On voter privacy, we've taken one step forward and two steps back
© Greg Nash

In our tumultuous political climate, at least we can count on one thing: a bipartisan consensus from our elected officials on the importance of protecting Americans’ privacy. Right? Wrong.

The recent controversy over a White House commission request for voter data shows many state officials support protecting the privacy of this information. However, too many states also favor new ways to violate the privacy of supporters of charities, advocacy groups, and trade associations by requiring these groups to reveal information about the names, home addresses, employers, and donation amounts of their members.

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Sound hypocritical? It should. These officials support individual privacy in the act of voting, just not when citizens come together to speak about voting.

 

The controversy began last month when Kris Kobach, vice chairman of the White House Election Integrity Commission, wrote a letter to all 50 states. The information requested? Just the names, home addresses, birthdates, political party affiliations, and voting history of Americans since 2006. Oh, and the last four digits of every registered voter’s Social Security number for good measure.

That triggered a backlash from many secretaries of state. Forty-four states and the District of Columbia have refused to provide some or all of the requested info, often citing privacy concerns. So far, two lawsuits have been filed, and the Electronic Privacy Information Center requested that a U.S. district judge block the commission’s request. In response, the Office of the Vice President asked states not to send information for the moment.

In response to the original letter issued by the commission, California Secretary of State Alex Padilla released a statement saying he had a duty “to protect the voting rights and privacy of our state’s voters.” He pledged to “continue defend[ing] the right of all eligible voters to cast their ballots free from discrimination, intimidation or unnecessary roadblocks.” New Mexico Secretary of State Maggie Toulouse Oliver said she would “never release the personally identifiable information of New Mexico voters” and claimed she would continue “protecting the voting rights and personal privacy of our voters.”

While it’s heartening to hear these two public servants voice their concerns for voter privacy, their states don’t extend the same courtesy to everyone. Despite the rhetoric, their states are leading the charge to strip privacy rights from citizen groups.

In New Mexico, Secretary of State Toulouse Oliver has proposed a new rule invading the privacy of supporters of groups, including charities. She wants to publicly reveal the names and home addresses of supporters of such groups for merely mentioning candidates or even publishing nonpartisan information. Recently, the Office of the Attorney General in California began forcing charities to turn over the names and addresses of their significant donors in order to solicit donations in the state. Then, the state accidentally put all the donor lists on a website with no privacy protection.

Are we so shortsighted to forget the harm caused by compulsory disclosure laws? Just three years ago, Mozilla co-founder Brendan Eich, who was CEO at the time, was forced to resign over criticism for contributing $1,000 to a California ballot measure campaign six years earlier. How about admittance by the IRS that they targeted conservative groups applying for tax-exempt status and improperly requested donor information? In 2010, the homes of civilians in Wisconsin who supported the policy goals of Gov. Scott Walker were invaded by police. Thankfully, the state Supreme Court later ruled the prosecution was improper.

It’s also worth remembering the initial reason why privacy in association has been protected. In the 1950s, Alabama attempted to seize the member list of the NAACP as a way of pushing the group out of the state. After a long court battle, the Supreme Court ruled in favor of the NAACP, holding that “it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.”

It is encouraging that so many states are asserting the need to protect voter privacy from government overreach. However, we should not forget that individual privacy rights are violated every day by overreaching, poorly-written campaign finance laws.

An individual’s right to privacy is one of the most treasured liberties we have in this country, but also one of the most vulnerable. It is the right of every American to freely express their beliefs — without fear of retribution. Further, this right does not go away the moment we step out of the voting booth.

Americans should not fear associating with groups of like-minded citizens to voice their opinions. Although, to be fair, you do have to read a few words past “Congress shall make no law… abridging the freedom of speech” to get to that bit about the right to “peaceably assemble” with others in the First Amendment.

Alex Cordell is a research fellow at the Center for Competitive Politics in Alexandria, Virginia. The center is the nation’s largest organization dedicated to defending First Amendment political speech rights.


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