Presidential Commission on Election Integrity: What We Know

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The last week or so has seen an explosion of headlines in the elections world as the Presidential Commission on Election Integrity begins its work. The news has come so fast that it can be hard to keep up … so here’s a quick summary of where things stand to date:

States’ responses to data requests. Currently, 45 states have informed the Commission that they will either not comply with the request to share data or will share only publicly available data. CNNPolitics has the roundup here (Arkansas was a late addition to the list yesterday).

DOJ letter raises concerns. The Department of Justice has also sent a letter to the 44 states subject to the National Voter Registration Act, asking for information on those states’ list maintenance procedures under the NVRA. While the substance of the request itself is uncontroversial, the breadth of the request raised eyebrows. Justin Leavitt, a former deputy assistant AG who was a key player in DOJ’s enforcement actions under the last Administration, told Huffington Post:

“If this went to any individual states, I don’t think anybody would’ve blinked twice,” … The letter asked for public information that was uncontroversial, he added, but what made the letter “really weird” was that it was sent out to so many states.

“The Department of Justice does investigations all the time, but those are usually based on individualized predicates to believe that there’s a problem in a given area, in a given jurisdiction. And I’m not aware of a similar letter being sent to blanket jurisdictions across the country,” he said.

Litigation. The Electronic Privacy Information Center has filed suit to stop the data requests as an invasion of voter privacy, USAToday reports:

The Trump administration told a federal judge Wednesday that a legal challenge to an advisory commission’s request for sensitive data on voters from all 50 states could prevent the panel from investigating alleged voter fraud.

Even as most states refuse to provide at least some of the data sought by the panel — including voters’ political affiliations and the last four digits of their Social Security numbers — the Justice Department argued that it is seeking only publicly available information.

The lawsuit, filed Monday by the Electronic Privacy Information Center, asks the U.S. District Court for the District of Columbia to block the request as an invasion of privacy. Not so, the government responded.

“The commission has begun to request information from the states, to be provided on a voluntary basis,” the Justice Department said. “EPIC seeks to enjoin these first steps, which will prevent the commission from even beginning its work.”

Paperwork Reduction problems? There are also reports that the Commission may have violated the federal Paperwork Reduction Act by failing to submit the requests to states for review before sending them out – which could give states another reason to refuse to comply. The Hill has more:

Experts say the failure to submit the request to states through the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) violates a 1980 law known as the Paperwork Reduction Act (PRA). They also say the failure could be significant, since states could argue it means they are under no obligation to respond.

“If the commission gets heavy-handed with them, it seems to me that the states are within their right to say, ‘No, we don’t have to respond because you didn’t go through [OIRA],’” said Susan Dudley, a former OIRA administrator who is now director of the GW Regulatory Studies Center at George Washington University.

Membership changes. Late last week, the White House announced that it was adding former FEC Commissioner Hans von Spakovsky, a well-known national voice on voter fraud concerns, to the Commission. Over the weekend, the Commission also lost a member when Maryland deputy SoS Luis Borunda resigned from the panel.

First meeting July 19. The Commission has announced that it will hold its first meeting on July 19 – but CEIR’s David Becker notes that the meeting notice indicates that the session will be held in the Old Executive Office Building in Washington, DC and will be open to the public only through live-streaming.

This is clearly a white-hot moment in the election field; you can bet that the stories will continue to come fast and furious. If possible, I’d like to keep my eye on other stories in the election world as well, so coverage here at the blog may largely focus elsewhere – but you should follow and Rick Hasen’s Election Law Blog for the latest news.

Stay tuned …


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