Concerns with Klobuchar-Graham Election Security Amendment

Democratic Senator Amy Klobuchar of Minnesota and Republican Senator Lindsey Graham of South Carolina have co-sponsored an amendment to the National Defense Authorization Act providing for federal funding for state election security measures.  While the security community has embraced this amendment, and we thank Sen. Graham for taking the problem of election security seriously in a way that attempts to respect state power, we have some concerns about this measure:

• It is a serious amendment of the Help America Vote Act (HAVA) that should be approached carefully, and the process should include hearing where various stakeholders testify.
• It places enormous new responsibilities on the Election Assistance Commission (EAC), an agency which has struggled to fulfill its existing mandate and operate its existing advisory boards, which faces a budget crisis, and which may not have the authority to accomplish what the amendment requires.
• The EAC already accomplishes many of the functions in this amendment, but the amendment adds more bureaucracy and spends more money to do it.  It is an enormous aggregation of federal power.
• It formalizes the role of the Department of Homeland Security and the Executive Branch to set standards, which the states are required to meet to receive federal funding.  Currently, the EAC is the only federal standard-setting standard entity for elections, and it is an independent agency.
• An existing voluntary program to certify voter registration systems appeared to be working well, aside from DHS withholding important security information from the states last fall.  States are agreeing to this new measure because they are already doing these things on a voluntary basis and need the funding, but a voluntary program and a mandatory (at least, from the perspective of funding) program are vastly different in terms of who is controlling the election security standards and systems.
• It excludes states that use direct recording electronic (DRE) voting machines.  While there have been some serious problems with DRE machines (and Virginia decertified all DREs in the state last week), DREs are the only machines many localities have and they make voting easier for voters with disabilities.
• It would allow states to implement mandatory voter registration and other progressive reforms with federal funds.

This amendment needs some serious study and input from election administration experts--not just computer, national security, and cybersecurity experts--before it moves forward in the Senate.

Among other burdens placed on the EAC, the amendment requires it and a commission to conduct an investigation of the foreign interference in the 2016 election and the potential for interference in future elections.  An existing commission, the Presidential Advisory Commission on Election Integrity, is already investigating election security and voting machines as part of its mission to study the U.S. election system and what promotes or decreases voter confidence in the system.  The next meeting of the commission is tomorrow, from 10:00 AM to 4:00 PM Eastern.  RNLA will be live-tweeting the meeting.

EAC Commissioner Questions Extension of DHS' Power to Elections

Last week, the Department of Homeland Security announced that it was designating election systems as "critical infrastructure," thereby bringing elections under the purview of DHS.  EAC Commissioner Christy McCormick raised serious questions and concerns about this extension of federal power over elections:

1. The scope and effect of this action is unknown. There was not a thorough discussion or review of what the designation means. . . . The so-called benefits of a critical infrastructure designation provided by DHS appear no different than those that have already been provided. . . . I am still unconvinced that a declaration of critical infrastructure status is necessary for DHS to help the States with security efforts, because we’ve already seen them do so.

2. This action politicizes elections. There is a reason that the Founding Fathers gave the authority of conducting elections to the States. There is a reason that when Congress set up the U.S. Election Assistance Commission (EAC), they made it a bipartisan, independent agency and gave it no regulatory authority. Our nations elections should not be handled or governed by a partisan branch of the Federal Government. The party that occupies the White House singularly controls the DHS and other Federal agencies in the Executive Branch.

Pick which party you want driving the security of our elections--are you comfortable with the other party doing so? It's important that we maintain the decentralized nature of our elections so that our voters and citizens can maintain faith and confidence that our elections are run freely and fairly, and that they can depend on the integrity and accuracy of the outcomes. 

3. The designation creates a layer of non-transparency and unnecessary Federally controlled bureaucracy. . . . 

[4.] The technical explanation for this designation is insufficient. . . .  

[5.] The critical infrastructure designation opens the States to legal, financial and privacy liabilities. . . . 

[6.] The process leading up to this designation has been disingenuous, at best. . . .

Commissioner McCormick concluded by requesting that President-elect Trump reverse the action and provide for productive, non-instrusive federal-state cooperation on election security:

Elections officials asked for more time, conversation, and discussion and a thorough understanding of the scope and benefits of the critical infrastructure designation. That request was flat out denied by the unilateral action of Secretary Johnson. I ask that President-elect Trump and his designated DHS Secretary General Kelly immediately reverse this unjustified and unsupported critical infrastructure designation, as well as Executive Order 13694, review the actions of DHS, provide a non-intrusive way for our intelligence community to provide information and resources to our election administrators, and leave the conduct of elections to the States as mandated in our Constitution. Thank you. 

Thank you, Commissioner McCormick, for standing up for election administrators across the country and fighting this federal intrusion into election administration.

A Third Strike for Obama at the EAC

Yesterday, President Obama nominated Kate Marshall to the Election Assistance Commission (EAC). A brief review of his previous nominations seems to be in order. All too often the Democrats consider election administration in a partisan fashion, seeking to advance a political agenda or scare their base.  

President Obama seemingly believed such when he nominated the hyper-partisan liberal extremist Myrna Perez previously.  As we wrote at the time:

It is hard to imagine a person less suited for a commission whose job is to be “independent, bipartisan commission charged with developing guidance to meet HAVA requirements” than Ms. Perez.  Some of the Help America Vote Act, or HAVA’s, requirements were for states to update their voting rolls.  An effort which Ms. Perez has long opposed calling such efforts “list purging” with made up statistics and overheated rhetoric.  An example of the latter is Ms. Perez once said: “purging happens all across the country, probably every day.” 

To election officials of both parties that statement is ridiculous but it is the kind of extremist rhetoric that Ms. Perez has been spouting for years against Republicans and Democrats who try to enforce laws on voting that the far left opposes.  In Ms. Perez’s world such Republicans and Democrats are racists or fear mongers. 

According to Perez, Secretaries of State and other election officials spend their time trying to remove people from the voting rolls.  Such rhetoric and her extreme partisanship resulted in Perez being forced to withdraw her name.  

President Obama replaced Perez's nomination with Matthew Butler. Butler was the former CEO of Media Matters. While Perez was a partisan extremist on election issues, Butler had no experience at all on election issues.  He is now the Chief of Staff for the Democratic National Convention. In other words, he was only a partisan.  

Which brings us to the current nominee, Kate Marshall. She similarly has no election administration background. (Although unlike Butler, at least she "applied" for such a position when she ran unsuccessfully for Nevada Secretary of State.)

And that is how the Democrats view the EAC: a place to reward partisans for their service to the liberal movement. It is sad that the left has so little regard for election administration.

Liberals vs. EAC - DOJ Earns Wrath of Judge Leon - Part 3

For the last few days we have been watching the DOJ refuse to assist the EAC, supposedly its client, to the point that the case now has Defendant-Intervenors in the form of the Secretary of State of Kansas and the Public Interest Legal Foundation. Clearly unimpressed with what he was seeing, Judge Leon wrote a brief order denying the request for a temporary restraining order (TRO) which we shared yesterday. It was fairly standard except for the one and only footnote in the document that can best be described as hilarious. 

National Review has continued to report on the action:

Judge Leon said in a four-page order that because “the registration deadlines for the Alabama and Georgia primaries and for the Kansas Republican Caucus had already passed at the time this TRO motion was filed . . . and that the effects of the [EAC’s] actions on the ongoing registration process for the Kansas Democratic Caucus . . . are uncertain at best, plaintiffs have not demonstrated they will suffer irreparable harm” before the scheduled March 9 hearing on the request for a Preliminary Injunction. Judge Leon was also “not yet convinced that plaintiffs have demonstrated a substantial likelihood of success on the merits and looks forward to the benefit of full, adversarial briefing on the complex and important issues this case presents.”

[. . .] Judge Leon castigated DOJ during the hearing and added a footnote to his four-page order about the behavior of Justice after he said he expect a “full, adversarial briefing”: 

The Court provided defendants ample opportunity to submit a written opposition to plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction…Defendant’s counsel, the Department of Justice’s Federal Programs Branch, took the time but upon the deadline submitted a short brief taking the extraordinary step of consenting to plaintiffs’ request — not for a TRO but for a preliminary injunction! 

The emphasis in that last quote is from Judge Leon, making it quite clear he was very critical of the Justice Department’s failure to carry out its duty to defend its client — the EAC.

[F]or a judge to refuse to accept a consent agreement of the lawyers in a case who are representing the plaintiffs and supposedly representing the defendants is almost unprecedented. And that footnote is an obvious warning to the Justice Department about its misbehavior in the case.

Judge Leon denied the request for a TRO, and sent a clear message to the DOJ. Most watching are very curious to see what will happen at the hearing on March 9 given the events that have transpired thus far. The DOJ should note what Judge Leon is saying. Otherwise, this will likely get ugly.  

Further proving DOJ's failure to its client, today the EAC requested approval to hire outside counsel from both the court and Attorney General Loretta Lynch.

A Partisan DOJ Just Provided a Brief Lesson on How to Befuddle and Irritate a Federal Judge

Yesterday, this blog addressed the EAC's purpose and its duty to the states. The DOJ is responsible for representing the EAC in legal matters, or at least that is the way it is supposed to work. The National Review released an article describing the hearing that occurred yesterday where that behavior was as far away from that expectation as possible.

The judge opened the hearing by reading into the record an astonishing letter he had just received from the chair of the EAC, Christie McCormick. It informed the court that DOJ had told the EAC that it would not defend the agency, and that it would not allow the EAC to hire its own counsel. McCormick informed the judge that she believed DOJ was not fulfilling its duty and obligation to defend the EAC and had a potential conflict of interest.

This certainly foreshadowed the DOJ’s biased approach to the issue at hand and this was almost immediately addressed by the judge.

The DOJ sought to not fight a lawsuit against the federal Election Assistance Commission (EAC), conceding to a temporary restraining order and preliminary injunction filed by the League of Women voters and other activist groups. The EAC had decided to allow Kansas, Arizona, Georgia, and other states “to enforce state laws ensuring that only citizens” would be able to register to vote when they use the federally designed voter registration form.

Judge Leon called the pleading “unprecedented” and “extraordinary.” He said he had never seen such a document in his entire experience as a lawyer or a judge. He was obviously astonished that the Justice Department was not defending the agency, and it was soon clear he was not going to allow DOJ to just roll over.

As the hearing progressed, it was obvious that it was plunging further down the rabbit hole of judicial disbelief and astonishment. The DOJ, a federal entity charged with protecting other federal entities, was refusing to do so and in actuality was advocating and assisting the plaintiff?

[. . . ]Judge Leon was shocked at what DOJ had done. While he gave the plaintiffs 20 minutes to argue their case, he gave the lawyer from the Federal Programs Branch of DOJ only five minutes because he said that DOJ was obviously on the same side as the plaintiffs. He also said almost immediately that he would not grant a PI without a complete briefing and arguments on the case — despite DOJ wanting to consent to the PI. Judge Leon made clear that there was “no chance at all — zero” that he would do what the plaintiffs and the Justice Department wanted him to do on that issue.

The judge seemed literally flabbergasted at what was occurring in the court. "I've never heard of it in all my years as a lawyer," the judge said and yet, he was not quite finished expressing his disbelief.

It was clear that this hearing did not go the way the plaintiffs’ lawyers and DOJ had tried to arrange it to go. They thought the fix was in. In fact, it went so badly, particularly with DOJ being called on the carpet by Judge Leon, that at the end when the plaintiffs’ lawyer got up to try to repair all the holes that Kobach had knocked in their case, the lawyer tried to compare the EAC action to Nazi Germany. He waved the EAC opinion at issue in the air and said “this is what Nazis do behind closed doors!”  You know a lawyer is desperate when he tries to equate a dispute over an election administration issue to Nazi Germany.

Judge Leon will likely decide on the TRO today and "set a hearing for the PI on March 9, 2016."  The DOJ's behavior is potentially unethical and clearly partisan. At a minimum, the plaintiffs have learned that these are two things that Judge Leon views in a very negative light.

Obama Administration Moving to Allow Non-Citizens to Register to Vote

As the presidential primaries are well underway, the U.S. Department of Justice continues to attempt to block measures designed to keep non-citizen voters from being included in our elections.

Each vote recorded by a non-citizen residing in this country illegally or legally disenfranchises an eligible, citizen voter.  States have taken prudent steps to prevent non-citizen voting by requiring proof of citizenship when a person registers to vote.  

Why is our current administration, along with liberal groups, attacking those measures now? Because most people are distracted with the primaries themselves.

On February 12, these groups filed a lawsuit in D.C. federal court seeking to reverse a recent decision by the U.S. Election Assistance Commission (EAC). The Commission’s decision allows Kansas and other states, including Arizona and Georgia, to enforce state laws ensuring that only citizens register to vote when they use a federally designed registration form. An initial hearing in the case is set for Monday afternoon, February 22.

It's hard to envision why the DOJ would target the EAC simply for following the enacted law of the states in question except a desire to allow non-citzens to register and vote.  Most specifically because:

Under Article I, Section 2 and the Seventeenth Amendment to the Constitution, states have the power to set the “Qualification requisite for electors.” As with many issues, the Left disdains the balance the Framers adopted in the Constitution and objects to this delegation of power to the states. They prefer to see power over elector eligibility centralized in Washington, D.C.

The EAC is fulfilling its duties to the states as required. The DOJ is actively encouraging and participating in efforts to keep the EAC from doing so and thereby attempting to disenfranchise citizen voters by allowing non-citizens to register and vote.

EAC Gets it Right, Allows States to Fight Vote Fraud

Yesterday we highlighted a story about how Democrat leaders not only deny the existence of vote fraud but also reward those caught committing it.  This problem makes it so important that funding sources outside the local jurisdiction be made available to fight vote fraud.  Fortunately the Election Assistance Commission ruled that:

States are free to use federal grant money intended to improve how elections are run in order to pay for criminal investigations of potential voter fraud.

This ruling is significant as it was bipartisan and recognizes the importance of fighting vote fraud.  It should be a no-brainer since every fraudulent vote disenfranchises a legal vote. 

In a 3-0 decision, the commissioners agreed in an Aug. 13 advisory that Iowa's use of the money was "allowable, allocable and reasonable." The Help America Vote Act requires states to ensure that voter registration records are accurate and leaves to them "the specific choices on the methods of complying," the advisory said.

Of course the need for accurate registration and voting lists was even recognized by President Obama’s Commission on Election Administration.   Despite this and the unanimous bipartisan ruling, local Democrats and liberal groups were upset.  As is too often the case, they completely ignored that 16 people were charged with voting illegally in Iowa. 

While RNLA has been critical of the EAC in the past, the EAC’s allowing the use of HAVA funding to prosecute vote fraud is refreshing and praiseworthy.  

President Obama Sabotaging Our Elections and Making Elections More Parisian

The President took a step forward toward making elections less partisan and more open fair and honest with the Presidential Commission on Election Administration he announced in his 2013 State of the Union.   While parts of the report of the commission were Democrat talking points (more early voting despite the overwhelming evidence that early voting does not help with turnout), the report led by his own former counsel Robert Bauer had a number of items RNLA could agree with and that garnered support from all sides of the political spectrum.   

Now, however, he is taking two steps backward on election administration with a nominee put forward as a political reward with ZERO background in Election Administration.  As Hans von Spakovsky highlights:

On Nov. 19, the White House issued a press release announcing that it was withdrawing the nomination of Myrna Perez, a lawyer at the Brennan Center, to be a commissioner on the U.S. Election Assistance Commission (EAC). It instead nominated Matthew S. Butler, the former CEO and president of the George Soros-funded left-wing advocacy group Media Matters, to replace her.

The EAC is a bipartisan agency created in 2004 by the Help America Vote Act of 2002, the election reform law that Congress passed in the wake of the 2000 presidential election and the controversy over what happened in Florida. The EAC, which is governed by four full-time commissioners — two Democrats and two Republicans — is supposed to assist and guide state and local election administrators in improving the administration of elections for federal office.  The EAC serves as a national clearinghouse and resource for information about the best practices in election administration. It is also responsible for the accreditation of testing laboratories and the certification, decertification, and recertification of voting systems, like the electronic voting machines many people use when they vote in their precincts. .  . .

He[Butler]  has been a leader and organizer of the progressive movement, and the head of Media Matters when it was acting as an unofficial PR wing of the White House and the Justice Department. As first reported in 2012 by Matthew Boyle [2], the administration was working with Media Matters “in an attempt to quell news stories about scandals plaguing [Eric] Holder and America’s top law enforcement agency,” including using Media Matters “to attack reporters” at Townhall, Breitbart, The Daily Caller, Fox News, and National Review.

The other three new commissioners on the EAC, in stark contrast to the former Media Matters CEO and president, actually have relevant election experience.

. . . Most disappointingly, the nomination of an individual with no relevant experience in the area he is tasked with administering looks like political patronage of the worst kind. President Obama has rewarded Media Matters for its underhanded, deceitful, behind-the-scenes help in going after reporters and others who were raising legitimate concerns about the questionable actions of the administration. This also does not portend well for having a bipartisan agency that tries to act in the best interests of the American voter as opposed to the best interests of one particular political party and its candidates.

President Obama has been using Ambassadorships to pay off political supporters for a while.  This is arguably much worse as this a position with a serious opportunity for political mischief.  We can only hope that Mr. Butler’s nomination is withdrawn before the next Congress.  If not, we hope that Democrats will join with Republicans in opposing this unqualified partisan.  Shame on President Obama for walking away from his 2013 State of the Union commitment on election administration.   

Does a Life of Partisanship Equate to Being Qualified for the EAC?

As you might remember, President Obama’s choice for the Election Assistance Commission, Myrna Perez, withdrew her nomination last week.  In his place, he nominated Matthew Butler.

While Ms. Perez suffered from overtly partisan ideas and beliefs on voter ID, among other things, Mr. Butler’s nomination is not much better. He has been involved in partisan politics, and has no actual election administration experience to draw on.

Mr. Butler was the CEO of Media Matters for America, a progressive organization that is

Dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media.

As part of his position with MMFA, Butler opined,

We need strong progressive voices advocating for all of our policy priorities.

In that same interview, Butler stated,

Countering all the misinformation that comes out of right wing media is really tough.  That's why the Media Matters team is 86 people covering the news 24-7 and responding to every point we can get to on mediamatters.org.

Overall, Matt Butler does not seem to be a good fit for the Election Assistance Commission, as his experience is largely in partisan politics.  The EAC is supposed to be independent and bipartisan in assisting America in running our elections.  Matt Butler does not seem to be a good fit for such a position.

Victory and Defeat for Open, Fair, and Honest Elections

While Republicans see the administration of elections as a non-partisan process to be performed in accordance with the rule of law, we have long contended that some far left Democrats see election administration as a way to race bait and fear monger in a desperate effort to scare the liberal base into voting.  The leaders in this effort include the Brennan Center which has recently been rebuked on the left by the likes of liberal law Professor Rick Hasen and the New York Times. 

The Brennan Center’s most visible spokesperson on election issues has been Myrna Perez.  Ms. Perez has made outlandish statements that such activities as cleaning up the voting lists are “vote purging” that  “happens every day”, that 1.2 million people don’t have ID in Texas, and much more. 

For her years of effort of carrying the Democrats water on these issues she was rewarded with a nomination to the federal Election Assistance Commission (EAC).   RNLA and others interested in fair and honest elections vehemently and vociferously opposed her nomination. 

She has been proven factually wrong again and again but that never mattered.  That is until today.  She has withdrawn her nomination to the EAC. 

We hope this is not just a rejection of her but of the organization that gives her a platform, the Brennan Center. 

However, while we won the battle, we have not won the war.   Her replacement, Matt Butler, is even being questioned for partisanship by the left.  Like most liberal “experts” on voting, he has no experience in working in election administration. 

Today was a victory for open, fair and honest elections with the withdrawal of Ms. Perez.  However, the war is not over as President Obama has nominated another person who seemingly has little interest in election administration. There are literally dozens of current and former Democrat election administrators and experts who would be qualified to help lead a commission whose responsibility it is, at least in theory, to “assist” state and local election officials and voters. Is Butler really qualified for such a task? What are his qualifications other than being an activist progressive Democrat?  As Doug Chapin writes:

At this point, it would appear that the Democrats have made the decision to trade a potentially controversial (and therefore problematic) pick for on that is lower-profile, albeit just as partisan.

More on Butler later, however, his nomination at first blush seems to prove why it is time to end the EAC.

Obomanation: A Political Demagogue Should Not be a Voting Commissioner

Generally when one is nominated for a commission, judgeship or other government position for a job that can stir controversy but serves the entire public, the nominee stays out of the limelight in that field.  At the very least, the nominee stays out of areas of blatant partisanship and does not use inflammatory rhetoric when one is nominated to work on a bipartisan commission. 

This rule is not being just broken but shattered by Myrna Perez, a nominee to be a Commissioner for the Election Assistance Commission.  As we detailed in our opposition letter, Ms. Perez has a long history of partisanship and playing fast and loose with the facts.  Recently she has taken this to new levels on the subject of Voter ID.

Instead of trying to work with groups to help publicize the multiple free ID options to voters, Ms. Perez has been fear mongering with ridiculous and groundless claims like saying people have to choose between eating and voting because of ID requirements. 

(The irony of the last statement is that Ms. Perez is in effect denying people some social services, such as those of the courts, over the counter medicines, and much more that often require some form of identification.  It seems she is in favor of oppressing the poor to make a rhetorical political point over helping them obtain a free ID.)

Wait there is more, according to Ms. Perez:

• “at least 1.2 million” in Texas don’t have IDs, a number so incredible that not ever her own side’s biased statisticians think the number is anywhere near that high.
• ’Here was an issue when a state enacted this kind of restriction on right to vote for the purpose of discriminating against racial minorities,’ said Myrna Pérez, a Brennan Center for Justice attorney.”  (Ms. Perez, other than you and a few on the far left, no one has ever said that or believes that.  Actually voter ID will help many minorities who are often the victims of vote fraud and effectively disenfranchised by fraudulent votes.  For just a few Texas examples check http://rnla.org/votefraud.asp and search for Texas.)

Ms. Perez is not alone in making these spurious allegations.  But she is the only one who has been nominated to a commission to assist with voting that is making these sort of comments. 

President Obama should immediately withdraw Ms. Perez’s nomination, his failure to do so is another Obomanation.

It is Time to End the EAC

On September 10, the Senate Rules Committee held a nominations hearing for two Republicans to serve as Commissioners on the much maligned Election Assistance Commission.  The nominees were Matt Masterson, Deputy Chief of Staff for the Ohio Secretary of State and Christy McCormick, an attorney for the Department of Justice Voting Section. Mr. Masterson and Ms. McCormick fielded questions from Senator Angus King (I-ME), the only Senator present at the hearing.

The EAC, established by the Help America Vote Act of 2002 was established to develop recommendations to meet HAVA requirements including improving election administration and administering a national clearinghouse on elections including shared practices. This rudderless federal agency is supposed to have two Republican Commissioners and two Democratic Commissioners. However, the EAC has been without any Commissioners for over two years and without four commissioners for over four years.  In April, the Rules Committee announced the two Democratic nominees, Thomas Hicks and Myrna Perez would be placed on the Senate’s Executive Calendar for a vote—they have yet to receive one.  (Perez is an extremist who is so far outside the mainstream she disagrees with the recommendations of the bipartisan Presidential Commission on Election Administration led by President Obama’s own  lawyer. Bob Bauer.) 

Ranking Member Pat Roberts has repeatedly called for the elimination of the EAC and didn’t even show up to the hearing. His apathy for holding nomination hearings for an agency he doesn’t believe should exist was clearly shared by his colleagues as evidenced by the lack of attendance at the hearing.

This should be a clear message that Senators don’t want to spend time to approve Commissioners for an agency that has outlived its purpose. If any legislative time should be spent on the EAC, it should be to consider its elimination as an outdated federal agency.  

EAC's Bad Apple

Lost in all the news yesterday was the White House announcement of the Republican Commissioner Nominees for the Election Assistance Commission(EAC).  Congratulations to Mr. Masterson and Ms. McCormick.  Now the EAC has four nominees for a full commission. 

However, one of these nominees sticks out as not just unqualified, but an incredible partisan without any interest in improving our election process.  That nominee is Myrna Perez. 

Ms. Perez is such an extremist that she has taken positions in opposition to the President’s own Commission on Election Administration (PCEA).  PCEA came out in favor of “list maintenance,” or keeping accurate and up to date voter rolls.  Perez regularly calls such good election practices “list purging” that happens “probably every day.”  Fear mongering important bipartisan efforts such as list maintenance to aid the Democrat Party is wrong for anyone 

involved in elections, let alone a national commission on elections.  

Another purpose of the EAC is to collect accurate information on elections.  Ms. Perez has been caught in rampant exaggerations in the past and is quite frankly not reliable. 

Most damming, she has never worked as an election official.  Her background is built on working for vote-fraud denier and pro-Democrat party groups like the Brennan Center.  Contrast that with the Republican nominees, who have spent their careers working in a non-partisan fashion for open fair and honest elections. 

To be clear, RNLA’s opposition to Perez is not based on her being a Democrat.  We do not oppose her fellow Democrat nominee.  We oppose her because she is an unqualified partisan extremist.

If the President is serious about the EAC, then he should immediately withdraw Perez’s nomination.  

Executive Summary of Justin Riemer's Testimony before the Senate Rules Committee on Data Collection

            Distinguished committee members, thank you for the opportunity to address you regarding data in elections. I am a former Virginia election official and co-author and Editor of a recent report from the Republican National Lawyers Association (RNLA) reviewing  the Presidential Commission on Election Administration’s (PCEA) report and providing additional suggestions to improve election administration in the United States.

            To begin, it is important to highlight two issues why the collection and reporting of accurate and comprehensive data is a significant challenge for election officials. First, statewide election databases created as a result of Help America Vote Act (HAVA) requirements suffered from many problems commonly associated with large government IT projects. In the scramble to meet implementation deadlines, building in adequate data-reporting capabilities became a secondary concern to complying with the specific HAVA requirements. In Virginia, it was impossible to reverse-engineer the system after its launch to add better data collection and reporting capabilities. While HAVA’s database requirements mostly addressed voter registration functions, many states designed their databases to run various other election processes. Consequently, these systems house not only voter registration records but also information related to absentee voting, data collected at the polling place, and other functions of the electoral process. While Virginia has made many improvements, significant challenges in extracting data from the system remain.

            A second challenge is that much of the data used to analyze elections is collected on Election Day by poll workers who receive inadequate training, work only a few days out of the year, and are paid very little. Poll workers must complete a significant amount of complex paperwork after a long day and frequently make mistakes or leave out important information that is often impossible to collect later if not captured on election night.

            Another issue for policymakers to consider is how increasing demands for data and records impose significant administrative burdens on election officials. Survey obligations from the Election Assistance Commission, Federal Voting Assistance Program, and other stakeholders are tedious but manageable. However, adding increased FOIA requests, state and local data reporting obligations, litigation, and requests through other record disclosure provisions such as in the National Voter Registration Act (NVRA) have turned basic data and records reporting obligations into a significant administrative burden. Combined with an increasingly shorter election off-season because of 45-day absentee ballot mailing deadlines and expanded early voting, these obligations make it more difficult for officials to perform their core job functions and make improvements to their election practices.

            Finally, using data to rank states’ election performance has value to identify both best practices and deficiencies, but there are also concerns. First, is the worry that graders will penalize states for not adopting policies such as expanded early voting, vote-by-mail, and Election Day Registration. The RNLA, many non-partisan election officials, and other stakeholders have significant policy reservations regarding these issues and they should not be included as indicators of performance. Similarly, graders should not penalize states for implementing voter integrity measures such as reasonable voter identification requirements and enhanced voter registration list maintenance programs. 

            Thank you again for the honor and opportunity to appear before this committee.  Justin's full testimony is here.  

Election Assistance Commission Drama Restarts

On April 9, the Senate Rules Committee announced the Democratic nominees for the Election Assistance Commission have cleared the committee. The nominees, Thomas Hicks, currently the Senior Elections Counsel on the House Committee on Administration and Myrna Perez, Director of the Voting  Rights Project at the ultra-liberal Brennan Center for Justice,  will be placed on the Senate’s Executive Calendar for a vote. Mr. Hicks and Ms. Perez had their second nomination hearing in December in 2013. However, as Ranking Member Pat Roberts remarked in his opening statement there was one major difference this time—no Republican nominee.

The EAC, established by the Help America Vote Act of 2002 was established to develop recommendations to meet HAVA requirements including improving election administration and administering a national clearinghouse on elections including shared practices.  This rudderless federal agency is supposed to have two Republican Commissioners and two Democratic Commissioners. However, the EAC has been without any Commissioners for over two years and without four commissioners for over four years. The Rules Committee, which is supposed to have jurisdiction over the EAC has never had an oversight hearing on the EAC. In addition, at past hearings for Commissioner nominees, the Rules Committee has consistently asked for hearings to examine the need for the Commission.  But, Instead of having a hearing on the need for the EAC and the millions of dollars in the federal budget it takes up every year, the Democrats keep offering nominees.

Although the Obama administration has offered these nominees for the Commission, Senator Roberts correctly pointed out their actions have shown they don’t even see much of a need for the EAC. Last year, the Presidential Commission on Election Administration was established by Executive order. The purpose of the PCEA was to “identify best practices in election administration and make recommendations to the voting experience.” Doesn’t this sound eerily familiar to the EAC’s purpose of improving election administration and administering a national clearinghouse on elections, including shared practices?

If the EAC is to exist, at least let it exist as a bi-partisan Commission as the statute intended.  Wait until Republican nominee counterparts are offered by the White House instead of stacking the Commission with two Democratic nominees—although two Commissioners would not make a quorum. As Ronald Reagan said, “nothing lasts longer than a temporary government program.”  

Major Victory for State Control of Elections

As the IRS slogs through its widely panned political-speech regulation effort, it is receiving moral support from an old friend, the Campaign Legal Center. Last week, CLC policy director Meredith McGehee sought to provide cover for the IRS’ disastrous 501(c)(4) rulemaking and discourage those “intimidating” the behemoth tax collector.  

But CLC’s previous role as unsolicited IRS wingman was a disaster. CLC was aware of and publicly encouraged IRS tactics in the Tea Party scandal. And the organization seems neither to comprehend the calamity of that event nor have a solid grasp of the current campaign finance structure.

As Ms. McGehee notes, in the time between Citizens United v. FEC and the IRS scandal, CLC had deluged the agency with “encouragement” to crackdown on what it perceived as scofflaws—particularly Crossroads GPS. The effort included routine publicity blitzes with endless press releases and public letters addressed to Doug Shulman and the now-infamous Lois Lerner.

Ms. Lerner was well aware of CLC and other groups’ agitation as she stated in an October 2010 talk at Duke University:

So everybody is screaming at us right now: ‘Fix it now before the election. Can’t you see how much these people are spending?’ I won’t know until I look at their 990s next year whether they have done more than their primary activity as political or not. So I can’t do anything right now.

Of course privately the IRS was “doing something”—subjecting conservative groups to invasive irrelevant questions, and delaying their applications for months, sometimes years.

While CLC would initially claim it was “breathtaking” that the IRS would be “harassing mom-and-pop tea party organizations,” it knew exactly what was going on and had publicly encouraged the IRS.

A March 9, 2012 CLC letter to the IRS quoted a New York Times article: “In recent weeks, the IRS has sent dozens of detailed questionnaires to Tea Party organizations applying for nonprofit tax status, demanding to know their political leanings and activities.”

The letter goes on to quote an attorney in the article calling IRS methods, “McCarthyism tactics” and “a coordinated effort by the IRS to stifle free speech.”

Instead of condemning the agency’s outrageous conduct, CLC did the opposite: “We strongly urge the IRS not to succumb to such arguments, or to any public or political pressure . . .”

CLC now breezily brushes aside the scandal as “ham handed.” But a recently released report by the House Committee on Oversight and Government Reform, reveals the IRS systematically stifled conservative groups before the 2012 election.

In the scandal aftermath, the IRS has continuously blocked efforts to uncover the full extent of misconduct. Ms. Lerner, herself, has lied to the committee several times and evaded sworn testimony.  

CLC is now once again “encouraging” the IRS to stand strong against political “intimidation.”

Perhaps even more disturbing, CLC doesn’t understand the current campaign finance regime it wants the IRS to change (in CLC’s defense, neither does Lois Lerner). Ms. McGehee states Citizens United “threw out a century’s worth of law . . . by permitting 501(c)(4) corporations (as well as business corporations) to spend money in federal elections.”

This is incorrect on several levels. First Congress did not ban corporations from spending money on federal elections until 1947. And did so only after a veto from President Truman who called it a “dangerous intrusion on free speech.” The Supreme Court did not address the constitutionality of the corporate independent-expenditure ban until 1990.

And 501(c)(4)s, meeting certain criteria, have been spending directly on electioneering for almost three decades.

Ms. McGehee’s “century of law” remark presumably references the 1907 Tillman Act, which banned direct corporate contributions to political candidates. That law remains in effect and was not challenged in Citizens United.

CLC’s record of “encouraging” the IRS and lack of basic legal acumen should not engender confidence from the agency for its 501(c)(4) rulemaking. Both organizations would do better encouraging the FEC to regulate political activity.

By Paul Jossey

Obomination: The Latest Liberal Effort in their War Against Accurate Voter Rolls

We pointed out previously the hypocrisy of the Democrats efforts opposing list maintenance or efforts to keep accurate voter rolls despite the recent Presidential Commission’s Report on Election Administration supporting such efforts.  The latest example of this hypocrisy is the nomination by President Obama of Myrna Perez to be a commissioner for the Elections Assistance Commission(EAC)  Her views are so extreme, the RNLA has decided to take the unusual position of formally opposing her nomination. 

It is hard to imagine a person less suited for a commission whose job is to be “independent, bipartisan commission charged with developing guidance to meet HAVA requirements” than Ms. Perez.  Some of the Help America Vote Act ,or HAVA’s, requirements were for states to update their voting rolls.  An effort which Ms. Perez has long opposed calling such efforts “list purging” with made up statistics and overheated rhetoric.  An example of the latter is Ms. Perez once said: “purging happens all across the country, probably every day.”

To election officials of both parties that statement is ridiculous but it is the kind of extremist rhetoric that Ms. Perez has been spouting for years against Republicans and Democrats who try to enforce laws on voting that the far left opposes.  In Ms. Perez’s world such Republicans and Democrats are racists or fear mongers. 

As our opposition letter details, Ms. Perez has regularly been guilty of gross exaggeration.  This type of rhetoric for an agency that is to work on a bipartisan basis is completely inappropriate.

President Obama’s nomination of Ms. Perez to be an EAC Commissioner should be rejected by Senators of both parties who value open fair and honest elections.  

The EAC, The Government’s Weekend At Bernie’s

Today the Senate will hold confirmation hearings for two commissioners to the Election Assistance Commission(EAC).  There are many problems with this.  First, the two potential commissioners are both Democrats with no similar Republicans.   The Federal Election Commission by contrast only approves paired, Democrat and Republican, nominees.  Second, the agency has served the purpose for which it was created and was supposed to sunset in 2005.  Third, read below for the House Administration Committee view:

“For the past two years, the EAC has limped along without purpose or benefit, costing taxpayers over 11 million each year.  It’s a zombie agency that epitomizes bureaucracy and government waste, which is why this Committee and the House have voted multiple times to shut it down – but not the Senate. To the contrary, Wednesday, the Democratic-controlled Senate is holding a confirmation hearing to place commissioners there for the first time in two years.

“The EAC is dead, and having two commissioners carrying it between them like a scene from Weekend At Bernie's doesn't make it any more alive, or any more useful. Unfortunately, since the Senate changed its rules, it could approve these nominations on a purely partisan basis and continue to force taxpayers to subsidize government waste."

To be clear with only two Democrats the agency cannot do much besides continue to waste taxpayers’ money and create more partisan elections. This is another fallout of the” nuclear option” passed by Senate Democrats to destroy hundreds of years of tradition and minority rights in the Senate.  Now bipartisan agencies that have sunseted will become partisan agencies, even on what should be the most non-partisan of activities, elections. 

A Glaring Omission in EAC Roundtable on the 2012 Election

Yesterday's day-long discussion of the 2012 election at the Election Assistance Commission Roundtable featured dozens of speakers and lots of anecdotal stories, but there was one very important topic that no one mentioned at all:  vote fraud.

The League of Women Voters’ President Elisabeth MacNamara criticized voter ID as being assumed to solve many election problems.  But she failed to mention how the League of Women Voters doesn’t even recognize the problems it does solve.  MacNamara ironically declared at the roundtable that “we are an organization based on facts.”  The facts are that when the Indiana voter ID law was challenged, the League of Women Voters filed a brief with a serious factual error.  They claimed that a woman was avictim of disenfranchisement, but she actually attempted commit vote fraud.  Florida resident Faye Buis-Ewing tried to vote in Indiana with her Florida’s driver’s license.  She was not permitted to do so, and rightfully so.  This is an example of the voter ID actually solving a problem of vote fraud.

Community activist Dorothy Brizill of D.C. Watch could have butdid not mention the petition fraud she uncovered in a D.C. council election in 2012.  Brizill alleged that 2,000 signatures wereduplicates, were from unregistered voters or were gathered by people unauthorized to circulate petitions.   They assert that if investigated, more are probably forgeries.  Due to D.C. Watch’s efforts, election officials eliminated 1,300 of those signatures challenged.

Jim Dickson, from the American Association of People with Disabilities, lamented the difficulties of access of disabled persons to cast ballots.  He failed to mention how vote fraudsters take advantage of blind, mentally challenged and other disabled voters.  Absentee ballots were cast in the name of the unsuspecting disabled individuals in Florida by Daisy Cabrera,and in mental disabled and nursing homes in North Carolina.  Readmore here.

The election law researchers at the roundtable never identified vote fraud as one of the areas of research in need of academic focus.  It is. The RNLA website is still the only resource that regularly documents instances of vote fraud.  That website is project of one staffer who searches the internet to uncover local news media reports of vote fraud.  There are many stories out there and a topi cin need of scientific data aggregation.  How come no professor is cataloguing local court dockets of election crimes and interviewing prosecutors for a more accurate assessment of vote fraudprosecution?    

At the roundtable, there was a lot of discussion about how long polling lines could have affected voter confidence.  Voter confidence in elections is gravely impacted by vote fraud, as the majority of Americans think vote fraud is a serious problem.  A serious problem deserves recognition and serious research.