A federal district court is expected to rule as early as Friday afternoon on whether the Trump administration’s voter fraud task force can ask states to hand over publicly available voter information, and there’s a lot at stake.
Election experts and civil rights groups warn that even partial compliance with the task force’s request could threaten voting rights, and that the Presidential Election Integrity Commission’s frontman, Kansas Secretary of State Kris Kobach, will be able to use any information submitted to them to claim that the U.S. electoral system is plagued by massive voter fraud.
Last week, Kobach asked officials in the 50 states and Washington, D.C., to turn over voters’ names, birth dates, addresses, military status, last four digits of their Social Security numbers, felon status, party affiliation, and voting record since 2004. Nearly half of the states have agreed to hand over voters’ names and birthdates, which are publicly available under state law, but not Social Security numbers. And without those numbers, experts say, Kobach cannot reliably conclude whether widespread voter fraud is taking place.
“Kobach’s going to get enough of the data that he needs to write a blistering report that makes wild allegations about massive amounts of vote fraud, and it will be months, if not years, of follow-up [for] election officials to investigate,” said Michael McDonald, an associate professor of political science at the University of Florida who heads the United States Elections Project, a blog. “The damage will already have been done at the time that the report comes out.”
“The damage will already have been done at the time that the report comes out.” — Michael McDonald
By relying solely on the publicly available information that states agree to give him, Kobach would be able to find several examples in voting rolls of what statisticians call “twins” — people who share names and birthdates.
“Those seeking fraud see a Robert Smith, born June 15, 1946, appearing twice as a voter on the rolls, and conclude that one nefarious Robert Smith voted twice,” McDonald and Justin Levitt, an elections expert from Loyola Law School, explained in a 2007 study on how these “twins” may lead to the false appearance of voter fraud. “That conclusion is unwarranted. In a sufficiently large population, two entries listing the same name and birthdate are likely to demonstrate statistical coincidence rather than fraud.”
“Put differently, where there are many Robert Smiths,” they added, “two different Robert Smiths will share the same birthdate surprisingly often.”
This method likely won’t yield much evidence of non-citizens voting, as President Donald Trump falsely claimed 3 million to 5 million did in the last general election. But it may uncover numerous sets of “twins,” legitimate voters whom Kobach’s commission could label as individuals registered to vote in more than one state and then purge from voting rolls.
“In a sufficiently large population, two entries listing the same name and birthdate are likely to demonstrate statistical coincidence rather than fraud.” — Michael McDonald and Justin Levitt
This wouldn’t be the first time Kobach has cherry-picked data to serve his narrative of voter fraud. In fact, his Interstate Voter Registration Crosscheck program, which he introduced in 2005 and was used by 30 states as of May 2016, utilizes that exact same strategy — matching individuals who share a name and birthdate — to purge voting records of people who are supposedly registered to vote in more than one state. But a study published earlier this year by Stanford University researchers found that method eliminated about 200 legitimate voters for every fraudulent one.
A spokesperson for Vice President Mike Pence, who is chairing the commission, told ProPublica on Thursday that it plans to run the information received against “a number of different” existing databases, but didn’t specify which ones.
“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,” Kobach said in statement on Wednesday.
That same day, Kobach said in a court filing that, to his knowledge, the commission had not yet received any voter roll information from any state. A spokesperson for Arkansas’ Secretary of State told VICE News that the office had wired over information reflecting citizen’s name, birth dates, addresses, party affiliation, and voting history, that morning.
Levitt, professor at Loyola Law School who previously served as deputy assistant attorney general in the DOJ’s Civil Rights Division, told VICE News that it is possible to compare records reliably against other records, like immigration or death records, but only “if you’re are exceedingly careful” and “well attuned to the potential for mistakes.”
“Nothing in Secretary Kobach’s history indicates that either of those is the case,” Levitt said, noting that Kobach sent the letter requesting information to the wrong people in some states, and may have already violated a number of federal laws by not adhering to legal standards of requesting and maintaining personally identifying data about citizens.
“If you already have the answer to your investigation, it’s not an investigation; it’s a witch hunt,” Levitt added. “It’s fairly clear that they already have their answer. “