[EL] EAC

Thu Nov 1 21:03:47 PDT 2012

This isn’t a case of bipartisan neglect.  Obama has certainly tried to
populate the Commission.  However, after their bill to abolish the agency
failed, the Republican leadership used its statutory role in the
appointment process to shut it down.  Under Humphrey's Executor, Bowsher v.
Synar, Free Enterprise Fund, etc., it's not so clear that Obama could fill
the EAC under the appointments or faithful execution clauses, even if he
attempted a recess appointment.

42 USC 15323 restricts the President to appointing commissioners only after
receiving recommendations for the congressional leadership of the party
with which a vacancy is affiliated.  In addition to the two Democratic
nominees, Obama nominated Maryland Republican Gineen Bresso.
Congressional Republicans had recommended her prior appointment.  She held
over until Dec. 2011, when she moved from Maryland to Florida, where she is
running for Congress.

The Commission can take *no* action (such as certifying election systems)
without the concurrence of three out of the four Commissioners.  42 USC
15328.  The statute provides for an Executive Director, but he also
resigned, devolving power (if any) onto the General Counsel, who was then
nominated and confirmed to the MSPB.  An unidentified agency spokesman told
the Washington Post: “that “we are working to serve our mission according
to the policies in place that were established earlier by the
commissioners.”

As Judge Cavanagh explained in Aiken County (involving another
incapacitated commission, the NRC), precedent significantly impedes the
president’s ability to enforce the law.

Scott Rafferty
1913 Whitecliff Ct
Walnut Creek CA
 mobile 202-380-5525

On 1 November 2012 15:35, David Levine <davidalanlevine at gmail.com> wrote:

> Hey Brad,
>
> The President nominated Tom Hicks and Myrna Perez.
> On Nov 1, 2012 12:36 PM, "Smith, Brad" <BSmith at law.capital.edu> wrote:
>
>>  “Must-read Roll Call report on the U.S. Election Assistance Commission,
>> the federal agency which is supposed to be advising on best practices in
>> running elections, and would be a go-to place for guidance in the wake of
>> Sandy, but which has all four of its commissioner seats vacant *thanks
>> to Republican opposition to the agency*.”****
>>
>> ** **
>>
>> Well, it’s not exactly like the President has nominated people who are
>> waiting to be confirmed, or made recess appointments, which he seems to be
>> willing to do even when the House and Senate have not declared themselves
>> in recess.  Perhaps we should say “thanks to bipartisan lack of interest.”
>> ****
>>
>> ** **
>>
>> ** **
>>
>> *Bradley A. Smith*
>>
>> *Josiah H. Blackmore II/Shirley M. Nault *
>>
>> *  Professor of Law*
>>
>> *Capital University Law School*
>>
>> *303 East Broad Street*
>>
>> *Columbus, OH 43215*
>>
>> *(614) 236-6317*
>>
>> *bsmith at law.capital.edu*
>>
>> *http://www.law.capital.edu/faculty/bios/bsmith.asp*
>>
>> ** **
>>
>> *From:* law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Rick Hasen
>> *Sent:* Thursday, November 01, 2012 12:22 PM
>> *To:* law-election at UCI.edu
>> *Subject:* [EL] ELB News and Commentary 11/1/12****
>>
>> ** **
>>  “The Phantom Commission” <http://electionlawblog.org/?p=42934> ****
>>
>> Posted on October 31, 2012 9:12 pm <http://electionlawblog.org/?p=42934>
>> by Rick Hasen <http://electionlawblog.org/?author=3> ****
>>
>> Must-read Roll Call report<http://www.rollcall.com/issues/58_33/Agency-Formed-to-Restore-Confidence-in-Elections-Is-in-Disarray-218616-1.html>on the U.S. Election Assistance Commission, the federal agency which is
>> supposed to be advising on best practices in running elections, and would
>> be a go-to place for guidance in the wake of Sandy, but which has *all
>> four of its commissioner seats* vacant thanks to Republican opposition
>> to the agency.****
>>
>> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D42934&title=%E2%80%9CThe%20Phantom%20Commission%E2%80%9D&description=>
>> ****
>>
>> Posted in election administration <http://electionlawblog.org/?cat=18>, Election
>> Assistance Commission <http://electionlawblog.org/?cat=34>, The Voting
>> Wars <http://electionlawblog.org/?cat=60> | Comments Off ****
>>
>> ** **
>>
>> -- ****
>>
>> Rick Hasen****
>>
>> Chancellor's Professor of Law and Political Science****
>>
>> UC Irvine School of Law****
>>
>> 401 E. Peltason Dr., Suite 1000****
>>
>> Irvine, CA 92697-8000****
>>
>> 949.824.3072 - office****
>>
>> 949.824.0495 - fax****
>>
>> rhasen at law.uci.edu****
>>
>> http://law.uci.edu/faculty/page1_r_hasen.html****
>>
>> http://electionlawblog.org****
>>
>> Now available: The Voting Wars: http://amzn.to/y22ZTv****
>>
>> ** **
>>
>>
>> _______________________________________________
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>
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