Editor's note: Even though President Trump disbanded his controversial election integrity commission in early January, its de facto chair, Republican Secretary of State Kris Kobach, said the commission's work scrutinizing the credentials of every voter could continue at the Department of Homeland Security. Kobach and his allies want to make documented proof of citizenship a new hurdle to registering—as opposed to signing one's name on a registration form as a legal oath.
Maine Secretary of State Matt Dunlap was one of the few Democrats on the panel. In an exit interview with WhoWhatWhy.com, he went beyond recounting his battles with Kobach over disclosing the panel's agenda to revealing why Kobach was so quick to say Homeland Security can continue its work. This excerpt starts with Dunlap noting that DHS citizenship databases and ID programs have been deeply problematic. That could serve voter suppressors by potentially preventing multitudes from having registration information verified and thus narrowing the electorate. While DHS has issued statements saying it wants no part of the voting process, Kobach has been promoting proof of citizenship for years and is likely to continue.
Dunlap's comments are a cautionary tale, as DHS has the federal authority to take over the voting process—a fact that is not widely known.
Sean Steinberg: Can you point to anything specific that makes you believe this investigation, conducted by a federal agency, would be any less transparent — or at least equally opaque — as the one run by this commission?
Matt Dunlap: Well, we do an awful lot of work with Homeland Security, and Homeland Security is a very curious agency. It was created after the 9/11 attacks, of course, but one of the things that they manage is the implementation of the Real ID act. And Real ID is something that we fought very strenuously for many years until, finally, they just crushed us.
They were already tying off access to many federal facilities. I was getting calls from fire chiefs because their firefighters couldn’t go to the National Fire Academy because of Homeland Security — they didn’t have a Real ID or a passport. You had caterers who couldn’t get their delivery trucks onto military bases because they didn’t have Real ID. UPS drivers. You name it. I mean, they were putting the squeeze. And the legislature finally folded and they moved to comply with Real ID.
I won’t get into the whole horror story of Real ID, because it’s a long horror story, and I’ve been on the ground floor of that, too; that was actually my first federal working group, which was the negotiated rulemaking committee to establish minimum standards for issuance of state ID cards and driver’s licenses that was created under the Intelligence Reform and Terrorism Prevention Act of 2004. And that whole driver’s license piece from the 9/11 Commission recommendations was moved from federal DOT to Homeland Security. And as part of the authority that was granted to Homeland Security, they were given the ability to amend their rules, at any time, without notice.
So when you couple that with a designation of election systems as critical infrastructure by Homeland Security — which gives them very broad regulatory latitude — you start putting in place the elements for Homeland Security to basically tell the state how to run elections. And that’s not done through legislation; it’s not done through policy-making; it would be done through the side door: by rule or by executive order. There’s a pretty good example of what could happen with this.
Now, to Homeland Security’s defense, they really stepped in it with this international hacking thing. And when I say they “stepped in it,” they went very public, very hard, very early, without having any idea of what they were talking about.
And it broke a lot of relationships with state elections officials. Because we were all telling them: “You don’t know what you’re talking about. Our systems are not centralized; you can’t flip a switch and hack our elections.” I mean, we’re all paper ballots in Maine; you can’t hack a paper ballot. And so I think they’ve actually been making an effort to try to repair those relationships and be more collaborative with us.
And what I’m hearing in the back chatter is that they want nothing to do with this, ‘cuz here they are starting to make some progress in working with states, and now this president drops this in their laps and says, “Go find voter fraud,” and I don’t think they want anything to do with it.
Because I think they’re right: I don’t think this is their charge, because there is no federal agency that oversees elections. Like I said, going back to how the states occupy the field, the federal government doesn’t issue driver’s licenses, that’s why they did this big ‘in-around’ with the Real ID Act, saying, “Okay, well you don’t have to comply, but if you don’t, your citizens can’t fly.”
You know, it’s that type of stuff that they do to get around the Tenth Amendment, which, you know, I don’t even know why we have a Tenth Amendment anymore. [Editor’s Note: The Tenth Amendment reserves for the states powers not granted to the federal government.]
SS: Any final thoughts?
MD: I think people should stay in tune to this, because obviously, there’s a lot more yet to come, and we’re not going to give up and we’re not going to stop fighting.
Read the entire interview.