President Trump’s voter fraud commission may have violated the law by ignoring federal requirements governing requests for information from states, several experts on the regulatory process told The Hill.
Experts say the failure to submit the request to states through the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) violates a 1980 law known as the Paperwork Reduction Act (PRA). They also say the failure could be significant, since states could argue it means they are under no obligation to respond.
“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 GW Regulatory Studies Center at George Washington University.
The Presidential Advisory Commission on Election Integrity asked all 50 states and the District of Columbia 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 said he only lost the popular vote in last year’s presidential election to Hillary Clinton because of widespread voter fraud, an argument rejected by state election officials from both parties.
A number of states have reacted to the requests with anger, arguing they represent a severe overreach by the federal government. Forty-four states led by Republican and Democratic governments, as well as the District of Columbia, are already resisting turning over information, according to multiple news outlets.
After an initial version of this story was published online, the White House in an email argued that the election commission is exempt from the requirements of the Paperwork Reduction Act, which requires federal agencies to take specific steps before making requests for public information. The reason is simple, according to a spokesman: The commission is not an agency.
“The Paperwork Reduction Act only applies to information collections by agencies,” Marc Lotter, spokesman for Vice President Pence, said in an email. “The Commission is an entity that ‘serve[s] solely to advise and assist the President,’ and is not, therefore, an agency subject to PRA.”
Experts interviewed by The Hill said they believed that the commission did fall under the Paperwork Reduction Act, a 1980 law that requires federal agencies to seek public input, including through a comment period, before making a request for information. A 1995 amendment extended OIRA’s authority to include not only requests for information for the government, but also requests for information to the public.
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 requirements.
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 argued 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 would be covered.
The law 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.
When a request is submitted, documents get a control or reference number from the Office of Management and Budget. No marking is apparent on the letter sent from the Commission to the states, which led several experts on the process to question whether it had gone through the process.
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.”
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 six to nine months to complete — a time frame that can be grating to agencies.
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 PRA process.
Though the commission asked states to willingly hand over the information, Shapiro said both voluntary and 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.”
Trump has been fixated on voter fraud since the election, which found Clinton winning the popular vote by almost 3 million ballots. Trump claimed 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 significant 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.
Kris Kobach, the Kansas secretary of state who heads Trump’s election commission, defended the request on Wednesday and said media reports that it has been rejected by dozens of states are overheated.
“At present, only 14 states and the District of Columbia have refused the Commission’s request for publicly available voter information,” Kobach, a
Republican, said in a statement issued through the Pence’s office. Stories that suggest a larger number are fake news, he added.
Kobach, a prominent anti-immigration activist, is vying to become Kansas’s governor next year. On Monday, a watchdog group filed a complaint alleging that Kobach is using his position atop the election panel to promote his campaign.