Voter Privacy and the Presidential Election Commission
The Presidential Advisory Commission on Election Integrity ("PACEI") was established on May 11, 2017, and is chaired by the Vice President. The President appoints the members of the committee, up to a maximum of 15 members, and those members serve without additional compensation (other than travel expenses). The stated purpose of the Commission is to "study the registration and voting processes used in Federal Elections" and to issue a report to the President addressing three specific issues. The Commission shall terminate 30 days after it submits its report to the President.
The Commission was the subject of controversy even before it was created. The President first announced the idea of the Commission in connection with his claim that 3-5 million illegal votes were cast in the 2016 election. The Commission also drew criticism when, as its first official action, it asked all 50 states and the District of Columbia to provide data from state voter rolls. Many states have announced that they will partially or fully refuse the Commission's request.
EPIC filed suit against the Commission on July 3, 2017, to halt its unlawful collection of state voter data—the first such lawsuit in the country. EPIC is currently litigating the case before the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia Circuit.
The Executive Order establishing the Commission states that President "shall appoint additional members, who shall include individuals with knowledge and experience in elections, election management, election fraud detection, and voter integrity efforts, and any other individuals with knowledge or experience that the President determines to be of value to the Commission. The Vice President may select a Vice Chair of the Commission from among the members appointed by the President." Vice President Pence has appointed Kansas Secretary of State Kris Kobach as the Vice Chair of the Committee. Reports indicate that the final commission will include six Democrats and Six Republicans. So far, four Democrats have been named: Mark Rhodes (a county clerk in West Virginia), David Dunn (a former Arkansas state representative), Matt Dunlap (the Secretary of State of Main), and Bill Gardner (the Secretary of State of New Hampshire). Other Republican members include Connie Lawson (the Secretary of State of Indiana), Luis Borunda (the Deputy Secretary of State of Maryland), and Hans Von Spakovsky (Heritage Foundation).
Mission and Report
The primary state purpose of the Commission is to issue a report to the President identifying the following:
- those laws, rules, policies, activities, strategies, and practices that enhance the American people's confidence in the integrity of the voting processes used in Federal elections;
- those laws, rules, policies, activities, strategies, and practices that undermine the American people's confidence in the integrity of the voting processes used in Federal elections; and
- those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.
Request for State Voter Records
On June 28, 2017, the Commission's Vice Chair Kris Kobach sent a letter to election officials for all 50 states and the District of Columbia. In the letter, the Vice Chair requested "views and recommendations" on 7 specific questions. In addition, the Commission requested that the states "provide to the Commission the publicly-available voter roll data" including "if publicly available under the laws of your state":
- the full first and last names of all registrants, middle names or initials if available
- dates of birth
- political party (if recorded in your state)
- last four digits of social security number if available
- voter history (elections voted in) from 2006 onward
- active/inactive status, cancelled status
- information regarding any felony convictions
- information regarding voter registration in another state
- information regarding military status, and
- overseas citizen information
The Commission requested that the states "submit [their] responses electronically to ElectionIntegrityStaff@ovp.eop.gov or by utilizing the Safe Access File Exchange ("SAFE"), which is a secure FTP site the federal government uses for transferring large data files." The Commission requested a response by July 14, 2017, and notified the states that "any documents that are submitted to the full Commission will also be made available to the public." The other questions outlined in the letter are as follows: (1) What changes, if any, to federal election laws would you recommend to enhance the integrity of federal elections? (2) How can the Commission support state and local election administrators with regard to information technology security and vulnerabilities? (3) What laws, policies, or other issues hinder your ability to ensure the integrity of elections you administer? (4) What evidence or information do you have regarding instances of voter fraud or registration fraud in your state? (5) What convictions for election-related crimes have occurred in your state since the November 2000 federal election? (6) What recommendations do you have for preventing voter intimidation or disenfranchisement? (7) What other issues do you believe the Commission should consider?
On the same day that the Commission requested voter roll data from all 50 states, the Department of Justice Civil Rights Division sent a parallel request for the "procedures for compliance with the statewide voter registration list maintenance provisions" required under the National Voter Registration Act ("NVRA"), 52 U.S.C. § 20501 et seq. and the Help America Vote Act ("HAVA"), 52 U.S.C. § 20901 et seq. These requirements apply to "covered states" and relate to the "maintenance of accurate statewide voter lists" as well as the use of "uniform statewide database requirements." The DOJ stated that their review would include "an analysis of voter registration data reported by each state to the U.S. Election Assistance Commission ("EAC") as part of its biennial Election Administration and Voting Survey ("EAVS"). The DOJ also requested "All statutes, regulations, written guidance, internal policies, or database user manuals that set out the procedures" related to four specified under the HAVA and NVRA. The DOJ also requested "an explanation of which election officials are responsible for implementing" the voter registration list maintenance program.
- District of Columbia
- Massachusetts (according to news reports)
- New Mexico
- New York
- South Dakota (according to news reports)
- Wyoming (according to news reports)
- Georgia (according to news reports)
- Idaho (according to news reports)
- Kansas (according to news reports)
- New Hampshire (according to news reports)
- North Carolina
- North Dakota (according to news reports)
- Oklahoma (according to news reports)
- Illinois (according to news reports)
- Montana (according to news reports)
- Nebraska (according to news reports)
- Rhode Island
- South Carolina (according to news reports)
- West Virginia (according to news reports)
- Presidential Executive Order on the Establishment of Presidential Advisory Commission on Election Integrity (May 11, 2017), Exec. Order No. 13,799, 82 Fed. Reg. 22,389
- Letter from Kris W. Kobach, Vice Chair, PACEI, to Hon. Elaine Marshall, Secretary of State, North Carolina (June 28, 2017)
- Letter from T. Christian Herren, Jr., Chief, Voting Section, Civil Rights Division, U.S. Dep't of Justice, to Hon. Kim Westbrook Strach, Exec. Dir., State Bd. of Elections, North Carolina (June 28, 2017)
- Letter from Twenty-Five U.S. Senators to the PACEI (July 6, 2017)
- Letter from Seventy-Three U.S. House Members to the PACEI (July 18, 2017)
- Christopher Ingraham, Trump’s voter-fraud commission wants to know voting history, party ID and address of every voter in the U.S., Washington Post (June 29, 2017)
- John Myers, California Secretary of State Refuses to Provide Voter Records for Trump’s Election Fraud Probe, L.A. Times (June 29, 2017)
- Pam Fessler, White House Panel Asks States for their Voter Rolls, NPR (June 29, 2017)
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Privacy Law Sourcebook (2016)