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That Which Kris Kobach Is About To Wreak Upon Our Courts

On May 11, 2017, President Trump signed Executive Order No. 13799,1 establishing the Presidential Advisory Commission on Election Integrity. In theory, this commission exists to review the extent of things like people registered to vote who do not have the actual legal right to exercise the franchise, people who vote in ways contrary to law (such as twice in the same election), and tampering with the accurate gathering and reporting of election results. In the popular media, these things have been described with the shorthand “voter fraud.”

The chair of the commission is Vice President Mike Pence, but the real motive force on the commission is its vice chair, Kris Kobach,2 whose day job is Secretary of State of Kansas and who is also a prominent candidate in the race to become the next Governor of Kansas next year. In those instances when Secretary Kobach attempts to put a nonpartisan gloss of fairness and integrity on how pursuit of “voter fraud” can be used to trim the size of the electorate in ways that benefit Republicans, he does not, in my opinion, do a particularly convincing job of it.

With that said, yes, purges of deceased, moved, or otherwise ineligible voters from voter rolls is something that all state election officials must do periodically. An election official acting in good faith will receive a registration form from a voter who is already on the rolls and remove the old registration in place of the new one. They scour obituaries and death certificates to remove dead people from the list of eligible voters.

The United States Department of Justice has been using substantial effort to investigate allegations voter fraud for fifteen years, since near the beginning of the George W. Bush Administration, and found very little evidence of it, anywhere. Nevertheless, it would appear that when the Kobach Commission meets next Wednesday (July 26, 2017) its principal recommendation will be the systematic purge of registered voters from the rolls of the several states. This despite the fact that its own attempts to gather voter registration information in an effort to continue finding evidence of this functionally non-existent problem have been rebuffed by nearly all of the election officials of the several states (whether they are Republicans or Democrats or nonpartisan officials).

The thing of it is, while the Kobach Commission has been mostly blown off and limited to publicly-available information on its own authority, the Department of Justice has had much better results with its request made on the same day as Kobach’s, purportedly looking to montior enforcement of the National Voter Registration Act. DoJ has no doubt had better results than the Kobach Commission precisely because there is actual legal authority for DoJ to enforce this law. To date, the extent of DoJ’s success in gathering this information, and the extent to which DoJ has been coordinating its activities with the Kobach Commission, is unclear.

On its own, neither DoJ nor the Kobach Commission can do very much about who is registered to vote in a particular state. But they can levy great political pressure for a state election official to conduct a purge of the rolls. They can portray the inevitable irregularities and dozens of apparent duplicates to appear to be the result of systematic voter fraud, confident that most people hearing this news and their spin on the facts will not dig down deeply enough to demonstrate that the portrayal is inaccurate. After all, refuting bullshit already released into the wild takes an exponentially greater amount of effort than was spent initially generating it:

Calling Bullshit 1.3: Brandolini's Bullshit Asymmetry Principle

So what’s going to come out of these federal activities will be advice. DoJ might be able to go to court to request some purges, but for the most part DoJ has historically concentrated its efforts at the systemic level, addressing whether or not state election officials had created and implemented proper procedures for policing against voter fraud (which do include biannual purges). The actual purges of voters from the rolls will be done (or not) on a state-by-state basis.

This is where the courts are going to get involved. I predict that the winning strategy for challenging these voter purges at the systemic level will be based on the Fourteenth Amendment’s due process clause.

Voting, obviously, is a fundamental right of a U.S. citizen. Indeed, the ability to exercise the franchise is pretty much the definition of being a citizen. A state cannot take away someone’s fundamental right without affording that person due process:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
–United States Constitution, Amend. XIV, sec. 1.

Regular readers of these pages may recall a recent, lively, and fascinating discussion about the most proper way to interpret this law, but it is pretty clear that whether or not the active caselaw is congruent with whatever theory one prefers, the active caselaw prescribes a framework of analysis that is used by a court to determine whether or not a state has complied with this provision of the Constitution in a given situation.

So the fallout from the Kobach Commission will be whether, if, and when a person who previously was permitted to vote is purged from the voter rolls. One would hope that this is discovered before an election, but probably won’t be. That would-be voter will then have to bring a claim against her own state election official3 to get back on the rolls.

This calls to mind the case of O’Brien v. Skinner (1974) 414 U.S. 524. In O’Brien, six dozen residents of Monroe County, New York previously had been registered to vote. However, these folks were residents of the Monroe County jail. Some of them were awaiting trial, could not post bail, and had not yet been convicted of anything. Others were serving sentences for various misdemeanors.

Since these prisoners were not felons but rather misdemeanants (and some of them not even convicted yet), had they been at liberty to appear at their precincts, they would have been permitted to vote. The 1972 general election rolled around, and they applied for absentee ballots. The Monroe County registrar refused to give them the absentee ballots, saying that no provision of the New York law authorized absentee ballots for incarcerated people. New York’s highest state court, the Court of Appeals, sided with the elections officials and wrote in its opinion that the physical inability to vote was an appurtenance of confinement.

On appeal, the U.S. Supreme Court noted that if someone was serving a misdemeanor sentence in a jail outside of their own county, there was a procedure for them to get an absentee ballot and vote while in jail. But if you were in jail in your home county, there was no such provision. As a practical matter, then, they could not vote because they had no way of filling out a ballot. What’s interesting about the reasoning the Supreme Court used to reverse this situation was that under its own doctrines, it could not disturb the New York Court of Appeals’ interpretation of state law, so it moved to the Federal Constitution and found an equal protection violation based on the “wholly arbitrary” refusal to permit absentee ballots for home-county detainees and misdemeanants.

In a concurring opinion, Justice Thurgood Marshall explicitly applied the strict scrutiny test, something which the majority opinion by Chief Justice Burger did not disagree with, but glossed over. So the Marshall concurrence gives us the best insight into the test here:

It is well settled that ‘if a challenged statute grants the right to vote to some citizens and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. … New York’s exclusion of pretrial detainees and convicted misdemeanants confined in the county of their residence cannot withstand analysis. The only basis even suggested for this discrimination is the possibility recognized … that without the protection of the voting booth, local officials might be too tempted to try to influence the local vote of in-county inmates. Though protection of the integrity of the ballot box is surely a legitimate state concern, I frankly find something a bit disturbing about this approach to the problem. It is hard to conceive how the State can possibly justify denying any person his right to vote on the ground that his vote might afford a state official the opportunity to abuse his position of authority. If New York truly has so little confidence in the integrity of its state officers, the time has come for the State to adopt stringent measures to prevent official misconduct, not to further penalize its citizens by depriving them of their right to vote. There are surely less burdensome means to protect inmate voters against attempts to influence their votes… . O’Brien, supra, at 533 (Marshall, J., concurring; internal citations and quotation marks omitted).

How odd! Voting is a fundamental right, so strict scrutiny applies and, unsurprisingly, the state statutory and enactment regime does not withstand analysis. But from there, Justice Marshall seems to ratchet back down to the rational basis standard, suggesting that denying absentee ballots to local prisoners but granting them to prisoners from other counties does not promote a legitimate state concern. A true fundamental rights analysis looks to see whether the state’s objective is “compelling,” not merely “legitimate.”

So that leaves us with an interesting question — is protecting the integrity of the ballot box a “compelling state interest” or is it merely “legitimate”? One wants to say that this is a very, very important thing to do — it is the very nature of our Republic; fair and democratic gathering and counting of votes is to the body politic what cellular mitosis is to the body of a human being. So whatever scheme of voter purging a state takes in response to the Kobach Commission’s findings, it’s going to be analyzed to see whether or not it is narrowly tailored to purge the fewest number of voters possible while still ensuring the integrity of elections. E.g., Shaw v. Hunt (1996) 517 U.S. 899, 908.

Which becomes ridiculous because the purportedly compelling problem that is supposed to be solved by a voter roll purge is, on the basis of two decades’ worth of accumulated evidence, so miniscule as to be negligible. I submit that a problem as trivial as voter fraud actually is in practice cannot be a compelling state interest at all, not without a showing that there are actually a significant number of fake votes being regularly cast, potentially influencing the outcome of an election. However, I concede that I am aware of no case that defines a “compelling state interest” as one that is actually manifest: other things that are potential threats, like defense against an invasion that never happens, have been found to be compelling state interests based on the magnitude of the threat. Korematsu v. United States (1944) 323 U.S. 214, 219.

But there’s another thing at play here, which is the procedural side of the Fourteenth Amendment’s due process clause. Concerning an affidavit-driven replevin procedure4 in Florida and Pennsylvania, the Supreme Court held:

Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. … It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner. … If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual’s possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. ‘This Court has not . . . embraced the general proposition that a wrong may be done if it can be undone. Fuentes v. Shevin (1972) 407 U.S. 67, 81-82 (internal citations and quotation marks removed).

Taking this understanding of due process, can the state strike someone from the franchise, to satisfy the demands of the Kobach Commission, without first contacting the voters to be purged and affording them an opportunity to be heard regarding whether or not they should be purged? A voter by voter process sounds elaborate and expensive — especially if we’re talking about giving notice to dead people.

Given that the most likely-seeming scenario for this to come to light would be someone showing up to vote and being turned away, what would the remedy be? A post hoc ballot? Or just re-registation for future elections? We’ve never had such a thing before. Let us pray that such a suit does not arise out of an election in a very close race.

There’s a whole mess of questions here, and in a press-the-partisan-advantage rush to get these purges done, no one is stopping to think about the answers. And Democratic opponents of this effort are obviously eager to do battle. The Kobach Commission could, potentially, let slip a torrent of voting rights litigation unseen for at least two generations.

 

Image by DonkeyHotey Notes:

  1. His thirty-fifth out of forty executive orders issued to date since Trump assumed office; by comparison, his predecessor Barack Obama had issued a total of 25 executive orders by this same point in his Presidency. []
  2. Readers: if you click on no other link in this post, this is the one to check out. []
  3. Likely a Secretary of State, although the title is different than that in a minority of states. []
  4. Replevin is a court order that the sheriff go take something in your possession, and give it over to me. Under the laws challenged in the quoted case, all I would have had to do was go to the county sheriff, sign an affidavit that that car you’re driving around really belongs to me, and convince the sheriff to take on the case. Then, he’d send some deputies around to your place and take the keys from you and tow the car over to me. If you wanted to say it was your car, you could then sue me and a court would sort it out. I don’t know about you, but I do see a non-trivial potential for abuse here. []

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Pseudonymous. Practices Law. Lives in Southern California. Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. No Partisan Preference. Likes: respectful and intelligent dialogue, good wine, and puppies. Dislikes: mass-produced barley pop, magical thinking, and insincere people. Follow him on Twitter at @burtlikko, and on Flipboard at Burt Likko.

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37 thoughts on “That Which Kris Kobach Is About To Wreak Upon Our Courts

  1. Let the lawsuits begin!

    “After all, refuting bullshit already released into the wild takes an exponentially greater amount of effort than was spent initially generating it:”

    Aww, you mean, like how Russian hacked the election and deprived HRC? Like how Trumps administration is a dystonia nightmare? Yawn. This is just going to turn into another “Resist Trump” campaign from the other side while the Trump supporters will view it as a bunch of libs trying to keep their entrenched rolls in the 1) swamp 2) in their states.

    Wake me up when someone is sentenced to prison.

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  2. let slip a torrent of voting rights litigation unseen for at least two generations

    Given how much I hear the drumbeat of voter fraud as of late, perhaps this is not a bad thing. Hell, it might be long over due.

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  3. Ah, legal shenanigans/activism. So be it.

    I only have one thing to address in the above and it is the use of ‘our Republic’. Considering republic in the american sense involves overarching considerations to individual sovereignty, nearly everything in that paragraph is opposite of context. Probably should read:

    “So that leaves us with an interesting question — is protecting the integrity of the ballot box a “compelling state interest” or is it merely “legitimate”? One wants to say that this is a very, very important thing to do — it is the very nature of our Socialist collective state; fair and social gathering and counting of votes is to the body politic what cellular mitosis is to the body of a human being.”

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  4. Given that the most likely-seeming scenario for this to come to light would be someone showing up to vote and being turned away, what would the remedy be? A post hoc ballot? Or just re-registation for future elections? We’ve never had such a thing before.

    The purge in Florida in 2000, which handed the state to Bush.

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    • 2000 saw a tornado of litigation. Disastrous, awesome, and awful to behold. And localized to one area: Florida.

      If my prediction comes true, this will be by comparison a hurricane: Disastrous, awesome, and awful to behold. And spread about a large area: every state that either voluntarily or under some form of compulsion which complies with the purges that Kobach & Co. will demand tomorrow.

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  5. And let’s not pretend that the courts are non-partisan here. It was the “honest umpire” who led the repeal of the 15th Amendment.

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  6. Based on n=1 personal experience, if you show up to a polling place and you’re name is not on our voter rolls, this is what happens

    First, we look to see if you’re in a larger database and are in simply in the wrong place.

    But if your name is no where to be found, and we can reasonably determine you live at an address within our precinct, we’ll give you a provisional ballot. The thing is, I don’t think provisional ballots are counted unless the election is close enough to warrant it. Though also in my experience, there are typically less than 5 provisional ballots out every 1000 ballots cast.

    (The dirty little secret of absentee voting used to be that they were never counted either unless the election was close enough to warrant it. This has changed in the past decade as absentee has become more common as a load balancing mechanism and now can be up to a quarter of all ballots cast in my area)

    (There’s also oolies about federal election only ballots for those that have recently moved after the registration deadline)

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  7. “If New York truly has so little confidence in the integrity of its state officers, the time has come for the State to adopt stringent measures to prevent official misconduct, not to further penalize its citizens by depriving them of their right to vote.”

    That’s a pretty dope line.

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  8. This guy’s the Crosscheck guy, right? The “Clearly if you have the same name and birth date, you are the same person so you’re double registered” guy?

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    • Yep. In theory, there is only a 1:365.25 chance that a mistake will be made using this method. But the more common your name, the more likely it is you’ll have to roll those dice. And if the scope of the cross-check is national, that increases even more.

      As it turns out, my actual name is uncommon in California, but there are a lot of people in California, so I know of at least five other guys who live in California with my same name. Three of them use a common variant spelling of my first name. The cognate would be “Burt Likko” and “Bert Likko.” And thanks to the machinations of Big Data, I have learned that one of those three guys has the same birth date as me though he is five years older. (I found that out when a sheriff called me to inform me that this other “Burt Likko”‘s father had just been killed in an accident. Gave me a pretty bad shock until we sorted that out.)

      However, my actual name is pretty common in the Midwest, where my family’s roots lie. You pretty much can’t swing a dead cat around by its tail in southeastern Wisconsin without hitting a “Likko.” And, a guy with my exact same first and last name is a not-obscure professor of classics at a prominent Canadian university, and IIRC I’ve stumbled across something that indicates his exact birthdate is within two days of mine. Could I be mistaken for some random Wisconsinite, Minnesotan, or exurban Chicagoan, or even more voter-fraudulently, for a Canadian?

      Am I so very unusual here? I doubt it — most of you have at one point or another stumbled across evidence of another person out there in the world with your same name, at least.

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      • You forgot the other fun: People move, and who “unregisters” when they move?

        And IIRC, Crosscheck doesn’t have registration dates to compare — or doesn’t bother — which means if you moved to another district, you can get scrubbed in both. (And hey, I betcha rural and suburban voters — you know, the ones that own property — probably move less often than folks renting in the city…)

        In any case, it’s literally the worst possible sort of criteria to scrub voting lists — I don’t think I could come up with a system to create more false positives.

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      • Yep. In theory, there is only a 1:365.25 chance that a mistake will be made using this method. But the more common your name, the more likely it is you’ll have to roll those dice.

        Not actually true. 23 people with the same name have a 50% probability of at least one birthday collision. With a group of 70, the probability reaches 99.9%. You could add the year in, but that’s not uniformly distributed and it still only pushes the collision problem so far, depending on how big your voter rolls are.

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      • Funnily enough my company builds software that solves exactly these sorts of identity problems. It would be trivially easy (in the sense of “trivial” $M of dollars) to manage the identity and NCOA and Death Rolls of US citizens.

        Except for pesky data silos, privacy challenges and other non-technical issues that would make building a 50-state National Identity System politically rather than technically unfeasible.

        I’m sure my counterparts in the Federal division would be happy to help…

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        • Yeah, the siloing problem is solved by sharing information, if information isn’t shared you won’t catch the problems. We have a reform-minded Democratic State’s Attorney in Illinois that made election fraud(*) a priority a few years ago, and I believe he was comparing different record systems: looking at death records, looking at property tax records to see if the address actually exists, looking at zoning records to see if its possible for 35 registered voters to live at the address, and looking at voting records from neighboring counties to catch multiple voting.

          (*) Also police crimes.

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      • There’s another guy with my name in my city, and he has a son who’s a junior.

        And the first time I heard Burt’s real name, I thought “The baseball player?”

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          • Not only fathers and sons I’m named after my mother nobody checks birthdates.

            When I went to get my first car loan they said you have too much credit extended (I had one credit card) I looked at the list and most of the accounts were opened when I would have been 10 years old or younger. Its easy for me to get my mom to help contest these mix ups but to try to get a total stranger?…not very likley

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            • Some time ago (can’t find the link, sorry), I recall reading an article by a woman who had a common name in NY, and who kept getting citations meant for another woman with the same name and similar details.

              One of the interesting bits was about how, after these two women met, the CJ system didn’t really care that they kept sending the tickets to the wrong woman, and there was some number of hoops to jump through before it got straightened out.

              So the system can make a simple error like confusing two women, and then demand that the citizens get it straightened out largely by themselves. This does not give me hope that voting roles will be much better.

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              • Oscar,
                Nothing beats getting the government confused about who you are.

                Actually, i take that back. Faking your death is a total bitch to straighten out, even if it wasn’t you who faked it.

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                • It is my understanding that the Electronic Registration Information Center multi-state organization is much saner than Crosscheck. Among other things, member states are required to use information provided by ERIC to contact and register eligible voters. ERIC membership currently includes 20 states and the District of Columbia.

                  For sensitive information (eg, the last four digits of the Social Security number), ERIC requires that states use an approved one-way hash before the data is submitted, then applies a second one-way hash before the data is used. As a result, ERIC’s software can answer the question “Do these individuals’ SS numbers have the same last four digits?” but can’t answer the question “What are the last four digits of the SS number for John Doe residing at 123 Main St?”

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      • Not only am I not the only First Last name in California, I’m not the only First Last name in my county and if you google me you get not only me but my uncle and my second cousin, all of whom are affiliated with the same university and two of whom got the same degree at that university.

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  9. Sigh. This is what happens when you hire the wrong people, to catch the wrong people, for the wrong crime.

    Pollwatchers have observed some… very interesting things in this century.
    Some of which have resulted in jailtime.

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  10. the Kobach Commission has been mostly blown off and limited to publicly-available information on its own authority

    I don’t think that’s precisely what has happened. Blue States are fusing to provide publicly-available information, likely in violation of their state’s FOIA laws. It’s law-breakers all the way down.

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  11. I don’t see why anyone would distrust a commission whose charter is to prove that Hillary lost the popular vote.

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