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Analysis

Background on Trump’s 'Voter Fraud’ Commission

For years, exaggerated claims of fraud have been used to justify unwarranted restrictions on voting access.

  • Brennan Center for Justice
July 18, 2017

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 lawsunne­ces­sary 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.