The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the White House announced that President Trump has issued an executive order shutting down his Presidential Advisory Commission on Election Integrity, which was planning to investigate alleged voter fraud around the country. The Commission was headed by Vice President Mike Pence (chair of the commission) and Vice Chairman Kris Kobach, the highly partisan Secretary of State of Kansas known for initiating dubious prosecutions, and promoting highly restrictive voting laws. Kobach oversaw most of the commission's activities. The White House statement accompanying the order said that Trump decided to shut down the commission because "many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry." The statement also noted that Trump chose not to "engage in endless legal battles" to get the states to turn over the information—a strong indication that the administration probably expected to lose many of those battles.
Forty-four states, as well as the District of Columbia, rejected some or all of Kobach's demands that they turn over information such as the names, addresses, party registrations, and last four digits of Social Security numbers of voters. State officials cited concerns about privacy and state sovereignty as reasons to reject the Commission's demands. The objecting states included many with Republican-controlled state governments. Mississippi GOP Secretary of State Delbert Hosemann suggested that the Commission should "go jump in the Gulf of Mexico and Mississippi is a great State to launch from." He rejected the request, citing "our State's right to protect the privacy of our citizens by conducting our own electoral processes."
State governments' successful resistance to the Commission's demands is a victory for privacy, and also for federalism as a constraint on overreaching by the federal government. It is dangerous to trust the feds with sensitive information on voters across the country—especially, but certainly not exclusively, when the presidency is held by a man with as little respect for civil liberties as Trump. This issue, along with others such as the litigation challenging the administration's efforts to punish sanctuary cities, is an example of how state and local governments (many of them liberal Democratic ones) are using federalism to resist Trump. In many cases, the legal doctrines in question were first developed by conservative judges, often over the bitter opposition of the left. Perhaps these cases will help lead the left to rethink some of their traditional skepticism about federalism and judicial enforcement of constitutional constraints on federal power, as some liberals have already begun to do. At the same time, we should not be overly optimistic, as "fair weather federalism" is a longstanding problem on both sides of the political spectrum.
Most election law experts believe that in-person voter fraud is extremely rare, and that there is no evidence to support Trump's claims that it is widespread, and accounted for his loss of the popular vote in the 2016 election. But even if you believe it is a more serious problem than most experts conclude, a commission headed by a highly biased figure like Kobach was hardly the right way to seek solutions. Moreover, subject to the constraints imposed by constitutional rights, the Constitution leaves most issues of election administration to state governments. It is they who should deal with voter fraud.
Federal control over election procedures would potentially enable the party that controls Congress and the White House to bias voting rules around the country in its own favor. Similar abuses can and do occur at the state level, as well. But at least pro-Democratic bias in liberal states is offset by Republican bias in conservative ones, and vice versa.
Kobach claims that the demise of the commission will not end the administration's efforts to investigate voter fraud, because they will be continued by the Department of Homeland Security. But presumably DHS will face the same legal obstacles to getting state data as the Commission did.