Secretaries of state are concerned about not just the federal government's request for voter information but also the information they're not getting about election security breaches.
Communication is a two-way street. And right now, state election officials aren't happy with the way information is flowing in or out of Washington.
They're frustrated about the information they're being asked to provide federal officials as well as the information they're not getting back from them.
It's well-known that secretaries of state are unhappy that President Trump's election commission -- led by Kansas Secretary of State Kris Kobach and Vice President Mike Pence -- asked them for every voters' personal data, including addresses, partial Social Security numbers and voting histories. More than 40 states have rejected at least part of the request, sometimes in colorful, "go jump in the Gulf of Mexico"-style language.
After lawsuits poured in from privacy advocates, Kobach suspended the data request until a federal court rules on a temporary restraining order. In the meantime, election officials at the National Association of Secretaries of State meeting this past weekend are also concerned that the federal government hasn't been sufficiently forthcoming about reported breaches in voting security.
"It has been disappointing that it seems to be a one-way street on the information," says Vermont Secretary of State Jim Condos. "They could be helpful to us, but we need better lines of communication."
Last fall, the Department of Homeland Security revealed that Russian agents targeted voter registration systems in some U.S. states, but it wasn't until last month that U.S. security officials revealed how many. And, according to a leaked National Security Agency document, Russian intelligence attempted to crack into registration software that's used in eight states.
"Over 20 states have been hampered with in some fashion, but no one seems to know what states they are, which means the Department of Homeland Security has not shared that information," says Iowa Secretary of State Paul Pate. "We're still a little frustrated on that count."
Given the heightened concern about election security, Connecticut Secretary of State Denise Merrill says it seems like an odd moment to be constructing a national database of voter information, as the federal commission seems intent on doing.
"States are super-conscious right now, given the concerns about voter security and their databases, in handing over this information," says Tomas Lopez, counsel for the Brennan Center for Justice at New York University Law School. "States have some reason to be wary about how this information is going to be used."
The commission's work is happening against a backdrop of renewed attacks from Congress against the Election Assistance Commission (EAC), a federal agency set up 15 years ago to help state and local governments share information about administering elections, such as handling provisional ballots, accommodating overseas voters and boosting security. Last month, the U.S. House Appropriations Committee voted to defund the EAC.
"It's ironic the EAC is on the chopping block when it's an agency that state officials have come to terms with and to appreciate in a lot of ways," says Barry Burden, director of the Elections Research Center at the University of Wisconsin.
Burden also notes that state officials always get annoyed when the federal government starts meddling with voting matters. States had what amounted to a free hand in running elections as they saw fit prior to the Voting Rights Act of 1965. Since then, the feds have become more engaged in voting issues with the passage of the so-called motor voter law in 1993, which allows people to register when they get driver's licenses, and the Help America Vote Act of 2002, which created the EAC and dispensed billions of dollars to states to update election equipment in the wake of voting problems in the presidential election of 2000.
"Elections are a state issue; they are not a federal issue," says Pate, Iowa's secretary. If the Pence-Kobach commission is looking to help solve problems with elections, that's fine, he says, but "if it's about federalizing elections, we're opposed to that."
Voting rights advocates are concerned that the commission will conclude that there are extensive problems with elections, including voter fraud. Such a finding, they argue, could then be used as an excuse to push federal legislation with the intent of curbing access to the ballot box or calling on states to purge voters.
"State officials are rightly wary of the goals of the commission because it does seem that the whole purpose for setting it up is to justify a preordained conclusion that somehow millions of votes were cast illegally in the last election," says Brenda Wright, vice president for policy and legal strategies at Demos, a progressive think tank. "That's the verdict, and now they want to hold a trial."
Justin Levitt, an elections expert at Loyola Law School in Los Angeles, says it's clear that Kobach intends for the commission's findings to influence federal voting legislation. Revising federal voting law was an action item on a piece of paper that was visible in photographs when Kobach met with Donald Trump, then the president-elect, on Nov. 20.
"States already know in large part what he's going to say," Levitt says. "He had it literally on a to-do list before the first day of the administration."
Kobach -- who notably did not attend the gathering of his fellow secretaries of state -- defended the commission's intent in a statement last week.
"Despite media distortions and obstruction by a handful of state politicians, this bipartisan commission on election integrity will continue its work to gather the facts through public records requests to ensure the integrity of each American’s vote because the public has a right to know," he said.
But critics of the commission say it isn't truly bipartisan. Its membership contains more Republicans than Democrats and it's being led by politicians who currently hold elected partisan positions. In the past, former presidents and campaign lawyers have led such efforts.
If Kobach hopes to match information from state voter files with federal records to find discrepancies or fraud, which seem to be his intention, election experts warn that could create all sorts of problems.
For one, matching records can create many false positives. Two people named Robert Johnson, for example, might share the same birth date. Such problems can grow exponentially as databases grow larger -- and a national voter file would certainly be enormous.
There are also privacy concerns. Some states make certain types of voter information available but block their use for commercial purposes, for instance. Federal commission rules mean such information, once gathered, would have to be shared more widely.
"Someone who wants to use voter information to sell people stuff can't get it from Texas but could get it from Kobach," says Loyola's Levitt says.
And in Colorado, clerks in Denver, Boulder and Arapahoe counties told news outlets that more than 500 people had already withdrawn their voter registrations in response to Secretary of State Wayne Williams' announcement that he'd send the commission voter information -- far more than the usual handful of withdrawals during similar time periods.
While Democrats are wary of Kobach's intentions, they're not the only ones. Republican state officials are nervous that the commission will claim there have been widespread problems with voting in their own states.
"This has not been a partisan issue in any way," says Condos, the Vermont secretary. "Republican and Democratic secretaries have all agreed that we think that this commission has kind of overreached a little bit."
As the commission retools its request in light of the legal challenge and political backlash, state officials hope it will be something they can comply with. After all, even Kobach's own state of Kansas has laws in place that prevent it from sharing the type of information he asked for in his initial letter.
"His own state is resisting," says Burden, the Wisconsin professor. "That suggests that the commission did not do its homework in knowing what the states were able to do or what they were likely to do."
Today, 15 years after the passage of the Help America Vote Act, state election officials warn that their equipment is starting to get old. They would love for the federal government to supply them with funding to help modernize and secure their systems.
"I can promise you that if the federal government offered a chunk of money to upgrade their voting systems, that would be the type of federal intervention that would be really, really welcome," says Levitt.
Short of that, secretaries of state remain leery about the prospect of further federal intrusions into an area they view as their own responsibility. If the Trump administration does intend to make policy changes, they're hoping for fewer demands and greater consultation.
"If they want our cooperation," says Pate of Iowa, "they'll have to share with us."
This article was originally published on Governing.