President Donald Trump’s probe to investigate voter fraud has been active for a little over a week, but legal groups are already accusing it of violating several federal laws.
The legal challenges come after the commission sent out a letter to all 50 states requesting voter information. The scrutiny shows the obstruction the commission can expect as it tries to assemble a national database of voter registration records. Defending itself against legal challenges, the commission has signaled it intends to move swiftly, arguing it isn’t subject to burdensome review processes, which are meant to guarantee citizen privacy, because it is not a federal agency.
One of the laws in question is the Paperwork Reduction Act, a 1980 law requiring federal agencies to seek approval from the Office of Management and Budget before requesting information about the public. The law requires the requesting agency to explain why it needs to collect the information, how it intends to do it, and how it intends to protect the information it collects. The reviews can take months.
For state officials on the fence about whether to provide the data, the PRA should weigh significantly in their decisions. The Kobach letter was, after all, an unlawful request.
Larry Schwartztol, a lawyer at United to Protect Democracy
The committee’s vice chairman, Kansas Secretary of State Kris Kobach (R), does not appear to have submitted any such information for review before he sent out a letter to election officials on June 28 requesting voter information.
Wendy Weiser, director of the democracy program at the Brennan Center for Justice, and Larry Schwartztol, a lawyer at United to Protect Democracy, wrote a letter to OMB Director Mick Mulvaney on Monday urging him to block the commission from taking action until it complied with the law.
“The reason for the statute’s painstaking procedural requirements is to ensure that agencies carefully balance their desire to collect information against the harms that might flow from doing so without proper safeguards,” they wrote.
Marc Lotter, a spokesperson for Vice President Mike Pence, who is chairing the commission, told The Hill the panel does not have to comply with PRA because it is not a government agency and only exists to advise the president.
The law defines an agency as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”
States may also use the PRA to justify denying the commission’s request to provide them with personal information, Schwartztol wrote in a post on the legal blog “Take Care.”
“We don’t need to count on a White House official to nullify the commission’s requests. States should simply refuse to provide the requested data – as many already have,” he wrote. “For state officials on the fence about whether to provide the data, the PRA should weigh significantly in their decisions. The Kobach letter was, after all, an unlawful request.”
These are all basic questions designed to test whether the federal entity collecting and storing personal information has thought through how they’re going to use it and how they’re going to prevent abuse.
Justin Levitt, former deputy assistant attorney general in the Justice Department
Separately, the Electronic Privacy Information Center (EPIC) has accused the commission of violating privacy law and asked a D.C. federal court to block it from collecting voter information. The suit accuses the commission of violating the 2002 E-Government Act because it did not undertake a required privacy impact assessment to analyze the safeguards that would protect the information it wants collected. The lawsuit also says voters are threatened by irreparable harm because the commission has yet to prove it has a secure way of storing voter information.
In a Wednesday filing, Kobach said the commission was not subject to the E-Government Act because it was not a government agency and called EPIC’s claims “meritless.”
Justin Levitt, a professor at Loyola Law School and former deputy assistant attorney general in the Justice Department’s Civil Rights division, also wrote the commission may be violating the 1974 Privacy Act.
“There are a number of substantive requirements for a body like the Kobach commission,” Levitt wrote in a post on the “Take Care” blog. “Those actually include specific limits on data that Kobach has asked for, like voting history and party affiliation. And there are also a bunch of procedural requirements, including the requirement to publicize some basic facts on the records you’re collecting – and even to run it by specific Congressional committees.”
“These are all basic questions designed to test whether the federal entity collecting and storing personal information has thought through how they’re going to use it and how they’re going to prevent abuse. There’s no indication that the Kobach commission has done any of this homework before sprinting a letter out the door,” he added.
Kobach’s own work on the commission has also come under scrutiny. On Monday, the Lawyers’ Committee for Civil Rights Under Law filed a complaint accusing Kobach of violating the Hatch Act and using his government position on the commission for political gain (Kobach is running for governor of Kansas). In a complaint filed with the U.S. Office of Special Counsel, the lawyers’ committee noted Kobach promoted interviews discussing his work on the commission on his campaign social media and offered a button for people to donate to his campaign next to news stories about his official work.
Kobach’s office has dismissed the complaint.
“This is nothing but a bunch of liberal lawyers trying to create a story,” Samantha Poetter, a Kobach spokeswoman, said in a statement to the Kansas City Star earlier on Monday.