An Analysis of the Legal Strategies Behind the Commission on Election Integrity
While the public debate surrounding the Presidential Committee on Election Integrity largely revolves around the formation and function of the Commission on Election Integrity itself, there is an underlying strategic assault being launched through the Commission that has the potential to end federal authority in cases of voting rights and remove all federal protections from minority communities that demands even greater attention.
The Trump Administration and the Republican Party have scheduled the full actualization of this strategy by 2018, and they are currently on track to succeed.
The strategy being used to accomplish this goal involves reprioritizing states’ rights ahead of federal authority, removing federal protections for minority groups and creating a fraudulent pool of research that can be used to argue against any claims of voter suppression and deprivation of voting rights in the federal court system.
All of these efforts resting on one Supreme Court case. None of these efforts can be countered without understanding the relationship between the efforts of the Commission on Election Integrity and that Supreme Court ruling.
In other words, we can’t understand or counter the Commission on Election Integrity without first understanding the case of Crawford v Marion County Election Board.
The Commission on Election Integrity and Crawford vs. Marion County
Kris Kobach, the Vice Chair of the Commission of Election Integrity, is a key component of a powerful, active and well-funded network of far-right politicians, researchers, lawyers, media counterparts and organizations that specifically work to dismantle Civil Rights and Protections for people of color, the working and underclasses and people living with disabilities. These groups include millions of organized white nativists and allied organizations that believe their survival depends on the cleansing of minorities from both the voting booths and the country. These organizations include the Project on Fair Representation, the Heritage Foundation, and the Federation for American Immigration Reform (FAIR).
FAIR, for example, boasts 1.3 million members and support from approximately 50 private funding institutions, works to advance a political agenda which includes:
“[Reducing] legal immigration from well over one million presently, to 300,000 a year over a sustained period will allow America to more sensibly manage its growth, address its environmental needs, and maintain a high quality of life. To make that happen, we work for policies that put the interests of American citizens ahead of big business and special interests demands.”
Kris Kobach is one of FAIR’s star players, and has built his career off of designing and diffusing policies that deprive minorities of a number of civil rights. His expertise, though, is in deprivation of voting rights.
Two of his most popular, widely implemented and destructive voter suppression tactics are voter purging and voter ID restrictions. In design, both of these tactics violate the rights of voters according to the Equal Protections Clause of the 14th Amendment and the Voting Rights Act of 1965. In implementation, these tactics also been found to violate the Help America Vote Act (HAVA) and the National Voter Registration Act (NVRA) in district and circuit courts around the country.
The success of these cases, though, rests on the understanding (an understanding that was reinforced by both the Civil War and the Civil Rights Movement) that the federal responsibility to protect the fundamental right to vote overrides state interests and authority in case of voting restrictions. This understanding is codified in a number of laws including, but not limited to, the Equal Protections Clause of the 14th Amendment and Section 2 of the Voting Rights Act. Until recently, the legal test used to ensure the courts upheld this relationship between state and federal rights and authority was articulated in Harper v Virginia Board of Elections.
Harper and the Federal Right to Intervene in State Voting Restrictions
In 1966, just following the passage of the Voting Rights Act of 1965, a legal challenge to poll taxes made it to the Supreme Court. The case was Harper v Virginia Board of Elections and the legal question at hand was whether or not poll taxes violated the Equal Protection Clause under the 14th Amendment.
In constructing their decision, the Supreme Court outlined a process by which violations of the Equal Protection clause should be assessed in light of voting rights claims. The Harper Standard required the courts to apply a strict or heightened level of scrutiny when weighing the interests of the state against the fundamental Constitutional right to vote. In other words, the fundamental rights to vote is weighed more heavily than a state’s interest in applying voting restrictions. Restrictions must be held in high scrutiny against the weight of the Constitutional right to vote.
The Court explained that it had “long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined….”
This strict scrutiny analysis requires the fulfillment of two parts.
1) The restriction must serve a compelling governing interest
2) The restriction must be narrowly tailored enough to serve that compelling interest
Under the strict scrutiny analysis outlined by Harper, the fundamental right to vote was prioritized over the states’ desire to impose restrictions. The burden was on the state to prove the need for the restriction outweighed the fundamental right to vote, and the Constitutional right to vote superseded the state’s desire to restrict it.
By applying the Harper standard, the Court struck down poll taxes on federal elections ruling:
“We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. [Footnote 4] Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate….
Those principles apply here. For, to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.”
The Harper Standard was used to balance the federal rights of voters over the state’s right to impose restrictions until 1980 when the case of Anderson v Celebrezze created confusion in both the relationship between state and federal authority and the standards by which that relationship can be evaluated.
The Anderson Balancing Test
The case of Anderson v Celebrezze itself set out to answer the question of whether or not an early filing requirement for electoral candidates in the State of Ohio placed an “unconstitutional burden on the voting and associational” rights of the voters that wanted to vote for candidate Anderson.
The Court asserted that laws affecting candidates also had an effect on voters, and as such, the restrictions were subject to analysis under the 1st and 14th Amendments reasoning that “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.”
This conflation of ballot restrictions and direct restrictions on voting rights led to the creation of a new, more flexible, standard of testing that could be invoked as an alternative to the strict scrutiny of the Harper Standard. In efforts to expand the protection of federal voting rights in cases of state restrictions on the electoral process, the Court articulated the Anderson Balancing Test. While it was intended to protect voting rights, this test would go one to be used to restrict them in, perhaps, unintended ways.
The Anderson standard test outlined two requirements for the courts to consider in cases of 1st and 14th Amendment violation. First, the courts must consider the “character and magnitude asserted injury” to the rights protected by the 1st and 14th Amendments. Next, the courts were to “identify and evaluate precise interests put forward by the state as justifications for the burden imposed by the rule. Then, and only then, can courts decide the constitutionality of a ballot restriction.
In efforts to protect federal authority, the Court clarified that their ruling did not include an Equal Protections Clause analysis explaining:
“In this case, we base our conclusions directly on the First and Fourteenth Amendments and do not engage in a separate Equal Protection [460 U.S. 780, 787] Clause analysis. We rely, however, on the analysis in a number of our prior election cases resting on the Equal Protection Clause of the Fourteenth Amendment.
By using a more flexible standard of analysis, conflating voting rights with candidate’s rights, and specifically refusing to invoke the Equal Protection Clause of the 14th Amendment, the Court ruled that Ohio’s ballot restriction was unconstitutional and infringed upon the federally protected rights of voters.
This ruling may be seen as a victory in favor of the expansion of electoral protection, but the subtle departure from the Harper Standard and the creation of the Anderson Standard created a strategic grey area that endangered both voting rights and the federal government’s authority to uphold them.
The most clear misuse of the Anderson Balancing Test, and arguably one of the most lethal assaults to voting rights in modern history, occurred in 2005 in the case of Crawford v. Marion County Election Board.
Crawford v. Marion County Election Board
The Crawford case focused on Indiana Senate Enrolled Act no. 480 (SEA 483), which was challenged in the lower federal courts in 2005. This law requires voters to “produce the proof of identification before being permitted to sign the poll list” and reached the Supreme Court in 2008.
In this case, the Court’s decision cited both Harper and Anderson to assert the federal right to intervene. They also went a step further and articulated that “state interests must be weighty enough to withstand constitutional scrutiny no matter how slight the burden.”
And while at face value the Court’s language seems to support the federal protection of voting rights, their ruling functions to place state interests above federal authority in cases of voting restrictions and serves to neutralize the courts ability to protect voting rights attained after a Civil War and a Civil Rights Movement, and codified through enforcement of the Equal Protection Clause and the Voting Rights Act of 1965.
This misstep is the result of the misapplication of the Anderson Standard and the eagerness of the Republican party to capitalize off of this misapplication.
First, it was a questionable choice for the court to depart from the Harper Standard and apply a standard which was not designed to address direct restrictions on voting rights. Second, in the application of the Anderson Standard, the Courts created a formula by which states’ rights can override federal authority. This formula included the following 3 factors:
1. The prevention of voter fraud.
2. Increased moderation
3. Voter confidence
The interests of the state were further weighted over federal authority to protect voting rights by asserting that the perceived threat of voter fraud was a sufficient reason to assert an overriding state interest, even if there is no evidence to present that the threat actually exists.
As described in the Court’s ruling in Crawford, “Each of Indiana’s asserted interests is unquestionably relevant to its interest in protecting the integrity and reliability of the electoral process. The first is the interest in deterring and detecting voter fraud.”
Evidence was presented to the Court that revealed an upwards of 43,000 eligible voters were prevented access to the ballot as a result of Indiana’s voter ID restriction while no cases of voter fraud had ever been found in the state. Additionally, the Court was presented with evidence that the restrictions specifically impact low income, homeless, elderly and disabled voters, however,
“JUSTICE SCALIA, joined by JUSTICE THOMAS and JUSTICE ALITO, was of the view that petitioners’ premise that the voter-identification law might have imposed a special burden on some voters is irrelevant. The law should be upheld because its overall burden is minimal and justified.”
The Court further argued that “Burdens of that sort arising from life’s vagaries, however, are neither so serious nor so frequent as to raise any question about the constitutionality of SEA 483.”
As such, Indiana’s voter ID restriction was upheld in the Supreme Court, leaving the door wide open for Kobach to spread voter purging and voter ID restrictions as an extension of FAIR and the Republican party in the years following the ruling. The Crawford Ruling also paved the way for the creation of the Commission on Election Integrity and the assault on federal authority and voting rights that is scheduled to reach full implementation by 2018.
Kobach, Crawford and the Assault on the 2018 Elections
The Commission on Election integrity was created by Executive Order on May 11, 2017, the Commission on Election Integrity’s mission reads:
“The Commission shall, consistent with applicable law, study the registration and voting processes used in Federal elections. The Commission shall be solely advisory and shall submit a report to the President that identifies the following:
(a) those laws, rules, policies, activities, strategies, and practices that enhance the American people’s confidence in the integrity of the voting processes used in Federal elections;
(b) those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of the voting processes used in Federal elections; and
© those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.”
On July 19, the first official in-person meeting of the Commission was held. At this meeting, Donald Trump, Mike Pence, Kris Kobach and the remaining members of the organization made formal statements about the purpose of their work. Each one in succession repeated and reaffirmed the language of Crawford and the fraudulent claim that the state’s right to protect itself against the perceived threat of voter fraud outweighs the fundamental federal right to vote. Further, the protections guaranteed by civil rights legislation such as the Voting Rights Act of 1965 is no longer applicable.
Kobach began this organizational recitation of Crawford by evoking the term “integrity” to assert the idea that there is a threat to state electoral systems that warrants the passage of laws that restrict voting rights in spite of federal protections. He described:
“The charge of the commission is a significant one, as the President outlined: to study the threats to the integrity of our elections; to quantify those threats, if possible; and, if it’s the will of the commission, to offer recommendations to the President to help ensure the integrity of future elections in this country. ”
Connie Lawson, the Indiana Secretary of State (where Crawford originated), then stepped up to reinforce the importance of the state’s interest in modernization stating:
“While I was state senator, significant updates were made to federal and state election law. Among those was the Help America Vote Act, or HAVA, passed in 2002. It was passed to improve voting systems and voter access in response to the 2000 election. This legislation created the Election Assistance Commission and addressed provisional voting, voting equipment, statewide voter databases, among other things. A crucial point is that the HAVA standards were developed in a bipartisan, cooperative manner seeking input from multiple stakeholders in order to find points of agreement.”
Lawson was followed by Ken Blackwell, the former Secretary of State of Ohio (where Anderson originated), who emphasized the rights of the state to both target minority communities and override federal authority for doing so. He asserted that the prevention of voter dilution through fraudulent voting (specifically by undocumented immigrants) was a state interest that overrode the fundamental right to vote itself. He also attempted to increase the weight of the state’s interest by connecting voter fraud to national security stating:
“[Voter dilution] could be voter fraud by casting a ballot in more than one precinct or state. It could be a non-citizen voting, whether that non-citizen is a legal alien or an illegal alien — if they are not citizens. Then their ballots dilute the votes of American citizens. The illegal activity could be voter intimidation or voter registration fraud, or it could be foreign interference in our elections, whether from Russia, China, North Korea, Iran, or any other foreign power. This other voting right is a fundamental constitutional right against any such dilution or cancellation, and it is our commission’s work and our mandate from the President of the United States to identity these threats and safeguard against them.
Another topic explored in our article is that voting is perhaps our only fundamental right secured by the Constitution that is also a citizen’s duty…when it comes to voting, the Constitution enables election officials to presume that public-spirited citizens with due concern for the course of the state and national policy will be willing to satisfy reasonable regulations and shoulder incidental burdens in the fulfillment of their civic duty.”
Matthew Dunlap, the Secretary of State of Maine, spoke next and presented the importance of securing voter confidence in the election process declaring:
“…I think that anything that we do to answer those questions, to reassure people that there are no goblins under the bed, and if there are, we deal with them in a way that is balanced, again, towards access of the voting public to participate in their government. This is not ours. It belongs to them.
And I think as we move forward, the one thing I want to focus on — and I tell our clerks this when we do our training every year — is that this is a process that does not belong to us. It belongs to the voters. And everything we do, we must do with devotion to assure that the voters have their voice heard and that the ballots that are cast are done without question, and that the government that is installed to represent those people acts on their behalf with the confidence of the public. And I want to make sure that we answer those questions and that we move forward as a group with that same level of confidence, and I’ll be very pleased to be a part of this.”
The Secretary of State of New Hampshire, Bill Gardner, next pitted the importance of Voter Idea laws in direct conflict with the Civil Rights Movement and asserted the importance to place voter “integrity” and “confidence” over the fundamental rights to vote. He explained:
“For over a half-century, since the Civil Rights era of the ’60s, our federal government and the states have been trying to find more and more ways to make it easier to vote. But when states try to balance that ease of voting with measures to increase voting integrity, it is often met with hostile resistance and charges of suppression.
I will respect the facts that this commission receives, but it has been my belief over many years of administering elections that we will see an increase in voter turnout only when ease of voting is balanced with security and integrity. Making voting easier by itself does not result in higher turnout, as we have seen in our recent elections. Polls conducted just before the last presidential election found over half the country believes there’s voter fraud. And polls after the election show a declining level of confidence in the balloting.
During this century, there have been three national election commissions previous to this one. They spent time continuing the quest for ways to make voting easier. In my opinion, we need to first understand why turnout has not increased as a result.
One of the previous commissions recommended states adopt photo ID requirements for voting, and that commission was severely criticized for doing so. We also need to compare states that have voter ID laws with those without. I might add that the two highest states in turnout during the presidential primaries last year were both photo ID states.”
And one after the other, members of the Commission reinforced states’ rights over federal rights and worked to create greater weight for the arguments that state’s interests in protecting themselves from voter fraud, preventing obstacles to modernization and increasing voter confidence outweighed the fundamental right to vote. The elimination of federal authority in violations of voting rights is also contains elements which encourages the deprivation of rights of communities of color. Additional statements included:
“Our Constitution provides that our states have the authority and responsibility to run our elections, and I fully support this provision.”
- Christy McCormick, Commissioner, Election Assistance Commission
“States don’t have money. We need money….we can discuss a lot of things about voting, but unless we have the technology, unless the technology is keeping up with voting, then we’re not using our time very wisely, in my opinion.”
- Judge Alan King of Jefferson County, Alabama
“Elections tainted by fraud disrupt the consent of the government. I believe that all the commissioners are dedicated to an inquisitive and robust search for the data and for the truth about vulnerabilities in our elections, and ways to improve the systems.
There are areas of serious concern. For example, there are recurring indications that individuals are getting registered to vote even though they are marking the voter registration forms “no” to the question, “Are you a United States citizen?” Again, they are checking the box on the registration form that they are not American citizens, but are still getting registered to vote. What fair-minded American could support this?”
- J. Christian Adams, President and General Counsel, Public Interest Legal Foundation
“We have vulnerabilities in the administrative system that we have, and we also have a history of voter fraud in this country. The Supreme Court itself said in 2008, when it upheld Indiana’s voter ID law, the U.S. has a long history of voter fraud, and it could make the difference in a close election.”
- Hans von Spakovsky, Senior Legal Fellow and Manager of Election Law Reform Initiative, Edwin Meese Center for Legal & Judicial Studies, The Heritage Foundation
With this final statement from the final member of the Commission to speak before Mike Pence closed the meeting, Crawford was directly invoked and a covert but well-orchestrated argument to violate voters’ rights in the name of Crawford and the misapplication of the Anderson Standard came to an end.
The Commission’s Next Steps
The Commission has already began the process of gathering data and performing analysis for a report that is scheduled to be released in 2018 — before the midterm elections. While specifically advisory in nature, the report is strategically designed to advise the Trump Administration to:
1. Establish the misinterpretation of Crawford as standard for assessment in cases of voting rights and restrictions
2. Use this misinterpretation to assert states’ rights over federal rights in cases of voting rights in cases of voting rights and restrictions
3. Create a fraudulent wall of data that can be used in court as “evidence” that voter fraud is a threat to both state and national security.
4. Establish a pool of evidence that can be presented in court to defend any legal defense of voting rights in the name of the 14th Amendment, the Equal Protection Clause, and the Voting Rights Act of 1965.
5. Establish a foundation by which the Trump Administration can nationalize voter ID systems and the Interstate Crosscheck System.
6. Effectively ensure that all state and federal avenues for recourse are neutralized.
The Commission is directed to disband 30 days after the production of the report.
If efforts are not made immediately to stop the efforts to formalize Crawford as the overriding law concerning voting rights, the nationalization of voter ID laws and voter purges, and the complete reversal of state and federal authority immediately — the Republican party will have not only secured the 2018 elections, but they will have brought the legal system to a pre-Civil War era structure in which states’ rights supersede federal rights, and Civil Rights are non-existent.
What’s being done to counter Kobach and the Commission on Election Integrity?
There are 2 organizations claiming to be a part of the resistance to the Kobach Commission. They are the Layers’ Committee for Civil Rights Under Law and Let America Vote. Neither of these organizations have produced a strategy that is able to counter the threats that the Commission on Election Integrity poses in general, or in time for the assault on voting rights scheduled to be deployed in full after the release of the 2018 report. Both are functioning to take focus and energy from efforts to strategically counter this Republican led strategy to obliterate voting rights nationwide.
The Counterstrategy Proposed by the Layers’ Committee for Civil Rights Under Law
According to a statement released by President and Executive Director Kristen Clarke:
“The Lawyers’ Committee for Civil Rights Under Law has undertaken a series of comprehensive actions to challenge the Pence-Kobach Commission. This includes: the launch of a hotline for the public to report instances of voter suppression (866-OUR-VOTE); letters sent to Secretaries of State demanding they not comply with Mr. Kobach’s request for voter roll data; filing a Hatch Act complaint against Mr. Kobach regarding his repeated exploitation of his Commission role to solicit campaign contributions and promote his candidacy for Governor of Kansas; requesting documents regarding the Commission made pursuant to the Federal Advisory Committee Act (FACA); and urging Secretaries of State to adopt a bipartisan resolution condemning the so-called Election Integrity Commission.”
The Counter-strategy Proposed by the National Commission on Voting Rights
Jason Kander is a white “millennial” politician that is now the self-proclaimed leader of the modern Voting Rights Movement. His efforts are organized through Let America Vote. Their counter-strategies include:
Getting Email Updates
Donating Money to Let America Vote
Following Let America Vote on Twitter
Following Let America Vote on Facebook
Hosting a Voting Rights Party
Sharing your Stories
Calling and Emailing Legislators
Knocking on Doors (to encourage registration)
Writing a Letter to the Editor
While potentially well intended, not one of these strategies function to re-assert the Harper Standard and strict scrutiny of restrictions of voting rights. Not one of these strategies serves to reassert federal over state authority. Not one of these efforts counters voter ID restrictions or the Interstate Crosscheck System at the state or federal levels. Not one of these efforts will re-enfranchise one, let alone tens of millions of suppressed voters. And not one of these efforts will stop Kobach in the long-term, let along by the 2018 deadline.
Those of us working against the threat posed by the Commission on Election Integrity and for the federal right to vote must change strategic course, and we must waste no time in doing so.
SIIP is suggesting the following actions be taken immediately:
1. Community legal organizations that specialize in voting rights must begin to flood the courts with cases that use the Harper Standard and Sections 2 and 11 of the Voting Rights Act and the Equal Protection Clause of the 14th Amendment in order to eliminate Voter ID laws and Crosscheck from the electoral system.
2. The Democrats, and all Secretaries of State, that claim they are against Kobach and the Commission on Election Integrity must take action themselves to remove themselves form the Crosscheck System and repeal all voter ID restrictions in their home states. These actions should be loudly supported by all leaders from the Democratic party, but specifically minority caucuses such as the Black and Hispanic Congressional Caucuses.
3. Non-profit organizations that are asserting leadership in the fight against the Commission on Election Integrity must immediately shift resources and actions to support the first 2 objectives.
4. The media must stop supporting organizations whose strategies do not result in the re-enfranchisement of suppressed voters or the direct, strategic confrontation of the Commission on Election Integrity.
5. The people must come together in a United Voice to Enforce the Voting Rights Act in court immediately. This must be the top priority and the most clear call of action.
If these objectives are not accomplished, and not accomplished by 2018, the end of Voting Rights and Democracy as we know it may come to an abrupt end. If we mobilize quickly, though, we may be able to counter the most aggressive right-wing takeover of federal authority and voting rights since the Civil War.
SIIP will be producing more detailed strategic action plans and analysis in upcoming reports, but the strategic shifts necessary to counter the Kobach Commission and the Republican Party should begin immediately.
For more information on the assault of voting rights and strategies to stop the GOP, visit: