How Scared Should We Be of Trump’s Voter Fraud Commission?

This voting rights expert thinks: very.

Trump meets with Kris Kobach at the clubhouse of Trump National Golf Club on Nov. 20, 2016 in Bedminster, New Jersey.

Don Emmert/AFP/Getty Images

On Monday, the Supreme Court declined to step in and potentially overturn a lower court ruling that North Carolina’s restrictive voter-identification law is unconstitutional, specifically for how it targets black Americans. While this decision counts as a win for voting rights, it comes on the heels of last week’s announcement that Vice President Mike Pence and Kansas Secretary of State Kris Kobach will lead President Trump’s new Advisory Commission on Voter Integrity. Trump, of course, claims that millions of people voted illegally in the last election; Kobach supports that claim.

To discuss the state of voting rights in America, and the battles to come, I spoke by phone with Wendy Weiser, the director of the democracy program at the Brennan Center for Justice at NYU Law School. During the course of our conversation, which has been edited and condensed for clarity, we discussed the specific threats to voting rights going forward, the difficulty of predicting Supreme Court Justice Neil Gorsuch’s views, and why it’s so hard to get people to care about an extremely important issue.

Isaac Chotiner: Do you agree with the general opinion that the court’s move Monday was a victory for voting rights?

Wendy Weiser: I agree with that and think it is absolutely a victory. There is a very strong opinion by the 4th Circuit condemning the North Carolina law, and providing a really strong basis for its finding that it was intentionally discriminatory based on race. And that decision now stands. The giant voter-suppression law coming out of North Carolina is now done.

But the Supreme Court did not really rule on the merits. Is that worrisome going forward?

I think it is fair to say that the Supreme Court is still very interested in hearing one of the cases challenging voting restrictions. It has signaled this in many different ways, on many occasions, including today when Chief Justice Roberts issued a separate opinion to explain that a denial of cert does not signal anything about the merits. That is true for every denial of cert, and doesn’t require a separate opinion, and so it also made clear that the court didn’t think this was a good vehicle for revisiting the question of voting rights. But it has signaled on many occasions that it would like to. I think the court will likely hear another case in the coming years. There will be a Supreme Court showdown on voting rights.

What kinds of legal protections for voting are you worried about being undermined by future court decisions?

There are a number of issues that the court hasn’t fleshed out or ruled on. The first is the scope of Section II of the Voting Rights Act, which is a nationwide protection against discrimination. As you might recall, back in 2013, in the infamous Shelby County v. Holder decision, the court gutted Section V of the Voting Rights Act, which was a provision that applied only in a minority of states that had a history of voting discrimination. The court said that there still remained federal protections for voting discrimination nationwide. But the court hasn’t weighed in on the standards for this, and certain states are trying to challenge certain applications of Section II of the Voting Rights Act as themselves unconstitutional and push the court even further to undermine the Voting Rights Act.

I think that as a general matter, the appellate courts have been strong in applying the Voting Rights Act and developing a fairly consistent standard for how it should be applied to this new generation of problems, where states are trying to restrict access to voting. But the [Supreme] Court hasn’t weighed in yet. There are also questions about the scope of the Constitution’s protections for the right to vote. The court weighed in on that in a 2008 case upholding Indiana’s voter ID law. But that was a very narrow decision that left open a lot of questions, and there are some cases that are now working around that decision. I think ultimately the court will weigh in on how strong a protection the Constitution provides against undue burdens on the right to vote.

Has Neil Gorsuch weighed in on voting matters during his career?

He has not weighed in on voting cases. But I would say that it is hard to fully predict how people are going to rule on voting cases, because the factual records in all of the major cases that are likely to reach the Supreme Court are so strong, both in terms of how much they undermine voter access, and how little they are justified by any legitimate justification, and in at least several cases even in showing illicit motive. So I think these cases present the issue much differently than the cases that previously reached the Supreme Court, which were without really detailed factual records and studies of the impact and context of these new requirements.

Trump announced this new commission on voting integrity. How much can the federal government do to restrict voting rights, and how worried are you about it?

I am very worried. I think it presents a grave danger. The circumstances around the creation of this commission do not inspire confidence, and its membership does not inspire confidence. In particular, it has a very narrow mission. The commission seems designed precisely for the purpose of recommending legislative and policy ways to restrict voting. It is going to look through laws and practices governing voting and decide which ones inspire confidence in elections, which ones reduce confidence, and then look for particular vulnerabilities to voter fraud without even measuring the overall vulnerability of the system to voter fraud. And voter fraud is defined very narrowly as ineligible persons voting. It doesn’t account for the major threat to our elections from major foreign interference.

It’s a very narrow charge that really raises concerns that it is designed to justify voting-restriction legislation. And a majority of the members actually have notorious histories of promoting restrictions on the franchise. Is it going to work? I think there is a real risk that a Republican Congress might take up some of the suggestions that are raised. There is a risk that there will be so many other scandals that this will go through. People won’t be paying enough attention.

You are the expert, but isn’t it more likely that the recommendations will be taken up by states, rather than by a Senate where you would need 60 votes?

It would still be elevating the ideas and making them a central focus of public discourse, and it would put the weight of the president behind them, which is especially pernicious. And I do think that there is a risk that is greater than you are stating of congressional legislation. Kris Kobach has suggested this, and the secret memo that was photographed during his transition meeting with Trump was recommending revisions to the National Voter Registration Act, which is federal law. So I don’t think that federal legislation is out of the question. Will it be filibustered? I think there is a high likelihood that Democrats would filibuster it. Will the filibuster survive? I don’t know. I just think it is something we need to take very seriously. It’s hard to take seriously something that actually doesn’t deserve to be taken seriously. It’s a difficult place to be.

That’s our world now.

Yes it is.