A federal judge on Monday rejected complaints that President Trump’s voter integrity commission was breaking the law by requesting and storing states’ voter data, saying that as long as the panel is just advisory, it doesn’t need to meet strict standards that would apply to government agencies.
The ruling was highly technical, but it clears the way for the commission to once again begin collecting data from willing states.
Commission Vice Chairman Kris W. Kobach welcomed the ruling and told The Washington Times that they’ll soon reach out to states to renew their request for information, which he had put on hold while the judge was deciding.
“Several states have already said they’re standing by ready to send in the publicly available voter rolls,” Mr. Kobach said.
Judge Colleen Kollar-Kotelly said that if the commission had continued to use an Army website to collect the information, as it originally envisioned, it might have run afoul of privacy laws. But because the commission switched gears and now plans to use a White House server, it escapes scrutiny, the judge said.
And even though one state, Arkansas, had already sent information to the Army website, it wasn’t enough to earn a spanking, the judge said.
Last week the judge also cleared the way for the commission to hold its first meeting, a ruling that says demands for disclosure of information must be “balanced against the interest of advisory commissions to engage in their work.”
Established by Mr. Trump to investigate voter fraud and barriers to voting that may have affected last year’s election, the commission has been controversial. Democrats have said there is no widespread evidence of fraud, and say an investigation is a waste of time and likely to be tainted by Mr. Trump.
A number of states have also balked at sharing their voter data with the commission — even though many of them make the same information available for purchase by campaigns, political parties, researchers or even the general public.
Mr. Kobach said his latest count is that about a dozen states are saying they’ll refuse, though he said some of them may reconsider. Meanwhile, more than 30 states have indicated they’ll cooperate to varying degrees.
He said some of those states have laws that do require payment for the information, and he said the commission will comply with those laws.
“Sometimes the left-leaning media was trying to spin that into a state saying no, and that’s not the case at all,” he said.
The Electronic Privacy Information Center had sued to try to derail the new commission, arguing that the panel hadn’t done a privacy assessment required under the E-Government Act before requesting the data.
Faced with the lawsuit, the commission made changes. It first suspended the request, saying it would await Judge Kollar-Kotelly’s decision, and then said it would ditch the Army server and instead use a White House server, freeing it from the legal strictures that could have ensnared it had an official federal agency been involved.
The judge said the panel is an advisory commission, not an agency, and she declined to issue a temporary restraining order that would have bound it to the same rules as agencies.
“Given the factual circumstances presently before the Court — which have changed substantially since this case was filed three weeks ago — Defendants’ collection of voter roll information does not currently involve agency action,” the judge said.
She said, however, that could change in the future.
“To the extent the factual circumstances change, however — for example, if the de jure or de facto powers of the Commission expand beyond those of a purely advisory body — this determination may need to be revisited,” she wrote.
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