The U.S. Commission on Civil Rights spent months analyzing threats to minority voting rights during the coronavirus pandemic, coming up with what one commissioner called a “behemoth” set of recommendations.
But no one will see them. Conservative commissioners recently appointed by President Donald Trump voted to shelve the report, its findings and recommendations, even commissioners' statements.
The commissioner who led the research provided a glimpse of the report's contents during an August meeting, noting it covers problems with in-person and mail-in balloting faced by voters of color, people with disabilities, and those with medical conditions that make them vulnerable to the virus.
The full report, including what commission staff said should be done to overcome those obstacles, is not for public consumption, the commission said in a statement provided to USA TODAY.
“All Commission reports, as well as findings and recommendations, must pass by a majority vote,” the commission said. “That did not occur, so unfortunately we cannot share."
The decision comes as the country faces a contentious presidential election amid a global pandemic while grappling with tensions over racism and police brutality. Trump has claimed – without evidence – the election will be rigged.
The commission, an independent federal agency whose work has informed landmark civil rights laws, is made up of eight members. Trump’s appointments in May and August created a four-four split between conservatives and liberals. A move to release the voting-rights report failed in a tie.
Conservative lawyer J. Christian Adams, who was appointed to the commission two weeks before the meeting, said in an email that he voted against releasing the report because it “overlooked the disenfranchising effect of mail voting,” such as ballots that are undeliverable, rejected, or lost. After he made similar assertions in June, PolitiFact ruled them mostly false.
Adams was a member of Trump’s voter-fraud task force, which was disbanded without finding widespread fraud in 2018.
Stephen Gilchrist, a South Carolina businessman appointed in May, said in an interview he rejected the report because, coming so close to the presidential election, he found the timing "somewhat suspect." He said he didn’t agree with some of its contents, which he suggested were politically motivated.
“I'm one of these people that's going to be very cautious and careful about ensuring that we stay focused on the issues at hand rather than trying to be political or take digs at any administration,” Gilchrist said.
The Democratic chair of the commission said it has been silenced on a crucial issue at a critical time.
“I am deeply dismayed that after months of work on a topic that is core to the commission's congressional charge – and has been now for six decades – for the commission not to speak to this moment, which is unlike any other in terms of an effort to vote in the history of this country,” said Catherine Lhamon, a California civil rights lawyer who was appointed by President Barack Obama in 2016.
USA TODAY/Suffolk Poll: Americans overwhelmingly support vote-by-mail push, but Republicans more wary
Return to sender: Trump's strategy on mail ballots divides party before GOP convention
Work on voting access report started in June
The commission voted to undertake the investigation in early June. It solicited comments from voting rights groups and experts, as well as advocates for individuals with disabilities and those with limited English language skills. More than a dozen submitted nearly 300 pages of written testimony.
They recounted problems with primary elections in Georgia, Wisconsin, Nevada, Ohio, Kentucky and other states as the coronavirus spread across the country. They said there were shortages of protective gear for poll workers, many of whom are elderly, putting them and voters at risk. There were steep reductions in the number of polling places, which caused long lines. At a polling place in Nevada, the last voter didn’t cast a ballot until after 3 a.m.
The American Civil Liberties Union noted that Black voters have historically relied more on in-person voting, so they're more at risk of getting sick and more affected by problems at polling places. People with disabilities or limited language skills often rely on assistance at the polls to cast ballots.
And requirements in some states that people have mail-in ballots witnessed or notarized could expose voters who live alone to the virus. More than 34 million voters live alone, including 13 million over 65, the group said.
The testimony was uploaded to a file-sharing service, and the commission shared a link in an August press release marking the 55th anniversary of the Voting Rights Act. It said the commission is “continuing its enduring commitment to voting rights by issuing a new report this fall, Navigating Voting During the COVID-19 Pandemic: Considerations in Access for Minority Voters.”
But on Aug. 21, the commissioners voted against releasing the report and supporting documents.
A Democratic commissioner remarked during the meeting that the decisions could damage the storied body for years to come.
“To simply bury it as if it never occurred is contrary to transparency; it's contrary to what we have done in the past; contrary to just the spirit of open debate and discussion,” said Michael Yaki, a commissioner since 2005.
He told USA TODAY in an interview afterward that he found it “ridiculous” and “shortsighted.”
Politics shapes Civil Rights Commission
The commission was set up under the Civil Rights Act of 1957 to conduct investigations and make recommendations for national civil rights policy and to monitor enforcement of federal civil rights laws. Its work informed the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Age Discrimination Act of 1978 and the Americans with Disabilities Act of 1990.
But the agency hasn’t been insulated from political maneuvering and strife. Its focus has veered from one side of the political spectrum to the other depending on who occupied the White House. Trump’s appointments simply mark the latest shift, experts say.
“It’s a shame, it’s a crying shame,” said Mary Frances Berry, a constitutional scholar and civil rights activist who was a member of the commission for 24 years and served as chair for 11 before she left in 2004.
Commissioners serve six-year terms. Four are appointed by the president, two by the Speaker of the House and two by the president pro tempore of the Senate. They can be removed only for cause. No more than half can be from the same political party.
During the George W. Bush administration, two Republican members registered as independents, circumventing that requirement and creating a conservative majority, according to The Boston Globe.
The commission went on to question school desegregation efforts and affirmative action programs, and, after Obama took office, the Justice Department’s handling of a case of alleged white voter intimidation by members of the New Black Panther Party. A conservative commissioner at the time, Abigail Thernstrom, dismissed the Black Panther inquiry, telling Politico in 2010 it was driven by partisan “fantasies.”
Obama replaced commissioners as their terms expired, creating a liberal-minded majority with two independents. But like the independents appointed by Bush, their political leanings aren't hard to discern. One was on the Democratic Party's platform committee in 2016; the other is running for Congress in North Carolina as a Democrat.
In the final days of his administration, Obama installed Democrats Lhamon and Debo Adegbile, a lawyer who had failed to win Senate confirmation to lead the Justice Department’s Civil Rights Division in 2014.
Republicans welcome 'the Cavalry'
Since then, the commission has issued scathing reports on the Trump administration’s immigration policies and its civil rights record. It has voiced concerns about Trump's executive orders restricting immigration from countries with significant Muslim populations and his characterization of coronavirus as the “Chinese virus.”
When Trump appointed Adams in August, longtime conservative commissioner Peter Kirsanow welcomed the arrival of “the Cavalry” in a National Review column, saying conservatives on the commission had been at the mercy of a 6-2 liberal majority for seven years.
Kirsanow, a Cleveland lawyer first appointed to the commission by George W. Bush in 2001, did not return messages seeking comment. Nor did Gail Heriot, a conservative University of San Diego law school professor first appointed in 2007.
Gilchrist, the Trump appointee seated in May, said he looks forward to helping forge “more of a balanced approach to issues in this country as it relates to civil rights.”
Adams said he hopes to raise issues “that are meaningful to real people, not to academics or the elites.”
He said “government edicts” prevent people from working, church worship has been curtailed, and people are being attacked for speaking their minds. “These are threats very different from 60 years ago, but the Commission has a role in addressing them,” Adams said.
Berry, the scholar and 24-year veteran of the commission, said she believes it has lost its moral authority as partisanship – on both sides – has undercut its credibility.
“It's been lost now for a number of years,” she said.
Berry, who authored a 2009 book about the commission called “And Justice for All," said the commission should be scrapped. She said it should be replaced with a six-member “human rights” panel of presidential appointees, evenly divided by party and confirmed by the Senate. Under the current system, appointees do not face Senate confirmation.
“The main problem is a structural issue … which you can see right before your eyes,” Berry said. "That's no way to run a railroad."
Yaki, the longtime Democratic commissioner, said the commission is going to have to work differently “if we’re going to be productive at all.” And that includes conservatives.
“If these folks want to have any voice at all of their views, no matter how skewed and wrong they are, they're going to have to figure out a way to work with us and work together if important information is going to come to light at the commission,” he said. “Otherwise, we're going to have hearings occur in a vacuum. They occur and then they go into a black box.”
This article originally appeared on USA TODAY: Trump, COVID: Appointees shelved report on minority voting rights