to 14 members in addition to Kobach and Vice President Pence. So far 11 other commissioners have been named, one of whom resigned. Below is a brief overview of the members’ backgrounds and records on voting rights. You can read more about them here.
- Vice President Mike Pence (Chair) (R): Defended the president’s claim that millions voted illegally in the 2016 election.
- Kansas Secretary of State Kris Kobach (Vice Chair) (R): One of the nation’s leading promoters of strict photo ID laws and documentary proof of citizenship requirements. Running for governor of Kansas in 2018.
- Hans von Spakovsky, Senior Legal Fellow, Heritage Foundation (R): Former Justice Department official and a consistent promoter of photo ID laws and documentary proof of citizenship requirements.
- J. Christian Adams, President and General Counsel, Public Interest Legal Foundation (R): Has brought numerous lawsuits to compel jurisdictions to aggressively purge voter rolls, and actively promotes allegations of widespread noncitizen voting.
- Former Ohio Secretary of State Ken Blackwell (R): Served as secretary of state from 1999 to 2007. Oversaw an election that had so many problems, the New York Times called it an “example for every ailment in the United States’ electoral process.”
- Indiana Secretary of State Connie Lawson (R): Previously served in the Indiana State Senate, where she co-sponsored the nation’s first strict photo ID law.
- U.S. Election Assistance Commissioner Christy McCormick (R): Secured controversial activist group, Judicial Watch, to represent her in a lawsuit against the EAC over documentary proof of citizenship requirements.
- New Hampshire Secretary of State William Gardner (D): Has supported legislation that could suppress votes, and expressed skepticism multiple times about the National Voter Registration Act of 1993.
- Maine Secretary of State Matthew Dunlap (D): Has criticized accusations of widespread voter fraud and opposed voter ID legislation.
- Former Arkansas State Rep. David K. Dunn (D): Served in the Arkansas House of Representatives from 2004 to 2010.
- Wood County (WV) Clerk Mark Rhodes (D): Serves over 56,000 voters in his current position and was a deputy clerk in the same office before that.
- Jefferson County (AL) Probate Judge Alan Lamar King (D): Chief election official for largest county in Alabama, serving over 450,000 voters. Rejected President Trump’s claims of widespread voter fraud in comments last fall.
- Maryland Deputy Secretary of State Luis Borunda (Resigned) (R): Works in an agency whose responsibilities include organization registrations, trademark registrations, and certain executive functions, but it does not oversee elections.
Where will the Commission get its staff and resources?
According to the executive order, the General Services Administration will provide the Commission with “administrative services, funds, facilities, staff, equipment, and other support services.” The Commission’s charter states that it will cost about $500,000 over the course of two years, including the cost of three full-time employees.
Kobach has said the Commission will be staffed with individuals from the Vice President’s Office and the Department of Homeland Security. Andrew Kossack, an employee in the Vice President’s Office, is the Commission’s executive director and designated federal officer.
What will the Commission produce?
The Commission’s report to the president is expected in 2018. Kobach has said it will provide recommendations to states, and may produce recommendations for federal legislation as well. The Vice President’s Office stated the Commission also intends to check for fraudulent voter registrations by comparing state voter rolls against federal databases.
What information has the Commission requested from states?
On June 28, Kobach sent letters to chief state election officials requesting they submit “publicly-available data from state voter rolls and feedback on how to improve election integrity” by July 14. Here are the identical letters that were sent to Connecticut and North Carolina.
Civic groups including the Brennan Center filed legal challenges against the Commission’s request. On July 10, the Commission asked states to hold off submitting data pending a court ruling. By that time, 21 states and the District of Columbia had declined to provide any data, and others expressed concern about releasing voters’ sensitive information. The court subsequently allowed data collection to proceed, and the Commission sent a renewed requestfor information on July 26.
Where and when will the Commission meet?
The Commission met in person for the first time on July 19 in Washington, D.C., and again on September 12 in Manchester, New Hampshire. You can view meeting agendas and materials on the Commission’s website.
Considerations and Concerns
Why are experts concerned about the scope of the Commission’s mission?
The Brennan Center, along with public officials, national and local editorial boards, and a wide range of civic and nonpartisan groups, swiftly criticized the Commission as a sham. Election experts such as Robert Bauer and Rick Hasen have called for academics and elected officials to boycott the Commission entirely.
The Commission’s call for the study of “vulnerabilities in voting systems” is explicitly limited to vulnerabilities that could cause ineligible registration or voting — issues we already know are extremely rare. The executive order also instructs the Commission to use “the American people’s confidence in the integrity” of elections as the primary metric for analyzing existing laws. This vague standard invites commissioners to invoke “confidence,” without basis in empirical evidence, to advocate for suppressive legislation.
What election issues does the Commission’s mission exclude?
The executive order excludes examination of pressing vulnerabilities in elections systems, like the nation’s aging voting equipment. The mission also neglects to mention study of foreign interference in U.S. campaigns. Commissioners Matthew Dunlap and Bill Gardner have both called for the Commission to study Russian hacking of elections systems, prompting Kobach to respond, “In the initial descriptions of the commission, election security and the integrity of equipment and voter databases was not specifically described… But if it’s something the commission wants to discuss, we can.”
The executive order also fails to reference any investigation into voter suppression efforts or voter turnout issues. Strict voter ID laws, unnecessary restrictions on registration, and excessively long lines all currently hamper the ability of eligible citizens to cast ballots.
While the Commission’s stated mission excludes these important issues, a June 28 letter from Kobach to state election officials makes brief reference to suppression. The letter, which requests voter file data and information about instances of voter fraud, also asks about recommendations “for preventing voter intimidation or disenfranchisement.” However, the Commission’s leadership and overall composition gives experts no confidence that such recommendations will be studied seriously.
Why do experts and public officials believe that a federal Commission studying fraud is unnecessary?
Study after study has found that voter fraud is very rare, voter impersonation is nearly non-existent, and many of the problems associated with alleged fraud relate to unintentional mistakes by voters or election administrators. A Brennan Center survey of local election officials refuted President Trump’s central claim that millions of noncitizens voted in the 2016 election, finding just 30 suspected incidents out of over 23 million ballots cast in the surveyed jurisdictions. Previous state investigations have similarly uncovered almost no instances of noncitizen voting. And an analysis published in The Washington Post concluded there is no evidence to support President Trump’s claim that Massachusetts residents were bused into New Hampshire to vote.
Election officials and leaders of the president’s own party also agree fraud is not widespread. In response to President Trump’s assertions that millions of individuals illegally voted, House Speaker Paul Ryan said, “I’ve seen no evidence to that effect. I’ve made that very, very clear.” Senate Majority Leader Mitch McConnell explicitly stated that we should not “spend any federal money investigating” voter fraud.
Is the Commission truly bipartisan?
No. A bipartisan commission would be led by members of both parties, have an equal partisan split among commissioners, and capture a broad range of viewpoints. This Commission, in contrast, is led by two staunch Republicans, has a Republican majority, and counts some of the nation’s leading promoters of voting restrictions among its ranks. While five of the 12 members are Democrats, three of them — Alan Lamar King, David K. Dunn, and Mark Rhodes — were recommended by their respective states’ Republican chief election officials. When asked about his appointment, Dunn told HuffPost, “I don’t know why this has fallen on my shoulders… I’m just a very small old country boy from Arkansas in this bigger commission with Vice President Pence…”
The Commission’s partisan bent breaks with precedent set by previous election panels. The 2013 Presidential Commission on Election Administration was co-chaired by Robert Bauer and Benjamin Ginsberg, respectively the election lawyers for former president Barack Obama’s and former governor Mitt Romney’s 2012 campaigns. A 2005 panel organized by American University was co-chaired by former President Jimmy Carter and former U.S. Secretary of State James A. Baker III, a Republican. And former presidents Ford and Carter were the honorary co-chairs of the 2001 National Commission on Federal Election Reform organized by the University of Virginia.
The staff of prior commissions also included academics from major research universities to direct fact-finding efforts. President Trump’s Commission lacks the scientific expertise of these past panels, further enabling partisanship and bias to dictate its conclusions.
If the Commission will not find evidence to support voting restrictions, then what is the problem with a federal investigation of our elections?
The Commission’s membership and mission are clear indications that it will not produce an impartial, empirically-grounded study of election procedures. Experts are concerned that it will try to improperly validate the president’s voter fraud claims, which have been repeatedly disproven. Under Kobach and Vice President Pence’s leadership, the Commission’s final report may be a foregone conclusion. Should they — like others before them — fail to find evidence that millions illegally cast ballots, the Commission will turn to isolated incidents as pretexts for new voting restrictions.
The Commission threatens to recommend federalizing suppressive laws that currently exist in some states, like strict voter ID and documentary proof of citizenship requirements, while pressuring more states to adopt them. These laws are trumpeted as anti-fraud measures, but in reality, just make it harder for eligible citizens to vote. In Texas and North Carolina, for example, courts have struck down voter ID provisions for intentionally discriminating against minorities. And multiple courts have blocked provisions of the proof of citizenship law championed by Kobach in Kansas.
We already know that one source of the Commission’s flawed evidence for voting restrictions will be a comparison of state voter files against federal databases. This process is fraught with false-positives, and similar efforts in the past by states have led to thousands of improper removals from the voter rolls. The Commission has no authority to directly purge voters, but it may use its platform to try to pressure states into doing so. This all comes as the Department of Justice, in a separate effort, sent letters to states demanding to know their procedures for maintaining registration lists. Unlike the Commission, the DOJ has the power to compel state action, and this could be the first step in a move to force states to conduct aggressive voter purges.
The Commission may also recommend rollbacks of the National Voter Registration Act (NVRA) — a law that sets national standards for registration and safeguards voters from being improperly removed from registration rolls. On the day after the election, Kobach sent an email to a member of President Trump’s transition team stating that he had started drafting “amendments to the NVRA to make clear that proof of citizenship requirements are permitted.” The law has played a pivotal role in lawsuits blocking voting restrictions and has sustained the public’s ability to access the ballot for nearly twenty-five years. Voters would be left more vulnerable to suppressive efforts without it.
What are advocates doing to challenge the Commission?
In direct response to Kobach’s request for voter file data, the Brennan Center sent a memo to states outlining the legal risks of providing the requested information. The Brennan Center also filed a lawsuit against Indiana Secretary of State Connie Lawson to prevent her from sharing data with the panel. Additionally, 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 burdensome requests by the Commission.
Other civic groups across the country, including the ACLU, Common Cause, Electronic Privacy Information Center, Fair Elections Legal Network, Lawyers’ Committee for Civil Rights, NAACP Legal Defense Fund, and Public Citizen, have also filed legal challenges on a variety of transparency, privacy, and administrative policy grounds. One lawsuit filed by the Electronic Privacy Information Center prompted the Commission to ask states to suspend their data submissions pending the court’s ruling.
In addition, advocates have submitted public records requests to state and federal agencies to better understand the Commission’s goals, operations, and the steps that led to its founding.