Many people who believe in expanding voting rights are marveling at the clumsy bid by Kansas Secretary of State Kris Kobach for doing the one thing that was guaranteed to deeply offend almost every top state election official — demanding they fork over their detailed statewide voter files to create a national voter database.
Before Kobach’s attempted data grab — which 41 states as of Thursday said no way to—he already was known throughout the small world of state election administrators and election lawyers as an unabashed vote suppressor and white nativist, where he helped groups file numerous anti-immigrant lawsuits and author anti-immigrant laws. So it didn’t surprise many election insiders when he sent out a letter, as chair of Trump’s “election integrity” commission demanding copies of their statewide voter databases, post-haste, including data that’s protected—like Social Security numbers.
That letter, demanding the data be delivered in two weeks, created a storm. On Monday, one commission member resigned. The Lawyers Committee for Civil Rights Under Law filed a suit accusing Kobach of violating the federal Hatch Act — because he was using his post as Trump’s vice-chair to promote his candidacy for Kansas governor.
Late on Wednesday, the White House sent out a statement saying the reports of states rejecting Kobach was “fake news,” saying 36 states are agreeing or considering sharing voter information with Trump’s commission. “This bipartisan commission on election integrity will continue its work to gather the facts through public records requests to ensure the integrity of each American’s vote,” Kobach’s statement said.
Kobach’s critics have been quick to say what he’s up to — trying to embark on a national data-mining operation to resurrect the GOP’s favorite phantom menace that it has used for most of this century to restrict or complicate voting by overly policing the process. That made-up menace is voter fraud, or people voting more than once, which happens literally less than one-in-a-million times, according to numerous analyses by the U.S. Department of Justice, election lawyers filing legal briefs, academics and reporters. Trump confirmed this by tweeting about his “very distinguished voter fraud” panel.
But ridiculing Trump’s commission and blithely dismissing Kobach’s latest attempt at raising the voter fraud flag misses the longer-term Republican Party strategy that he is championing. This is easy to do because Kobach is such a rich target. For example, he oversees an interstate voter data-matching consortium whose analytics are so sloppily executed they routinely creates lists of hundreds of thousands of false positives — of people purportedly voting twice because they share the same name. That, in turn, lets highly partisan secretaries of state, such as Georgia Republican Brian Kemp, to yell a crisis exists, when it doesn’t, and then seek to purge tens of thousands of Democrats.
What’s really going on is darker and needs to be watched beyond the buffoonish politics of the moment and the presidential panel’s clumsy opening steps. Kobach and a handful of other Republican statewide election managers and lawyers — the same crew that were running federal election oversight under George W. Bush — have found weaknesses or ambiguities in federal election laws and are trying to exploit them to restrict who can vote. Their motive is simple. They know the Republican’s white and aging base are a shrinking minority in a diversifying nation. Philosophically, this ilk believe fewer but better qualified voters is perfectly acceptable and even wise.
What are those weaknesses or ambiguities? There is no national voter fraud database. Why does that matter? The lack of such a definitive analysis has allowed the GOP in state after state this decade to impose stricter voter ID requirements to get a regular ballot at polling places. That’s where many urban voters prefer to vote, as well as first-time voters under law — such as the target of registration drives among the poor, students and under-represented communities. Studies by academics and voting rights law firms have found voter ID cuts into likely voter turnout by 2-to-3 percent, which advantages the GOP.
The myth of voter and the trumped-up rationale for tougher voter ID laws are not new stories. What is newer, however, is how Kobach has wanted to build on this category of restriction — one that’s not in any state voter registration law, as no state says a particular piece of state-issued plastic is a legal requirement to be an eligible voter. Similarly, what Kobach has foisted on Kansas (and his allies in Arizona, Alabama, Georgia have done) is try to require paper proof of citizenship when registering to vote for state elections. Right now, eligible voters sign an oath on the federal (and most states) voter registration forms. How can Kobach and his crew get away with that? Apart from having compliant GOP-led state legislative majorities to fulminate against fraud and rubber-stamp legislation, there’s no definitive federal citizenship database. Get it? The vote suppressors wave a phantom demon and then say, well, you can never be too secure, better pass that law. New York University’s Brennan Center for Justice has filed legal briefs saying such documentary proof of citizenship is not easily available to 7 percent of voters. That’s another potential structural advantage to the GOP masquerading as a technicality.
There’s even more specifics. When Kobach appeared at the White House to launch Trump’s commission, he complained about the National Voter Registration Act of 1993. This is the so-called motor voter law, where people applying for a state driver license can simultaneously register to vote. (The same law requires military recruiters and other state agencies to offer registration, and many state to this day have not complied at welfare offices.) The NVRA also says states cannot purge voters unless they haven’t voted for two entire federal cycles—four years—and only then after local officials send them a series of mailings. But the law also says that no voter can be removed for infrequent voting — a contradiction. Some Republicans want to get rid of the NVRA, like Ohio Secretary of State Jon Husted, who has disproportionately purged inactive voters in Democratic urban strongholds across Ohio — 150,000 before 2016’s election.
That action led to a series of lawsuits over the ambiguities in the NVRA’s voter purge language that’s slated to be heard by the Supreme Court this fall. Voting rights groups have cried foul, while Husted and Ohio’s government has said its massive purges are legal. When Kobach sent his letter to every state requesting they give Trump’s panel statewide voter files, he also requested inactive voter lists and voter party affiliations. Like voter fraud and citizenship, there’s also no nationwide inactive voter file. It is no mystery how Kobach and the GOP’s vote suppressers might use such a list.
Right now, progressives and Democrats are pleased that Kobach is looking like a bad bumbler. But Kobach is no dummy. He holds degrees from Harvard, Oxford and Yale. Election insiders who have warily watched him for years have been saying this latest nationwide data-grab gambit may be a masterful version of three-card Monte. That is, Kobach knew he wouldn’t get anywhere, but baited the election law establishment to create a vacuum where Republicans could claim that states need to take new steps to protect the vote, police the process and pass newly restrictive measures.
“Make no mistake, this is a cynical, calculated ploy engineered by Kobach who knew some states could never respond,” tweeted Michael McDonald, a nationally known expert on redistricting and voter turnout based at the University of Florida. “So when Kobach says states are ‘hiding’ he knew in advance some states couldn't share data. His request set states up so he can accuse them.”
Voting rights advocates might be snickering at Kobach today, but they better be watching tomorrow and after that. Even if he wins the upcoming GOP gubernatorial primary in Kansas, he isn’t one to go quietly into the night.