On Thursday, May 11, President Trump announced the establishment of a commission on election integrity. The commission: "[W]ill review claims of improper registrations and voting, fraudulent registrations and voter suppression. ... Members will provide the president with a report in 2018 and may issue recommendations to the states."
Almost instantaneously, the president's critics attacked the commission, and its Vice Chairman, Kansas Secretary of State Kris Kobach.
Often, when allegations of voter fraud in the United States are raised, those allegations are dismissed in the press as overblown or non-existent. As the Associated Press reported:
Democrats and voting rights groups called the panel a sham, arguing there are few, if any, credible allegations of significant voter fraud. They warned that the panel would be used to lay the groundwork for stricter voting requirements that could make it more difficult for poor and minority voters to access the ballot box.
Disenfranchisement, taking the vote away from legitimate voters, is a serious charge, and a complaint that should not be dismissed lightly. Such efforts are as old as the Republic, and for decades were a stain on our national honor.
Allegations of fraudulent voting should not be dismissed lightly, either, however. Voter fraud is the twin of disenfranchisement, and has the same effect. If fraudulent votes are cast, legitimate votes get watered down: In a precinct in which 100 votes are cast, one fraudulent vote diminishes the value of each the remaining 99 by 1 percent, five by 5 percent.
As staff director of the House Oversight and Government Reform Committee's Subcommittee on National Security, I oversaw a hearing in February 2015 on voter fraud and President Obama's executive actions on immigration (known in shorthand as DACA and DAPA). The subcommittee heard from Secretary of State Kobach, as well as the Ohio and Maine secretaries of state, and voting expert Hans von Spakovsky from the Heritage Foundation.
The purpose of the hearing was best summarized by Ohio Secretary of State Jon A. Hustead, who explained:
For an estimated four to five million non-citizens, the President's executive actions provide access to Social Security numbers and driver's licenses. These are the same documents that federal law requires the states to recognize as valid forms of identification for voter registration.
Under federal law, anyone with a valid Social Security number or driver's license number can register to vote, provided they attest that they are a U.S. citizen. However, there is no way for us to validate this citizenship statement, since under the executive actions previously undocumented non-citizens will have access to the same documents as U.S. citizens. The issue becomes especially complicated in states like Ohio where millions of dollars are spent on third-party voter registration drives where no election official would be present to make clear the eligibility requirements for voting.
Hustead described the effect that illegal voting could have in local elections in Ohio:
Presidential elections get the most attention, but every year there are thousands of state and local elections in Ohio, and in the last 15 months alone, 70 elections were decided by one vote or tied.
These were mayoral races, school and tax levies, bond issues, members of city councils, township trustees and school boards. In light of these examples alone we simply cannot overlook policies that may allow ineligible voters to cast ballots.
Hustead's concerns about voting were amplified by von Spakovsky, who quantified the issue of illegal voting:
Noncitizens are on voter registration lists all over the country. In 2005, the U.S. Government Accountability Office found that up to 3 percent of the 30,000 individuals called for jury duty from voter registration rolls over a two-year period in just one U.S. district court were not U.S. citizens. While that may not seem like many, just 3 percent of registered voters would have been more than enough to provide the winning presidential vote margin in Florida in 2000.
Von Spakovsky alluded to his own experience with this issue:
In 2011, when I was still on the Fairfax County Electoral Board in Virginia, we discovered 278 individuals who had registered to vote despite telling the Virginia Department of Motor Vehicles that they were not U.S. citizens. One hundred seventeen of those noncitizens had "a history of voting in Virginia."
How is that possible? As Kobach testified that "only four states require documentary proof of citizenship in order to register to vote."
A more recent example from Virginia shows that this phenomenon is not limited to alien voting. Last September, the Washington Post reported:
The FBI and local police are investigating how at least 19 dead Virginians were recently re-registered to vote in this critical swing state.
All 19 were initially registered as voters in the Shenandoah Valley city of Harrisonburg, although a clerk double-checking the entries later raised questions about one. She recognized the name of Richard Allen Claybrook Sr., who died in 2014 at age 87, because his son is a well-known local judge. She happened to recall that the judge's father had died.
Each of the voter forms, according to the Post, "had been submitted by a private group that was working to register voters on the campus of James Madison University, according to the Harrisonburg registrar's office."
The vulnerability of the electoral system, Hustead testified, does not simply relate to those who volitionally violate the law:
While I am committed to ensuring the security and integrity of elections in Ohio and throughout the country; it is important for us to recognize that people can sometimes sign documents – in this case a voter registration form – without fully comprehending the rules and requirements.
The panel disagreed about the extent of illegal voting and voter fraud in the United States. Kobach offered actual examples from Kansas to establish that "[t]he problem of aliens registering to vote is a massive one, nationwide," and von Spakovsky, as noted, offered both empirical and anecdotal evidence to support his testimony about the extent of the problem.
Hustead, on the other hand, stated that it was "not [his] belief that four to five million non-citizens are going to get on the voting rolls, nor is it my belief that third-party registration drive organizers are waiting to exploit a loophole in law," while admitting that "there are real electoral consequences" from ineligible voters casting ballots.
Maine Secretary of State Matthew Dunlap contended, however, that: "The concern that undocumented aliens will now take advantage of potential access to the Social Security system and to driver's licenses in order to unhinge the integrity of our elections systems is, I believe, completely without basis."
These differing views are all the more reason for a commission on election integrity. Federal commissions must consider all evidence, and make findings that can be reviewed. If illegal voting is a canard, the proof will be there for all to see. If it exists, however, it undermines one of our most sacred tenets as a nation: that elections be free and fair, and that as citizens, we accept the results.
As for the choice of Kris Kobach, I must offer my own opinion. I have known him since 2001, just after he was awarded a White House Fellowship working in the personal office of United States Attorney General John Ashcroft, and I was a staffer on the House Judiciary Committee. By that point, he had graduated from Harvard, been a Marshall scholar at Oxford, and received his law degree from Yale. He could have made hundreds of thousands of dollars a year at any number of law firms. Public service was more important.
I know a better lawyer when I see one, and when it comes to Kris, it is not even close. He knows how to weigh evidence, and if he has an opinion that is contradicted by the facts, it is the opinion that will change, not the facts.
Every election season, the electorate is reminded that "soldiers fought for our right to vote." Richard Allen Claybrook Sr., who was registered to vote in 2016, fought in World War II and died in 2014. The commission owes it to him to reach the right conclusion.