As N.H. Deputy Secretary of State David Scanlan explained on The Exchange, the voter information requested by the Commission on Election Integrity is already publicly available and has been for about ten years -- though there are laws governing who gets access to that voter information, as well as how it is accessed and used. For election-law attorney Paul Twomey, the Commission's request, in addition to being politically suspect, does not fall within that legal framework and could lead to major security risks.
Both Scanlan and N.H. Secretary of State Bill Gardner have seemed somewhat taken aback by the uproar over the Commission's request. Scanlan places some of the blame on a polarized political climate. Since our conversation, as NHPR's Casey McDermott reports here, the ACLU has joined with two N.H. lawmakers in suing Gardner over his plans to comply with the Trump Administration's request for voter information.
Scanlan: There is a distinction in terms of what’s available to a political committee versus what’s available to the average person. An average person can’t get a copy of it; you can go and view it at a central location in the state archives building. Or you can go town by town and aggregate those individual copies... Part of the concern raised is whether this committee is getting preferential treatment.
The voter check list is kind of a living document that shows who qualified voters are in any particular voting district. It really is a right for any voter any citizen in New Hampshire to be able to see who is actually participating in their elections. -- David Scanlan, N.H. Deputy Secretary of State.
Under the Help America Vote Act of 2002, every state would create a centralized statewide voter database. We had to take all of the town checklists and put them into a uniform set of data and create a list from all of that info. Congress required New Hampshire to continue to collect the info: the name, the address of the voter, party affiliation. New Hampshire received about $17 million to create the database.
What information is already publicly available in New Hampshire?
Scanlan: Public information is the name of the voter, the voter’s party affiliation -- if any -- their physical address, their mailing address, and voter history (meaning when and if they voted, not whom they voted for). Different states have different laws on what information is public and private.
What are the objections?
Twomey: The information isn’t just available -- it’s available to different types of entities in different forms. The towns can give the public information to anyone who comes around one-by-one to the towns or wards. But the towns can decide the type of access – whether it’s digital or on paper.
If somebody wants the whole thing at once, the Secretary of State can make it available at the archive. But the statute says they can’t copy it; they can’t photograph it; they can’t transmit it in any way, so the public’s right to know the data and to know who’s voted is protected but at the same time the legislature was trying to protect the right to privacy. Because the way you give this information out really determines how much of an impact on somebody’s privacy there is.
To what extent is voting data protected in New Hampshire?
Scanlan: We go to great lengths to make sure that our private data on voters is kept private. And we know that like any government entity there are individuals or sources that try to get into the data base, but to the best of our knowledge we have not had anybody that has been successful getting into our system. Our voter database is protected within our department, but we also sit behind the firewalls of the state of New Hampshire.
Scanlan: New Hampshire participated for the first time in an interstate cross-check program, where we actually bumped our public information of voters up against the voters of other states, in an effort to keep the voting list clean and prevent double voting... .The important thing to know, is we [New Hampshire] entered agreements with those states to keep that information private, and as soon as that information was compared, the data we had sent down to the cross check program was deleted.
Twomey: Cyber security experts say that when you take that seemingly harmless information and then combine it with all the other information that's available on the web, that you can draw an extremely detailed portrait of a person and invade their medical records."
In Maine, the Secretary of State sat down with the Maine Attorney General to determine the request's legality.
Matthew Dunlap, Maine Secretary of State and member of the Presidential Advisory Commission on Election Integrity: Under Maine law, there are entities that are entitled to get a copy of the list: candidates, issue campaigns, political parties...We did a close reading of our statute and our statue is quite clear, that anyone who gets a copy of our voter file must keep it confidential and it is very explicit in the law that it must be confidential....We took a step back. We wanted to make sure it qualified under Maine statutes. It does not.
I sat down with the attorney general and it's a clear conflict for us -- that because in the letter it states it's got to be part of the public documents of the Commission and our statute that says it has to be held confidentially, we could not convey it. And also too, the confidential clause in our law is directory, whereas people who can access the voter file is discretionary.
Why are people so upset about the voter database when there are other databases, like the Real ID database, that collect even more information?
Dunlap: The difference is, upon reflection is that, when you talk about the electoral process and people participating in democracy and the background of this polarized climate nationally that we are in, the idea that federal officials are going to be looking at your name and your voting history for what purpose, really sets them off. So I guess in hindsight we really should have been able to predict that, but now we have a better understanding of what people's sentiments are about their private information visa the voter file.
For some, the Commission is itself a problem. For others, it's a chance to either confirm or dispel concerns about voter fraud.
Twomey: It's somewhat ironic that you're going to rely on people to dispel a misconception that they themselves created. I'm talking about Mr. Kobach and several other members of this commission. I do agree this misperception is out there and it would be helpful for us as a society to dispel it but setting ups a commission with the people that created it is the wrong way... You could set up a fair commission, you could give them whatever information they needed in a safe way that wouldn't be put up on the Internet. But this isn't it; this is a different animal.
Scanlan: This Commission needs a chance to do what would be really important work. Unfortunately, we have two sides very polarized… at some point we have to come together and atlk about these issues. Geat the data tto prove what’s going on. "Kris Kobach 10 days ago was fined... by a federal court for being dishonest in his statements to the court about voter fraud. And that's an astonishing thing."