In a letter to Attorney General Sessions and Acting Assistant Attorney General Wheeler, Senate Judiciary Committee Democrats ask about the Department’s apparent coordination with the Commission and its position on enforcement of the National Voter Registration Act; The senators also express deep concern about how the Commission is going to protect voter data received from states

On the same day the Presidential Advisory Commission on Election Integrity requested sensitive voter information from states, the Department of Justice requested information about state-level procedures for maintaining voter registration lists, calling into question coordination between the Department and the Commission


WASHINGTON, DC – Today, U.S. Senators Amy Klobuchar (D-MN), Dianne Feinstein (D-CA), Sheldon Whitehouse (D-RI), and Senate Judiciary Committee Democrats have asked the U.S. Department of Justice (DOJ) whether the Presidential Advisory Commission on Election Integrity has the legal authority to request sensitive voter information from states. In a letter to Attorney General Sessions and Acting Assistant Attorney General Wheeler, the senators ask about the Department’s apparent coordination with the Commission and its position on enforcement of the National Voter Registration Act. The senators also express deep concern about how the Commission is going to protect voter data received from states.

On the same day the Commission requested sensitive voter information from states, the Department of Justice requested information about state-level procedures for maintaining voter registration lists, calling into question coordination between the Department and the Commission.

“The Department’s letter was sent on the same day that the Presidential Advisory Commission on Election Integrity (“the Commission”) requested sensitive voter roll data from state election officials. We do not believe this is a coincidence,” the senators wrote. “The Commission’s June 28 request for voter data has been met with resistance from state election officials from both parties, and forty-four states have refused to provide the Commission with all of the data it requested. Accordingly, we request more information from the Department about the underlying authority for both June 28 letters.”

The senators continued, “Given that the Department is charged with ensuring that federal entities comply with privacy laws, we request the following information about how the Department is working to ensure that the Commission adheres to the law. We also ask that you provide information on any communications that Department officials may have had with members or advisors to the Commission regarding the Privacy Act.”

Other senators who signed the letter include Senators Patrick Leahy (D-VT), Jack Reed (D-RI), Dick Durbin (D-IL),  Al Franken (D-MN), Chris Coons (D-CT), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), and Angus King (I-VT).

Last week, Klobuchar and Senator Jack Reed (D-RI) led 23 senators in demanding that the Presidential Advisory Commission on Election Integrity rescind its request that state election officials provide sensitive voter roll data.

The full text of the senators’ letter is below:

Dear Attorney General Sessions and Acting Assistant Attorney General Wheeler:

We write to request more information regarding the Department of Justice’s June 28 letter to forty-four states requesting information about state-level procedures for maintaining voter registration lists. The Department’s letter was sent on the same day that the Presidential Advisory Commission on Election Integrity (“the Commission”) requested sensitive voter roll data from state election officials. We do not believe this is a coincidence.

The Commission’s June 28 request for voter data has been met with resistance from state election officials from both parties, and forty-four states have refused to provide the Commission with all of the data it requested.  Accordingly, we request more information from the Department about the underlying authority for both June 28 letters. We respectfully ask that the Department provide responses to the following questions by July 24, 2017.

  1. What communications has the Department of Justice or any employee of the Department had with any member of or advisor to the Presidential Advisory Commission on Election Integrity? We also ask that you include any relevant documents or records of any such communications in your response.
  2. In its June 28 letter to state officials, the Department cites authority provided under the National Voter Registration Act (NVRA). When was the last time that the Department’s Civil Rights Division made an affirmative request for information from all states covered by the NVRA? Please describe the circumstances surrounding any such previous request and specific provisions of the NVRA the Department believes give it legal authority to make such a request.
  3. In your June 28 letters requesting data from state election officials, you wrote: “Data regarding confirmation notices, removals from the voter registration list, and active and inactive registered voters are of particular relevance and are among the categories of data for which reporting is required by EAC regulations.  However, such data for some states were not included in the 2014 [Election Administration and Voting Survey]. Thus, some states are receiving a request for any missing data as part of the information requested below.” But our review of that survey suggests that, for each of the categories you deemed to be of “particular relevance,” a significant majority of states did provide data. For each respective category of data you listed (i.e., data regarding confirmation notices, removals from the voter registration list, and active and inactive registered voters), please identify which states did not provide the required data.
  4. The Commission’s June 28 letter to state officials cites authority provided under Executive Order 13799 issued on May 11, 2017. The Executive Order does not specifically grant the Commission authority to collect and aggregate voter data. Under what legal authority did the Commission make such a sweeping request for voter data from state officials?
  5. Last May, the Department of Justice filed a Statement of Interest of the United States setting forth the Department’s position on interpretation of the NVRA and the Help America Vote Act (HAVA) regarding when a state can legally purge voters from registration lists. Following its longstanding interpretation, the Department took the position that a state may not consider a registered voter’s failure to vote to be reliable evidence that the voter has become ineligible to vote due to a change of residence, thereby triggering the designated NVRA list maintenance process.  “Both statutes,” the Department argued, “expressly forbid purging voters merely for not voting.”  Is this still the position of the Department? 
  6. Last July, the Department of Justice reaffirmed that position in an amicus brief in a Sixth Circuit case, Ohio A. Randolph Institute v. Husted.  The Department argued that states may not use a registered voter’s failure to vote alone to trigger the NVRA Section 8(d) confirmation process for removing the voter from the registration rolls based on a change of residence.  “Declining to vote does not provide . . . evidence” that a voter has moved. “To the contrary,” the Department argued, “triggering the confirmation process based solely on voter inactivity, as Ohio does through its Supplemental Process, inevitably results in the removal of voters based on nonvoting, which violates the NVRA and HAVA.” Is this still the position of the Department?  The Supreme Court recently granted certiorari in this case. Does the Department intend to participate as amicus before the Supreme Court?  If so, does the Department intend to change the position it advanced before the Sixth Circuit?
  7. The Administration has said its motivation for establishing the Commission is to address extensive voter fraud. Scientific evidence conducted by nonpartisan academic institutions consistently shows that widespread voter fraud does not exist. Does the Department have evidence that contradicts these studies?

In addition to the questions regarding the Department’s apparent coordination with the Commission and its position on NVRA enforcement, we are deeply concerned by how the Commission is going to protect the voter data it does receive from states. The Commission has requested personal information of American voters that is generally unavailable to the public, including names, addresses, dates of birth, political parties, voter histories, and the last four digits of Americans' social security numbers.  This is highly sensitive data that must be protected in accordance with federal laws that govern the collection of electronic data.  Given that the Department is charged with ensuring that federal entities comply with privacy laws, we request the following information about how the Department is working to ensure that the Commission adheres to the law.

8. On July 3, the Electronic Privacy Information Center filed an emergency injunction prohibiting the Commission from collecting data on Americans until it completes a privacy impact assessment (PIA) as required by the E-Government Act of 2002.  The Commission responded to the request by arguing that the Commission was exempt from completing a PIA because it is “not an “agency” within the meaning of these statutes because its sole purpose is to provide advice to the President.”  In 2012, the Department of Justice issued guidance on compliance with the E-Government Act of 2002 and how and when to compile PIAs. The 2012 guidance notes the Department’s Office of Privacy and Civil Liberties (OPCL) is charged with assessing whether a PIA is necessary. Has the OPCL conducted an initial privacy assessment regarding the Commission’s bulk collection of identifiable data? If not, we ask that such an assessment be conducted and reported to the relevant congressional committees of jurisdiction.
9. The Commission has only recently provided some information about security protocols put in place to protect voter registration information because of the previously mentioned litigation. The Privacy Act imposes both substantive and procedural requirements on federal government entities that collect and store personal records. These requirements ensure that the federal entity has thoroughly considered how it will use the data and has established safeguards that will prevent abuse. We ask that the Department detail what steps it has already taken to ensure that the data collected and stored by the Commission will not be in violation of existing state or federal law.

We also ask that you provide information on any communications that Department officials may have had with members or advisors to the Commission regarding the Privacy Act.

Thank you for your prompt attention to this request.

Sincerely, 

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