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After months of suggesting it was in the works, the White House announced yesterday that the President had signed an executive order establishing a Presidential Advisory Commission on Election Integrity tasked with examining the nation’s system for federal elections.

The reaction to the news was swift and fierce, with widespread criticism of the commission – to be chaired by the Vice President – as unnecessary or even a “sham” by Democrats, given the lack to date of any significant evidence of election fraud. [electionlineToday has the stories here.] You can bet that criticism will only intensify as this effort moves forward.

As it does, however, here are a series of questions worth considering:

Who (else) is on the commission?

The executive order calls for up to 15 members beyond the chair – but all we have so far are these names: Kansas SoS Kris Kobach (who will also serve as vice-chair), New Hampshire SoS Bill Gardner, Maine SoS Matt Dunlap, Indiana SoS Connie Lawson, former Ohio SoS Kenneth Blackwell and EAC Commissioner Christy McCormick. Given opposition to the establishment of the commission, many Democrats and other experts are suggesting that service on the panel would be inappropriate – with some suggesting that Democrats like Gardner and Dunlap should face protests for agreeing to join.

That said, it is strange for the commission to be created and announced without a full slate of members; as Election Law Blog’s Rick Hasen notes:

So unusual to announce the formation of a commission without saying who the members are and passing along their bios; without having a research director in place; without having infrastructure in place.

Given the intense opposition to the commission – and the highly-fraught policy environment surrounding the recent dismissal of the FBI Director and its effect on inquiries into Russia’s role in the 2016 elections – I wonder who besides the six names already mentioned will be brought forward, and if those names will result in anything approaching a “bipartisan” list.

What impact does this have on members of the commission?

Several members of the new commission are involved in complicated issues elsewhere. Kansas’ Kobach continues to be the target of numerous lawsuits regarding his state’s voter registration laws – and as part of those has been ordered by a court to produce documents he shared with the then President-elect on the topic of voter rolls. Maine’s Dunlap is in the middle of a dispute (which has reached the State Supreme Court) over whether his state will implement ranked-choice voting for federal elections. And the EAC’s McCormick is involved in a lawsuit over the agency’s authority to add state proof-of-citizenship laws to the federal voter registration form – with a June 1 deadline for responding to the court on a key issue in the case.

I’ll be curious to see how (if at all) the commission’s work affects these other developments – especially the EAC, which already faces intense Congressional scrutiny and beyond the lawsuit is carrying a heavy and broad workload in support of state and local election officials nationwide.

Is the commission about election integrity or voter confidence?

Here’s the language about the mission of the commission:

The Commission shall, consistent with applicable law, study the registration and voting processes used in Federal elections.  The Commission shall be solely advisory and shall submit a report to the President that identifies the following:

(a)  those laws, rules, policies, activities, strategies, and practices that enhance the American people’s confidence in the integrity of the voting processes used in Federal elections;

(b)  those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of the voting processes used in Federal elections; and

(c)  those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting. 

The third subsection is what you might have expected, but the first two (“enhance/undermine”) focus not on the election system but Americans’ confidence in the system. As we’ve seen many times over the years, voter confidence often has little correlation to the actual conduct of elections but actually tracks other partisan or policy views – or even whether or not the preferred candidate won in the most recent election. The Vermont SoS had this observation on Twitter:

Fine print: not about investigating what undermines the ACTUAL integrity of elections, but how Americans FEEL about election integrity.

That could be very important, given the intensity of feeling over these issues in the electorate. I’ll be watching to see how much of the commission is devoted to measuring confidence as opposed to assessing the election system.

Is the improper/fraudulent distinction important?

The order contains the following definitions section:

For purposes of this order:

(a)  The term “improper voter registration” means any situation where an individual who does not possess the legal right to vote in a jurisdiction is included as an eligible voter on that jurisdiction’s voter list, regardless of the state of mind or intent of such individual.

(b)  The term “improper voting” means the act of an individual casting a non-provisional ballot in a jurisdiction in which that individual is ineligible to vote, or the act of an individual casting a ballot in multiple jurisdictions, regardless of the state of mind or intent of that individual.

(c)  The term “fraudulent voter registration” means any situation where an individual knowingly and intentionally takes steps to add ineligible individuals to voter lists. 

(d)  The term “fraudulent voting” means the act of casting a non-provisional ballot or multiple ballots with knowledge that casting the ballot or ballots is illegal. 

That’s an interesting distinction, given that intent is required to prove fraud in a criminal case. A lot of the rhetoric on this issue has focused on “fraud”, suggesting that individuals or groups are deliberately gaming the system; the inclusion of this distinction suggests the commission wants to cast its net wider. If the commission does indeed gather data on the scope of improper vs. fraudulent registration and voting – and if, as evidence has suggested, most problems are inadvertent or the result of confusion and/or error – I’ll be watching to see if that results in a ratcheting-down of fraud claims or (as opponents fear) it will result in calls to tighten the process further to prevent the potential for fraud.

Obviously, the announcement of the commission represents yet another flashpoint in an election integrity debate that is already full of them. How these questions and others affect the work of the commission if and when it gets underway remain to be seen. If the panel actually does get underway, you can expect it to color policy and political debates in the field for the foreseeable future.

Needless to say – stay tuned …

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