A Loophole in State Law and the U.S. Election Fraud Commission
February 26, 2018
Earlier in the year, President Donald J. Trump announced his decision through an executive order to establish the Presidential Advisory Commission on Election Integrity, a working group designed in his view to eliminate voter fraud. Concerned with potential for state voter rolls to be inaccurate and misused, the election fraud commission sought voter rolls from all 50 states to vet and review. While the specific tasks of the election fraud commission remain unknown, the ultimate goal, at least publicly, appears to be to ensure the most accurate electoral outcomes possible.
Responding to the Commission’s request for state voting data, state governments have been reluctant to submit this information to the federal government. As of mid-October, 15 states (such as California, Delaware, Virginia, and Vermont) denied the Commission’s request, while others have remained undecided, such as Illinois, and some have complied, such as Florida, Colorado and Arkansas. A full state-by-state list can be found at this link. While the interactions between some states and the federal government have been bilateral, the events that occurred in South Carolina present an interesting case study in loopholes in state election law.
On June 28, 2017, the South Carolina Secretary of State’s office received a letter from the Election Fraud Commission requesting voter rolls be submitted to the committee. Three days later, the South Carolina Election Commission rejected the request to hand over the information. Not only would the request reject state law (i.e. South Carolina state law does not allow the sharing of Social Security numbers, felonious conviction histories, and party affiliation), the Governor of South Carolina stated, “[the] Constitution ensures voters ballot choices will always be secret . . . Americans have died protecting this freedom.” Ignoring the requests of the Trump administration, South Carolinian refused to submit the information. As noted by the governor, a lack of widespread voter fraud and fear of the public receiving secret information were important factors in making that decision.
While one would think this issue would be resolved, South Carolina law ironically allows for non-government actors to acquire some of the same information the state refused to turn over to the Commission. Under South Carolina law, a registered voter in the state can purchase voter lists for approximately $2,500. Those who purchase the list cannot use it for commercial purposes. Violations of the law result in a misdemeanor with a maximum one-year prison sentence and $500 fine. The lists can be purchased online in print or CD form.
When denying the request from the Trump administration to submit its voter lists, the state attorney general stated, “The (commission) has determined that the agency is not permitted to share voter data with anyone from outside the state. The (commission) can only provide voter data to a registered South Carolina voter.” Immediately, the State Republican party chairman purchased the list in August and told the press that he planned to send the information to the Trump administration. Criticized as “skirting the system,” the state party chairman rationalized that South Carolina law is being followed by sending information only available by law.
The New York Times reported in October that the South Carolina state party submitted the lists to the Republican National Committee and “will submit the information to the Trump administration whenever it’s requested.” The commission will not receive all the information it requested such as party affiliation or social security numbers; however, the group will receive voter rolls.
Ultimately, this issue demonstrates a state law loophole. While the state party chairman would argue he’s just following the law, the South Carolinian government felt barred by state law to submit voter data submitted to the commission. However, the state party just followed procedures that would allow it send the data anyway. This shows a classic loophole: the state denied the request, but the commission will appear to get what it wants anyway. A potential remedy for this type of situation in the future would be to have the state legislature pass a law forbidding private citizens access to voter lists. Alternatively, a South Carolina voter could file suit under the South Carolinian Constitutional right to a secret ballot.
While remedial actions may exist, it appears as one South Carolina reporter wrote, “What the White House wants, it seems, the White House gets.”