California Secretary of State Proposes Regulations Restricting Access to Voter Registration Data

On the heels of a very contentious Presidential Election, California Secretary of State Alex Padilla has proposed regulations to restrict access to voter registration data. This is a very contentious maneuver which will only further prevent members of the public from being able to validate legitimate California voters – which is obviously the motive for the change.

The Election Integrity Project California announced this proposal Wednesday, asking Californians to weigh in, and then shared their own analysis of Padilla’s proposal, which would only further constrain the use of such important data.

The timing of Padilla’s proposal is interesting given that EIPCa just filed a federal lawsuit against Alex Padilla, California Secretary of State, Xavier Becerra, California Attorney General, Gavin Newsom, Governor of The State Of California, and 13 county Registrar of Voters, for having violated the Elections Clause, the Equal Protection Clause, the Due Process Clause and the Guarantee Clause of the U.S. Constitution.

EIPCa says these are the worst provisions in Padilla’s proposal that restrict access to voter data and hinder its use:

1. Withholding Voter Data Deemed Requested for “Unlawful, False, Fraudulent, or Illegitimate” PurposesProposed Reg. 19004(c) asserts vast discretion to refuse to provide voter registration information based on the SecState’s “reasonable belief” that: “it is being requested for an unlawful, false, or fraudulent purpose, to promote or conduct an illegitimate object or purpose, or is being requested or submitted in bad faith or for the purpose of harassing or defrauding a person or entity.” False, fraudulent, illegitimate, and bad faith are unduly subjective criteria. This provision could be abused against candidates who challenge conventional wisdom about any policy issue, as well as election integrity advocates who doubt that voting by mail is “safe and secure”.2. Hindering Receipt of Data by Another Government AgencyCurrent Reg 19003(j) includes among permissible uses “Any official use by any local, state, or federal governmental agency.”  Proposed Reg 19003(a)(5) concerning permitted uses does include similar language in (a)(5)(C); but the introductory language to (a)(5) is unclear and ungrammatical:”Governmental: Any request from a governmental agency or for a use related to a governmental function by means including, but not limited to: “This provision could be read to limit government agencies to requesting voter registration data directly from the SecState.

   3. Narrowing of Scholarly Purpose for Requesting Data; “Investigation” Purpose

   EIPCa has been requesting data under the category of Scholarly Purpose. This purpose has been narrowed to academe by Proposed Reg. 19003(a)(2) “Scholarly: students working on theses, professors researching voting patterns, and other academics involved in research related to political and election activities. ” Without explanation in the Statement of Reasons, Proposed Reg. 19003(a)(6) creates a new permissible purpose: “Investigation: For any person to conduct an audit of voter registration lists for the purpose of detecting voter registration fraud.” This language does resemble Current Reg 19003(h) listing permissible uses. However, Investigation is not one of the statutory types of permissible purposes in EC 2194(a)(3). The basis for this new purpose should be well-defined.

   4. Stringent IT Security Requirements.

   Elections Code 2188.2 does authorize the SecState to “adopt regulations that describe the best practices for storage and security of voter registration information received by an applicant pursuant to Section 2188. ” Proposed Reg 19012 sets forth detailed requirements for regular users, and also for vendors. The Statement of Reasons refers to Federal definitions of election data as critical infrastructure. The Notice cites several official publications, mainly from the Federal Election Assistance Commission, that specify cyber security measures for critical infrastructure.

   That standard is inapposite and excessive for copies of voter registration data in the hands of journalists, scholars, or investigators. Such snapshots of data are not infrastructure, because
   they are not being used by election officials to conduct elections.

EIPCa, as a prominent analyst of California voter registration data, said they will be commenting in writing and participating in the upcoming public hearing, and asked for public input or comments to support access to voter registration data.

Please see details below. “The more voices involved, the better our chances of stopping or altering these proposed regulations.”

Ellen Swensen
EIPCa Chief Analyst

Comments must be received by the Secretary of State at its office by Monday, January 11, 2021. Comments can be e-mailed, or delivered by express mail, to:

Robbie Anderson

Secretary of State’s Office, 1500 11th St 5th Floor, Sacramento, CA
95814

aanderso@sos.ca.gov

[note that his/her email address does actually omit the “n” from the end of the last name.]

The public hearing is on WebEx at 10:30 am on Monday, January 11, 2021. See this link for the login information.

https://elections.cdn.sos.ca.gov/ccrov/pdf/2020/december/20265ra.pdf

The regulations, with the notice of proposed regulatory action and the Statement of Reasons, can be retrieved at the bottom of this page

https://www.sos.ca.gov/administration/regulations/proposed-regulations