- The Washington Times - Monday, July 17, 2017

President Trump’s Advisory Commission on Election Integrity responded to one of an increasing number of lawsuits against it, asking a federal judge Monday to deny a request seeking to prevent the gathering of states’ voter data over concerns about transparency and privacy.

In a court filing on Monday, the commission argued federal law doesn’t require it to perform a privacy risk assessment before collecting voter data, which was a key argument in one of the first lawsuits brought by the Electronic Privacy Information Center (EPIC) earlier this month.

After Kris W. Kobach, the panel vice chairman, asked states to turn over names, partial Social Security numbers, birthdays, political party affiliations, military status and other public information last month, EPIC filed suit, hoping to force the commission to complete a Privacy Impact Assessment before gathering the personal data.

EPIC quickly scored a win when the commission suspended its collection of state voter information earlier this month until a judge rules on the matter.

On Monday the commission asked the judge to deny EPIC’s request for a restraining order on the gathering of data, arguing that the pro-privacy group doesn’t have the legal right, or “standing,” to file the lawsuit.

“As a threshold matter, the Court lacks jurisdiction to award preliminary relief because plaintiff has failed to establish standing. Plaintiff has not alleged any facts that the organization itself has suffered any injury, nor has it identified a single member who is suffering injury,” the commission argued in its brief.

William McGeveran, a law professor at the University of Minnesota, said if the court rejects the commission’s technical arguments against the litigation, “EPIC should win on the substance of privacy law.”

“If an ordinary federal agency like the Commerce Department made such a sweeping data request with so little planning, it would certainly violate the law,” said Mr. McGeveran.

But John Eastman, a law professor at Chapman University, said he thinks the commission’s legal argument on Monday against EPIC is very strong, and that the commission is simply asking for information that’s already public, so there’s no need for a privacy risk assessment mandated for federal agencies under federal law.

“Nobody has any privacy interest at stake,” said Mr. Eastman. “The fact of the matter is we have a serious problem with election integrity in this country.”

EPIC now isn’t alone in the legal battle, as three other organizations have also launched separate lawsuits over the past two weeks against the commission.

The American Civil Liberties Union (ACLU) also sued earlier this month, alleging the commission wasn’t being transparent after the first meeting was closed to the public. The ACLU also argues the commission lacks bipartisanship and different points of view.

Last Friday, Common Cause, a watchdog group, filed a lawsuit against the commission, and last week the Lawyers’ Committee for Civil Rights Under Law also sued the election panel at the U.S. District Court for the District of Columbia. Both challenges argue claims similar to the ACLU and EPIC.

Samuel Issacharoff, a law professor at New York University, said the commission’s agenda creates skepticism because it is focusing on in-person voter fraud rather than large-scale election hacking.

“If the commission is seen either as an accessory of efforts to restrict ballot access of recent years, or as some sort of post-hoc validation of the Trump campaign claim of millions of illegal voters, there will be resistance both politically and legally,” said Mr. Issacharoff. “So far, the conduct and composition of the commission, together with its odd requests for voter rolls without security concerns, reinforce that impression.”


• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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