A new executive order creates a commission that seems destined to continue a crusade against illegal voting.
If the intensifying scrutiny over alleged Russian interference in the election and the affairs of the White House and the truly unprecedented firing of former FBI Director James Comey by President Trump weren’t enough to fill a news cycle, the White House released an executive order on Thursday afternoon establishing the “Presidential Advisory Commission on Election Integrity.”
The commission will “study the registration and voting processes used in Federal elections.” It will be chaired by Vice President Mike Pence, staffed by people involved with elections law—including Kansas Secretary of State Kris Kobach—and will work over the next several months to deliver a report that outlines the effect of certain laws and policies on voter confidence and identifies vulnerabilities in voting laws “that could lead to improper voter registrations and improper voting.”
While federal efforts to improve local, state, and federal elections are not uncommon, and any effort to solve America’s low overall turnout and midterms doldrums might deliver a significant improvement to American democracy, it seems unlikely that this new commission will be focused on those turnout-boosting and confidence-boosting measures. Instead, given recent comments from the White House and the executive order’s language specifically identifying “fraudulent voter registrations and fraudulent voting” as a domain for said commission, and the selection of voter-fraud crusader Kobach as vice-chair, it appears the new commission will maintain a focus on the specter of voter fraud.
This new commission comes as a manifestation of a promise Trump made near the beginning of his term to chase down voter fraud. Around that time, the president made a series of baseless or bizarre claims, including telling a story to congressional staff about German golfer Bernhard Langer identifying fraudulent voters simply by their language and skin color, and claiming that 3 million illegal votes were cast in the 2016 election—probably by immigrants.
Voter fraud, it must be said, has not been found at significant levels in any jurisdiction, let alone the kind of in-person voter fraud Trump insists occurs en masse. When I spoke to Gregg Phillips, the man whose voter-database analysis generated the 3-million number Trump so readily cited, Phillips didn’t fully stand by that claim, telling me he was still in the process of verifying the work, which he would release to the public when confirmed. A final analysis from Phillips and his organization is still forthcoming, and Phillips has not tweeted about the 3 million number since.
The selection of Kobach as vice-chair of the commission suggests the body may function as a federal witch hunt for voting by undocumented immigrants. Kobach is the only secretary of state in the country with the power to prosecute voter fraud, and he’s launched perhaps the most zealous anti-fraud campaign in the country. He has also been a close adviser to the president on voter fraud. Since it acquired the power in 2015, Kobach’s office has worked to track down cases of voter fraud. In those two years, the office won convictions against just eight citizens for double-voting in multiple jurisdictions. Last month it won a conviction against Peruvian immigrant Victor David Garcia Bebek for voting before he gained citizenship.
Kobach and his allies celebrated that conviction as definitive proof that voter fraud exists as a widespread problem that would require significant national attention. But the scholarship against voter fraud has suggested not that it does not or cannot exist, but that it doesn’t functionally exist at a level significant enough for the benefits of action to outweigh the costs. For reference, there are about 1.8 million registered voters in Kansas. The eight people convicted for double-voting—a phenomenon mostly connected with confusion as opposed to malice—make up 0.0004 percent of the vote. Many more ballots are thrown out annually for clerical errors.
Meanwhile, strict voter-ID laws with the stated aim of solving voter fraud and practices like ballot challenges have been many orders of magnitude better at disenfranchising legitimate voters than efforts like Kobach’s have been at rooting out fraudulent ones. According to an analysis in The Nation, strict voter-ID laws in Wisconsin reduced turnout in the 2016 presidential election by as many as 200,000 votes, greater than Trump’s margin of victory in the state. And those laws and provisions tend to have their greatest impact not on undocumented immigrants, but on poor people of color who are eligible to vote.
Trump’s commission is ironically in a position to help fix that. While its powers are limited to a report, and while Trump can’t do much to alter state election laws, even when armed with that report, recommendations from the commission to increase turnout and protection of low-income voters and voters of color could go a long way in moving states towards freer and more open elections. But given the White House’s track record and that of Kobach, it is much more likely that the commission will play a role in an ongoing process of national voter suppression that seems unlikely to slow down soon.
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