PEIC/PACEI
The Presidential Advisory Commission on Election Integrity (PEIC or PACEI)
also called the Voter Fraud Commission, was a Presidential Commission established by Donald Trump that ran from May 11, 2017, to January 3, 2018.[1][2] The Trump administration said the commission would review claims of voter fraud, improper registration, and voter suppression.[3] The establishment of the commission followed Trump's false claim that millions of illegal immigrants had voted in the 2016 presidential election, costing him the popular vote.[4][5] Vice President Mike Pence was chosen as chair of the commission and Kansas Secretary of State Kris Kobach was its vice chair and day-to-day administrator.
On June 28, 2017, Kobach, in conjunction with the Department of Justice, asked every state for personal voter information.[6] The request was met with significant bipartisan backlash; 44 states and the District of Columbia declined to supply some or all of the information, citing privacy concerns or state laws.[7][8][9]
Trump's creation of the commission was criticized by voting rights advocates, scholars and experts, and newspaper editorial boards as a pretext for, and prelude to, voter suppression.[10][11][12][13][14][4] At least eight lawsuits were filed accusing the Commission of violating the law.[4]
On January 3, 2018, Trump abruptly disbanded the commission; he stated the claims of election fraud and cited many states' refusal to turn over information as well as the pending lawsuits.[4] The commission found no evidence of voter fraud.[15] At that time, Trump asked that the investigation be transferred to the U.S. Department of Homeland Security (DHS), which already holds much of the requested state voter data and oversees immigration records.[16] The acting DHS press secretary said that Kobach would not be advising or working with DHS, and the White House said it would destroy all the state voter data collected by the commission.[15]
Background
2016 campaign
During his campaign for President, Trump made numerous claims of voter fraud occurring in the United States.
In the weeks before the election, Trump urged his supporters to volunteer as poll watchers on Election Day, saying they were needed to guard against "voter fraud" and a "rigged" outcome. The rhetoric was seen by some as a call to intimidate minority voters or challenge their credentials to prevent them from voting.[17][18] Numerous organizations, including the Democratic Party officials and affiliates sued Trump accusing him of voter intimidation, in violation of the 1965 Voting Rights Act and the 1871 Ku Klux Klan Act.[19]
Post-election
On November 8, 2016, Trump won the 2016 United States presidential election, but lost the popular vote to opponent Hillary Clinton by about 2.9 million votes.[4][20] Trump falsely claimed that he won the popular vote "if you deduct the millions of people who voted illegally" and that three to five million people voted illegally in the 2016 election.[4][21][22]
Kris Kobach proposal
On November 22, 2016, Kobach met with then President-elect Trump in his Trump National Golf Club in Bedminster, New Jersey in consideration for Secretary of Homeland Security position. The Associated Press photographed Kobach taking into his meeting with Trump a document entitled "Department of Homeland Security, Kobach Strategic Plan for First 365 Days" referencing a possible amendment to the National Voter Registration Act of 1993.[23][24]
The American Civil Liberties Union, representing plaintiffs in a voting rights case, asked the federal judge to prevent Kobach from withholding from the public documents he presented to Trump by virtue of marking them "confidential". The plaintiffs demanded the public release of those documents that had been prepared with state funds, claiming Kobach "made statements to the public, the Court, and the President, suggesting that noncitizen registration fraud is a serious, widespread problem," while at the same time trying to hide those same documents that reject his claim, to prevent having to testify in open court about those materials.[25] In June 2017, the federal magistrate judge found that Kobach had made "patently misleading representations" to the court in the course of the document dispute. Kobach was fined $1,000 for "deceptive conduct and lack of candor" and ordered to submit to questioning under oath by the ACLU about the documents and about a draft amendment to the National Voter Registration Act "which would have added a line to the federal voter law that said states could request any information from voters they deem necessary."[26][25][27]
Voter irregularities in the United States
Voter impersonation
Main article: Voter impersonation (United States)
Only US citizens have the right to vote in federal elections.[28] While the United States Congress has jurisdiction over laws applying to federal elections, it has deferred the making of most aspects of election laws to the states. Therefore, the administration of voter registration requirements, voting requirements, and elections vary widely across jurisdictions.
Voter impersonation (also sometimes called in-person voter fraud)[29] is a form of electoral fraud in which a person who is eligible to vote in an election votes more than once, or a person who is not eligible to vote does so by voting under the name of an eligible voter.[29] In the United States, voter ID laws have been enacted in a number of states since 2010 with the aim of preventing voter impersonation. Research has shown that voter impersonation is extremely rare.[30] There is no evidence that in-person voter fraud has changed the result of any election.[31]
In a few cases, permanent residents ("green card" holders) have registered to vote and have cast ballots without realizing that doing so was illegal. Non-citizens convicted in criminal court of having made a false claim of citizenship for the purpose of registering to vote in a federal election can be fined and imprisoned for up to a year. Deportation and removal proceedings have resulted from several such cases.[32]
In an analysis by the Brennan Center for Justice at the New York University School of Law looked at 42 jurisdictions, focusing on ones with large population of noncitizens. Of 23.5 million votes surveyed, election officials referred an estimated 30 incidents of suspected noncitizen voting for further investigation, or about 0.0001% of votes cast. Douglas Keith, the counsel in the Brennan Center's Democracy Program and co-author of the analysis, said, "President Trump has said repeatedly that millions of people voted illegally in 2016, but our interviews with local election administrators made clear that rampant noncitizen voting simply did not occur. Any claims to the contrary make their job harder and distract from progress toward needed improvements like automatic voter registration."[33]
Voter registration irregularities
See also: Voter suppression in the United States
Voter registration is the process of collecting applications to vote, adjudicating those applications, and maintaining the rolls of qualified voters. The process of voter registration is generally left to the states. In an effort to increase voter turnout, a state may adopt less restrictive policies, including motor voter registration and same day registration. In an effort to decrease in-person voter fraud, a state may adopt stricter policies for registration, including proof of citizenship at the time of registration. Federal elections do not require proof of citizenship, only a statement on the signed application.[34]
Voter rolls have high rates of inaccuracy. Voters move, die, and are incarcerated. Voter rolls may include erroneous superfluous entries as a result of fraudulent registration or failure to purge the roll when a voter dies, moves, or is sent to prison. A qualified voter may be legally registered in only one precinct. This is a matter of state law. In 2012, the Pew Trust estimated that 24 million voter records were inaccurate or invalid, including approximately 1.8 million records of deceased people who remained on voter rolls.[35] In October 2016, Trump conflated these irregularities with voter fraud and wrongly cited the Pew report as evidence that 1.8 million people were fraudulently voting against him.[36] Voting twice is a third degree felony in most states.[37] Superfluous entries on a voter roll do not affect elections.[n 1]
Erroneous deletions from a voter roll can potentially affect an election outcome by preventing qualified voters from casting ballots. In November 2016, the New York City Board of Elections was ordered by a federal judge to make affidavit ballots available to people who believed their registrations were improperly purged.[38] A computer analysis by The Palm Beach Post found that at least 1,100 eligible voters were wrongly purged from the Florida Central Voter File before the 2000 US presidential election, causing some eligible voters to be turned away at polling stations.[39] Some commentators and courts have concluded that improperly conducted purges affect political parties differently and disenfranchise racial minorities.[40] For instance, the 2000 Florida purge led to thousands of voters being wrongly disenfranchised, a disproportionate number of them black.[41]
Commission
The Presidential Advisory Commission on Election Integrity was a temporary commission established by President Donald Trump's executive order (E.O. 13799, 82 FR 22389) on May 11, 2017.[1] White House Press Secretary Sarah Huckabee Sanders said the commission would provide the president with a report on their findings by 2018.[42]
Provisions:[1]
Vice president shall chair the commission
President appoints members to the commission, the vice president may select the vice chair
The commission will report on laws, rules, policies, activities, strategies, and practices that enhance and undermine people's confidence in the integrity of the voting processes used in federal elections
The report should also identify voting systems and practices used for federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting
The commission will terminate 30 days after it submits its report to the president
Members
Commission members at time of disbandment[43]
Chair: Mike Pence, Republican, Vice President of the United States, former Governor of Indiana
Vice Chair: Kris Kobach, Republican, Secretary of State of Kansas, Of Counsel, Immigration Reform Law Institute
J. Christian Adams, Republican, former Department of Justice Civil Rights Division attorney
Ken Blackwell, Republican, former Ohio Secretary of State and previously state Treasurer
Matthew Dunlap, Democrat, Secretary of State of Maine
Bill Gardner, Democrat, New Hampshire Secretary of State
Alan Lamar King, Democrat, probate judge of Jefferson County, Alabama[44]
Connie Lawson, Republican, Secretary of State of Indiana
Christy McCormick, Republican, Commissioner of the Election Assistance Commission
Mark Rhodes, Democrat, Wood County, West Virginia county clerk
Hans von Spakovsky, Republican, former member Federal Election Commission, senior legal fellow, The Heritage Foundation and director, Public Interest Legal Foundation
Commission who left prior to disbandment
Luis Borunda, Republican, Maryland deputy secretary of state, resigned July 3, 2017 (prior to the commission's first meeting, but after the controversial letter by Kris Kobach to election officials in the different states)[45]
David K. Dunn, Democrat, former Arkansas state representative, died October 17, 2017[46]
Vice President Pence has been described as the titular head of the Commission on Voter Integrity with Kris Kobach, who also serves on the elections committee of the National Secretaries of States Association (NSOS), as its operational leader. According to the executive order, the commission can have up to sixteen members.[1]
Dunlap and Gardner, the two Democratic secretaries of state on the commission, said they hoped the commission would look into Russian interference in the 2016 election, but Kobach said he did not think that the commission's investigation would go in that direction.[47][48]
Unlike past presidential commissions on elections and voting (such as the Carter-Baker in 2001, Carter-Ford in 2004, and Bauer-Ginsburg in 2013), the leadership of the panel is not bipartisan[11] and the makeup of the panel is not evenly split.[12] Rather, Pence and Kobach, the chair and vice chair of the commission, are both Republicans,[11][12] and Republicans hold a 7 to 5 (originally 8 to 5) advantage in membership for the commission as a whole.[49] The ratio favoring the Republicans increased to 7 to 4 when David K. Dunn died in October 2017. Also in October 2017, two of the four Democrats on the commission, Dunlap and King, sent separate letters to commission staff complaining that they are not being kept informed of commission activities.[50]
Commission member Hans von Spakovsky, director of The Heritage Foundation's Election Law Reform Initiative, is said to have promoted "the myth that Democratic voter fraud is common, and that it helps Democrats win elections" according to a magazine article in The New Yorker.[51] He has supported his claims about the extent of voter fraud by citing a 2000 investigation by the Atlanta Journal-Constitution, which purported to find 5400 instances of deceased people in Georgia voting in the last twenty years.[51] The Journal-Constitution later revised its findings, noting that it had no evidence of even a single ballot purportedly being cast by a deceased person and that the vast majority of the instances in question were due to clerical errors.[51] In an interview with the New Yorker, von Spakovsky cited two scholars who he said could substantiate that voter-impersonation fraud was rampant: Robert Pastor of American University and Larry Sabato of the University of Virginia. Pastor and Sabato both said they would only support voter ID laws if those IDs were issued without cost to the voters, and acquired without substantial difficulty.
It is Sabato's belief that voter impersonation is "relatively rare today,"[51] yet in a 2011 Heritage Foundation article, von Spakovsky referred to Sabato once more as a researcher whose studies established the existence of widespread voter fraud. He also has cited conservative columnist John Fund's Stealing Elections, a book whose assertions of election fraud have been extensively debunked. Fund also co-authored a book with von Spakovsky.[52][53] In an email, von Spakovsky urged Trump's Attorney General Jeff Sessions not to appoint any Democrats, "moderate Republicans and/or academics" to the commission.[44] According to Richard L. Hasen, an election-law expert at the University of California at Irvine, "there are number of people who have been active in promoting false and exaggerated claims of voter fraud and using that as a pretext to argue for stricter voting and registration rules. And von Spakovsky is at the top of the list." Hasen said that Trump's appointment of Spakovsky's was "a big middle finger" to people who are "serious about fixing problems with our elections."[54]
One of Trump's appointees to the commission, Ken Blackwell, was Ohio Secretary of State for two terms beset with controversy, lawsuits, and accusations that he had created impediments to voting. During the 2004 presidential election, Blackwell attempted to throw out voter registrations in Ohio that were not printed on "white, uncoated paper of not less than 80-pound text weight" (a heavy card-stock paper) and the 2004 election in the state was marred by "controversies over topics ranging from voting devices to long lines on Election Day."[55][56] Blackwell revoked the order after county clerks said it was unnecessary, and voting rights advocates called in any attempt at voter suppression.[56] Also in 2004, Blackwell ordered clerks to toss out provisional ballots cast in the wrong precinct, a policy criticized by voting rights advocates but ultimately permitted by a federal appeals court.[56] In March 2006, Blackwell's office also inadvertently released the Social Security numbers of 5.7 million voters.[56]
Commission activity
2017 request for voter information
First request
On June 28, 2017, Kris Kobach, in his capacity as vice chair of the commission, wrote a letter along with the Department of Justice to the top election official in every state requesting they turn over voter data ostensibly to aid a countrywide search for evidence of election irregularities. Besides information such as the names, addresses and party affiliations of all registered voters, Kobach sought birth dates, felony conviction records, voting histories for the past decade and the last four digits of all voters' Social Security numbers.[57] Many states' election officials claim they never received the request and some said they only forward the request from another state's secretary of state.
The letter was not made public, and it became publicly known only after Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, tweeted out an image of the letter the day after the letter was written. Along with the image of the letter, she wrote "Pence and Kobach are laying the groundwork for voter suppression, plain & simple."[58] A few hours after Gupta's tweet, Kobach confirmed to The Kansas City Star that the letter was authentic.[6]
Kobach provided an e-mail address and a website for the election official to electronically submit the personal voter data. The e-mail address lacked basic encryption technology and was found to be insecure.[59]
The request may have violated the federal Paperwork Reduction Act because it was not submitted to the Office of Information and Regulatory Affairs (OIRA) prior to being made to the states. The submission to the OIRA would have required a justification and an explanation of how the data would be used and protected. Additionally, the request did not come with an estimate of how many hours it would take the states to respond. Regulatory experts opined that the consequence of a violation would be that states would not be required to respond.[60]
In January 2018, it was reported that the commission had, in its requests for Texas voter data, specifically asked for data that identifies voters with Hispanic surnames.[61]
Second request
On July 25, Kobach told the Kansas City Star that he intended to send another request for voter data, after receiving a favorable ruling in a lawsuit filed by the Electronic Privacy Information Center. The court had ruled against the center's motion to stop the commission from trying to collect the data, stating that the commission had only made a request, not a demand or an attempt to force.[57] The letter was sent the following day, and it differed from the first request by the addition "if state law allows [the] information to be public". The California Secretary of State announced that it would refuse to comply with the second request.[62]
State responses
There was an immediate bipartisan backlash and rejection of the inquiries with a majority of states quickly rejecting the requests.[7][8][10][63] Notably, commissioners Kobach, Dunlap, and Lawson (who also serve as the secretaries of state for Kansas, Maine, and Indiana respectively, with Indiana being Mike Pence's home state) indicated that their state laws forbade them from complying.[64][65] Some states offered to only provide information that is already made public or available for purchase.[8] No state has said they will fully comply with the list of demands.[66] In response, Trump made a statement on Twitter, "Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?"[