Is the Kobach Commission Violating the Law?

(AP Photo/John Hanna)

Kris Kobach answers questions after the launch of his campaign for governor on June 8, 2017, in Lenexa, Kansas.

The Trump administration “election integrity” commission’s request that all 50 states turn over voter files containing sensitive personal information is not only a threat to election security and to Americans’ privacy and voting rights—it may also be illegal.

In separate letters and court filings, several privacy, civil liberties, and voting rights groups have accused the commission and its de facto leader of violating no fewer than half a dozen federal statutes. These include laws that protect privacy, constrain government information-gathering, and dictate how presidential commissions must conduct their business. Commission Vice Chair Kris Kobach, the Kansas secretary of state, also stands accused of violating the Hatch Act by using his position on the panel to advance his gubernatorial bid.

The most serious challenge to the Presidential Advisory Commission on Election Integrity may be one privacy group’s request for a temporary restraining order. Filed in federal district court by the Electronic Privacy Information Center (EPIC), the request charges the commission with violation the E-Government Act of 2002, among other statutes, because it failed to perform a Privacy Impact Assessment before asking states for voter files.

The commission’s June request for states to turn over databases that include, if available, voters’ dates of birth, party affiliations, voting history, partial Social Security numbers, felony records, and military service “is as brazen as it is unlawful,” states the restraining order request. The commission asked that states send sensitive personal information for hundreds of millions of voters one of two ways, both of them insecure, EPIC lawyers note: to a government email address, or to a file exchange system whose own website warns that it is not secure.

The commission has not only “taken no steps” to protect voters’ personal information, the group’s motion states, but has “disclaimed all responsibility for maintaining the security and confidentiality of these records,” since Kobach’s letter told election officials to that all documents submitted “will also be made available to the public.”

The commission, nominally headed by Vice President Mike Pence but essentially run by Kobach, has faced criticism since its inception in May. Election officials and experts, and voting-rights advocates reject Trump’s unsubstantiated claim that millions of voters cast fraudulent ballots in last year’s election, and warn that the commission’s true purpose is to promote nationally the types of strict election restrictions that have made Kobach notorious for voter suppression in Kansas.

Election officials in at least 44 states, including a sizable majority of those controlled by Republicans, have said they will comply only partially or not at all with Kobach’s voter data request, citing state privacy laws, federalism concerns, and doubts about the commission’s intent.

In a telling tweet, Trump faulted states “refusing to give information to the very distinguished VOTER FRAUD PANEL,” and asked: “What are they trying to hide?” Kobach and Pence in a statement denounced reports of state noncompliance as “fake news,” and maintained that 20 states will provide “the publicly available information” requested.

But the commission’s biggest problems may be legal. At issue are numerous statutes that reduce government paperwork burdens, block federal privacy intrusions, protect personal data and ensure government transparency and accountability via open meetings and other procedural rules. Here is a full list of the laws that critics say the commission may have violated.

  • E-Government Act of 2002: Requires any agency collecting new, personally identifying information electronically to publish a privacy impact assessment stating what, how, and why the information is being collected, and how it will be secured. The commission’s failure to perform such an assessment is the principal basis for EPIC’s restraining order request.
  • Administrative Procedure Act of 1946: Bars federal agencies from taking any action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The commission’s failure to follow the E-Government Act puts the commission in violation of the Administrative Procedure Act, says EPIC.
  • Federal Advisory Committee Act of 1972: Imposes open meeting, public involvement, and reporting rules on federal advisory panels, including a requirement that documents be open for inspection. Kobach released his letter to the states following a private conference call, and prior to the commission’s first public meeting, scheduled for July 19. The Lawyers’ Committee for Civil Rights Under Law has accused the commission of “operating covertly,” and requested all emails between commissioners, citing the Federal Advisory Committee Act.
  • The Paperwork Reduction Act of 1995: Requires the federal government to justify, provide advance notice for, and seek public comment on information requests that it imposes on individuals, companies and states. The Brennan Center for Justice and the group United to Protect Democracy have asked Office of Management and Budget Director Mick Mulvaney to intervene in what it calls the commission’s “violations of the statute’s black-letter requirements.”
  • The Privacy Act of 1974: Requires the federal government to inform Congress and the public when collecting information from individuals, and to lay out its guidelines for protecting that information. Loyola Law School’s Justin Leavitt has been quoted as saying that states could deny the commission’s request on the grounds that it violates the Privacy Act.
  • The Hatch Act of 1939: Bars federal employees who do not have explicitly political roles, such as the president and vice president, from participating in political activities. The Lawyers’ Committee for Civil Rights Under Law has filed a Hatch Act complaint against Kobach, alleging that he has promoted his gubernatorial candidacy and solicited campaign contributions while acting in his capacity as the commission’s vice chair.

This story has been updated.

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