President Trump signed an executive order last week creating the Presidential Advisory Commission on Election Integrity to promote “fair and honest Federal elections,” following up on his unproven claims that he lost the popular vote to Democrat Hillary Clinton because of widespread voter fraud. The commission will be chaired by Vice President Mike Pence, and its vice chair will be Kansas Secretary of State Kris Kobach, also a Republican.
Kobach’s appointment has alarmed voting rights advocates, who point to his record of making unsubstantiated claims about the extent of voter fraud — which study after study has found to be negligible — and using them to promote strict voter ID laws and other policies that make it harder to vote.
“We are deeply troubled by the inclusion of Kansas Secretary of State Kris Kobach as vice-chair of the commission,” Wade Henderson, CEO of the Leadership Conference on Civil and Human Rights, said in a statement. “His discriminatory and regressive views on voting rights are well known and render him too biased to neutrally assess voting issues.”
Kobach is perhaps best known for his office’s Interstate Voter Registration Crosscheck program, which his predecessor launched in 2005 and which Kobach expanded after taking office in 2011. The program brings together mostly Republican-controlled states to build a database of registered voters and ostensibly root out people registered in multiple states.
Crosscheck does not provide a public list of participating states, and an inquiry from Facing South to Kobach’s office to get such a list last year went unanswered. But as of last May, according to the National Conference of State Legislatures, the program had grown to 30 participating states. Among those reportedly participating in Crosscheck as of the fall of 2015 were Georgia, Louisiana, Mississippi, Tennessee and Virginia; other states known to have been involved include Arkansas, Kentucky, North Carolina and South Carolina.
Crosscheck has flagged hundreds of thousands of voters for possible removal from voting rolls by state election officials, but its methodology has been criticized for being unreliable. Florida, for example, dropped out of the program in 2013, with its Republican secretary of state saying the move was part of ongoing efforts to “improve the elections process.” Some states have moved to an alternative check system called the Electronic Registration Information Center, which a study has found has been effective not only in eliminating errors in voter files but also boosting voter registration and turnout.
Crosscheck is also infected with racial and ethnic bias. In his Rolling Stone investigation of the program published last year, reporter Greg Palast spoke to a database expert whose statistical analysis found that people with African-American, Latino and Asian names are far more likely to end up on the potential double-voter list than whites, putting them at disproportionate risk of having their names improperly stricken from the voting rolls. That’s because minorities are overrepresented in 85 of 100 of the most common last names.
Besides his work on voting issues, Kobach serves as counsel for the Immigration Reform Law Institute (ILRI), the legal arm of the Federation for American Immigration Reform (FAIR), a nonprofit that advocates for immigration restrictions. The Southern Poverty Law Center classifies FAIR as an extremist group because of its leaders’ ties to white supremacists and its calls for repealing the Immigration and Nationality Act of 1965 that ended a racist quota system favoring northern Europeans.
Kobach has melded his crusades against voter fraud and immigration in his advocacy for proof-of-citizenship requirements for voter registration. To date, the courts have rejected such requirements, noting that people who lack such documents tend to be poor, rural and African-American — but not before denying more than 18,000 Kansans their constitutional right to cast ballots.
The other two states that adopted such proof-of-citizenship requirements were in the South. And of the eight states that put strict photo ID laws in place for last year’s election, a majority of them — five — were also in the South. Given the region’s troubled record on guaranteeing the franchise to all citizens, its voting rights advocates are worried about what Kobach and his commission might do.
“It’s not hard to see how President Trump’s commission could further intimidate and discourage eligible voters from participating in our elections,” said Anita Earls, executive director of the Southern Coalition for Social Justice, which was part of an alliance that challenged North Carolina’s strict voter ID law. This week the U.S. Supreme Court for procedural reasons declined to revisit a lower court’s ruling that the law was racially discriminatory and targeted minorities with “almost surgical precision.”
But as the North Carolina example shows, Kobach’s impact on voting rights in the region is not merely speculative: He has already had an effect on elections in that state and others around the South by injecting legal wrangling, misinformation and confusion into electoral processes and potentially impeding eligible citizens’ ability to vote.
Legal Uncertainty Over Voter Registration Requirements in Alabama and Georgia
In 2011, Kansas Gov. Sam Brownback (R) signed into law a bill championed by Kobach that required people registering to vote for the first time to furnish proof of citizenship — paperwork that even legal residents may lack and that people may not be carrying when they encounter community voter registration drives in places like churches and markets.
More recently, Alabama and Georgia joined with Kansas to ask the U.S. Election Assistance Commission to allow them to alter the federal voter registration form to include a proof-of-citizenship requirement. The EAC — under a director who got his job with Kobach’s help — granted the requests in January 2016 without public notice or review. But the two Southern states did not implement the change before it faced a legal challenge from the League of Women Voters and other voting-rights groups.
Last September, just weeks before the presidential election, a federal appeals court blocked such requirements, noting that they “unquestionably” hinder voter registration even while there is “precious little” evidence of voter fraud by noncitizens. The court noted that of the 18 noncitizens who Kobach said had tried or successfully registered to vote between 2003 and 2015, only one of them used the federal voter registration form the law aimed to change.
In response to the ruling, Kobach declared a two-tier registration system, with voters unable to prove citizenship able to cast ballots only in federal elections. But a federal appeals court overruled him on that as well.
Spreading Misinformation About Voter Fraud in North Carolina
In 2013, North Carolina passed one of the strictest voter ID laws in the nation, sparking protests and lawsuits over its discriminatory effects.
The following year, officials with the N.C. State Board of Elections announced they had evidence — gleaned from Kobach’s Crosscheck program — that over 35,000 people may have voted in North Carolina and at least one other state in 2012. The announcement set off a media uproar about possible voter fraud, and conservative groups seized on it to justify the Republicans’ push for controversial voting restrictions, even though voter ID laws don’t address multi-state voting.
But it turned out that 35,000 was the number of voters whose names and birthdates alone matched voters in other states. Including their Social Security numbers knocked that down to just 765 — and many of those voters were likely there due to errors by poll workers or by the voters themselves. In the end, after all the fulmination over claims of widespread fraud, the North Carolina elections board referred just 31 cases of possible fraud to county prosecutors, and only 19 of those involved voting in multiple states.
However, the incident did nothing to build confidence in the integrity of the state’s electoral system. That made it easier for some people to accept claims like those made by the state Republican Party and campaign of former Gov. Pat McCrory that his loss last year had something to do with voter fraud, which led to some 600 voters facing legal challenges to their ballots — almost all of which proved unfounded.
Crosscheck Voter Purges in Virginia Were Marred by Errors
In October 2013, less than a month before statewide elections, the Democratic Party of Virginia sought a preliminary injunction to stop the State Board of Elections and the state’s 132 local registrars from purging 57,000 names from voter registration lists. The names to be scrubbed came from Kobach’s Crosscheck program, which Virginia joined that same year.
The registrar in Chesterfield County — Lawrence C. Haake III, a Republican — said a preliminary examination of the list of more than 2,200 active and inactive voters he was told to purge revealed more than 170 errors among about 1,000 active voters.
“If I can find a 17 percent error rate among 1,000, what am I going to find when I start digging?” Haake said at the time. He provided a statement that the state Democratic Party included in its legal filings to halt the purge.
But a U.S. district court judge rejected the party’s lawsuit, and consequently about 38,000 people were ultimately stricken from voter rolls across Virginia that year.
Incidentally, the counsel for the state elections board at the time was Republican state Attorney General Ken Cuccinelli, who was running for governor but declined to recuse himself from the matter. In the end, he lost to Democrat Terry McAuliffe by fewer than 57,000 votes out of more than 2 million cast, while in that year’s attorney general’s race Democrat Mark Herring defeated Republican Mark Obenshain by just 900 votes following a recount.