America's Data Crisis: How Public Voter Registration Data Has Exposed the American Public to Previously Unforeseen Dangers and How to Fix It

• Author: Charles J. Pults
• Position: J.D. Candidate, The University of Iowa College of Law, 2020; B.A., St. John's University (MN), 2017
• Pages: 1363-1409

1363

America’s Data Crisis: How Public

Voter Registration Data Has Exposed

the American Public to Previously

Unforeseen Dangers and How to Fix It

Charles J. Pults*

ABSTRACT: Each election cycle, millions of Americans register with their

state to exercise the most fundamental of their constitutionally-protected

rights—the right to vote. As part of the registration process, states request

several highly sensitive pieces of information from individual voters. Voters

may be required to disclose their name, address, date of birth, Social Security

number, party affiliation, and more. States, in turn, compile this data and

distribute it to third parties. This distribution of voter registration data has

left the American populace exposed to identity theft, stalking, election

manipulation, and more. This Note suggests Congress should pass a new

federal statute to curtail the distribution of voter registration data. This

statute would restrict who can access voter data, the purposes for which that

data can be used, and what personal information can be distributed as part

of a voter record. Additionally, the law would create a national Address

Confidentiality Program to ensure domestic violence victims could cast a

ballot without placing themselves in danger. Lastly, the statute would

mandate new data security measures, so highly personal information does not

make its way into the hands of people who might use it to wreak havoc.

I.INTRODUCTION ........................................................................... 1364

II.DISENFRANCHISEMENT, FRAUD, AND RACISM: THE HISTORY

OF AMERICAN VOTER REGISTRATION .......................................... 1367

A.VOTER REGISTRATION AND THE CONSTITUTION ...................... 1368

B.THE HISTORY OF VOTER REGISTRATION AND THE STATES ....... 1369

C.FEDERAL INTERVENTION: THE NATIONAL VOTER

REGISTRATION ACT AND THE HELP AMERICA VOTE ACT ......... 1371

*

J.D. Candidate, The University of Iowa College of Law, 2020; B.A., St. John’s University

(MN), 2017. I would like to personally thank Professor Chris Liebig, Emma Russ, Derek Miller,

and the rest of the editorial board for the many hours of work they put into this piece. I’d also

like to thank my parents, Don and Tina, for their constant love and support.

1364 IOWA LAW REVIEW [Vol. 105:1363

D.CONTEMPORARY VOTER REGISTRATION ................................. 1373

E.VOTER RECORD PRIVACY: INDIVIDUAL STATE POLICIES............ 1374

III.CONTEMPORARY PROBLEMS WITH VOTER REGISTRATION

DATA ........................................................................................... 1377

A.DOMESTIC VIOLENCE ............................................................. 1377

B.IDENTITY THEFT ................................................................... 1380

C.DATA BREACHES ................................................................... 1381

D.CHANGING ELECTION RESULTS .............................................. 1382

E.PARTICIPATION IN AMERICAN DEMOCRACY ............................ 1385

IV.THE PROTECT AMERICAN DEMOCRACY ACT ............................... 1386

A.GENERAL RESTRICTIONS ON ACCESSIBILITY ............................ 1387

1.Who Should Be Able to Access Voter Data ............... 1388

2.What the Data Can Be Used for ................................. 1389

3.What Data Should Be Included in the Voter File ..... 1389

B.THE ESTABLISHMENT OF A MANDATORY ADDRESS

CONFIDENTIALITY PROGRAM ................................................. 1390

C.MINIMUM DATA SECURITY REQUIREMENTS FOR VOTER

REGISTRATION DATA ............................................................. 1390

D.PROPOSED STATUTORY LANGUAGE ......................................... 1391

V.CONCLUSION .............................................................................. 1395

APPENDIX: VOTER DATA RESTRICTIONS BY STATE ...................... 1397

I. INTRODUCTION

Five days after his inauguration, President Trump announced he would

“be asking for a major investigation into VOTER FRAUD, including those

registered to vote in two states.”1 Following through on this promise, his

administration created the Presidential Advisory Commission on Election

Integrity to root out fraudulent voting behaviors.2 Despite scant evidence of

any substantive voter fraud,3 the Commission, headed by Vice President Mike

1. Donald J. Trump (@realDonaldTrump), TWITTER (Jan. 25, 2017, 4:10 AM), https://

twitter.com/realDonaldTrump/status/824227824903090176 [https://perma.cc/M79Z-JYNY].

2. Michael Wines & Maggie Haberman, Trump Closes Voter Fraud Panel That Bickered More

Than It Revealed, N.Y. TIMES (Jan. 4, 2018), https://www.nytimes.com/2018/01/04/us/voting-

fraud-commission.html [https://perma.cc/MUW5-BYWA].

3. Mythili Sampathkumar, Donald Trump Launches Official Investigation into Voter Frau d After

Claiming It Cost Him Popular Vote, INDEP. (May 11, 2017, 2:48 PM), https://www.independent.

co.uk/news/world/americas/us-politics/trump-voter-fraud-commission-popular-vote-loss-election-

order-a7730476.html [https://perma.cc/EU9L-PU2B].

2020] AMERICA’S DATA CRISIS 1365

Pence and Kansas Secretary of State Kris Kobach, was charged with

“study[ing] vulnerabilities in voting systems . . . that could lead to improper

voter registrations, improper voting, fraudulent voter registrations, and

fraudulent voting.”4

To effectuate this purpose, the Commission reached out to individual

states and requested certain pieces of voter registration data.5 The states were

supposed to provide the Commission with each individual voter’s full name,

address, birthdate, party affiliation, Social Security Number, voter registration

status, criminal record, military history, and dual citizenship information.6

Many states were outraged by the request, calling it: “disingenuous,”7

“inappropriate,”8 “an attempt to legitimize voter suppression,”9 and “bogus.”10

The Mississippi Secretary of State eloquently suggested “[the Commission]

4. Press Release, The White House, President Announces Formation of Bipartisan

Presidential Commission on Election Integrity (May 11, 2017), https://www.whitehouse.gov/

briefings-state ments/presiden t-announces-formation-bipartisan-presidential-commission-election-

integrity [https://perma.cc/4LPZ-9ZFY]. Kris Kobach was the 2018 Republican Gubernatorial

nominee for Kansas, and despite the “deep-red” nature of that state, he lost to Democrat Laura

Kelly. Mark Joseph Stern, Notorious Vote Thief and Incompetent Gubernatorial Candidate Kris Kobach

Loses in Kansas, SLATE (Nov. 6, 2018, 10:44 PM), https://slate.com/news-and-politics/2018/

11/kris-kobach-loses-kansas-governors-race.html [https://perma.cc/F3W9-4C5V].

5. Wines & Ha berman, supra note 2.

6. Letter from Kris W. Kobach, Vice Chair, Presidential Advisory Comm’n on Election

Integrity, to The Honorable Denise Merrill, Conn. Sec’y of State (June 28, 2017), available at

http://media.kansascity.com/livegraphics/2017/pdf/PEICletter.pdf [https://perma.cc/K56D-

H3ZM] [hereinafter Kobach Letter]; see also Liz Stark & Grace Hauck, Forty-Four States and DC

Have Refused to Give Certain Voter Information to Trump Commission, CNN, https://www.cnn.com/

2017/07/03/politics/kris-kobach-letter-voter-fraud-commission-information/index.html

[https://perma.cc/V6ZM-52DT] (last updated July 5, 2017, 5:49 AM) (explaining Kobach’s

letter and the individual state responses to it).

7. Del. Dep’t of State, Delaware Will Not Provide Vot er Information to White House Commission,

DELAWARE.GOV (July 3, 2017), https://news.delaware.gov/2017/07/03/delawar e-will-not-provide-

voter-information-white-house-commission [https://perma.cc/WD58-F6SF] (quoting the Delaware

Secretary of State Jeffrey Bullock).

8. Id.

9. Tom Loftus, Grimes: ‘Not Enough Bourbon’ in Kentucky to Make Commission’s Voter Data

Request Seem Sensible, COURIER J., https://www.courier-journal.com/story/news/poli tics/2017/

06/30/grimes-says-she-wont-send-kentucky-voter-data-trump-commission/442751001 [https://

perma.cc/QF7G-MV8G] (last updated July 1, 2017, 12:45 PM) (quoting the Kentucky Secretary

of State as saying “there is ‘not enough bourbon here in Kentucky to make this request seem

sensible’”).

10. Press Release, James C. Condos, Vt. Sec’y of State, Secretary Condos Issues Response to

Letter from President Trump’s Election Integrity Commission Requesting Voter Information

(June 30, 2017), available at https://www.sec.state.vt.us/media/857447/secretary-condos-response-

to-kris-kobach-election-integrity-commission-letter.pdf [https://perma.cc/F2VD-X98C]; see also

Stark & Hauck, supra note 6 (describing how each individual state responded to the initial

Commission request, including many responses that were less than cordial).