Reprinted with permission from Alternet.
Many people who believe in expanding voting rights are marveling at the clumsy bid by Kansas Secretary of State Kris Kobach for doing theÂ one thingÂ that was guaranteed to deeply offend almost every top state election officialâdemanding they fork over their detailed statewide voter files to create a national voter database.
Before Kobachâs attempted data grabâwhichÂ 41 statesÂ as of Thursday said no way toâhe already was known throughout the small world of state election administrators and election lawyers as anÂ unabashedÂ vote suppressor and whiteÂ nativist, where he helped groups file numerous anti-immigrant lawsuits and author anti-immigrant laws. So it didnât surprise many election insiders when he sent out a letter, as chair of Trumpâs âelection integrityâ commission demanding copies of their statewide voter databases, post-haste, including data thatâs protectedâlike Social Security numbers.
That letter, demanding the data be delivered in two weeks, created a storm. On Monday, one commission memberÂ resigned. The Lawyers Committee for Civil Rights Under Law filed aÂ suitÂ accusing Kobach of violating the federal Hatch Actâbecause he was using his post as Trumpâs 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 âfake news,â saying 36 states are agreeing or considering sharing voter information with Trumpâs commission. âThis bipartisan commission on election integrity will continue its work to gather the facts through public records requests to ensure the integrity of each Americanâs vote,â Kobachâs statement said.
Kobachâs critics have been quick to say what heâs up toâtrying to embark on a national data-miningÂ operationÂ to resurrect the GOPâs favorite phantomÂ menacethat it has used for most of this century to restrict or complicate voting by overly policing the process. That made-up menace isÂ 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 byÂ tweetingÂ about his âvery distinguished voter fraudâ panel.
But ridiculing Trumpâs commission and blithely dismissing Kobachâs 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 aÂ 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 ofÂ false positivesâof 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,Â when it doesnât, and then seek to purge tens of thousands of Democrats.
Whatâs really going on is darker and needs to be watched beyond the buffoonish politics of the moment and the presidential panelâs clumsy opening steps. Kobach and a handful of other Republican statewide election managers and lawyersâthe same crewÂ that were running federal election oversight under George W. Bushâhave found weaknesses or ambiguities in federal election laws and are trying to exploit them to restrict who can vote. TheirÂ motiveÂ is simple. They know the Republicanâs 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. Thatâs where many urban voters prefer to vote, as well as first-time voters under lawâsuch 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 byÂ 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 restrictionâone thatâs 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, thereâs 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 Universityâs Brennan Center for Justice has filed legal briefs saying such documentary proof of citizenship is not easily available toÂ 7 percentÂ of voters. Thatâs another potential structural advantage to the GOP masquerading as a technicality.
Thereâs even more specifics. When Kobach appeared at the White House to launch Trumpâs 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 havenât voted for two entire federal cyclesâfour yearsâand only then after local officials send them a series of mailings. But the law also says that no voter can be removed for infrequent votingâa 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 Ohioâ150,000Â before 2016âs election.
That action led to a series of lawsuits over the ambiguities in the NVRAâs voter purge language thatâs slated to beÂ heardÂ by the Supreme Court this fall. Voting rights groups have cried foul, while Husted and Ohioâs government has said its massive purges are legal. When Kobach sent his letter to every state requesting they give Trumpâs panel statewide voter files, he alsoÂ requestedÂ inactive voter lists and voter party affiliations. Like voter fraud and citizenship, thereâs also no nationwide inactive voter file. It is no mystery how Kobach and the GOPâs 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 wouldnât 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.
âMake no mistake, this is a cynical, calculated ploy engineered by Kobach who knew some states could never respond,âÂ tweetedÂ Michael McDonald, a nationally known expert on redistricting and voter turnout based at the University of Florida. âSo when Kobach says states are âhidingâ he knew in advance some states couldn’t share data. His request set states up so he can accuse them.â
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 isnât one to go quietly into the night.
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