Don Emmert/AFP/Getty Images
Kris Kobach wants to amend the motor voter law. It says so on that piece of paper.
On June 28, Kris Kobach asked every state to turn over a huge amount of voter data to Donald Trump’s “Election Integrity Commission.” Kobach, vice chair of the commission, was seeking each voter’s full name, address, birthdate, and political party, as well as the last four digits of every voter’s Social Security number. Almost immediately, states began to refuse Kobach’s request; at least 14 states will not comply at all, while 44 states will provide only some of the data. Kobach, a Republican who serves as Kansas’ secretary of state, even conceded that his own state could not turn over all the requested information.
Some progressives celebrated the widespread bipartisan resistance to Kobach’s commission as a victory against voter suppression. But Michael McDonald, an associate professor of political science at the University of Florida, believes any celebration is premature. McDonald, who served as an expert witness in the American Civil Liberties Union’s lawsuit against Kansas’ proof-of-citizenship voting requirement, believes the commission is still on track to achieve its likely goal: a report that wildly exaggerates instances of fraudulent voting and urges Congress to crack down on voting rights. I spoke with McDonald about the data controversy and the commission’s endgame on Thursday. Our interview has been edited for length and clarity.
Mark Joseph Stern: Why did Kobach request data in the first place?
Michael McDonald: Kobach’s data request was overly broad: It asked for data that some states cannot provide to the federal government by law. Kobach knows this; he runs an organization called Interstate Crosscheck through which states share their voter file data to help election officials clean up voter registration rolls. He knows that states that participate in Crosscheck have to pass enabling legislation in order to share voter data. He knows states can’t share that data with his commission. He surely knew that Kansas wasn’t going to be able to provide certain information—like the last four digits of voters’ Social Security numbers.
So why did he ask for this huge amount of information?
The real reason became clear as soon as the first stories came out about states resisting the data requests. Kobach said, essentially, What are those states hiding? Trump echoed that in a tweet. They wanted to make an argument that these states were hiding their data so they could conceal the massive voter fraud that, if uncovered, would legitimize Trump’s claim of 3 million to 5 million fraudulent votes. Kobach set the states up. He knew many wouldn’t be able to respond.
But surely Kobach wants to use the data, too?
Yes, Kobach likely intends to do “list matching” so he can make allegations of double voting, noncitizen voting, and felon voting. We’ve seen this at the state level: explosive allegations, drawn from poor matching procedures, claiming that a large number of people are voting fraudulently. Those allegations come out first; they make headlines in newspapers, and the public has this perception that there’s a real problem here. Later on, election officials and law enforcement follow up and inevitably find that many people identified as fraudulent voters are not. It’s just that poor matching procedures have led to the allegations.
I understand voter matching: You compare two lists—of say, every voter in two different states—and look for matches; if one person’s name appears on both lists, she may have voted twice. But what makes certain matching procedures untrustworthy?
When you match two databases, you look for identifying information about individuals, and the most common identifying information that we have are name and birthdate. So if you’re looking to find two records from the same person in two different databases, that would be a logical place to start. But it can also lead to false positives, especially when you’re looking at hundreds of millions of people, thousands of whom share the same name and birthdate. That’s the way these allegations are exaggerated: Just apply very naïve matching and assume that everyone you matched is a double voter or noncitizen voter or felon voter.
The next step is for the federal government to implement restrictive voting laws at the national level.
Let me give you an example. A decade ago, I co-authored a study evaluating allegations of double voting that were being made by the Republican Party of New Jersey. We got the voter file, obtained the list of alleged double voters, and started investigating who these people were. Using other identifying information, like voter registration date or middle name, we discovered that these alleged double voters were really two different people who, coincidentally, had the same name and birthdate.
So more information can actually help to prevent false matches.
Yes. Ironically, because states are not fully complying with Kobach’s request, the quality of the match will be poorer. That actually benefits Kobach because bad data will create more false matches. By not providing more detailed personal info, the states are enabling the commission to come up with even larger, more exaggerated claims of double voting.
How else might Kobach use the data to legitimize Trump’s claims of voter fraud?
Consider Kobach’s request for the last four digits of Social Security numbers. We have a national Social Security database, but it’s a complex system. Georgia has previously used the system to screen new voters: If they weren’t in the database, the state would assume they were noncitizens and refuse to register them to vote. But eventually the inspector general of the Social Security Administration issued a report saying states should not use this system to determine whether someone is eligible to vote; it’s not reliable for that purpose. In fact, it’s possible to put the same information into the system twice and get two different results. The first time, the system will say the person exists; the second time, the system will say the person does not exist.
I was actually part of litigation that was brought against Georgia for denying citizens the right to vote based on the Social Security database. The state relented. But Kobach can certainly use the database to claim that any number of noncitizens are voting.
Aside from legitimizing Trump’s wild claims of fraud, what is Kobach’s goal here?
I would expect that Kobach’s commission will issue a report that has some very eye-popping numbers with large numbers of people who are alleged to have voted fraudulently. Most of these allegations will be false but it’ll take months, if not years, for election officials to prove it.
The next step is for the federal government to implement restrictive voting laws at the national level. The law that I think is most vulnerable would be the National Voter Registration Act—the NVRA, or “Motor Voter”—which outlines registration requirements and procedures. Why? For one, when Kobach met with Trump, there was an infamous photo of him holding a memo [of desired policy goals]. One visible bullet point mentioned amending the NVRA. It’s on Kobach’s agenda.
Why is Kobach so keen to take on the NVRA?
Because it prevents states from implementing harsh new voting requirements. Look at Kobach’s work in Kansas: He championed a law that requires individuals to provide documentary proof of citizenship in order to register to vote. But a federal judge has blocked the law as a possible violation of the NVRA. If Kobach can persuade Congress to amend the registration procedures outlined in the NVRA, then Kansas—and other states—can demand that voters show documentary proof of citizenship, like a birth certificate or passport.
The NVRA also has provisions governing how election officials manage their voter registration lists. Under the NVRA, a state can’t simply remove you from the rolls because you haven’t voted in an election; you can only be removed if you sit out two successive federal general elections and do not respond to communications from an election official. In short, the NVRA prevents states from purging a great deal of people from the rolls simply because they didn’t vote once or twice. If Congress repeals those rules, states can purge their voter rolls—and even require individuals to register for each election that they wish to participate in. And of course, these new requirements will make it much harder for certain segments of population to vote.
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