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A primer on the Trump voting records scandal – and why non-US countries need to be concerned

VotingBy Simon Davies

David Hume famously noted “It is seldom that liberty of any kind is lost all at once.” America is starting to wake up to that sage observation. One of its most precious liberties – the ballot box – is suffering Death by a Thousand Cuts.

In the beginning, this execution was committed by states, many of which collected vast amounts of personal information linked to voter registration records. Much of this data – though not all – was made public. True, there needs to be some level of public oversight of voter records, nut many states went too far.

This was followed in the 1990’s by the creation of vast databases, controlled by the major parties but which exploited the state data. Then, quite recently, another culprit was identified as being more digital: voter analytics, Big Data, online profiling and so on. These three strands are now almost fully integrated. Indeed it has been argued that entire elections have been swung by this web of technology.

Even for an administration characterised by confused and vacuous policy, this latest move is without parallel.

Now, over the past two weeks, a vast controversy has been spreading over the latest and most dangerous incursion: an extraordinary move by the White House to even further subvert the integrity and confidentiality of voter information. Put simply, the US administration is intent on forcing the states to hand over sensitive voter record data on a scale that is unprecedented.

Even for an administration characterised by confused and vacuous policy, this latest move is without parallel. It appears to be fuelled by Donald Trump’s unsubstantiated claim that the 2016 election was skewed by millions of fake and improper votes. The president seems to be obsessed that he lost the popular vote and he intends to find a way to pin blame on states over the matter.

In what many commentators describe as an inglorious fishing expedition, Trump then proceeded to establish a Presidential Commission on Election Integrity, (padded with a few members who have an unsavoury track record on democracy and rights issues). The Commission has no legal standing but even before the body had formally met, it sent letters to all states, demanding their complete set of voter records.

Unlike some European countries, this data is not confined to basic name and address details on a public “roll”. Date of birth, party affiliation, and when you voted is public information. Importantly , this record is linked in state data systems containing a voter’s social security number, criminal record, driver’s license number, and the source of the voter registration application.

This is an opportunity for institutions such as the Council of Europe to take a stand on the Trump plan.

It should be noted that the federal government has no legitimate business auditing the states on such matters. The creation of a central database of such magnitude is not a federal concern – and nor should it be. Legislation had already been passed fifteen years ago requiring the states to create integrated, electronic records to ensure that there was adequate voting oversight at fifty levels across the nation.

Media outside the US have – so far – not made these developments a key issue, but they need to do so quickly. True, Europe has been rightly preoccupied with its own internal problems (Brexit, the Polish constitutional crisis, a steep rise in state intrusion and the collapse of free movement), but it needs to take careful note of the US developments. If it does not do so, there will inevitably be a future degradation of EU voter privacy, as rogue member states such as Poland consider taking the US lead. Europe only needs to look back a few decades to recall that the sanctity of the ballot box is fragile and can be eroded piece by tiny piece in the name of “public interest”. This is an opportunity for institutions such as the Council of Europe to take a stand on the Trump plan.

Legal action against the initiative has been spearheaded by the Electronic Privacy Information Center (EPIC), which – just five days after the Commission was formed – launched a series of actions urging courts to block the transfer of data, the latest of which is an application in the federal court for a Restraining Order. These actions have helped galvanize the resolve of states, 44 of which have fully or partially resisted the Commission’s demands. In response, Trump hilariously suggested that the states that haven’t complied have something to hide. “What are they worried about? There’s something. There always is,” he said.

This, however, is an issue that goes well beyond privacy. It touches on the integrity of the voting process and public confidence in the the voting infrastructure. Privacy might well be the core driver, but here is an issue which demonstrates why privacy underpins so many of our democratic institutions and processes. As numerous defiant Secretaries of State have observed, Trump’s plan undermines the clarity and privacy guarantees that most states have been striving for over many years. Amassing a federal database on such a scale without such guarantees – and without any assurance of even basic security – will corrode trust in the voting system and wreak havoc on voter turnout. France knows this complexity all too well. This year it dropped plans to introduce e-voting because security fears would imperil trust and integrity in the election process. Trump should take note that meddling in such matters will have repercussions.