Heidi M Przybyla

USA TODAY

WASHINGTON — A private document snapped by an alert Associated Press photographer offers clues about where President Trump’s new voter fraud panel may be headed — and it risks a hyper partisan battle over voting rights.

The paperwork held by Kris Kobach, the Kansas secretary of state who heads Trump’s panel, was captured after a November interview at then president-elect Trump’s Bedminster golf course. It appears to propose changes to the U.S. National Voter Registration Act, according to the American Civil Liberties Union.

The document may soon become public after Kobach was fined two weeks ago by a federal magistrate for “patently misleading representations” about its contents and was ordered to hand it over to the ACLU. The ACLU filed a lawsuit on Monday alleging the committee is failing to adhere to federal transparency rules, part of a flurry of recent legal challenges.

The document, Kobach’s record of furthering strict voting rules in Kansas — and the fact that the publicly available voter data the commission is using precludes a reliable study — has several U.S. elections scholars interviewed by USA TODAY worried.

“There will be a report and Secretary Kobach has already told us what’s going to be in it. The issue is how seriously people will treat it,” said Justin Levitt, a constitutional and election law scholar who served as the National Voter Protection Counsel in 2008.

The scattered voter registration information available to Trump’s panel is likely to create a misleading report that fuels debates over voter restrictions bubbling in at least 31 states if GOP-led state legislatures and Republican leaders in Congress rely on its work, according to experts.

If policy changes are recommended based on bad data, it could inflame partisan tensions far more than allegations by Democrats that Trump created the commission simply to produce evidence supporting his claim that millions voted illegally for Hillary Clinton in the 2016 election. At least 99 bills to “restrict access to registration and voting” have been introduced, and 35 of them are progressing, according to the Brennan Center for Justice. Most are laws requiring photo I.D. but they extend to shortened early voting periods, among other changes.

“I fully expect wildly exaggerated claims of wrongdoing that feed directly into policy recommendations Secretary Kobach and others have been dying to make for a long time,” said Levitt. “Count me as least surprised when they say ‘hey, we ought to have an amendment to the National Voter Registration Act,” he said.

Refusals to submit data

Secretaries of state in at least 14 states are outright refusing to provide the more comprehensive data the commission is requesting, including partial voter Social Security numbers, out of privacy and federal government abuse concerns. Mississippi’s Republican secretary of state said his response will be to tell Kobach to “Jump in the Gulf of Mexico.” The deadline for submissions is July 14.

Without such granular detail, the panel is left with practically meaningless data that inflates the number of “false positives,” or individuals who may be double registered, among other voter roll errors, the experts say.

“Ironically, the states resisting is actually going to empower the commission to make even wilder claims about fraud and double voting in the system,” said Michael McDonald, a professor who runs the U.S. Elections Project at the University of Florida. “An explosive report will be put out to give cover to Republicans in Congress to move forward. That’s where this is going,” he said.

“We’re moving election administration into a polarizing mode,” said Charles Stewart, an elections systems scholar at the Massachusetts Institute of Technology who is part of a voting technology project.

To be sure, matching voter data can be useful in maintaining voter rolls, but only if it’s done through an exhaustive and highly technical process. Yet the panel made its data request to the states before consulting such outside experts.

The commission is simply seeking publicly available data to weed out potentially fraudulent registrations while also looking at voter suppression and cyber security, with the ultimate goal being to "recommend best practices to states," said White House spokesman Marc Lotter.

"This commission does not have the power to remove anyone from a voter roll," said Lotter. He also said it will produce a report regardless of whether states comply, without ruling out changes to the NVRA. “They’re going to go where the data leads them," he said, referring questions about the file to Kobach's personal office.

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Hans von Spakovsky, a scholar at the Heritage Foundation and one of the panel members, said the goal is to clean up U.S. voting rolls, including removing dead people; to delete non-U.S. citizens who may be registered; and to find people who may be double registered in different states. He also said the panel may recommend changes to the voter registration act.

“I just don’t see why this is a big deal. I’ve been recommending changes to the NVRA for more than a decade to fix some of the problems in it,” said von Spakovsky. He also agreed the panel can’t be effective without more precise data, including at least partial Social Security numbers to positively I.D. voters. “It’s hard to work without the kind of data the commission is asking for,” he said.

The U.S. Justice Department could ultimately force states to provide the data, said von Spakovsky, a move civil rights groups worry will have a chilling effect on registration. The Justice Department has said it is reviewing voter registration list maintenance procedures in each state covered by the NVRA and asking states how they plan to remove voters from the rolls.

Kobach a polarizing figure

According to Brennan, Kobach, who is running for governor next year, is “a key architect behind many of the nation’s anti-voter and anti-immigration policies,” including strict photo ID requirements requiring a birth certificate or passport to register. Since then, one of every seven Kansans who’ve tried to register has been blocked, according to the ACLU.

The U.S. Appeals Court Judge Jerome Holmes found Kobach had engaged in “mass denial of a fundamental right” by blocking 18,000 motor voter applicants from registering to vote in Kansas.

Motor voter is the process by which anyone who interacts with the Department of Motor Vehicles has a chance to register. According to Dale Ho, director of the ACLU’s voting rights project, changes Kobach may seek would “be devastating” to voting rights, including making voter registration drives nearly impossible since many Americans don’t carry birth certificates or passports on them.

Panel flags

Experts raise a number of initial concerns, starting with flawed data.

“If they proceed down this path, I know what the results of the data analysis are going to be. They’re going to be worthless,” said David Becker, who heads the Center for Election for Election Innovation and Research and has been working with voter files for a decade.

“There are literally hundreds of thousands of Sean O’Hara’s born in the same year. And many even with the same birth date,” said Becker, who helped found ERIC, a resource used by many states to maintain accurate registration records. “You’re going to have hundreds, thousands, tens of thousands of false positives,” he said. The results could also find more double entries for Democrats since they tend to be younger, lower income and hence more transient, said McDonald.

Concerns extend to a lack of transparency and the panel's request for voter party affiliation. Finally, many states are already conducting on their own ID’ing efforts, while the real threat to the United States is coming from attempted Russian infiltration of U.S. voting systems.

There have been numerous reports, including by Ohio’s Republican administration and during the former George W. Bush administration, showing the incidence of voter fraud is statistically insignificant.

Lotter pointed to the case of a Virginia university student who recently pled guilty to submitting the names of deceased individuals as part of his job with an outside Democratic organization to register as many voters as possible.

Other flags

The panel is requesting a number of data points from states, including party affiliation. Voter data experts said there is no reason Trump officials would need that information to conduct a simple identity match on voters.

“I cannot think of a legitimate use for that information,” said Levitt. “There’s no need for the federal government to know people’s party affiliations,” said Stewart, at MIT.

Yet, according to McDonald, the most troubling thing may be that Kobach made his request knowing many states couldn’t comply with it.

“Even Kobach knew he wouldn’t be able to comply with his own data request. He was well aware states would balk” about handing voters’ private information to the federal government, he said. At least 10 states would have to pass new laws to share the data with the federal government, McDonald said.

Yet “It allowed him to say, ‘we’re not going to be able to get to the bottom of this because they’re protecting this fraud' and the next day Trump tweets the same thing,” said McDonald. The effect is simply to undermine voter confidence in the U.S. election system, he said.