We’re Not Out of the Woods Yet: Why Disbanding the #ShamCommission Isn’t the End of the Fight

by Melanie Newman, NAACP Legal Defense Fund Chief Public Engagement and Communications Strategist

President Trump has disbanded his sham voter fraud commission, citing lawsuits like the one LDF filed along with MALDEF and LatinoJustice/PRLDEF as an overwhelming reason. This is certainly a victory, but it’s important to know that we are not out of the woods yet.

In our complaint, we expressly alleged that the Commission had plans to collaborate with the Department of Homeland Security (DHS) that would target Latino and African American voters. Now we know it’s true. In announcing the disbanding of the Commission, White House Press Secretary Sarah Huckabee Sanders confirmed the Administration’s intentions: “…President Donald J. Trump signed an executive order to dissolve the Commission, and he has asked the Department of Homeland Security to review its initial findings and determine next courses of action.”

The New York Times reports further, “Mr. Kobach, who said he would remain as an informal adviser to homeland security, said the department would marshal its files on immigrants, legal and otherwise, so that they can be matched with lists of registered voters nationwide to detect foreign citizens who are illegally casting ballots in American elections.”

By moving his search for voter fraud to the DHS, Trump is doing precisely what we alleged in our complaint suing the Commission. That’s why we filed a FOIA request demanding information from DHS about its communications with the Commission.

Here’s why this matters:

1. Experts in data analysis — none of whom were included on the Commission — have shown that running such a superficial comparison is certain to lead to numerous false positives due to minor inaccuracies on the voter rolls, inconsistencies in data collection and formatting, and the reality of common names and birthdays. The data matching suggested by Mr. Kobach appears to be similar to the notoriously unreliable crosscheck program he has championed as Kansas’s Secretary of State, which purportedly identifies people registered in more than one state. After North Carolina joined the crosscheck program, election officials reported that in the 2012 general election, there were 35,750 voters in the state whose first and last names and dates of birth matched those of individuals who voted in the same election in a different state. Some North Carolina politicians and strategists touted this as “alarming evidence of voter fraud,” and “the first concrete evidence we’ve ever had of massive voter fraud.” However, after investigation with additional data, only eight cases of potential double voting were referred to prosecutors, and two people were convicted. Separately, a team of researchers from Stanford, Harvard, the University of Pennsylvania, and Microsoft concluded that, if Secretary Kobach’s Crosscheck system were used for voter list maintenance in one state (Iowa), 99.5% of the purported matches would be false positives, such that “200 legitimate voters may be impeded from voting for every double vote stopped.”

2. A database expert reviewed the “crosscheck” methodology and concluded there is an inherent bias in the “crosscheck,” resulting in “one in six Hispanics, one in seven Asian-Americans and one in nine African-Americans in Crosscheck states landing on the list.” His statistical analysis found that “African-American, Latino and Asian names predominate, a simple result of the Crosscheck matching process, which spews out little more than a bunch of common names.” No surprise: The U.S. Census data shows that minorities are overrepresented in 85 of 100 of the most common last names. If your name is Washington, there’s an 89 percent chance you’re African-American. If your last name is Hernandez, there’s a 94 percent chance you’re Hispanic. If your name is Kim, there’s a 95 percent chance you’re Asian.” Thus, the false positives generated by crosscheck are disproportionately likely to be voters of color. When the crosscheck program is used to investigate voters and purge voter rolls, it is more likely to disproportionately impede the constitutional rights of voters of color.

3. Federal Government records, including Department of Homeland Security (“DHS”) records, similarly contain errors and incomplete information. Naturalization documentation may be updated slowly, or not at all, leaving outdated or inaccurate information to be compared to voter rolls. As one federal appellate court recognized in rejecting a state’s attempted use of the DHS’s Systematic Alien Verification for Entitlements (“SAVE”) database to purge voters, there was “a foreseeable risk of false positives and mismatches based on user errors, problems with the data-matching process, flaws in the underlying databases, and similarities in names and birthdates.”

4. Such unreliable data matching may result in voter suppression. Kobach noted in the July 19 meeting that identifying supposedly improper registrants through crosscheck can be a “starting point” for questioning voters, pursuing prosecutions, and/or removing voters from the rolls of the state in which they no longer reside. One can easily see how this might result in voter suppression. Imagine that a recently naturalized citizen registers to vote for the first time. Election officials contact her because she is still listed as a non-citizen in federal databases. She chooses not to vote in the next election, for fear that she can be charged with fraud due to the government’s failure to update the database.

It has been clear from the start that the Administration and Secretary Kobach, in particular, intended to use the data collected by the Commission to initiate a federal and state comparative database program based on the flawed model of the Crosscheck system. Now that it has been confirmed, we must stay vigilant to fight this unconstitutional effort to suppress the vote.