Earlier this week, the ACLU and the Lawyers Committee for Civil Rights Under Law each filed separate lawsuits against the Trump administration, alleging that its Commission on Election Integrity is violating federal law.
The lawsuits challenge the commission on the basis of transparency. "This process is cloaked in secrecy, raising serious concerns about its credibility and intent. What are they trying to hide?" said Theresa Lee, a staff attorney with the ACLU's Voting Rights Project, in a statement.
In truth, voting-rights advocates have a pretty good idea of what the commission might be trying to hide. The effort is widely seen as an attempt to scrounge up justification for Donald Trump’s purported belief that millions of people voted illegally for Hillary Clinton, causing Trump to lose the popular vote while still winning the electoral college.
The head of the voter commission, Kris Kobach, is notorious for his efforts to restrict access to the ballot in a way that helps the GOP. He's joined on the commission by a rogues' gallery of voter fraud conspiracy theorists who have found employment with the GOP in recent years. Unfortunately for them, their initial efforts through Trump's commission seem to be backfiring.
Last month, the commission requested states provide voter-roll information including the names, addresses, birth dates, partial Social Security numbers, party affiliation, felon status and other data for every registered voter in the country, but nearly every state in the US is resisting supplying at least some of the information the voter commission requested, and a handful are refusing to comply outright. "They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from," said Mississippi Secretary of State Delbert Hoseman, a Republican from one of the states that is refusing to comply. Even Kobach, acting in his capacity as Kansas' secretary of state, told himself, acting in his capacity as the head of the Commission on Election Integrity, that Kansas would not be able to fully comply with the commission's request.
At a meeting of secretaries of state last weekend, the election officials passed a resolution affirming that "states are responsible for protecting the integrity of their elections including the secrecy of the ballot, security of their election infrastructures and sensitive personal information included in the states' voter rolls" and reaffirming the secretaries' "commitment to strengthening election cyber security, improving processes, and increasing voter participation." It was a clear response to Trump’s Election Integrity Commission. (Kobach was conspicuously absent from the meeting.)
But on the same day last month that the Commission on Election Integrity sent out its ill-fated requests to states for voters' personal information, something else happened—something that could be far more threatening to states than Kobach inquiry.
A coordinated effort
On that day, the Sessions Department of Justice also sent a letter to 44 states demanding to know state procedures for maintaining voter registration lists under the National Voter Registration Act of 1993, or the "motor voter" law, which sought to encourage Americans to vote but also detailed when voters should be kicked off voting rolls. The NVRA requires states to "conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists." Voters can only be removed from voting rolls after the state tries and fails to contact them to confirm their address—and, if after the state reaches out and doesn't receive a response, the person in question then does not show up to vote in the next two federal elections.
But voting rights advocates worry that the Trump administration’s ultimate goal may be to pressure states to purge their voter rolls under the excuse of eliminating voters who have become inactive or moved away. The timing of the two efforts—with both the Election Integrity Commission and the Department of Justice sending out letters to the majority of states on the same day—seems more than coincidental.
"When states initiate large-scale removals without the appropriate protections, eligible voters could be kicked off the rolls and disenfranchised on Election Day," writes Jonathan Brater of NYU’s Brennan Center for Justice. "Unfortunately, we have lots of examples of bad purges. Most notorious were those in Florida in 2000, when eligible voters were confused with ineligible individuals."
Pushing state voter purges has been a longtime priority for some within the Republican Party, Brater writes. After the 2000 Florida recount debacle and the subsequent need for the Supreme Court to pick a president, the Bush administration recognized the difference a handful of votes could make, and pushed state officials to scrutinize their voter rolls. The Bush Department of Justice even sued Missouri to force it to conduct a voter purge and lost. Many of the same people who played a role in that effort have now been given jobs with the Trump administration.
The upshot is that when some voters who have not cast a ballot in a while show up at the polls for their next election, they may find that they are no longer registered. Given that voter purges tend to affect poor and minority voters, and that Republicans are concerned about a groundswell of support for Democrats in coming elections, efforts to purge voter rolls would likely end up disenfranchising those who would vote against the president's agenda.
Ultimately, Kobach and Sessions may be laying the groundwork for a repeal of the NVRA, writes election law expert Richard Hasen at Slate.
They will argue it is necessary to roll back the 1993 National Voter Registration Act (or "motor voter" law)—a law which folks like Kobach hate because among other things it requires states to offer voter registration at public service agencies. They'll want federal law to do what federal courts have so far forbidden Kobach to do: Require people to produce documentary proof of citizenship before registering to vote. In other words, show us your papers or you can't register.
The ongoing fight to vote
In Trump's Election Integrity Commission, voting-rights advocates see the shadow of fights to come. But there are also plenty of fights today. As the specter of Justice Department-backed voter-roll purges loom, Republican-governed states are also taking other signals from the Trump administration's DOJ—including that voter-ID laws of the sort fought by Eric Holder's DOJ under Obama—are now more acceptable. The latest iteration of Texas's voter-ID law, for instance, is being supported by the Sessions DOJ; the Holder DOJ opposed it in court. In total, eight states are seeking to implement or strengthening voter-ID laws this year, Jane Timm reports for NBC News.
These laws can make a difference: A study by the Democratic super PAC Priorities USA found that Wisconsin's voter-ID blocked as many as 200,000 people from voting in 2016. That's an order of magnitude more than the 22,000 votes that delivered the state to Trump. A Brennan Center analysis finds that as many as 21 million Americans—or 11 percent—may not have a photo ID. This group is disproportionately made up of elderly, poor, and minority Americans, and includes many city-dwellers (for whom a driver's license is less necessary). Millions more Americans between the ages of 18 and 24 do not have a photo ID that reflects their current name and address, the Brennan Center report found. In short, many Americans without IDs tend to be the sort of Americans who also vote for Democrats.
The Democratic Party is touting a new effort to fight gerrymandering, which has given as many 22 seats in the House of Representatives to Republicans. But if Democrats hope to retake Congress and rebuild their party, they'll also have to ramp up their opposition to restrictive voting practices—and any attempt by the Trump Election Integrity Commission and the Sessions DOJ to further restrict the franchise.