State voter registration data collected by President Trump's abandoned election fraud commission will be destroyed and not shared with the Department of Homeland Security or any other agency, a White House aide told a federal judge.
Herndon's declaration left unclear what other information the panel may have assembled since its formation in May, if any analysis was done and whether information had already been shared with others outside the Presidential Advisory Commission on Election Integrity, according to lawyers who participated in a telephone conference call with the court Wednesday.
The call included lawyers for the government and for a panel member who had sued the commission alleging it kept him in the dark on its operations. The commission faces lawsuits by 10 other voting rights and public accountability groups challenging its data collection, privacy impacts and lack of transparency.
"The Commission did not create any preliminary findings," Herndon wrote for the government. "Pending resolution of outstanding litigation involving the Commission, and pending consultation with [the National Archives and Records Administration], the White House intends to destroy all state voter data," he said.
Herndon's declaration appears to contradict statements Jan. 3 by White House press secretary Sarah Huckabee Sanders when she said Trump had dissolved the panel and asked DHS "to review its initial findings and determine next courses of actions."
That same day, the panel's vice chairman, Kansas Secretary of State Kris W. Kobach, had said DHS's Immigration and Customs Enforcement "has a greater ability to move quickly to get the investigation done." He said in a weekend interview with The Washington Post that he thought DHS could recreate the state data rather easily if need be.
The DHS Office of Public Affairs did not respond to a request for comment after Tuesday's filings.
Trump created the commission after repeatedly suggesting that millions of illegal voters cost him the popular vote in 2016. Studies and state officials from both parties have found no evidence of widespread voting fraud, and the request triggered a political firestorm as state leaders from both parties objected to the potential release of personal information, suppression of voter participation and encroachment on states' oversight of voting laws.
A coalition of voting rights and public-interest groups Wednesday praised the White House for its intent to destroy state voter records but continued to accuse the administration of attempting a "hide-the-ball trick" to evade open government and privacy laws by not disclosing records of work the commission already had done.
"The Commission was created, it existed for several months, and it gathered information about issues of vital public importance, and it cannot . . . simply be thrown down the 'memory hole,' " said an attorney for Maine Secretary of State Matthew Dunlap (D), a commission member who sued the panel in November to disclose more of its records.
"I think we still have a right to know what our government is working on, and as a member of the commission, I have an obligation to know what was going on," Dunlap said Wednesday.
U.S. District Court Judge Colleen Kollar-Kotelly largely agreed with Dunlap in a Dec. 22 ruling.
The White House's new filing came as Dunlap urged the court to order the commission to preserve all records pending compliance with the judge's order. Government attorneys asked the judge to toss out her order, saying it was moot now that the panel is no more.
In Wednesday's conference call, Justice Department lawyers reiterated that the commission produced no findings and that the White House Counsel's Office and the office of records management would decide what records to archive, according to Dunlap's lawyers.
The call did not clear up what former commissioners or staff could do with other data or materials gathered or produced for the panel, said Melanie Sloan, senior adviser to American Oversight, a watchdog group representing Dunlap. The judge ordered more briefings.
Eleven privacy and civil rights groups who have sued the commission wrote to Secretary of Homeland Security Kirstjen M. Nielsen on Monday asking her not to "accept or maintain" any personal data from the effort. She is set to testify Tuesday before a Senate Judiciary Committee oversight hearing.
The Electronic Privacy Information Center filed suit Monday for records of any discussions between the commission and DHS, noting 20 states sent data responding to the request for voting information of more than 150 million registered voters.
The Brennan Center for Justice called proposals to use DHS immigration, detention and citizenship application databases to purge voter rolls an error-prone misuse of enforcement authority that would probably disenfranchise eligible voters.
John Wagner contributed to this report.
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