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Trump's Voter Fraud Commission May Be Dead, But His Quest Continues

The president has shifted the commission's voter fraud investigation to the Department of Homeland Security. Some see that as a boon to the cause, while others say it could be problematic, especially for immigrants.

Voters walk through a polling station.
Voters walk through a polling station in Dallas.
(AP/LM Otero)
Forget voter ID. The big battlefields in the war over voting rights are now rolls and registration.

On Wednesday, the U.S. Supreme Court heard a case regarding Ohio's system of voter roll maintenance. And, despite the dissolution last week of a high-profile presidential commission on election integrity and the planned destruction of the records from it, the Trump administration has made it clear that it will continue to investigate possible voter fraud. The responsibility will shift from the commission, which was co-chaired by Vice President Mike Pence and Kansas Secretary of State Kris Kobach, to the Department of Homeland Security.

Moving the hunt to agencies can end up being "an even better path forward" than the commission approach, suggests Logan Churchwell, spokesman for the Public Interest Legal Foundation, a conservative group that's active on voting issues. Federal agencies such as Justice, Customs and Border Protection, and Citizenship and Immigration Services will be able to combine and collate their troves of information, he says.

"These mountains of data have been there for years," Churchwell says. "All that was required was the will to leverage them. It appears we have finally arrived."

But some say tasking the homeland security department with investigating voter fraud could be problematic. 

The information housed at DHS could contain errors and result in haphazard matches that inflate the number of people considered improperly registered to vote, says Jonathan Brater, counsel at the Brennan Center for Justice, which supports expanding voting rights. DHS servers, for example, contain information about people who at one time were not citizens, perhaps not reflecting the fact that they became citizens -- and thus eligible voters -- at a later time.

"The information that they have on citizenship is really not suited for this kind of analysis and would take significant retooling," says Barry Burden, director of the elections research center at the University of Wisconsin. "They've not worked with voting data before. They really don't have the infrastructure to do this sort of thing."

Progressive groups complain that the quest to find voter fraud is a smokescreen for kicking eligible voters off the rolls. Academic studies have found that instances of in-person voting fraud are vanishingly rare.

"Now that voter ID laws have been challenged [in court], those who benefit from lower participation are looking for the next thing to keep people out of the democratic process," says Stuart Naifeh, a voting rights lawyer with Demos, a progressive think tank in New York.

Progressives say that next thing is voter purging, which is the focus of Ohio's case before the nation's highest court.

The case questions the legality of Ohio's approach to keeping its voter registration rolls up to date. When citizens fail to vote in federal elections for two years, the state sends them a letter inquiring whether they're still residing at that address. If they fail to respond, the state can remove them from the voting rolls. In 2015 and 2016, Ohio purged 426,781 voters this way.

Critics of the approach argue that the state is violating two federal election laws that make it illegal to purge voters from rolls solely because of inactivity. But supporters, like Robert Popper, director of the election integrity project at Judicial Watch, a conservative watchdog group, argue that "you're not being removed for failing to vote, you're getting a letter for failing to vote."

The Justice Department is siding with Ohio in the case -- a reversal from the Obama administration's stance. In June, the agency sent a letter to 44 states, asking about their plans to "remove the names of ineligible voters."

Progressives worry that if the Supreme Court rules in Ohio's favor, it will provide a green-light for the administration to call on states to remove voters from the rolls. 

"We are concerned this could lead to action to put pressure on states to purge their voter rolls or make it more difficult for people to register or stay registered to vote," says Brater of the Brennan Center for Justice.

Some states wouldn't need convincing: 14 state AGs filed a brief in support of Ohio's voter-purging approach (all Republicans except one independent, and four of whom were a member of the president's disbanded voter fraud commission).

It's clear that states are moving in divergent directions when it comes to voting.

Nearly half the states are seeking to update their voter registration rolls through a nonprofit known as the Electronic Registration Information Center (ERIC). The states share information about modernizing their systems as well as seeking to identify people who have moved across state lines or died. Participating states are mostly Democratic but do include several Republican-dominated states. Arizona joined the effort on Dec. 27.

Meanwhile, more than half the states participate in Crosscheck, a system for comparing voter registration information promulgated by Kobach. The system has been criticized for its error rate, but states that are participating in both Crosscheck and ERIC say that the former gives them greater ability to check duplicate registrations across states.

Kobach championed a law in his conservative state of Kansas to require individuals to provide proof of citizenship when registering to vote, but it's been challenged by the American Civil Liberties Union (ACLU) and is going to trial in March. 

At the same time, in Washington state, where Democrats won control of all the political branches in November, a bill was just introduced to allow for same-day registration and automatic registration for voters.

If Kobach prevails in his case against the ACLU, the Trump administration may introduce legislation to make proof-of-citizenship a federal policy. But voting security laws that have been introduced in Congress aren't moving swiftly. The outcome of the Supreme Court's Ohio case could change that.

Ohio's critics say the case could have an impact not unlike the court's ruling in 2013 that gutted portions of the Voting Rights Act.

"This is a critical case in terms of whether the National Voter Registration Act and other federal laws will continue to serve their purpose to safeguard voters from purges," says Brater.

Alan Greenblatt is a senior staff writer for Governing. He can be found on Twitter at @AlanGreenblatt.
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