An abbreviated version of this post first appeared in The Hill.
The power of a mobilized grassroots opposition, legal intervention, and bipartisan rebuke forced President Trump to shut down his phony, flawed-from-the-start Pence-Kobach voting commission last night. Although this is a victory, we are ready to fight just as hard when the Trump Administration pushes policies that attack the fundamental right of every American to vote and have their vote counted as cast.
Last fall, Common Cause published "Flawed from the Start," which detailed much of the commission’s dysfunction. Trump stacked the commission with the wrong people pushing the wrong agenda. The report detailed how Trump’s commission lacked the legitimacy and credibility of previous presidential commissions on election administration issues – and posed real threats to the right to vote. More than 50,000 Common Cause members filed comments with the commission, making clear that they would not be intimidated from exercising their rights on Election Day.
We were close this month to publishing an updated snapshot of the commission’s most recent problems. And while we were thrilled to stop the presses– it’s important to preserve a record of its errors so that they never happen again.
Here are just some of the commission’s blunders since our original publication last fall:
One of the Commission’s Own Members Sued the Commission, Handed a Court Victory in December
In October, Maine Secretary of State Matt Dunlap – a member of the commission – wrote to the commission’s executive director, Andrew Kossack, complaining that he had “received utterly no information or updates from Commission staff or leadership about ongoing active research, inquiries for research requests, documents for consideration during future meetings, or indeed any information about whether or not the Chair has plans on convening another meeting.”
In November, Secretary Dunlap took the extraordinary step of suing the commission, alleging that he is being “blocked from receiving Commission documents necessary to carry out his responsibilities.” He wrote that his suit was intended to “salvage a process that, at present, risks becoming exactly the kind of one-sided partisan undertaking the Federal Advisory Committee Act was designed to prohibit.” Writing in theWashington Post, Secretary Dunlap explained that at its second in-person meeting, “neither the agenda for that meeting nor the list of witnesses invited to speak was vetted by the Commission as a whole before the public session – it just appeared.” Moreover, “since that meeting, there has been total silence from the leaders and staff of the Commission about work happening behind the scenes.” His only knowledge about purported future meetings came from outside sources. For example, Secretary Dunlap was forwarded “a fundraising email from the conservative Minnesota Voters Alliance touting its invitation to present at our December meeting – the first I had heard that such a meeting was even being contemplated, much less scheduled.”
In late December, Secretary Dunlap scored his first victory, when a federal judge ordered the commission to provide him with the necessary documents. The court wrote that he “has a right, as a commissioner, to ‘fully participate’ in the proceedings of the commission,” and without the documents, his “right to fully participate in the commission would be irreparably harmed.”
High-Ranking National Security and Intelligence Officials File Legal Brief Raising Cybersecurity Concerns
In support of Common Cause’s lawsuit against the commission – which challenges its violations of the Privacy Act -- nine former high-ranking national security officials, including former Director of National Intelligence James Clapper and former National Counterterrorism Center Director Matt Olsen, filed an amici brief warning about the national cybersecurity risks of the commission’s planned private voter information database and its vulnerability to hacking. They warned that the commission “has provided no meaningful assurance about measures that it is now using to secure [the] pool of data” that it is collecting. “This suggests an overall lack of attentiveness to the magnitude and gravity of the cybersecurity risks posed,” they added.
The officials also warned, that “in sharp contrast to the requirements of the Privacy Act, the commission does not appear to have established any rules or procedures governing access to the database or any rules governing ongoing safeguards.”
The Government Accountability Office Opened an Investigation After the Commission Ignored Congressional Requests for Information
At the request of three U.S. Senators, the Government Accountability Office (GAO) has opened an investigation into the operations of the commission. GAO is an independent, nonpartisan federal agency that acts a watchdog for accountable government. The senators – Sen. Michael Bennet, D-CO; Amy Klobuchar, D-MN; and Cory Booker, D-NJ; – requested a review of the funds being used to support the work of the commission; its efforts to address voter participation; the steps the commission has taken to protect voter information; the steps the commission has taken to adhere to regulations governing its activities; and the methodology and analysis that the commission employs to reach its conclusions. Their request came after the commission “ignored numerous requests from Members of Congress” after questions were raised “about the partisan motives and actions of the Commission.”
A High-Profile Member of the Commission Opposed the Appointment of Democrats and “mainstream Republican officials” to the Commission.
Before the White House announced the commission’s membership, Hans von Spakovsky, one of the commission’s most controversial members, said that including Democrats or “mainstream Republican officials” on the commission would “guarantee its failure.” He made the comments in an email to colleagues which was obtained by the Campaign Legal Center through a Freedom of Information Act request. Von Spakovsky also wrote that there are “only a handful of real experts on the conservative side of this issue,” and that “if they are picking mainstream Republican officials and/or academics to man this commission it will be an abject failure because there aren’t any that know anything about this.” The von Spakovsky email eventually was forwarded to Attorney General Jeff Sessions.
Commission Researcher Arrested on Child Pornography Charges; Commissioners Unaware
In October, a researcher for the commission was arrested on 11 counts of possession and distribution of child pornography. According to the Washington Post, the commission’s researcher was on loan “from the Office of the Special Counsel.” According to ProPublica, the researcher previously worked at the Department of Justice with J. Christian Adams, a commission member who has an extremely controversial record on voting rights.
The news jolted the commission. Two members, Alan King and Matthew Dunlap, were unaware that the commission even had staff besides its Executive Director. They also were unaware of the arrest until reading about it in the Washington Post. Dunlap wrote in his letter to the commission’s executive director that “it beggars the imagination that my understanding of any activity would come by way of media inquiries.”
New Lawsuits & Complaints Against the Commission or Its Members
In shutting down the commission, the White House cited the multiple lawsuits against it.
And there were many. The commission is the named defendant or subject of at least 10 ongoing lawsuits and complaints brought by public interest organizations, voters, and public policy experts, as tracked by the Brennan Center for Justice. The complaints challenge a range of important matters, including the storage and protection of voter data and the lack of legal authority for some states to hand over information to the White House. Others are more focused on specific actions of the commission’s vice chair, Kansas Secretary of State Kris Kobach. A complaint by the Lawyers’ Committee for Civil Rights Under Law challenges Kobach’s efforts to use his commission work to solicit money for his gubernatorial campaign (prohibited for federal officials), and another by the Citizens for Responsibility and Ethics in Washington challenges Kobach’s paid role as a Breitbart columnist.
Protecting Our Resilient Democracy – Proactive Reforms for Secure, Accurate, Accessible Elections
There are many unanswered questions now that the commission is defunct. What will the commission do with the data it has collected? What did the President mean when he said that he has “asked the Department of Homeland Security to review these issues and determine next courses of action”?
Here is what’s clear: there are proactive reforms that we will be advocating for this year to make our elections more secure, accurate, and accessible. Reforms like online voter registration and automatic voter registration help to ensure that our voter registration lists are more accurate and up-to-date – and that save money. Audits that ensure election outcomes are consistent with voters’ intent. Better funded voting machines. Pushing back against illegal efforts to purge millions of eligible Americans from the rolls, as the Supreme Court will hear in an important case next week.
When we work together, we can advance a democracy that is resilient and that works for us all.
Office: Common Cause National
Issues: Voting and Elections