Even as Democrats and voting rights groups praised the sudden demise of President Donald Trump’s voter fraud commission on Wednesday, voting rights experts were raising alarms about the news that the Department of Homeland Security would step into the breach.
The White House said Wednesday that dissolving the commission didn’t mean the administration was ending its focus on voter fraud. Homeland Security will take up the baton. Kansas Secretary of State Kris Kobach (R), the vice chair of the now-defunct panel, told Politico that the department can take information collected by the commission and run it against an Immigration and Customs Enforcement database of non-citizens to identify people illegally on state voter rolls.
Voting rights groups had viewed the commission as nothing more than an attempt to gin up evidence to back Trump’s unsubstantiated claims about widespread voter fraud in the 2016 election. On Thursday, election lawyers, civil rights groups and other experts saw serious flaws in the Homeland Security plan, too.
They noted that voter fraud does not fall with Homeland Security’s expertise and that efforts to cross-match voting rolls with Homeland Security data in the past have resulted in high numbers of people being incorrectly identified as non-citizens. Plus, the department has the power to deport people.
In 2012, Florida looked to the Department of Homeland Security’s Systematic Alien Verification for Entitlements database to help clean up its voter rolls. At the time, the departments of Homeland Security and Justice both warned that the system wasn’t a reliable way to identify who is and who is not a citizen.
“The use of the immigration databases are inaccurate, discriminatory and inappropriate for voter list maintenance. We know that it results in inaccurate purging of eligible voters,” said Katherine Culliton-González, a lawyer at think tank Demos who represented plaintiffs challenging Florida’s method of striking people from the rolls.
Furthermore, Culliton-González noted that ICE has “jurisdiction to deport people if there are allegations brought about someone who is not a citizen voting. That’s very, very intimidating and that’s why I’m so concerned about these false allegations.”
Meanwhile, the data collected by Trump’s commission is unlikely to produce reliable information about voting fraud either because it’s not comprehensive. As of October, only 20 states had sent the commission their data and that information wasn’t standardized. The lack of precision raises the risk of false positives, especially if officials are inclined to find fraud.
“What likely would come from an analysis is a pretty dramatic overestimate of non-citizen voting in the U.S.,” said Michael McDonald, a law professor at the University of Florida. “You could easily be rounding up people who are not citizens of the U.S. who didn’t even register to vote and didn’t vote. ... These are people here legally, under our immigration programs, maybe on their way to citizenship, but just because of a bad match they are rounded up and deported.”
Citizens and legal voters could also be erroneously identified as non-citizens and illegal voters, McDonald noted.
Kobach, who did not return multiple requests for comment from HuffPost, told Breitbart News that he will work closely with the White House and Homeland Security to continue the hunt for voter fraud. Among the documents he plans to turn over to the department are a Heritage Foundation database of voter fraud and a study by a conservative nonprofit co-founded by Steve Bannon that claimed to show thousands of examples of double voting.
However, Homeland Security spokesman Tyler Houlton told HuffPost on Thursday that Kobach was not advising the department. He declined to explain what particular issues the department would be probing.
“At the President’s direction, the Department continues to work in support of state governments who are responsible for administering elections, with efforts focused on securing elections against those who seek to undermine the election system or its integrity,” Houlton said in a statement.
Kobach told Politico that it made sense for Homeland Security to take over the probe because the department recently designated elections as “critical infrastructure.” But Culliton-González said that move gave Homeland Security jurisdiction over things like cybersecurity and voting machines, not individual voter fraud.
James Norton, who worked as deputy assistant secretary of legislative affairs at Homeland Security from 2003 to 2007, said he was surprised a voter fraud inquiry would wind up there. The Justice Department, which in fact found little evidence of voter fraud during a five-year investigation over a decade ago, would be better equipped, he said.
“It’s outside the scope of the mission” of Homeland Security, Norton told HuffPost. “You’re never going to find the answer if [the investigation is] under-staffed and under-resourced.”
Asked why the White House had chosen Homeland Security and not Justice to take up the voter fraud investigation at Thursday’s media briefing, White House press secretary Sarah Huckabee Sanders had nothing to offer beyond “That was the agency that was best determined by the administration.”
It may not be all that easy for the Department of Homeland Security to get busy hunting for voter fraud. While the now-defunct commission had broad latitude to collect information on Americans, federal law requires Homeland Security to go through certain processes to do so. If the commission were to simply hand over the voter roll data, that would likely invite further lawsuits. The White House said one of the reasons it was disbanding the panel was that a slew of lawsuits was impeding its efforts.
State election officials who entrusted the commission to protect the privacy of their voter information should be concerned about it ending up with another government agency, according to David Becker, a former Justice Department lawyer and now head of the Center for Election Innovation and Research.
“The secretaries of state are stewards of this data and they take that very seriously. I don’t know a single one that doesn’t. When you have data that was meant for voting purposes [being] repurposed for a law enforcement purpose by another agency, that would raise concerns,” he said.
Becker added that Homeland Security’s new mandate to focus on individual voter fraud could distract from its recent progress in coordinating with local election officials to combat the greater threat of hacking. U.S. intelligence officials agree that Russia tried to interfere in the 2016 election, and 21 states had their electoral systems targeted by hackers last year.
“If they get dragged by the White House away from the real problem to this wild goose chase,” Becker said, “it could have a really negative impact on how well that cooperation goes and that cooperation is essential.”