The abrupt dissolution of Donald Trump’s voter fraud commission is a major victory for civil rights advocates who feared, correctly, that the commission’s goal was produce a sham report that encouraged voter suppression. Indeed, the commission’s disbandment on Wednesday appears to be the direct result of a successful lawsuit filed by one Democratic commissioner demanding access to documents shared by other members. But the commission’s vice chair, Kris Kobach, is not abandoning his crusade. Instead, Kobach may exploit the Department of Homeland Security’s database of immigrants to raise new, baseless claims of voter fraud.
Trump created his commission to bolster his false allegation that three million illegal votes were cast in the 2016 election, virtually all of them for Hillary Clinton. He selected Kobach, a Republican, to head the commission because, in his current capacity as Kansas Secretary of State, Kobach led an outwardly nativist campaign to prosecute non-citizen voters. (He claimed that 18,000 aliens have registered to vote in Kansas, but has failed to provide any proof.) Kobach promptly appointed the country’s top voter fraud alarmists to the commission, as well as a handful of token Democrats for a bipartisan patina.
Yet Kobach bungled this opportunity from the start. At an early meeting with Trump, Kobach inadvertently revealed a document he had prepared stating his ultimate goal: to gut the National Voter Registration Act (NVRA) and allow states to demand proof of citizenship for all new voters. Kobach also wrote an email, made public during litigation, confirming this objective. In June, he sent an alarming letter to all 50 states asking for a massive amount of voter roll data; 44 states refused to provide all or some of the requested information. Mississippi’s Republican Secretary of State told the commission to “jump in the Gulf of Mexico.” Even Kobach could not turn over some of the Kansas voter data that he had requested of himself.
It got worse from there. At the commission’s first public meeting, Kobach unspooled a series of easily disproved lies about rampant voter fraud that seemed to embarrass several Democratic commissioners. Then, shortly before the commission’s second public meeting, Kobach published a Breitbart column insisting he had “proof” that thousands of people voted illegally in New Hampshire. That claim, too, was quickly debunked, leading several commissioners to criticize Kobach at the meeting.
Bizarrely, Kobach also failed to ensure that his commission complied with the Federal Advisory Committee Act (FACA), which demands that panels like Kobach’s to follow certain guidelines to maintain transparency and prevent bias. FACA requires advisory commissions to provide public access to all “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents” that its members consult or prepare. Individual commissioners hold “an enforceable right to obtain” these documents and “to fully participate in the deliberations of the Commission.”
In November, Maine Secretary of State Matthew Dunlap, a Democratic member of the commission, sued under FACA to obtain access to the commission’s deliberations. Dunlap alleged that the Republican commissioners had essentially iced him out, denying him access to documents and information passed around by the GOP bloc. In December, a judge ruled in Dunlap’s favor, ordering the commissioners to furnish the documents and respect Dunlap’s “right to fully participate in the commission.”
Rather than comply with the court order, Kobach decided to disband the commission altogether, with little advance warning to his colleagues. A White House official told CNN that the commission could not operate as intended while comporting with FACA. That’s a remarkable admission, as it simply means that the leaders of the commission could not find a way to do its work without keeping unlawful partisan secrets. According to Politico, other White House officials blamed the whole affair on former Trump strategist Steve Bannon. One official called the commission a “blundered Bannon rollout” that “should’ve never been in place.” Another declared: “This was [Bannon’s] idea, and it was not a good one.”
But the commission’s dissolution will not end the Trump administration’s voter fraud offensive. Kobach has stated that he will now work with the Department of Homeland Security to study “election integrity.” That’s disturbing for two reasons. First, DHS was not created to analyze voting, and does not have any clear statutory authority to investigate voter fraud. Kristen Clarke, president of the Lawyers’ Committee for Civil Rights, has called DHS’ involvement “an abuse of the agency’s power.” The NAACP Legal Defense Fund has already filed a Freedom of Information Act request with DHS demanding documents related to voter investigations.
Second, Kobach turned to DHS for a specific reason: He likely wants to use its Systematic Alien Verification for Entitlements (SAVE) database to raise allegations of non-citizen voting. But the SAVE database, which contains the names of both lawful permanent residents and naturalized citizens, was never intended to be used for this purpose. The SAVE database does not automatically note when a non-citizen becomes naturalized, meaning thousands of people could be incorrectly flagged as unlawful voters. Indeed, DHS previously warned that the database could not be used to verify state voter rolls.
But that would not concern Kobach, who has never let facts get in the way of a beneficial voter fraud claim. His previous program to verify state voter rolls, Crosscheck, has a 99.5 percent false positive rate; he still used its data to claim proof of voter fraud. He also backed Trump’s lies about the nonexistent 3 million illegal presidential votes.
With Trump as a benefactor, Kobach may misuse DHS data to amplify new false claims of non-citizen voting. The fight is not over. But Kobach might have already squandered his best opportunity to peddle voter suppression on the national stage through sheer, arrogant lawlessness.