The Kobach Commission (sometimes referred to as the Pence Commission) on voter fraud was created in the way so many things have been in the Trump administration. It started with an angry and completely unsubstantiated tweet, echoing a campaign trope, followed by public statements doubling down on the message, followed by a half-baked executive order.
The Commission was created to investigate the allegations of Trump’s alternative universe, where massive voter fraud cost the president millions of votes. The true voter fraud—creating obstacles to the right to vote—is not part of its mandate. Kris Kobach is of course the perfect choice. As Kansas secretary of state, he has made his reputation seeking to make it as difficult as possible for people in Kansas to vote, and by fanning the fantasy of massive voter fraud.
Kobach has been sued four times by the ACLU for his efforts to prevent people from voting, and lost all four cases. After months of aggressive investigation, he has found nine cases of fraudulent voting in the state out of 1.8 million votes cast. The Kansas City Star recently called him “the Javert of voter fraud.” Recently, when Michael Wines of The New York Times surveyed all 50 chief election officials as to whether there were significant levels of voter fraud in their states, 49 of them said there was not; Kobach refused to respond. For a while it looked like this commission might not even reach the executive order stage. It took almost five months between a January 23 meeting with congressional leaders where Trump talked about the three to five million illegal voters that cost him the popular vote, and the executive order May 11 creating—partially and haphazardly—the Presidential Advisory Commission on Election Integrity.
We’ve had successful Commissions on Election Reform before. The Carter-Ford (2001), Carter-Baker (2004), and Bauer-Ginsberg (2013) commissions were all genuinely bipartisan, looked broadly at election processes, and came up with important and agreed-upon recommendations. The Trump commission, by contrast, lacks even a veneer of genuine bipartisanship or a semblance of balance in the questions it seeks to explore.
With Pence as chair and Kobach as vice-chair, the Commission is fatally flawed from the start. There are two Democratic secretaries of state out of the initial seven appointments: Bill Gardner of New Hampshire and Matt Dunlap of Maine, both of whom are appointed by their state legislatures. In Maine, the Senate is Republican, and in New Hampshire Republicans control both houses.
The response of the voting rights community, and many state election officials as well, was swift and unforgiving. One early compilation had 43 statements from organizations and election officials opposing the commission issued immediately after the announcement. The Republican Secretary of State of Oregon, Dennis Richardson, has publicly stated that he will not serve if asked.
Sherrilyn Ifill, president and general counsel of the NAACP LDF, said: “This commission is a thinly veiled voter suppression task force. Far from upholding the integrity of our election system, it is designed to impugn the integrity of African American and Latino participation in the political process.”
Michael Brune, President of the Sierra Club and a key leader in the 60-organization Democracy Initiative, said: “No one should be confused by what this executive order is: an assault on the right to vote built on nonexistent evidence.”
Steve Simon, secretary of the state of Minnesota, said: “The test of credibility for any commission looking into possible improvements is whether its leadership appears committed to an unbiased inquiry. The president’s proposed commission seems to fail the credibility test.”
And, The Washington Post’s editorial put it best: “President Trump has empaneled a commission to investigate voter fraud. The real fraud is the commission itself.”
But, after the initial flurry of responses, a strategy for the longer haul is needed.
First, an aggressive communications offensive is required to counter the Commission’s biases and preconceived notions. ReThink Media and other organizations are putting together resource packages that citizens and organizations can use. Several foundations are discussing putting resources into assembling a group of experts ready to rebut the Commission, tied to a strong communications strategy to get the information out as widely as possible.
A second strategy has been a burst of freedom of information requests—to the vice president’s office, the Department of Justice, the Election Assistance Commission, and the offices of Kobach and all the secretaries of state serving on the Commission, challenging them to say what evidence they have that has prompted the executive order and the call for the Commission. The ACLU, the Brennan Center, and the NAACP LDF have all filed such requests.
A third, potentially major response strategy being seriously discussed is the creation of a proactive, alternative/shadow commission. The discussion first surfaced in the voting rights and elections community back in January, after Trump first raised the idea of a commission. At the time, the consensus was to hold fire, since it was not yet clear that there would be an actual commission.
But now the idea is being discussed anew in multiple forums used by advocates. Several weeks ago, Rutgers Professor Lorraine Minnite, a long time progressive scholar on voting rights and voting integrity, proposed creating a nonpartisan (as distinct from bipartisan) Citizens Commission on Election Integrity and Democratic Values. Such a commission “could prepare summaries of relevant scholarly research, organize an online clearinghouse of information about election administration, conduct public hearings, and issue policy briefs and a final report of its findings with recommendations for federal and state reform.”
Minnite says: “President Trump’s executive order establishing a commission to study voter fraud is a waste of taxpayer dollars. We already know that voter fraud is exceedingly rare, and that criminal voters are not what ails our electoral system. What we should be doing is continuing the progress that has been made in improving election administration over the past fifteen years, grounding reform in democratic values that advance us toward a national, fully actualized right to vote.”
And while this discussion proceeds, the Democratic National Committee has just jumped into the fray with the creation of a new Commission to Protect American Democracy, to be chaired by former Missouri Secretary of State Jason Kander, with Congresswoman Terri Sewell of Alabama as Vice Chair. In announcing the Commission, Democratic National Chair Tom Perez said: “We have to develop a much better capacity to play both offense and defense on voting rights.”
Not everyone in the voting rights community is convinced of the value of a commission. Some advocates say that creating a commission explicitly as a counter to the Kobach Commission embraces and amplifies the “frame” of voter fraud. Others are concerned that after numerous previous commissions and reports, one more commission won’t make a difference, and the resources required for it will be a drain on other efforts.
Yet others see an opportunity to encourage Republican election officials to come forward. There are numerous Republican election officials, including secretaries of state, who are offended by unwarranted criticisms of election integrity in their jurisdictions. They could be effective counterweights to the Commission—if they are willing to stand up.
How the battle of the Commissions plays out will take some time to determine.
Meanwhile, battles are being fought in state legislative sessions around the country over same day and automatic voter registration, voter ID laws, voting rights restoration for citizens with felony convictions, and the panoply of policies that either expand or restrict voting access. That scorecard will be seen long before the Commission battles even fully engage, and will have major significance for the elections of 2018.