ACLU Sues Administration Over Voting Commission Transparency

WASHINGTON (CN) – The President’s Commission on Election Integrity was slapped with a new legal challenge, even as it agreed to stop using a Department of Defense website to collect state voter data as a result of a previous lawsuit.

The American Civil Liberties Union sued President Donald Trump, Vice President Mike Pence and the Presidential Advisory Commission on Election Integrity for violations of the Federal Advisory Committee Act.

The ACLU claims in a July 10 complaint that the law requires the commission to provide notice of its meetings and make them open to the public, along with all of its records – something the ACLU says the commission has failed to do so far.

The ACLU says it asked the commission to make its records available for public inspection on July 5, but the commission has yet to do so, saying it is not subject to the Federal Advisory Committee Act.

The lawsuit further alleges that President Trump personally violated the law by failing to balance the points of view and functions to be carried out by the commission, which the ACLU says was established to provide “a veneer of legitimacy” to Trump’s false claim that he lost the popular vote to Hillary Clinton because millions of people cast illegal votes.

“The individuals on the commission raise some troubling questions as to the balance, the views that will be expressed,” ACLU staff attorney Sophia Lin Lakin said in a phone interview. “Also the fact that the president has made many allegations about voter fraud also raises some questions about whether or not the commission will sort of be beholden to that point of view,” she said.

No evidence exists to support claims of widespread voter fraud. Numerous studies have found that voter fraud is rare, including one by the nonpartisan Brennan Center for Justice at the New York University School of Law, which determined an American is more likely to be struck by lightning than cast a vote illegally.

The lack of evidence, however, has not deterred the president from making the claims.

“President Trump has continued to assert, contrary to all available factual evidence and the findings of the FEC, that he won the popular vote,” the 31-page complaint states, abbreviating the Federal Election Commission.

President Trump established the Presidential Advisory Commission on Election Integrity by executive order on May 11. After the commission’s first telephonic meeting on June 28, vice chair and Kansas secretary of state Kris Kobach sent a letter to all 50 states and the District of Columbia requesting state voter data.

The commission asked states to submit by July 14 voters’ full names, addresses, dates of birth, political party affiliation, partial Social Security numbers, elections voted in since 2006, voter status, felony convictions, military status, overseas information and multistate voter registration.

The request sparked widespread pushback and several legal challenges. So far, only Arkansas has fully complied with the request.

The ACLU lawsuit points to concerns about the data collection raised by media reports: “Cybersecurity experts have described the Commission’s plans to aggregate this data as a ‘gold mine’ for hackers.”

The complaint calls the June 28 meeting of the commission “unlawful,” noting that it did not provide notice in the federal register or make it open to the public.

That matters according to Lin Lakin, because the commission likely decided during that meeting to ask states for their voter information.

“There are definitely substantive questions about what was discussed, and under FACA we as the public have a right to know what that was,” Lin Lakin said.

The commission has a meeting scheduled for July 19, which will only be available to the public by live stream. The ACLU, however, believes the public should be able to attend it in person.

The civil rights organization points to the Federal Advisory Committee Act as an established mechanism that was intended to enhance public accountability of advisory committees.

“Congress found, among other things, that committees ‘should be established only when they are determined to be essential’ and that ‘Congress and the public’ should be kept abreast of their activities,” the 31-page complaint states.

Everyone agrees that American elections should be secure, fair and transparent, Lin Lakin said, but she has questions about the commission’s motives.

“The circumstances surrounding the creation of the commission – as well as its current makeup and the lack of transparency that’s been sort of the hallmark of the commission so far – has been extremely alarming,” Lin Lakin said.

“And certainly raises a lot of questions as to the integrity of the commission, as well as to whether or not there are sort of ulterior motives in terms of the commission’s activities and works, and ultimate recommendations and findings,” she added.

The lawsuit identifies four of the first six Trump appointees – New Hampshire secretary of state Bill Gardner, former Ohio secretary of state Ken Blackwell, commissioner of the Election Assistance Commission Christy McCormick and Kansas secretary of state Kris Kobach – as having previously exaggerated voter fraud claims or having supported polices that have disenfranchised voters.

As noted in the complaint, last year the Tenth Circuit Court of Appeals found that Kobach had disenfranchised 18,000 Kansas motor-voter applicants, and called his assertions of widespread voting by non-citizens “pure speculation.” Other courts made similar conclusions about policies supported by Gardner, Blackwell and McCormick.

The ACLU has asked U.S. District Judge Colleen Kollar-Kotelly, who is presiding over the case, for mandamus relief to require the commission to open all of its meetings to the public, provide notice of such meetings in the federal register, take detailed minutes of each meeting and make their records publicly available.

The ACLU is also asking the court to require the commission to be fairly balanced in terms of membership, points of view and functions.

Kollar-Kotelly also presided over a case brought by the Electronic Privacy Information Center, or EPIC, which claimed in a July 3 complaint that the commission failed to conduct a privacy impact assessment before asking states to submit voter data.

The commission had directed states to submit their data through a Department of Defense website, which EPIC said in an amended complaint late Friday was not authorized to collect personal information from the general public.

According to Marc Rotenberg, the director and president of EPIC who argued the case, the commission has since agreed to stop using the DOD site and has temporarily suspended its collection of data until the court issues a ruling on the case. In an email, Rotenberg said he was unsure whether Kollar-Kotelly would rule on the temporary restraining order since the commission had agreed to stop using the DOD website.

In this case, the ACLU is hoping to force the commission to be more transparent.

“That’s a very big part of what we’re seeking here is accountability and public scrutiny of – and real-time public scrutiny – of their activities,” Lin Lakin said. “As decisions are made, the public should be able to see and understand and speak about those decisions and be a part of the deliberative process.”

The White House did not respond to an email seeking comment on the lawsuit.

Meanwhile in Idaho, state Democrats sued Idaho Secretary of State Lawerence Denney on Tuesday in an effort to keep him from turning over voter information to Trump’s election commission.

The Idaho State Democratic Party said in a 19-page complaint that doing so would violate the state’s public-records law, which mandates that only individuals – not a federal commission – can make requests for public records, which is what Denney said the commission’s request amounted to.

They added public records must be sent securely, noting the Trump administration’s protocol for sending voter information is anything but.

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