President Trump’s voter fraud commission may have violated the law by ignoring federal requirements governing requests for information from states.
The Presidential Advisory Commission on Election Integrity asked all 50 states for extensive information last week on their voters, including full names and addresses, political party registration and the last four digits of Social Security numbers.
The request is part of work the panel is doing to promote fair and honest federal elections. It was formed after Trump made unfounded accusations about widespread voter fraud in last year’s presidential election, which he said cost him the popular vote to Democrat Hillary Clinton.
The commission’s decision was both surprising and controversial, as 44 states led by Republican and Democratic governments are already resisting turning over information, according to multiple news outlets.
Kris Kobach, the Kansas secretary of State who heads Trump’s election commission, rejected that figure on Wednesday, saying 20 states have agreed with the request and 16 others are considering it. He emphasized that his commission has requested only information that is already public.
“At present, only 14 states and the District of Columbia have refused the Commission’s request for publicly available voter information,” Kobach said in a statement issued through the office of Vice President Pence.
But Kobach did not address the question of whether his office complied with federal law in issuing its request for public information. And if the commission didn’t follow the rule of law, the resistant states might have another effective argument.
Under the Paperwork Reduction Act, information requests from agencies and other federal entities are supposed to first be submitted to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA).
This 1980 law requires federal agencies to seek public input, including through a comment period, before a request for information. A 1995 amendment extended OIRA’s authority to include not only requests for information for the government, but requests for information to the public.
The law also requires that agencies justify their requests for public information, specify how it will be used and provide assurances that data will be protected. The law also obliges the agencies to estimate how many hours it will take entities to respond.
It does not appear that the commission submitted its request to OIRA before sending a letter to states asking for voter information.
Experts say the failure to do so would be significant, since states would be under no obligation to respond to requests that violate federal law.
“If the commission gets heavy handed with them it seems to me that the states are within their right to say no we don’t have to respond because you didn’t go through [OIRA],” said Susan Dudley, a former OIRA administrator who is now director of the Regulatory Studies Center at George Washington University.
The commission did not immediately respond to questions about whether it had submitted its request through OIRA.
The White House and OIRA also did not immediately respond to questions about whether the request was submitted.
Several experts on regulatory affairs believe the request was never made for a few reasons.
Normally when a request is submitted, documents get a control or reference number from the Office of Management and Budget. But no marking is apparent on the letter sent from the commission to the states.
A search of the Federal Register also did not uncover any published requests for public comment on the commission’s entreaty, something that would be required under the Paperwork Reduction Act.
Stuart Shapiro, a professor at the Edward J. Bloustein School of Planning and Public Policy at Rutgers University, told The Hill that a review can take anywhere from 6 to 9 months to complete — a timeframe that can be grating to agencies.
Trump only ordered that the commission be formed in May. Its first meeting is scheduled for July 19. According to a notice in the Federal Register, the meeting “will consist of a ceremonial swearing in of Commission members, introductions and statements from members, a discussion of the Commission’s charge and objectives, possible comments or presentations from invited experts, and a discussion of next steps and related matters.”
Shapiro raised the possibility that the commission violated the Paperwork Reduction Act in a blog post for The Regulatory Review on Wednesday.
He noted that the commission’s letter to the states did not include any indication that its request for information had been submitted for review through the Paperwork Reduction Act process.
Though the commission asked states to willingly hand over the information, Shapiro said both voluntary or mandatory requests are required to follow the law.
“I think it shows a carelessness in their desire to come in and shake things up and do what they want and to do so with a disregard for the rules,” said Shapiro, who is also a contributor to The Hill.
“We saw it with the immigration ban, we saw it with the court overturning the delay of the methane rules,” he said, referring to a federal appeals court decision on Monday that prevents the administration from suspending enforcement of a rule restricting methane emissions.
“They aren’t following the rules, and when you don’t follow the rules eventually someone points that out and you have to go back and follow them.”
In a letter Monday, United to Protect Democracy and the Brennan Center for Justice called on Trump budget director Mick Mulvaney to take action against the commission for failing to follow the requirements of the Paperwork Reduction Act.
"The PRA reflects a longstanding recognition that when agencies collect information from the public, they must do it in a way that balances legitimate governmental need with the burdens such collections may impose," the groups said. "To ensure that balance, the statute requires agencies to engage with the public before embarking on such collections. The Advisory Commission has plainly violated those requirements."
There’s no serious penalty for failing to follow the Paperwork Reduction Act’s requirements, but regulatory experts say the commission could have to start over to meet the law.
Dudley, of the Regulatory Studies Center, said OIRA can turn down a body’s request for information, though this would seem unlikely. The OIRA process in and of itself can be time-consuming, she added.
“Often there’s a lot of negotiation that goes on,” she said. “Rarely it’s a rubber stamp.”
There are some exemptions from the Paperwork Act’s requirements, but Richard Belzer, a former OIRA economist, said in an email to The Hill that he didn’t recall Trump’s executive order including any provision that would exempt the commission from following the law.
Belzer said it would not be unprecedented for OIRA to wave through an approval or issue an exemption at the request of the White House, but he added this would be “legally dubious” in this case.
The Paperwork Reduction Act defines “agency” very broadly and exempts only requests for information from the Government Accountability Office and the Federal Election Commission from having to follow the requirements of the law. So the voter commission and the type of information it is requesting are covered.
Trump has been fixated on voter fraud since the election, which found Clinton winning the popular vote by almost 3 million ballots. Trump said that the popular vote would have been his “if you deduct the millions of people who voted illegally.”
Dozens of state election officials from both parties have said there is no evidence of substantial voter fraud.
Those conclusions have done nothing to dissuade the president, however, and in May he created the 15-member Election Integrity Commission to identify the breadth of voter fraud and other improprieties that might compromise the election process.
In tapping the leader of the commission, Trump fueled the controversy surrounding it. Kobach, a prominent anti-immigration activist, is also vying to become the state’s governor next year. And on Monday, a watchdog group filed a complaint alleging that Kobach is using his position atop the commission to promote his campaign.
Kobach did not respond Wednesday to a request for comment.