July 28, 2017
In 1972, Congress enacted the Federal Advisory Committee Act (“FACA”) to assert control over the burgeoning blue ribbon panels agencies were using to rubber-stamp agency actions. The statute imposes a transparency regime on those advisory committees set up only to provide agency advice or recommendations and where at least one member is not a federal employee. Presidentially established commissions also must comply with the FACA, including its requirement that the committee’s charter ensure the committee’s advice and recommendations “will not be inappropriately influenced by the appointing authority[.]”
President Trump’s Advisory Commission on Election Integrity (“Commission”) is really testing the boundaries of this no inappropriate influence mandate. From its inception, it was apparent that the Commission had one overriding purpose: to validate President Trump’s claim of massive voter fraud in the 2016 presidential election as an explanation for why he lost the popular vote by nearly 2.9 million votes. The president’s tweets from the election onward reinforce this conclusion.
Just weeks after securing the presidency, President Trump tweeted, “I won the popular vote if you deduct the millions of people who voted illegally.” He doubled down on this claim, tweeting later that day: “Serious voter fraud in Virginia, New Hampshire and California – so why isn’t the media reporting on this? Serious bias – big problem!”. The following day he “tweeted: “@sdcritic: @HighonHillcrest @jeffzeleny @CNN There is NO QUESTION THAT #voterfraud did take place, and in favor of #CorruptHillary !”. Thus, before he even assumed office, President Trump claimed that voter fraud unquestionably took place.
The president’s obsession with his popular vote loss continued after his inauguration. On January 25, 2017, he tweeted: “I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and . . . . even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!”.
Days later, President Trump tweeted about an investigation Gregg Phillips was conducting into purported voter fraud using a mobile app “VoteStand”: “Look forward to seeing final results of VoteStand. Gregg Phillips and crew say at least 3,000,000 votes were illegal. We must do better!”. Phillips, a former Texas and Mississippi state official, reportedly is the source for President Trump’s claim that millions of people voted illegally in the 2016 presidential election. It is therefore no coincidence that the 3 million illegal votes VoteStand claims were cast matches up roughly to the number of votes by which President Trump lost the popular vote. VoteStand, a self-proclaimed “anti-vote fraud app,” is designed to let “Americans to report and read about suspected incidents of voter fraud at nearby and national polls.” In other words, the “proof” for Mr. Phillipps’ to-date unsupported claims of voter fraud is unverified reports of the self-selected group that chooses to use his app.
President Trump’s tweets make clear he started from the premise that “massive” voter fraud occurred during the 2016 election, despite no supporting evidence. The White House continued this narrative when White House Senior Adviser Stephen Miller, in an appearance on ABC’s This Week repeated the President’s claim of voter fraud in the 2016 presidential election. By the time President Trump signed an executive order creating the Commission on May 11, 2017, and naming Vice President Mike Pence as chair, and named Kansas Secretary of State Kris Kobach as vice-chair, the proverbial die had been cast.
To be sure, the Commission’s stated mission is content neutral; the executive order charges it with studying “the registration and voting processes used in Federal elections” for the purpose of identifying what both enhances and undermines “confidence in the integrity of the voting processes” and “vulnerabilities in voting systems and practices” that could cause voter fraud.
But those words do not live in a vacuum. Commission Vice-Chair Kobach is a long-time proponent of unsubstantiated claims that significant numbers of non-citizens have voted illegally and the author of rigorous voter ID laws in Kansas. Based on his unproven premise of massive voter fraud, he took steps as Kansas Secretary of State to disenfranchise 18,000 motor-voter applicants, claims a federal appeals court characterized as “pure speculation” while entering an injunction to prevent that voter disenfranchisement. Moreover, Mr. Kobach’s White House ties predate his selection as Commission co-Chair. In an interview with the Associated Press published on May 18, 2017, Mr. Kobach stated he had been advising the president for months, has weekly talks with the White House, and regular contact with top White House officials such as Steve Bannon and Reince Priebus.
All this points to the lack of a clear line between the Commission – charged with giving the White House independent and unbiased advice – and the president. Underscoring this lack of independence is the slip-of-the-tongue statement of then-Deputy Press Secretary Sarah Sanders at a June 30, 2017 press briefing in response to a question about the Commission’s state data collection: “We’re asking — this is a commission that’s asking for publicly available data” (emphasis added). Even before Mr. Kobach was named to the Commission, he publicly backed President Trump’s dubious claim that he only lost the popular vote due to millions of illegal votes, saying on November 30, 2016 he thought “ the president-elect is absolutely correct when he says the number of illegal votes cast exceeds the popular vote margin between him and Hillary Clinton.”
The most controversial action the Commission has taken to date is a request of every state for a wealth of voter data that, when compiled, would be the equivalent of a national voter registry. In the face of extensive opposition from many states, President Trump tweeted on July 1, “Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?”. On July 11, Mr. Kobach retweeted the president’s tweet, completing the echo chamber.
By injecting himself directly into this controversy, the president made it clear he is closely monitoring – if not controlling – the Commission.
President Trump’s remarks at the Commission’s first public meeting on July 19, 2017, lay to rest any remaining doubt as to why he established it. Following Vice President Pence’s remarks about the need to approach the issues with “no preconceived notions or preordained results,” President Trump made clear that is exactly what he brings to the table. The president emphasized the need to stop “illegal or fraudulent voting, whether by noncitizens or the deceased.” He claimed that “throughout the campaign and even after, people would come up to me and express their concerns about voter inconsistencies and irregularities which they saw, in some cases, having to do with very large numbers of people in certain states.” In other words, massive voter fraud.
As with so many other aspects of his presidency, President Trump’s tweets offer a window into his true motives. When it comes to the so-called “Election Fraud” Commission, the president’s motive could not be clearer: securing confirmation from a purportedly independent commission that he lost the popular vote only because of massive and unchecked voter fraud. Not only is he wrong on the facts, but his efforts to inappropriately influence the Commission’s outcome cross a line Congress drew when it enacted the FACA.