Another federal judge has turned down a request to prevent President Donald Trump’s voter fraud commission from going forward with plans to collect details information on about 200 million American voters.
After an hour-long hearing Tuesday, U.S. District Court Judge Royce Lamberth denied the watchdog group Common Cause’s motion for a temporary restraining order focused on data requests the panel’s vice chair, Kris Kobach, has issued to all 50 states.
The requests — seeking publicly available voter information, including dates of birth, partial Social Security numbers, and criminal conviction details — led some state election officials to say they didn’t plan to comply or would limit the information they would share. Civil rights groups also complained that the entire effort was aimed at disenfranchising minority voters.
Lamberth didn’t explain in detail why he was denying the restraining order, but he said the request fell short "on the record before me." He also seemed irked the lawyers seeking the order had not provided the court with a full transcript of the panel’s July 19 meeting where Kobach talked about seeking the data from the states and cross-checking it with federal agencies.
A lawyer representing Common Cause, Josephine Morse of Democracy Forward, argued that Kobach’s statements at the meeting and in media interviews made clear he intends to involve federal agencies like the Social Security Administration and Department of Homeland Security in trying to find voters who aren’t eligible to vote.
However, Lamberth said he wouldn’t rely on attorneys’ assertions about what Kobach had said there or in media interviews.
"I don’t use internet evidence like videos as court evidence," said Lamberth, an appointee of President Ronald Reagan. "I don’t take judicial notice of TV interviews. … I don’t take judicial notice of news articles and all that junk."
The main issue in dispute is whether the Presidential Advisory Commission on Election Integrity has essentially converted itself into a federal agency because of its plan to gather and manipulate a large volume of personal data on individuals. Common Cause and other groups have argued that kind of investigation makes the body an agency.
"It’s behaving like an agency with executive powers," Morse said. "This is the kind of activity, we would submit, that an agency conducts. … That is class, textbook-classic, agency behavior affecting individual rights."
Another lawyer for Common Cause, Skye Perryman of Democracy Forward, emphasized that the group is not seeking a halt to all the panel’s work.
"We’re not trying to shut the commission down from everything that it’s doing…It’s really our desire to stop the collection of First Amendment data," Perryman said. She said details like party affiliation show who a voter associates with and isn’t the kind of information the federal government should be collecting.
"This is not something that dollars and cents can compensate for down the line," she added.
Lamberth signaled that he understood that concern, but he noted that Kobach’s request has been for data that is already public under state public records or election laws.
"I think that makes a difference," he said.
Justice Department attorney Elizabeth Shapiro said the public nature of the information undercut the notion that the request was imposing irreparable harm on those covered by it.
"Normally, you get much more information under a State FOI [law] than under federal FOIA," observed the attorney, who oversees the federal government’s defense in FOIA cases.
Shapiro also raised technical issues, claiming that Common Cause could not sue under the Privacy Act because it is an organization not a person.
"The commission should be able to proceed with doing its work," she said.
In the past few weeks, another judge in D.C., Colleen Kollar-Kotelly, turned down requests for preliminary injunctions against the voter fraud panel in three separate lawsuits brought by the other groups.
Two of those cases are already on appeal to the D.C. Circuit. Lamberth said he expects the Common Cause case will soon be as well.
"We’ve just got to tee it all up for the court of appeals," he said.
It’s unclear why the suit was assigned to Lamberth, since the other cases were deemed related and assigned to Kollar-Kotelly. The judge said the reassignment was a mystery to him.
While the case found little traction with Lamberth Tuesday, he’s not hostile to Privacy Act claims and he has sometimes issued rulings giving a broad scope to the privacy-protection law. In 1997, he ruled that the White House was an agency subject to the Privacy Act. However, more than a decade later, he reversed that decision. The judge said intervening precedents had rendered his earlier ruling incorrect.
In addition to the suits brought in Washington against the commission, another case challenging the panel’s legal legitimacy is pending in New York.