Voter Fraud Investigation: No Injunction to Stop Data Gathering

In the wake of our most recent election, both sides of the political aisle have been consistently calling foul on the election process itself. On one side, the potential of Russian influence on the election has cast a shadow over the Trump administration. On the other side, Trump himself has repeatedly made unsupported allegations of rampant voter fraud since well before he was even elected. During the election, he claimed there would be millions of illegal votes cast and called upon supporters to act as “poll watchers“–a practice that ended up flirting with violating federal voter intimidation laws.

Since President Trump’s election, he has not changed his tune on the existence of voter fraud in the least. In fact, he has doubled down on the claims by using an executive order to create a Presidential Advisory Commission on Election Integrity to investigate his claims. While Trump has not backed down from his claims, the facts certainly don’t seem to support the rampant voter fraud he describes. In the last 14 years, studies have shown about 241 cases of fraud out of around a billion votes cast. This translates into around .000024% of votes.

What is the Latest in Voter Fraud Claims?

Regardless of these statistics, Trump’s Voter Fraud has taken its role extremely seriously-controversially so. In a recent example of this, the Commission sent out a letter demanding voter roll information from every state in the U.S. This was no small ask. The request would have required turning over the name, partial social security number, address, date of birth, political party affiliation, and–this one’s the kicker–the last ten years of voting history of basically everybody who’s ever voted in this country. To say that turning over this information has the potential for abuse is more than an understatement. The same letter requesting the information said that the documents provided to the commission may eventually be made public, adding another layer to the controversy. As of now, around 20 states have already flatly refused the request. Even Kansas, the home state of the Vice-Chair (and defacto head) of the Voter Fraud Commission Kris Kobach, has only agreed to partially comply with the extreme request. 44 states are going to be withholding at least some of the requested information.

Kris Kobach himself is another part of the controversy surrounding the Commission. As the Secretary of State of Kansas he is well known as an outspoken believer in the voter fraud claims of Mr. Trump. He also has a bit of a checkered history when it comes to voter fraud. Just last month a federal judge fined him $1,000 for “presenting misleading arguments in a voting-related fraud.” He has also pushed through very strict voting laws; laws which have been accused by some of intentionally diminishing minority voting rights.

This same issue, the potential to suppress minority voters, is a criticism Mr. Kobach’s Commission has also been accused of. There have been a number of lawsuits from groups such as the NAACP and the ACLU accusing the Commission of using “unfounded allegations of voter fraud” to target the voting rights of Black and Latino voters. One of their complaints specifically alleged that “the creation of the Commission, and its pending investigation into allegations of voter fraud, were motivated by racial discrimination against voters of color.”

Earlier this month however, in a suit brought by Lawyers’ Committee for Civil Rights Under Law (LCCRUL), these lawsuits took their first big loss. LCCRUL’s lawsuit ultimately seeks to shut down the operations of the Commission altogether as well as force them to return all information they had gathered, and destroy all copies of that information. However, this sort of a lawsuit takes time. For now, they had filed a motion attempting to require the Voter Fraud Commission to hold an open meeting and disclose records about the goings on and goals of the Commission. A Federal Judge shot the request down.

The FACA and Preliminary Injunctions

The essential elements of the claim against the Voter Fraud Commission revolved around two things: a fairly obscure law known as the Federal Advisory Committee Act (FACA) and the special nature of a motion seeking a preliminary injunction (a ruling forcing a party to do or not do something before the case is actually litigated.)

The FACA essentially is a set of transparency requirements on advisory committees such as the one under Mr. Kobach. It requires public charters before holding meetings, timely notice of those meetings to the Federal Register so their times can be published, hold meetings open to the public, keep minutes for those meetings, and allow those who want t to attend or file statements with the committee. FACA also requires much of the paperwork and documents generated by such committees be available to the public for viewing and copying. Finally, the law requires advisory committees to be fair and balanced–not overly influenced by an the person who made it, a special interest, or any particular point of view.

LCCRUL was essentially arguing that the Voter Fraud Commission wasn’t holding sufficiently transparent meetings or making it’s records properly available to the public. Unfortunately for them, this simply does not seem to be the case. The Commission filed a charter, noticed their meetings with the Federal Register, and made the meetings available to the public through live streaming on the internet. On the other hand, they didn’t give an opportunity for people to speak or comment on their first meeting–simply promising to do so in the future. They also have failed to respond to requests from the public to look into documents regarding their goals and methods.

You can see, there’s mixed facts here when it comes to the FACA–and that’s what did this preliminary injunction in. In order to succeed in making a court tell a party to do or not something before fully proving your case you understandably need to show that you’re more likely than not going to win if you were to take the issue to court. If we didn’t have such a high standard, preliminary injunctions would be particularly vulnerable to abuse. The truth is there are facts here that could support an argument that the Voter Fraud Commission has not lived up to its FACA obligations. However, the case is far from strong enough to reach the likelihood of success required for this sort of motion–it’s no surprise the court refused to take such drastic action.

The Future of the Voter Fraud Commission

So, you may be asking if this is the beginning of the end for the efforts taken to curtail the actions of the Voter Fraud Commission. However, the fact that the high standards of a preliminary injunction were a bridge too far in this particular case doesn’t make it a death knell for the many lawsuits brought against the Commission. Even in this ruling, the court noted several times how controversial the Commission is. The judge especially noted the sheer amount of information the Commission seeks to gather on voting history.

What’s more, the ruling here was made without prejudice. This means that, while the facts here weren’t enough when the court considered how much harm might be done by not opening this meeting to the public, if the facts change the issue may be revisited. There is a lot of ground left to cover in this lawsuit and in the several other like it. After all, the motion has preliminary right in the name.