Trump’s Voter election integrity commission — The absence of Constitutional Codification, Mandate & Reason

Eric Foster
Jul 30, 2017 · 10 min read
U. S. Constitution & Bill of Rights

Since winning the 2016 election, Donald Trump & his most ardent supporters have fueled the fears of certain specific voting consumer groups with the narrative that millions of people are voting illegally in America. This, in spite of the fact that Republicans have the following governance facts in their favor:

· Control the Presidency,

· The U. S. Supreme Court

· Both houses of Congress,

· 37 State Senate Legislative chambers (55.5% of the elected state senate positions, while Democrats control 40.8%),

· 31 State House of Representative chambers (56% of elected state representative positions, while Democrats control 43.2%).

· Republicans control 33 of the 50 State Governorships and a majority of the state supreme courts that are partisan.

· Control of the executive branches on a Federal & state level & the majority of state-wide electives offices

If the narrative was correct, and Republicans are at a disadvantage due to these millions of illegal voters & ballots being cast, Republicans wouldn’t have the levels of electoral control. So, why are Donald Trump & others in his and the Conservative Mainstream Media pushing this narrative.

One, we have to be proactive to protect the system as un-named sources have communicated visible examples of election fraud.

Two, Donald Trump couldn’t have vote the popular vote, it must have been millions of illegal votes for Hillary that cost him a dual mandate victory.

Three, great sources such as the Republican leaning “The Heritage Foundation” have found hundreds of incidences of voter fraud, to justify the need to move to put this commission together & gain access to all America’s.

So, here’s the reality. The Heritage Foundation, a leading Rep. Think Tank, has found 561 total instances of voter fraud and 848 voter fraud criminal convictions since 2000. Over 1 billion votes have been cast in Fed, state, local elections since 2000. The percentage of voter fraud to votes cast — 0.00005810000%.

1,000,000,000: Ballots casts since 2000 election cycle (not counting 2016 general election cycle)

581: Voter fraud cases since 2000 — Tracked by the Heritage Foundation

0.00005810000% — % of voter fraud cases to Ballots casts since 2000 election cycle (not counting 2016 general election cycle)

848: Voter fraud Criminal Convictions since 2000 — Tracked by the Heritage Foundation

0.00008480000%: % of voter fraud criminal convictions to Ballots casts since 2000 election cycle (not counting 2016 general election cycle)

Now let’s just look at Congressional & Presidential Election contest only since 2000 (Not including — Congressional special elections, Congressional run-off elections, Nominating Primaries or Caucuses, odd-year State or local elections or even year State & Local election ballot selections). American voters made over 2.3 billion ballot selections since 2000 in US federal elections and as the Republican leading Heritage Foundation has found, there have been 561 instances of voter fraud. The percentage of voter fraud to US Congressional & Presidential Election voter ballot selections made — 0.00002525068%.

2,300,928,284: Congressional & Presidential candidate primary & general election ballot selections since 2000 General election (not counting 2016 primary elections)

581: Voter fraud cases since 2000 — Tracked by the Heritage Foundation

0.00002525068%: % of voter fraud cases to US Congressional & Presidential Election voter selections cast

848: Voter fraud Criminal Convictions since 2000 — Tracked by the Heritage Foundation

0.00003685469%: % of voter fraud criminal convictions to US Congressional & Presidential Election voter selections cast

So, to repeat, since the year 2000, the percentage of voter fraud to total votes cast — 0.00005810000%. The percentage of voter fraud to US Congressional & Presidential Election voter ballot selections made — 0.00002525068%. The math says that our system works. I’m a cancer survivor, I had a greater chance of dying in 1st surgery than voter fraud.

So, if we are going to look at the issue of voter integrity, voter protection and maintenance of our election systems, I have two items for consideration by all. Electronic election data interference/manipulation and creating an actual legally binding authority for federal support of these types of election integrity initiatives

First, the current Trump commission has no focus or stated mandate to even look at electronic interference in our election process. When you read Section 4 of the Executive Order don’t address electronic interference, data corruption or cyber manipulation. This is the area of activity that has a greater chance of impacting votes vs. the 0.00002525068% to 0.00005810000% documented occurrences of in-person fraud. Republicans used to fight against any efforts to intrude into our personal lives. This “commission” is doing the opposite. The commission’s section, per section 4 of the original executive order is as follows:

i. The term “improper voter registration” means any situation where an individual who does not possess the legal right to vote in a jurisdiction is included as an eligible voter on that jurisdiction’s voter list, regardless of the state of mind or intent of such individual

ii. The term “improper voting” means the act of an individual casting a non-provisional ballot in a jurisdiction in which that individual is ineligible to vote, or the act of an individual casting a ballot in multiple jurisdictions, regardless of the state of mind or intent of that individual.

iii. The term “fraudulent voter registration” means any situation where an individual knowingly and intentionally takes steps to add ineligible individuals to voter lists.

iv. The term “fraudulent voting” means the act of casting a non-provisional ballot or multiple ballots with knowledge that casting the ballot or ballots is illegal.

This stated purpose, the commission’s request for social security data, criminal background (most states allow a returning citizen to vote after serving their sentence) & Section 3, article © those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting from the EO, focuses only on in-person fraud or possible fraudulent activities or the 0.00002525068% to 0.00005810000% of actual documented voter fraud cases since 2000. If the commission is truly empaneled and charged with securing the integrity of the election process in America, the ability to purposely manipulate electronic records including registration and voter selection tallies should be added to sections 3 and 4 of the Executive Order.

There is a second and more important issue that needs to be address, which is the legal authority of an advisory commission to request the type of data that they have asked for. As currently constructed today as an advisory commission, it doesn’t have the legal authority to compel actions of the States to provide any state governed records https://www.fs.fed.us/payments/faca.pdf & http://www.gsa.gov/faca. Advisory committees have played an important role in shaping programs and policies of the federal government from the earliest days of the Republic. It was not until a House Committee on Government Operations Subcommittee initiated an investigation on the use of advisory committees by the federal government in 1969/1970, and held hearings, that the groundwork was laid for legislation to regulate advisory committees. Based on the investigation findings, in 1970 the House Committee issued recommendations that became the foundation of a bill introduced in 1971 to regulate advisory committees. This bill was eventually passed by Congress, and President Nixon signed the Federal Advisory Committee Act (FACA) into law (P.L. 92–463; 5 U.S.C. App.) on October 6, 1972.

Now, when you read through Federal Advisory Committee Act (FACA)-(P.L. 92–463; 5 U.S.C. App.), there is nothing in the Act, or the related subordinate statues:

1. Government in the Sunshine Act (5 U.S.C. 552b)

2. Executive Order 12024, Transfer of Certain Advisory Committee Functions. (1977)

3. Executive Order 12838, Termination and Limitation of Federal Advisory Committees.(1993)

4. OMB Circular No. A-135. (1994)

5. Section 204 of Public Law 104–4 (Unfunded Mandates Reform Act or UMRA).

Provides for or actualizes powers for advisory committees to require to compel, subpoena or issue sanctions to any state or local governmental organization for the transfer of or denial to transfer, any records, files, communications or other materials that are material property of the state or local government and not mandated for provision of any current federal law, statue or constitutional requirements. In laymans terms, the election integrity advisory commission doesn’t have legal authority via the FACA act to compel any intergovernmental agency to provide it with the election records or data as requested. The commission can legally purchase any publically available data but it doesn’t have the legal mandate to sanction a state for refusing to provide any of its voter data files.

The only possible way the election integrity commission could legally force the transfer and access to this data, under the FACA, is if they filling a regulatory compliance or functionary gap for an existing Federal agency with correlated oversight. Then they could compel Intergovernmental agencies (State, local, Tribal) to provide them with this type of data.

In the 241 years since the Declaration of Independence, we don’t have a Federal Department of Elections that would require this data regulatory access to this type of data. If my interpretation of the related statues and constitutional provisions are correct, the States, or injured parties (counties, local governments, tribal governments or individual citizens) would have legal standing to challenge this type of intrusion under the following provisions of the constitution.

Article 4 Section 1 and Section 2; subsection 1 (State’s relations)

Section 1- Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2–1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Article [IV] (Amendment 4 — Search and Seizure) — The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,……

Article [V] (Amendment 5 — Rights of Persons) — No person shall be held ….. nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article [X] (Amendment 10 — Reserved Powers) — The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The original 4th article provides for protection and respect of each individual state’s records and acts within the bounds of State’s rights and the rights of its citizens to be governed under the subset of specific intra-state laws as instituted by each state. Article 4, amendments to the Constitution protects citizens from unreasonable searches and seizures (one could argue that a citizens voting records and related information provided in exchange for the right to vote inside of their state equates to being secure in one’s houses, papers and effects), Article 5, amendment 5 prescribes that in the rights of person, that no person shall have private property taken for public use (a person’s intellectual rights to social security numbers, voting frequency and history could be argued as private property). Article 10, the 10th Amendment reserves all powers not granted to the Federal Govt. to the States, i.e. elections. These four sections could constitute the context of for states, local governments and/or aggrieved parties to sue to prevent the access to or sharing of this data to the Trump election commission.

Now if you’re on team Trump or you believe that we do need to have more defined Federal involvement inside of our election process, we need to have the actions of this type of commission to be codified under solid statutory ground. The ground would be to legalize the commission through the binds of constitutional and legislative authority. Here’s how. The Necessary & Proper clause (ARTICLE I, SECTION 8, CLAUSE 18) allows Congress to legislate added powers to the Federal Government. Why hasn’t Trump asked or Congress voted to create a Federal Department of Elections, which would provide actual authority for this commission? The Necessary & Proper Clause would allow for the creation of such a department, which could be housed under either the Commerce Department, Justice Department or Treasury Department. Follow this action & you legitimize the commission plus create congressional & executive branch legal oversight, with Judicial review powers, as is provided for under the constitution. This would be fitting and proper way to not only address this issue, but also work on issues of addressing discriminatory actions in voting laws, enforcement of the voting rights act and nationalizing the cyber security efforts to protect our elections from cyber warfare. As a Citizen and active engaged American, I’m concerned that Trump’s goal with this commission is not to achieve the goals that you believe, but it’s an end around the 4th Article, the 4th, 5th & 10th amendment & Necessary & Proper Clause to create a database for targeting Americans who don’t vote for Trump. Considering the recent activities of team Trump, including Gov. Huckabee’s trial balloon for repealing the 17th amendment of the Constitution is what’s most concerning, but also provides an opportunity for this process to either be codified or exposed as a constitutional end around that hurts our country.

References

https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/information-requests-to-states-06282017.pdf

https://www.whitehouse.gov/presidential-advisory-commission-election-integrity-resources

https://www.whitehouse.gov/blog/2017/07/13/presidential-advisory-commission-election-integrity

https://www.whitehouse.gov/the-press-office/2017/05/11/presidential-executive-order-establishment-presidential-advisory

https://www.gsa.gov/portal/category/21244

The Act’s legislative history provides the rationale behind the language in the Act. Regulations have been promulgated that provide the details for implementing the Act and are known as the FACA Final Rule.

Since 1972, several laws and actions were implemented that affect the operation of FACs:

Section 204 of Public Law 104–4 (Unfunded Mandates Reform Act or UMRA). (1995 ) UMRA provides a critical exemption to the Federal Advisory Committee Act (FACA), in order to promote the free communication between the federal government and state, local, and tribal governments. More details on what it means and whether or not the exemption applies to a particular situation can be found at UMRA. Access OMB guidelines and instructions for implementing Section 204.

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