Photo Credit: www.kssos.org
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.
