A federal judge on Monday allowed President Donald Trump’s voting commission to go forward with collecting voter data from 50 states and the District of Columbia, ruling the White House advisory panel is exempt from federal privacy review requirements whatever additional risk it might pose to Americans’ information.
The ruling averted a public setback for a president who has claimed widespread fraud cost him the popular vote in November. The commission’s request for the voting information of about more than 150 million registered voters remains controversial, with many state leaders from both parties voicing objections about its potential to reveal personal information, suppress voter participation and encroach on states’ oversight of voting laws.
The panel’s June 28 letter to the states requested that they turn over “publicly-available voter roll data,” including name, address, date of birth, party registration, partial Social Security numbers and voting, military, felony and overseas history, among other data.
On July 10, the White House clarified that it had scrapped plans to use a Pentagon-operated website to accept the data and had designed a new system inside the White House to take the submissions.
Those changes appeared crucial in a 35-page ruling by U.S. District Judge Colleen Kollar-Kotelly of Washington said.
“The mere increased risk of disclosure stemming from the collection and eventual, anonymized disclosure of already publicly available voter roll information is insufficient” to block the data request, she wrote.
Kollar-Kotelly, who was appointed by president Bill Clinton in 1997, ruled against the Electronic Privacy Information Center, a watchdog group that sought to block the commission’s data request because the panel had not conducted a full privacy impact statement as required by a 2002 federal law for new government electronic data collection systems.
She concluded that while EPIC had the right to sue under the law for a privacy review, the commission was a presidential advisory panel, not a federal agency subject to the privacy law.
“Neither the Commission or the Director of White House Information Technology – who is currently charged with collecting voter roll information on behalf of the Commission – are ‘agencies'” of the federal government subject to the court’s review in this matter, Kollar-Kotelly wrote.
“To the extent the factual circumstances change, however – for example, if the . . . powers of the Commission expand beyond those of a purely advisory body – this determination may need to be revisited.”
Kollar-Kotelly wrote the only added risk to privacy were if the White House computer systems are more vulnerable to security threats than those of the states, or that its de-identification process would be inadequate.
President and Executive Director Marc Rotenberg of the Electronic Privacy center was expected to issue a statement shortly.
A spokesman for the voter information commission did not immediately respond to a request for comment. The commission is led by Vice President Mike Pence, with Kansas Secretary of State Kris Kobach, a Republican, as vice chairman.
The court order was not a final ruling on the commission’s work, with other groups filing lawsuits and one appealing to a higher federal court to block its action under open records and meeting laws.
But Monday’s ruling removed one legal obstacle even as the commission faces other political head winds. The commission had asked states to hold off submitting the sweeping voter data the panel had requested pending the court decision.
At least 44 states have indicated they won’t provide all their voter data, with some saying they would provide nothing and others providing what information they could under state laws.
The vice president’s office has said 20 states have agreed to share at least some data and 16 more are reviewing the request.
President Trump has said that widespread voter fraud cost him the popular vote in November, although critics say the claim is unsubstantiated and is a pretext for federal laws to suppress voter participation, including by racial minority groups and poor people.
Trump has championed the commission’s work as a way to “strengthen up voting procedures” by identifying “vulnerabilities . . . that could lead to improper voter registrations and improper voting.” Conservative board members have advocated stricter federal election laws, alleging that a liberal bias in U.S. enforcement has benefited liberals.
Republicans such as Arizona Secretary of State Michele Reagan had called the commission’s request a “hastily organized experiment,” or a “federal intrusion and overreach,” as Louisiana Secretary of State Tom Schedler, R, put it.
Democratic New York Gov. Andrew Cuomo refused “to perpetuate the myth voter fraud played a role in our election,” while Vermont Secretary of State James Condos, D, called the commission “a waste of taxpayer money.”
In court filings, Rotenberg called the privacy implications of creating “a secret database stored in the White House” of hundreds of millions of voter records from across the country “staggering” and lacking legal authorization.
EPIC said the proposal would increase privacy risks to every registered voter, “including in particular military families whose home addresses would be revealed,” people whose partial Social Security numbers are used as passwords for commercial services and people with felony convictions.
Trump formed the Presidential Advisory Commission on Election Integrity in May after repeatedly suggesting that millions of illegal voters cost him the popular vote against Democratic presidential nominee Hillary Clinton. Studies and state officials of both parties have found no evidence of widespread voting fraud.
Led by chairman Pence, the panel’s other members are Indiana Secretary of State Connie Lawson, R; New Hampshire Secretary of State Bill Gardner, D; Maine Secretary of State Matthew Dunlap, D; former Ohio secretary of state Ken Blackwell, R; Christy McCormick, R, commissioner with the U.S. Election Assistance Commission; former Arkansas state representative David Dunn, D; Mark Rhodes, clerk of Wood County, West Virginia, D; Hans von Spakovsky, senior legal fellow of the Heritage Foundation, R; J. Christian Adams, R, a conservative columnist; and Alan Lamar King, D, a probate judge in Alabama.
Kobach said in the court filing that McCormick is not serving in her official capacity as a member of the EAC. Kobach said the Trump commission has “no legal relationship with the EAC,” and that while the president can appoint additional members to the newly formed advisory commission, to Kobach’s knowledge, no other federal agency officials are currently under consideration.
Although the May 11 executive order stated the commission would be supported by the General Services Administration – a federal agency subject to privacy requirements – the administration said in fact data would be downloaded on to White House computers, with an employee of Pence’s office and White House information technology staff responsible for collecting and storing it.
(c) 2017, The Washington Post · Spencer S. Hsu