Trump Administration Refuses Court Order to Turn Over Voter Commission Documents
By Colin Woodard
President Trump's decision last week to pull the plug on his troubled voter fraud commission was partly the result of Maine Secretary of State Matthew Dunlap's effort to force the body to behave in a transparent and bipartisan manner, a struggle that gained intensity Saturday, when Dunlap learned the administration would not be turning over working documents to him as a federal judge had ordered.
Trump killed the commission -- which was mired in lawsuits, infighting among commissioners, and an organizational culture so secretive it had refused to tell its own membership if and when it would meet again -- "rather than engage in endless legal battles at taxpayer expense," according to a White House statement.
The president's decision, announced Wednesday, also came less than two weeks after a federal judge ordered the commission to share working documents and scheduling information with Dunlap, who had sued the body in November after he and three other Democrats serving on the 11-member commission had been frozen out of its deliberations. American Oversight, a Washington-based ethics advocacy group that represented Dunlap in the suit, said this was "no coincidence," as the decision had made it "clear it wouldn't be able to operate in the shadows."
But in a surprise move revealed Saturday, the Trump administration is resisting turning over the documents. On Friday evening, Dunlap's attorneys received a letter from the Justice Department informing them that it would not be providing the records on the rationale that because the commission no longer exists, Dunlap is no longer a member of it and therefore not entitled to receive them. "The balance of the equities and the public interest have now shifted," explained the letter's author, Joseph Borson, a Justice Department attorney representing the now defunct commission, who added they intended to ask the judge to lift the order on account of the changed circumstances.
Dunlap blasted the Justice Department in a written statement released Saturday afternoon, characterizing its response as a "rich blend of arrogance and contempt for the rule of law." He said it was "unthinkable, unconscionable and un-American that the administration would engage in actions that demonstrate such a flagrant disregard for a court ruling and the rule of law" and said he was "more committed than ever" to securing the documents.
In an interview before the latest developments, Dunlap said he thought his legal action played a role in Trump's decision to close the commission. "I kind of wondered after the decision if that would be the direction they would take," he said, adding that he would continue to pursue the documents the court said he was entitled to receive. "I think it's more critical now than it's ever been. The president didn't just roll out of bed and say, 'I'm going to dissolve this commission.' This was something they discussed that we were not involved in."
Election integrity experts say Dunlap's lawsuit almost certainly played a part in the demise of the commission, which Trump created by executive order in February to substantiate his evidence-free assertion that he had only lost the popular vote because millions of fraudulent ballots were cast for Democratic nominee Hillary Clinton.
"I don't think there's any question that Secretary Dunlap's view from inside the commission and his shining a light on their lack of transparency contributed to its ultimate demise," said David Becker, former director of the elections program at the Pew Charitable Trusts and executive director of the Center for Election Innovation and Research in Washington, D.C. "He got criticism for even being willing to join the group and to work with an open mind toward something he thought was going to be constructive. I think he's been vindicated."
Richard L. Hasen, an election law expert at the University of California, Irvine School of Law, said separate lawsuits by Dunlap and more than a half-dozen other parties combined to block overreach and illegal acts by the commission, which was formally chaired by Vice President Mike Pence and led week-to-week by vice chairman Kris Kobach, a voter fraud activist and Kansas secretary of state.
"It wasn't as though the lawsuits took so much time that the commission didn't have the bandwidth to be able to do its job," Hasen said. "It's that the lawsuits and related scrutiny indicated that the commission was going to have to operate with a certain level of transparency and evenhandedness which I think would have stymied their ability to have come forward with a sham report to justify a crackdown on alleged voter fraud."
"The loss of the commission takes away the bipartisan veneer that Kobach tried to create which included bringing on Secretary Dunlap, which is one of the reasons I opposed his participation," Hasen added.
Neither Kobach nor Andrew Kossack, the commission's executive director, responded to requests for comment. Kobach told the Kansas City Star that the blame lay with a "barrage of meritless lawsuits ... all trying to stop the commission in its tracks."
Trump, for his part, tweeted that the "system is rigged" and accused "Democrat states" of stonewalling the body's request for detailed voter registration records. "They fought hard that the Commission not see their records or methods because they know that many people are voting illegally," Trump asserted.
From optimist to vocal critic
Over the summer, Dunlap had been under fire from fellow Democrats for participating in a commission that from its first meeting had made clear it would focus almost entirely on voter fraud, a problem numerous studies and probes by administrations headed by both parties have shown is vanishingly rare. One study by Loyola Law School, Los Angeles professor Justin Levitt found just 31 credible allegations of identity fraud in all primary, general, special and municipal elections between 2000 and 2014, out of more than a billion votes cast. A 2011 voter fraud probe in Maine by Republican Secretary of State Charlie Summers and backed by Gov. Paul LePage found just one instance of fraud.
Dunlap repeatedly defended his participation, saying it was a mistake to prejudge the commission's intentions and that, if it were acting improperly, he would be in a position to expose it "with a bullhorn in my hand." But he began to express concern and alarm after the body's second and, as it turned out, last meeting in Manchester, New Hampshire, Sept. 12.
Ahead of the meeting -- which was hosted by New Hampshire Secretary of State William Gardner, one of the other Democrats on the commission -- Kobach asserted in an article in Breitbart News that the Granite State's U.S. Senate race had been "stolen" from Republican incumbent Kelly Ayotte via voter fraud. His evidence was that college students had voted in the election without having acquired a state driver's licenses, even though this is explicitly legal under that state's laws. Dunlap derided Kobach as "reckless," while Gardner defended the integrity of the vote.
While the meeting was underway, news broke that one of the Republican members of the commission, Hans von Spakovsky of the Heritage Foundation's Election Law Reform Initiative, had written Attorney General Jeff Sessions in February to express anger that Democrats and "mainstream Republicans" would be allowed to serve on it, claiming they would seek to obstruct the investigation. The revelation outraged Dunlap, causing him to seriously question the body's intentions.
After the Manchester meeting, Dunlap said, he ceased to receive any communications from the group, which for weeks ignored his requests for working documents, scheduling information, and to be included in ongoing deliberations. In October he learned of the arrest of a commission staff researcher on child pornography charges from a reporter; he said he hadn't even been aware the staffer had been hired. He sued to receive working documents Nov. 9.
By then it was also clear that the commissioners had no powers. Kobach had sent two controversial requests to election administrators in all 50 states asking them to turn over detailed voter registration information to the commission, including party affiliation and partial Social Security numbers. Neither of the requests -- which were rejected by many blue and red states alike -- was made with the prior approval or consultation with the commissioners. Maine did not provide the requested information, as Dunlap said it would violate state law.
A federal judge ruled largely in Dunlap's favor Dec. 22, ordering the commission to turn over the documents. Dunlap said it has neither done so nor communicated with him since.
"Dunlap was under a lot of fire from Democrats for being on the commission in the first place, and I do think ends up smelling like a rose," said Charles Stewart III, a professor of political science at the Massachusetts Institute of Technology and director of the MIT Election Data and Science Lab. "Because of the lawsuit and his insistence on being included in the commission's work, I think he acquitted himself well."
Homeland Security's future role unclear
There were conflicting messages coming out of Washington as to what the Trump administration intended to do next.
Initially, the White House and Kobach said they were not abandoning their efforts to establish the existence of widespread voter fraud. Trump supposedly directed the Department of Homeland Security to review the commission's initial findings -- the existence of which has yet to be made public -- and "determine next courses of action," according to a White House statement Wednesday. Trump's press secretary, Sarah Huckabee Sanders, declined to explain to reporters Thursday why Homeland Security was taking over the data rather than the Department of Justice.
Kobach, who is running for governor in Kansas, told the Kansas City Star last week that Trump's decision to end the commission came after weeks of discussion, and that DHS was chosen because it oversees immigration and could help identify noncitizens on voting rolls.
"This is a tactical shift by the president, who remains very committed to finding the scope of voter fraud," Kobach said.
But subsequently, attorneys for the administration denied that the documents were going to be transferred to Homeland Security or anyone else. In its letter regarding Dunlap's lawsuit, the Justice Department saidit was "authorized to report that the state voter data collected by the Commission is not being transferred or utilized." On Friday, Reuters reported that multiple officials within Homeland Security said they were unaware of any plans for the department to begin investigating voter fraud, while department spokesman Tyler Houlton said Kobach was not serving as an adviser to them on the issue, as Kobach had claimed in interviews with reporters.
If Homeland Security does take up the issue, election experts are concerned it may damage the newly forged trust between the department and state and local election officials, who have been working together in recent months to improve cybersecurity for voter registration databases and other crucial electoral infrastructure in the face of Russian hacking and infiltration attempts.
"Election officials are already voicing their concern about this shift and if it will somehow divert resources and attention away from the critical infrastructure work that has been taking place," Tammy Patrick, a former member of President Barack Obama's commission on election administration, said by email. "That work is tantamount to ensuring the security of the (2018) midterms and is already under-resourced."
Stewart of MIT agreed. "Nothing good can come of moving this to DHS, and I think the secretary of DHS will have to make a decision about what is most important to the agency's mandate," he said. "There was a lot of work to mend fences between DHS and election officials. Why would you want to throw a monkey wrench right when the work is being done?"
Speaking to the Press Herald late Wednesday night,, Dunlap said a shift to Homeland Security would also mean a loss of transparency, which is why he considers it more important than ever to obtain the records documenting what the commission has been planning behind closed doors.
"I think we need to know what has been discussed and what their blueprint is for what happens next," he said. "I'm still entitled to that information, and I will see what efforts we can pursue to make that happen."
(c)2018 the Portland Press Herald (Portland, Maine)