Last week, President Trump signed an executive order establishing a presidential advisory commission on “election integrity.” Its mission is not to examine why the United States has one of the lowest turnout rates in the western world or to investigate the intelligence community’s consensus that Russia sought to interfere in the 2016 election.
Instead of addressing those very real issues, the stated purposes of the commission include finding evidence of “fraudulent voter registrations and fraudulent voting,” and identifying “practices that enhance the American people’s confidence in the integrity of the voting processes.” But the commission’s design and personnel indicate that its true purposes can only be the opposite: to undermine public confidence in elections with trumped up evidence of fraud, in order to pave the way for restrictions on voting.
Let’s start with two basic facts. First, the biggest threat to elections integrity is that not enough eligible Americans participate in our democracy, calling into question the basic premise that our government reflects the will of the majority. The United States ranks 31st among the 35 countries in the Organization for Economic Cooperation and Development in voter turnout. The recent French presidential election saw turnout of about 68 percent, a 30-year low for France, which led some commentators to bemoan the apathy of the French electorate. But that “low” turnout rate for France was still about 13 points higher than U.S. turnout in 2016. The U.S. has not cracked 65 percent turnout of eligible voters since 1968.
Second, we do not have a problem of waves of ineligible people who are clamoring to vote. There is not a shred of evidence to support President Trump’s assertions that 3-5 million supposedly illegal votes that were cast in the 2016 election (or, for that matter, that once said illegal votes are subtracted, he actually won the popular vote). Elected officials from across the political spectrum including Speaker Paul Ryan, election administrators, and legal experts have rejected the president’s false statements that 3-5 million illegal votes were cast in the 2016 presidential election. And the president’s own legal team told a Michigan court that “[a]ll available evidence suggests that the 2016 general election was not tainted by fraud or mistake.”
Proponents of the Commission have ignored the absence of evidence to justify its existence. They ask, if there’s no fraud, why not have an investigation to confirm that fact? But we’ve seen this reality show before, and it did not have a happy ending. During the George W. Bush administration, Attorney General John Ashcroft made voter fraud a top priority at the Department of Justice, which initiated a voter fraud initiative that continued under the leadership of Attorney General Alberto Gonzales. In 2005, DOJ announced that it would prioritize election fraud enforcement, “requir[ing] that all components of the Department place a high priority on the investigation and prosecution of election fraud.” After five years, the nationwide investigation resulted in a grand total of 86 people convicted of election-related crimes ― during a period in which hundreds of millions of ballots were cast. Seven U.S. attorneys who had refused to go along with the administration’s agenda were improperly fired, in a move that the inspector general of DOJ concluded was “fundamentally flawed, “severely damaged the credibility of the Department and raised doubts about the integrity of Department prosecutive decisions.” By September 2007, nine of the senior DOJ staff members associated with the controversy had resigned in disgrace, including Attorney General Gonzales himself.
We are now watching the sequel to that ill-fated boondoggle. This time, the protagonist is Kansas Secretary of State Kris Kobach, who has stated that he believes that Trump is “absolutely correct” about winning the popular vote. He has claimed that non-citizens are registering and voting in substantial numbers, but in 2016, he had the dubious distinction of being called out by two different U.S. Courts of Appeals for his exaggerations: the Court of Appeals for the 10th Circuit described Kobach’s claims of noncitizen voting as “pure speculation,” while the Court of Appeals in Washington, D.C. described him of having “precious little record evidence” to support his claims.
Asking Kobach to lead a commission tasked also tasked with addressing elections integrity is akin to trusting Bernie Madoff to invest your kids’ college funds. Kobach has supported a variety of measures to restrict access to the polls, including: strict identification requirements that the U.S. Kansas Advisory Committee to the U.S. Civil Rights Commission found “may effectively be compared to a poll tax”; excessive documentation requirements for voter registration, which blocked 18,000 motor voter applicants from registering to vote, and which Judge Jerome Holmes, an appointee of George W. Bush, labeled a “mass denial of a fundamental right”; and the voter registration “Crosscheck” program, a system that purports to compare registration rolls in multiple states to find people who are double-registered, but which one recent study found “would eliminate about 200 registrations used to cast legitimate votes for every one registration used to cast a double vote.”
Kobach apparently has national ambitions for his voter suppression agenda. Last November, Kobach was notoriously photographed carrying documents into a meeting with then-President-elect Trump, which appeared to contain a proposal to change federal voter registration laws. The ACLU sought those documents in connection with litigation against Kobach over his office’s violations of the motor-voter law, but Kobach and his legal team sought to withhold them from disclosure, leading U.S. Magistrate Judge O’Hara to blast Kobach for engaging in “word-play meant to present a materially inaccurate picture of the documents,” and to order Kobach to turn them over. The ACLU has now received those documents, but we cannot release them to the public or comment on their contents without a court order, because Kobach continues to claim that they are “confidential” and cannot be shared with the media or the general public.
If the members of this commission believe that the American people have a right to know the truth about the integrity of our elections, they would call on Kobach to release the details of his plans for our elections to the public. And they would focus on real problems instead of witch hunts, starting with serious proposals to encourage broader participation in our democracy.