The Brief Life and Predictable Death of the Kobach Commission

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Kansas Secretary of State Kris Kobach attends the first meeting of the Presidential Advisory Commission on Election Integrity at The White House in July 2017. 

When Donald Trump slammed the door on the Presidential Advisory Commission on Voting Integrity—the same way it began, with a tweet—it seemed, in hindsight, a completely predictable occurrence. The question of what happens next has yet to play out, but whatever form the commission’s next incarnation takes seems equally unlikely to produce any discernible results.

The Kobach Commission was a perfectly emblematic enterprise of the Trump administration from day one. It had all the characteristics of the administration itself: a distorted understanding of American elections girded by a supreme lack of facts, an agenda born of resentment and conspiracy theories, a complete disregard of norms and procedures, and a talent for gross incompetence, arrogance, and overreach.

The commission grew out of Trump’s ludicrous claim, pushed by Steve Bannon, that three to five million illegal voters, mainly non-citizen immigrants, had voted in the 2016 presidential election; if they had they not, the president claimed, he would have won the popular vote. After repeating the foolishness several times, Trump and Bannon felt they had to follow through on it. And, so the idea of the commission was born, and then thrown, in name only, to Mike Pence.

The fatal flaws were obvious from the beginning. The commission began its “work” with an incomplete roster, and while nominally it had seven Republicans and five Democrats, three of the Democrats were recommended by Republican officials. Only two of the seven initial members were Democratic election-knowledgeable officials: Secretaries of State Bill Gardner of New Hampshire and Matt Dunlap of Maine. 

Even beyond Kris Kobach, the Kansas secretary of state steering the group, whom the Kansas City Star had called “the Javert of voter fraud,” other key members were well known as fanatical crusaders for the voter fraud fantasy. These included former Ohio Secretary of State Ken Blackwell, whose tenure in that office was marked by his efforts to prevent people from voting; J. Christian Adams, the president of the Pacific Legal Foundation, a conservative law firm, and a long-time purveyor of voter-fraud myths; and Hans von Spakovsky. 

Currently a fellow at the Heritage Foundation, Von Spakovsky is a legend in the voting rights world. Once the Republican Party Chair of Georgia, Von Spakovsky served (as did Adams) in the Justice Department’s voting rights section during the Bush administration.  There, he rejected career lawyers’ efforts to enforce the National Voter Registration Act and Voting Rights Act, and actively encouraged U.S. attorneys to search for voter fraud. Last year, he emailed friends in the Justice Department complaining that it was a big mistake to create a bipartisan commission, or even to include mainstream Republicans on the body.

Given the commission’s genesis and membership, it is no surprise that the commission immediately overreached. Within weeks of being formed, the group demanded voter lists, with private information including partial social security numbers, from election administrators in all 50 states—regardless of the requirements of state law or the views of the secretaries of state. An intimidating Justice Department directive seeking similar information followed the group’s demand. But as immediate as the overreach was, equally immediate and effective was the resistance to the commission, which immediately put the commission on the defensive.

Despite the bluster and the threats, the civil rights and voting rights community swiftly and unanimously called out the commission as a Trojan horse for a voter suppression agenda.  The ACLU, the Brennan Center, Common Cause, and others filed a blizzard of lawsuits and FOIA requests, which caught the commission completely unprepared. Perhaps most importantly, election officials, virtually en masse, including a solid number of Republican officials, said they would not or could not comply with the requests.

The sloppy behavior, and strong resistance, crippled the commission right away. The commissioners, especially Dunlap of Maine, complained that they couldn’t get information. Only two meetings were ever held. One staff member resigned after a pornography charge.  Finally, the commission began to appear less and less like a voter suppression juggernaut and more and more like another scene from the embarrassing Trump comedy of errors. 

According to Michael Wines of The New York Times, Pence, who was the titular chair of the commission (though it was always the Kris Kobach show) decided it was time to distance himself and let it slide. And, given the timing of the dissolution order just days after Bannon’s excommunication, it is certainly a possibility that the commission, wounded as it was, was also collateral damage from Trump’s attack on his former guru.  

Trump tweeted about the commission’s demise with characteristic fury, blaming Democratic obstruction and saying that he was now going to tell the Department of Homeland Security to investigate voter fraud and come up with a plan for action. Kobach also reacted with feigned insouciance, blaming the Democrats for “throwing food in the air” and thereby “losing their seat at the table.” He said he could now proceed administratively as an advisor to DHS, without any nettlesome procedures or nods to bipartisanship.

But Kobach’s comment about pursuing this issue through the DHS is akin to—and as believable as—the statement from the fired CEO who announces he is leaving the company to pursue exciting new opportunities.

So, what will happen now? What will the Department of Homeland Security do with this rotten apple casually tossed into their lap? It is much too early to tell, but there is strong reason to believe that this chapter of Kobach’s hunt for voter fraud, like the Kobach Commission, will end in a whimper. 

For one thing, Kobach himself has more important fish to fry, like running for governor of Kansas. Spending time working with Homeland Security to move the work forward in a serious way would distract from his key fundraising and campaign activities.

For its part, the department has a lot of things it needs to do, from fighting terrorism to managing the immigration mess to dealing with natural disasters. It’s hard to imagine that anyone there will make this a high priority for the allocation of scarce resources.

The DHS does indeed have some very serious work on its hands in relation to the election process. The Mueller investigation aside, we know now that the Russians hacked into the election systems in at least 21 states, and could easily have reprogrammed voter registration lists and voting systems. 

Late in the Obama administration, the DHS designated the American election system as part of our critical infrastructure. In October (a year after initial Kobach-fueled resistance from some secretaries of state), DHS created a task force to work with the National Association of Secretaries of State and other state and local election officials to safeguard the 2018 elections from cyber interference. 

This task force has DHS working with many of the election officials who vigorously resisted the last incarnation of the Kobach witch hunt, and is generally viewed to be working well. It’s hard to believe that they will put this mission-critical work in jeopardy to satisfy the ideological crusade of the Kobach/von Spakovsky/Adams axis, even if it has the backing of a tweeted presidential decree.

It goes without saying that the dissolution of the Commission is not the end of efforts to pump up the voter fraud myth as a way of justifying vote-discouraging measures.  In a number of states, especially as the critical 2018 elections approach, legislative and administrative attacks on the right to vote will continue. But, Americans can be equally sure that a robust movement to protect and expand voting rights will be in the field as well, litigating, working with and pressing election officials, pushing for better policies, and educating the public in support of a fully inclusive right to vote. The death of the Kobach commission demonstrates that this movement has won a decisive and far-reaching victory.

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