[EL] ELB News and Commentary 6/1/17

Sat Jul 1 16:05:29 PDT 2017

Derek Muller: The Kobach fallout on election security<http://electionlawblog.org/?p=93501>
Posted on July 1, 2017 4:03 pm<http://electionlawblog.org/?p=93501> by Rick Hasen<http://electionlawblog.org/?author=3>
The following is a guest post from Derek Muller<https://law.pepperdine.edu/faculty-research/derek-muller/>:
The Presidential Advisory Commission<https://www.whitehouse.gov/the-press-office/2017/05/11/presidential-executive-order-establishment-presidential-advisory> on Election Integrity offered its first public request this week, as Vice Chair and Kansas Secretary of State Kris Kobach requested voter information from every state. That single request has likely done long-lasting damage to the political ability of the federal government to regulate elections. In particular, any chance that meaningful election security issues would be addressed at the federal level before 2020 worsened dramatically this week.
The request is sloppy, as Charles Stewart carefully noted<https://www.whitehouse.gov/the-press-office/2017/05/11/presidential-executive-order-establishment-presidential-advisory>, and, at least in some cases, forbidden under state law. The letter was sent to the wrong administrators in some states, it requests data like “publicly-available . . . last four digits of social security number if available” (which should never be permissible), and it fails to follow the proper protocol in each state to request such data.
Response from state officials has been swift<https://apnews.com/bb1c0c0d9fa847c98b068681a24a5009/Trump-voting-commission-will-get-limited-state-voter-data> and generally opposed. It has been bipartisan, ranging from politically-charged outrage, to drier statements about what state disclosure law permits and (more often) forbids.
But the opposition reflects a major undercurrent from the states to the federal government: we run elections, not you.
The Constitution’s default rules<https://www.law.cornell.edu/constitution/articlei> provide that the state legislatures choose the “times, places and manner of holding elections for Senators and Representatives,” but Congress has the power to “make or alter such regulations.” Congress has slightly less power over presidential elections and very little over state or local elections (but more so since Reconstruction). And in American history, Congress has been reluctant to enact laws regulation elections except in a handful of instances (including major laws like the Voting Rights Act). For the most part, elections are primarily a matter of state regulation and control.
The 2016 presidential election highlighted this decentralized system when concerns about election security arose. As I noted in the Illinois Law Review Online<https://illinoislawreview.org/symposium/first-100-days/three-divergent-election-law-decisions-in-the-early-trump-administration/>, the Federal Bureau of Investigation and the Department of Homeland Security investigated attempted breaches into voter registration databases in late 2016. There has been increased, and justifiable, concern about election system security—thankfully, nothing (so far) that has undermined the outcome of any election.
Before this week, the states were already nervous about federal regulation of their election systems. DHS designated election systems as “critical infrastructure” in the waning days of the Obama administration. The National Association of Secretaries of State formally opposed the designation; the Trump administration indicated it would maintain the DHS designation. States worried that they would lose flexibility and bear increased costs without adequate justification.
The delicate balance between federal and state regulation of election system security was already going to be a complicated problem to begin to resolve by 2020. Then comes this request from Mr. Kobach.
Ostensibly, the Commission’s request for information is designed to ferret out voter fraud (despite Professor Stewart’s careful explanation of the likely problems stemming from this sloppy request). And while others have critiqued the request on various grounds, it struck me that this request has only served to deepen state skepticism of federal election regulation.
(Here I feel compelled to add a caveat for those inclined to misread these inferences: I do not believe that Mr. Kobach’s request is some kind of false flag operation designed to actually empower states, restrict federal power, and increase the likelihood of foreign interference in our elections.)
In the next few years, what is the likelihood that state election administrators voluntarily provide election system information with the federal government? Probably a lot lower than they were a week ago. States were already skeptical of handing over information about, much less any control over, their elections to the federal government. They’re probably even less willing today.
That’s probably not what state election officials are thinking about when pushing back against the Commission’s request with such vigor. Nevertheless, it undoubtedly heightens skepticism they may have already had. They are publicly assuring state voters that they will not share sensitive election information with the federal government—the kind of promise that will linger.
Fair-weather federalists may applaud election officials in California and New York resisting Mr. Kobach. But it is worth noting that this resistance likely enhances a significant political limitation to any federal election regulation in the near future.
These thoughts are mostly descriptive. In the end, I’m not sure what the best path forward to secure our elections may look like—how much federal regulation or guidance is wise policy; the extent to which federal recommendations should be voluntary (consider the important advances<https://twitter.com/persily/status/868100494824288256> made in the states from recent voluntary adoption of recommendations of the Presidential Commission on Election Administration); or to what extent election security would require new laws from Congress, as opposed to federal agencies acting within the scope of existing statutory mandates. Smart people, particularly those with a deep knowledge of computer science, have offered a great deal of valuable practical insight in the last few months, which I hope is seriously considered in the states.
But, I do believe that these conversations at the national level are going to be much harder to have in the first place. The Commission’s sloppy request has increased state skepticism of federal guidance. We should expect state resistance here to signal abiding skepticism of any kind of federal election system security standards by 2020.
(Rick kindly offered space on his blog to share these thoughts, derived from my recent Tweetstorm<https://twitter.com/derektmuller/status/880935810786250752>.)
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Trump’s pick to investigate voter fraud is freaking out voting rights activists”<http://electionlawblog.org/?p=93499>
Posted on July 1, 2017 4:00 pm<http://electionlawblog.org/?p=93499> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/news/post-nation/wp/2017/06/30/trumps-pick-to-investigate-voter-fraud-is-freaking-out-voting-rights-activists/?utm_term=.c9ce5cb97537>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Donald Trump just admitted his election integrity commission is a ‘voter fraud panel'”<http://electionlawblog.org/?p=93496>
Posted on July 1, 2017 3:58 pm<http://electionlawblog.org/?p=93496> by Rick Hasen<http://electionlawblog.org/?author=3>
Celeste Katz:<https://mic.com/articles/181295/donald-trump-just-admitted-his-election-integrity-commission-is-a-voter-fraud-panel#.PBRZhX1LA>
He’s calling a spade a spade.
President Donald Trump<https://mic.com/topic/donald-trump> lashed out at critics of his “election integrity commission” on Twitter Saturday, describing the group specifically as a “very distinguished VOTER FRAUD PANEL.”
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Trump Slams States for Pushing Back on Panel’s Voter-Data Demand”<http://electionlawblog.org/?p=93494>
Posted on July 1, 2017 3:55 pm<http://electionlawblog.org/?p=93494> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg reports.<https://www.bloomberg.com/news/articles/2017-07-01/trump-slams-states-for-declining-to-provide-detailed-voter-data>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Trump voter-fraud panel’s data request a gold mine for hackers, experts warn”<http://electionlawblog.org/?p=93491>
Posted on July 1, 2017 3:49 pm<http://electionlawblog.org/?p=93491> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/07/01/trump-voter-fraud-panel-hackers-240168>
Cybersecurity specialists are warning that President Donald Trump’s voter-fraud commission may unintentionally expose voter data to even more hacking and digital manipulation.
Their concerns stem from a letter<https://www.documentcloud.org/documents/3881856-Correspondence-PEIC-Letter-to-North-Carolina.html> the commission sent to every state this week, asking for full voter rolls and vowing to make the information “available to the public.” The requested information includes full names, addresses, birth dates, political party and, most notably, the last four digits of Social Security numbers. The commission is also seeking data such as voter history, felony convictions and military service records.
 Digital security experts say the commission’s request would centralize and lay bare a valuable cache of information that cyber criminals could use for identity theft scams — or that foreign spies could leverage for disinformation schemes.
“It is beyond stupid,” said Nicholas Weaver, a computer science professor at the University of California at Berkeley.
“The bigger the purse, the more effort folks would spend to get at it,” said Joe Hall, chief technologist at the Center for Democracy and Technology, a digital advocacy group. “And in this case, this is such a high-profile and not-so-competent tech operation that we’re likely to see the hacktivists and pranksters take shots at it.”
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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>

Delicious Story: “I’ve silenced Kris Kobach on the issue of voter fraud”<http://electionlawblog.org/?p=93489>
Posted on June 30, 2017 5:57 pm<http://electionlawblog.org/?p=93489> by Rick Hasen<http://electionlawblog.org/?author=3>
Chad Lawhorn <http://www2.ljworld.com/weblogs/town_talk/2017/jun/30/ive-silenced-kris-kobach-on-the-issue-of/> for Lawrence Journal-World:
And when the subject is illegal voting, Kobach normally becomes like a “Game of Thrones” fan at a cocktail party. You need an actual wizard to get out of that conversation.
But evidently that is not always the case. It has been a little more than four months since I first reported a potential voter fraud<http://www2.ljworld.com/news/2017/feb/19/douglas-county-sheriff-his-mother-under-investigat/> case involving Douglas County Sheriff Ken McGovern and his elderly mother. I’ve asked Kobach’s representatives approximately a half-dozen times for an update on the case. Most times, I haven’t even received a response from his office. I did on June 14. Spokeswoman Samantha Poetter sent me an email saying she expected to have an update for me later that day. That was the last I’ve heard from her, despite checking in several more times.
Why is Kobach silent on the matter? I, of course, don’t know. I can only speculate. Fortunately, one of the perks of being an editor is you are allowed to do that.
I suspect it is because the case puts Kobach — who is running for the GOP nomination for governor and is President Trump’s co-chair on the Presidential Advisory Commission on Election Integrity — in a tough position. As a reminder, here’s the key allegation made against octogenarian Lois McGovern: She voted in the 2016 Douglas County primary while being registered at a Lawrence home that she had sold more than a year earlier. The evidence suggests she actually was living in a Johnson County nursing home at the time of the election. Her son, Sheriff McGovern, picked up the ballot for her, knowing that she was registered to vote at a home where she no longer lived.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“State Officials Of Both Parties Reject Requests For Voters’ Identification Details”<http://electionlawblog.org/?p=93487>
Posted on June 30, 2017 5:53 pm<http://electionlawblog.org/?p=93487> by Rick Hasen<http://electionlawblog.org/?author=3>
Pam Fessler reports<http://www.npr.org/sections/thetwo-way/2017/06/30/535089359/state-officials-of-both-parties-reject-requests-for-voters-identification-detail?live=1> for NPR.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Asked for Voters’ Data, States Give Trump Panel a Bipartisan ‘No’”<http://electionlawblog.org/?p=93485>
Posted on June 30, 2017 5:43 pm<http://electionlawblog.org/?p=93485> by Rick Hasen<http://electionlawblog.org/?author=3>
Important Michael Wines in the NYT,<https://www.nytimes.com/2017/06/30/us/politics/kris-kobach-states-voter-fraud-data.html?_r=0> rounding up the state of play:
ata of the nation’s 200 million voters set off an avalanche of opposition by state leaders in both parties on Friday, as officials from California to Mississippi called the move an overreach and more than 20 states declared they would not comply.
It was an inauspicious start for the panel, which was created after President Trump claimed<https://www.nytimes.com/2017/01/25/us/politics/trump-voting-fraud-false-claim-investigation.html> last winter that millions of illegal votes had robbed him of a popular-vote victory over Hillary Clinton.
The vice chairman and day-to-day leader of the Presidential Advisory Commission on Voter Integrity, Kris Kobach, had asked election officials in a letter<https://www.brennancenter.org/sites/default/files/analysis/06.28.17_Kobach_Letter_to_States.pdf> to turn over the data “if publicly available,” apparently to aid a nationwide search for evidence of election irregularities. Besides election information like voters’ names and party affiliations, the commission sought personal information including birth dates, felony conviction records, voting histories for the past decade and the last four digits of all voters’ Social Security<http://topics.nytimes.com/top/reference/timestopics/subjects/s/social_security_us/index.html?inline=nyt-classifier> numbers.
Mr. Kobach, the secretary of state in Kansas, has said he wants to match voter information with other data, like federal records of foreign residents and undocumented immigrants, to spotlight people who cast illegal ballots. He asserts that such fraud is widespread in Kansas and elsewhere, although he has found scant evidence of it so far.
But a growing number of state election officials have indicated — sometimes politely, sometimes brusquely — that they will not or cannot comply. Among them, ironically, were Mr. Kobach himself and a second member of the commission, Secretary of State Connie Lawson of Indiana, both of whom disclosed on Friday that privacy laws prevented them from furnishing some personal voter data.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“What does this Trump commission want do with states’ voter information?” Me on the PBS News Hour<http://electionlawblog.org/?p=93483>
Posted on June 30, 2017 5:06 pm<http://electionlawblog.org/?p=93483> by Rick Hasen<http://electionlawblog.org/?author=3>
Watch. <http://www.pbs.org/newshour/videos/#220505>
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

NPR’s Ari Shapiro Interviews Kris Kobach–Listen for Last Question on Trump’s False Claims of Millions of Illegal Votes<http://electionlawblog.org/?p=93481>
Posted on June 30, 2017 4:50 pm<http://electionlawblog.org/?p=93481> by Rick Hasen<http://electionlawblog.org/?author=3>
Nice job by Ari. You can listen here<http://www.npr.org/2017/06/30/535059231/voting-commissioner-kris-kobach-defends-u-s-request-for-voter-information>.
Kobach falsely claims he is just asking for publicly available information. But it includes SSNs and other information.
He says the Commission will study security of state voter rolls. This is new.
Kobach says he “does not know” if millions of people voted illegally, as Trump falsely claimed.
“It all depends on what you describe as evidence,” Kobach says.
Ari also<http://www.npr.org/2017/06/30/535059224/kentucky-secretary-of-state-denies-white-house-request-for-voter-information> spoke separately with Allison Grimes, Kentucky SOS.

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Posted in Fixing Election Administration<http://electionlawblog.org/?cat=4>, The Voting Wars<http://electionlawblog.org/?cat=60>

Quote of the Day: Republican Pushback on Kobach’s Federal Intrusion Edition<http://electionlawblog.org/?p=93478>
Posted on June 30, 2017 4:26 pm<http://electionlawblog.org/?p=93478> by Rick Hasen<http://electionlawblog.org/?author=3>
“They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from,”….“Mississippi residents should celebrate Independence Day and our state’s right to protect the privacy of our citizens by conducting our own electoral processes.”
—Error! Hyperlink reference not valid.<http://mississippi%20secretary%20of%20state%20delbert%20hosemann/> on Pence-Kobach Faux Commission request
I noted the federalism issues<http://electionlawblog.org/?p=93440> yesterday.
________________________________

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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Trump’s voting commission asked states to hand over election data. Some are pushing back.”<http://electionlawblog.org/?p=93476>
Posted on June 30, 2017 4:22 pm<http://electionlawblog.org/?p=93476> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/national/trumps-voting-commission-asked-states-to-hand-over-election-data-theyre-pushing-back/2017/06/30/cd8f812a-5dce-11e7-9b7d-14576dc0f39d_story.html?utm_term=.3d6c5f1c6fb2>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Kobach Can’t Provide Himself with Information He Requested on Kansas Voters<http://electionlawblog.org/?p=93472>
Posted on June 30, 2017 12:59 pm<http://electionlawblog.org/?p=93472> by Rick Hasen<http://electionlawblog.org/?author=3>
Truly it is the incompetence<https://twitter.com/rickhasen/status/880874935228416000> that will save us.
Bryan Lowry:<http://www.kansascity.com/news/politics-government/article159113369.html>
Multiple states plan to buck Kansas Secretary of State Kris Kobach’s request for personal information on voters on behalf of a presidential commission.
Kobach said Friday that Kansas also won’t be sharing Social Security information with the commission, for which he serves as vice chairman, at this time….
Kobach said Friday that the commission has no legal authority to compel states to hand over the information but that the Justice Department does possess such power. He said he could not say whether the department would become involved in the effort to obtain information from states.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Trump’s Voter Fraud Endgame; His ‘election integrity’ investigation is a pretext to repeal the National Voter Registration Act. It won’t work”<http://electionlawblog.org/?p=93470>
Posted on June 30, 2017 10:06 am<http://electionlawblog.org/?p=93470> by Rick Hasen<http://electionlawblog.org/?author=3>
I have written this piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/donald_trump_s_voter_fraud_commission_is_itself_an_enormous_fraud.html> for Slate. It begins:
Donald Trump’s attempt at voter suppression through his “election integrity” commission<http://www.slate.com/articles/news_and_politics/politics/2017/05/kris_kobach_is_leading_trump_s_vote_fraud_commission_that_s_terrifying.html> is a voting rights nightmare that is being enacted so clumsily it just might backfire…..
Kobach’s likely going to use this information to try to “match” voters and show there is bloat on the voter rolls, such as dead voters and people who have moved but have not been removed from the rolls. He’ll also likely find a small number of noncitizens who are registered to vote. Doing this kind of matching well is tough business<https://electionupdates.caltech.edu/2017/06/29/first-thoughts-about-the-pence-commission-voting-list-request/>: It is easy to claim that two people with the same name are the same person, or that someone is a felon because he has the same name as a felon. But Kobach will not be relying on election administration professionals to do that work; he’s going to use the president’s staff.
The report will likely conclude that even if there is no evidence of actual voter fraud, the potential for voter fraud and noncitizen voting is there because of inaccurate rolls. Accordingly, they will argue it is necessary to roll back the 1993 National Voter Registration Act<https://www.justice.gov/crt/about-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.
Repealing the enfranchising parts of the motor voter law would be a terrible thing, but the good news is that the “electoral integrity” commission’s efforts are already so outlandish and lacking in credibility that it will do nothing to help get the law repealed. Serious Democrats and Republicans know this effort is a sham. This is a faux commission that is not following sound social science or bipartisan principles.
That’s not to say there won’t be an attempt to kill the motor voter law. Indeed, the move toward voter suppression is proceeding apace. Just this week<http://www.routefifty.com/management/2017/06/trump-election-integrity-commission-state-voter-data/139107/>, a House committee voted to defund the United States Election Assistance Commission, a federal agency which is charged with certifying the security of voting machines and coming up with best practices for election administration. And the U.S. Department of Justice is looking to make states enforce the voter purge provisions of the 1993 motor voter law.
But the Trump commission process has been so poorly handled that whatever it concludes will be likely ignored by serious people, even while the president latches onto it to make it harder for people to register and vote. He’s overplayed his hand, and we should be thankful for that.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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http://electionlawblog.org<http://electionlawblog.org/>
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