Since President Trump’s Election Integrity Commission was last in court, the commission has announced plans to dramatically alter how it plans to collect state voter information in an attempt to avoid a potential legal ruling that could require it to conduct a privacy assessment before collecting the data. The plan, more or less, is to have a few people on the White House staff conduct all of the work of the commission in order to help maintain a legal argument that the “sole function” of the commission is to advise the president. The commission is chaired by Vice President Mike Pence. On Monday, Charles Christopher Herndon, the director of White House Information Technology, laid out how limited that would be in a declaration submitted in the case brought by the Electronic Privacy Information Center. “The Executive Committee for Information Technology will have no role in this data collection process. The U.S. Digital Service (which is within the Office of Management and Budget) will also have no role, nor will any federal agency,” Herndon wrote. “The only people who will assist are a limited number of my technical staff from the White House Office of Administration.”
The Presidential Advisory Commission on Election Integrity — whose membership has only added to the concern that the commission is an attempt to push back voting rights — announced previously that it would not be using a Defense Department website for states to upload requested voter data. (Many states have balked at sending all of the data requested, and only one — Arkansas — submitted data by the time of the July 7 hearing in the case.)
The commission stopped using the Defense Department site because the federal judge hearing EPIC’s case challenging the would-be data collection made it clear that she saw potential problems under the E-Government Act if non-White House agencies were involved in the data collection. This is so because such agencies would more clearly be subject to the law’s requirement that a privacy impact assessment be completed before the government engages in certain actions.
No such assessment was conducted before the commission’s vice chair, Kansas Secretary of State Kris Kobach, requested the data from state officials. EPIC sued. The Justice Department lawyers defending the commission are focused on two arguments: EPIC and its members don’t have standing to bring the lawsuit, they say, and, even if they do, the commission — because it only advises the president — is not covered by the law.