A federal court on Friday heard arguments in a lawsuit alleging that the president's "election integrity" commission has violated federal privacy laws in its request for voter information from the states.
US District Judge Colleen Kollar-Kotelly held more than an hour of arguments over the Electronic Privacy Information Center's request that the commission be halted from collecting the information while the lawsuit is heard. She did not rule from the bench, but told the parties that she would try to issue a written ruling as soon as possible.
In the course of the arguments, a Justice Department lawyer acknowledged that one state, Arkansas, has transmitted voter information to the federal government thus far. The data was sent, the lawyer said, on Thursday.
In May, President Trump established the Presidential Advisory Commission on Election Integrity, which is chaired by Vice President Mike Pence. But its vice chair — Kansas Secretary of State Kris Kobach — has been the public face of the commission since.
The commission began as follow up to Trump's unfounded and repeated claim that 3 million to 5 millions illegal votes were cast in the 2016 election. The origin of the commission, its membership, and its aims have been criticized by many people, including some Republicans, since it was announced.
Kobach, on behalf of the commission, sent the letter requesting the voter information on June 28. Over the course of the next week, elections officials in nearly every state said the request went too far and that their state — including Kobach's own Kansas — would not be turning over all the information requested.
On Monday, July 3, the Electronic Privacy Information Center sued, alleging the commission's request violates the E-Government Act of 2002, which requires a Privacy Impact Assessment be completed before government engages in certain actions.
The group asked the federal district court in Washington, DC, to issue a temporary restraining order, halting the commission from collecting any of the information until the lawsuit is resolved. The Trump administration opposed the request, and — in the midst of a flurry of filings from both sides — Kollar-Kotelly set the Friday afternoon hearing.
At the arguments, held in the E. Barrett Prettyman US Courthouse, Kollar-Kotelly peppered EPIC's lawyer, Marc Rotenberg, and the Justice Department's Elizabeth Shapiro with questions about standing — whether EPIC or its members could point to harms it or they suffered as a result of the commission's failure to conduct a privacy assessment — and whether the presidential commission is subject to the E-Government Act.
Rotenberg detailed how it was EPIC's view — despite the government's characterization of the voter information as "publicly available" — that the states cannot send much of the information requested and the commission cannot receive it, in part due to the lack of the privacy assessment. That created individual harm to the group's advisory board members, Rotenberg argued, and organizational standing because EPIC has had to focus its time on addressing the commission's requests — and to do so without the benefit of the privacy assessment.
In addition to arguing that EPIC and its members lack standing, Shapiro's key argument for the commission was that the commission is not subject to the E-Government Act. Specifically, Shapiro argued that the commission is not an "agency" as defined in the act under which the assessment would be required.
On that front, however, Kollar-Kotelly's questions focused in part on the website where Kobach's letter directed states to send their information — the Safe Access File Exchange (SAFE) site, found at https://safe.amrdec.army.mil/safe/Welcome.aspx. Specially, the army.mil address led Kollar-Kotelly to question whether the Army and Department of Defense are therefore involved in the commission's work.
Rotenberg initially pushed back and said that, if anything, the military's involvement was not permitted under Trump's executive order, which dictated that support for the commission was to come from the General Services Administration (GSA). Kollar-Kotelly, however, kept pressing the point to both sides. Shapiro, for her part, argued that the site is just a "conduit," although she later acknowledged that Arkansas had uploaded data to the SAFE site where it is being stored currently.
After a brief break, Kollar-Kotelly came back to the courtroom, asked a few more questions about the SAFE site, and urged EPIC to amend its lawsuit quickly to include the Defense Department if it wished to do so. She issued no ruling, noting the complexity of the issues, but added that she understood the importance of the timing in the TRO request and would attempt to issue a written ruling as soon as possible.
Shortly after court recessed, meanwhile, EPIC filed an amended complaint, adding the Defense Department as a defendant.
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at email@example.com.
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