Much of the detailed voter information requested of New Jersey and the other states by the Trump administration is already public in New Jersey. So despite the fact that numerous state and federal officials, as well as civil rights organizations, have urged New Jersey not to comply with the request, the federal commission looking into possible voter fraud in last year’s presidential election should be able to get most of what it’s looking for.
The state Division of Elections has issued a statement that “no information has been released nor will any future information be released that is not publically available or does not follow the appropriate legal process for information requests,” but it’s unclear whether the federal government will have to formally request the data via the Open Records Act, or whether the information will be simply turned over.
Under state law, the first five pieces of information in the state’s voter database — name, address, date of birth, party, and voting history — are explicitly public. In fact, this is information that political campaigns routinely obtain and use in sending out targeted election mailings.
In letters to the nation’s secretaries of state, commission vice chairman Kris Kobach, requested the “publicly available” voter data, including the full names of those registered; their addresses; dates of birth; political party; voter history from 2006 on; the last four digits of their Social Security numbers; their status as active, inactive, or cancelled; any felony convictions they have; information on their registration in another state; military status; and overseas citizen information.
Public and private
The state’s Open Public Records Act exempts the provision of Social Security numbers from disclosure in all but a few circumstances, not likely to include this request. State election law provides for county election officials to get information about people convicted of crimes that would “disenfranchise them from voting” and then move those voters to “the conviction file.” However, there is no indication in law of whether that file is public. None of the other information requested is listed as public in election law, so it would likely not be provided.
Brigid Callahan Harrison, a professor of political science and law at Montclair State University, said there is a “larger context” that goes beyond the public nature of much of the data.
“Numerous academic studies … have been very clear in finding that instances of voter fraud are few and far between,” she said. “This is more about headlines and public perception than voter integrity.”
Kobach, who is himself secretary of state in Kansas and a candidate for governor of that state, wrote in his letter that the commission is charged with giving the president a report “that identifies laws, rules, policies, activities, strategies, and practices that enhance or undermine the American people’s confidence in the integrity of federal elections processes.”
The Trump tweet
It is more widely considered a vehicle for Donald Trump to attempt to justify his statements and a November 27, 2016 tweet that he would have won the popular vote, in addition to the Electoral College, had it not been for “the millions of people who voted illegally.” Hillary Clinton beat Trump by almost 2.9 million votes, according to the Cook Political Report, but she lost the Electoral College balloting.
News reports indicate the commission plans to cross-reference the state’s databases against one another and against federal databases to look for potential fraudulent voters. This process, however, could lead to numerous errors. A recent study by researchers from several Ivy League schools and Microsoft found that the use of the Interstate Crosscheck Program, begun by Kobach, would err 200 times out of 201: wrongly finding a double counted vote 200 times for every 1 legitimately double counted vote.
The request issued to the states has outraged many politicians, lawyers, and activists in New Jersey.
In a letter to Dennis Robinson, acting secretary of state, U.S. Sen. Cory Booker wrote that he is “alarmed by the purpose of this Commission: to look into a nonexistent problem of widespread voter fraud as a guise to collect data that is likely to be used to suppress legal voting in future elections and to provide President Trump’s outlandish and laughable claim that he actually won the popular vote with some appearance of legitimacy.”
Booker, who intends to introduce legislation to repeal the executive order creating the commission and prevent Congress from paying for the commission’s work, added that the statement from Division of Elections director Robert Giles does not go far enough. He specifically objected to Giles saying that the division is still reviewing Kobach’s request and that it had until July 14 to answer the commission.
‘Dangerous and absurd’
“I read yesterday the brief statement indicating that the Commission’s request is ‘under review’ and that no non-public information will be released, but I urge you to simply reject this request outright,” Booker continued. “Many states have done just that, often within only a few days of receiving the request, rightly urging the Commission to not play politics with voter data. Even one taxpayer dollar spent on this sham of a commission would be a waste of resources, and would lend credibility to this dangerous and absurd crusade.”
Harrison said that conducting elections has been a state responsibility and some people are fearful that this effort is part of an attempt to have the federal government dictate the election process. It also ignores the more credible and pressing contentions that Russia interfered in the presidential election, as numerous national security agencies have stated.
“But those investigations have by and large been stonewalled, while they are arguably more important,” she added.
“Since comprehensive studies have already proved that cases of voter fraud are infinitesimal, it is clearly apparent that the true motive behind this action is voter suppression and voter intimidation,” said Sen. Raymond Lesniak (D-Union). “The rights and privacy of registered voters should be preserved in the face of this blatantly political attempt by the Trump administration to subvert the Democratic process. The vice president is more intent on perpetuating Donald Trump’s fantasy about election fraud that is not supported by any evidence than they are in maintain an honest and secure election process.”
Lesniak and others called on Lieutenant Gov. Kim Guadagno, who is also the secretary of state and the GOP candidate for governor, to refuse the request. Guadagno has recused herself from all elections matters since she launched her campaign in January, according to campaign spokesman Ricky Diaz.
She did post a comment on Facebook in which she essentially concurred with Giles’ statement: “Protecting the integrity of elections is a top priority, but it has been the policy of the Division of Elections to protect private personal information and only provide publicly available data to those who file a proper open public records request. However, since I am recused from matters regarding the Division of Elections because I am also running for governor, I am not involved with handling the federal government’s request for voter information.”
The ACLU-NJ this week urged Giles to reject the request, as well. A letter, signed by ACLU-NJ senior staff attorney Alexander Shalom and ACLU-NJ legal director Ed Barocas, said the commission amounted to “a sham exercise designed to spread misinformation about election security at the expense of New Jersey voters’ right to privacy.” It further stated: “Voter fraud is not the problem, and turning over sensitive voter information to Kris Kobach, a known proponent of voter suppression, is not the solution.”
Giles stated that no information would be furnished if it “does not follow the appropriate legal process for information requests.” Should the letter not be considered appropriate, Kobach could overcome that bar by filling out a state Open Public Records Act form.
There is one additional caveat that could prevent the commission from getting any data from the state: The law states that the data is available “to any voter requesting it,” and is silent about requests from nonvoters or from those from outside the state who may make requests.