[EL] Kobach v. EAC and appointment of two Dem EAC Comm'rs

[Steve Kolbert]

Whatever is motivating Senate Democrats to move forward with the two EAC
nominations, it's not happening in a vacuum: there's been a
great<http://electionlawblog.org/?p=58063>
deal<http://blog.lib.umn.edu/cspg/electionacademy/2014/01/rumors_of_our_death_have_been.php>
of<http://www.washingtontimes.com/news/2014/jan/18/new-federal-ruling-forbids-states-checking-voters-/>
discussion<http://cjonline.com/news/2014-02-03/kansas-arizona-rekindling-lawsuit-over-proof-citizenship-voter-registration>about
the EAC's power (or lack thereof, without any commissioners) to deny
Arizona's
and Kansas' request that the EAC amend the national voter registration
form. *See *42 U.S.C. § 15328. However, a line of cases in the DC Circuit
concerning the FEC suggests that the appointment of *just two *commissioners
to the EAC would strengthen the EAC's hand in the related *Kobach v.
EAC *litigation.
For whatever reason, I haven't seen anyone mention this line of cases.

The DC Circuit has repeatedly held that, when the six-member FEC fails to
act on account of a 3-3 deadlock, the decision and rationale of the three
"no"-voting commissioners -- *less than a majority* -- constitutes the
agency's decision and rationale, and that rationale is even entitled to
*Chevron* deference. *See **In re Sealed Case*, 223 F.3d 775, 779-81 (D.C.
Cir. 2000); *FEC v. NRSC*, 966 F.2d 1471, 1476 (D.C. Cir. 1992); *DSCC v.
FEC*, 918 F. Supp. 1, 3 n.1 (D.D.C. 1994); *see also Common Cause v. FEC*,
842 F.2d 436, 448-49 (D.C. Cir. 1988) (requiring the three commissioners
voting "no" to publish a statement of reasons, so that the court can review
those reasons as though they are the agency's rationale); *DCCC v. FEC*,
831 F.2d 1131, 1135 (D.C. Cir. 1987) (same). *Contra Hispanic Ldrsh'p Fund
v. FEC*, 897 F. Supp. 2d 407, 428 (E.D. Va. 2012) (holding, in the
procedural circumstances present, that the rationale of three commissioners
who voted to reject a third party's advisory opinion request are entitled
to no deference, because unlike the judicially-reviewable dismissal of a
complaint at issue in *NRSC*, the rejection of the AO request did not
result in "final, reviewable agency action").

Because a vote to amend the form would require three of the four
commissioners, two "no" votes from newly-confirmed EAC commissioners would
be enough to reject Arizona's and Kansas' request to amend the federal
form. *See *42 U.S.C. § 15328. Under the above line of cases, the decision
and rationale of the two "no"-voting commissioners would constitute the
agency's decision and rationale, even though the two commissioners do not
constitute a three-commissioner majority. To the extent the *Kobach *court
is concerned about whether the EAC's acting executive director can herself
reject Arizona's and Kansas' request, the votes of two commissioners to
ratify that decision might allay the court's concerns.

One obvious counter-argument is that the DC Circuit line of cases involved
3-3 deadlocks -- meaning, each vote had at least a quorum of FEC
commissioners present, even if no one side garnered a majority. At the EAC,
by contrast, there would be no quorum present on a hypothetical 2-0
deadlock vote. But I don't see anything in HAVA that requires the
Commission to have a quorum: the statute merely requires "Any action which
the Commission is authorized to carry out under [HAVA, including the
transferred NVRA responsibilities over the federal form] may be carried out
only with the approval of at least three of its members." 42 U.S.C. §
15328. HAVA might require three votes to *change *the federal form, but
there seems to be no statutory "quorum" requirement for the EAC to *decline
*to amend the form, i.e., to *not *take any action. The *Kobach *court
might also find that requiring a third EAC commissioner merely to be
present for a vote, when the vote of this third commissioner would
obviously make no difference to the outcome, promotes form over substance.

I don't have any inside information, but it seems that this line of
thinking certainly might be at least one factor in Senate Democrats'
decision to move forward with the EAC nominations.


Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T

On Fri, Feb 7, 2014 at 10:00 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> When Worlds Collide: Election Administration Edition<http://electionlawblog.org/?p=58610>
>  Posted on February 7, 2014 3:54 pm <http://electionlawblog.org/?p=58610> by
> Rick Hasen <http://electionlawblog.org/?author=3>
>
> As previously noted <http://electionlawblog.org/?p=58592>, the Senate
> Committee on Rules and Administration is going to hear from Mr. Bauer and
> Mr. Ginsberg
> <http://www.rules.senate.gov/public/index.cfm?p=CommitteeHearings&ContentRecord_id=a34f1454-239d-4e55-8a87-6945e8841b37>on
> Feb. 12 at 10 am about the recommendations of the Presidential Commission
> on Election Administration.
>
> But now on Feb. 12 at 10:30 am<http://www.rules.senate.gov/public/index.cfm?p=CommitteeHearings&ContentRecord_id=cebb0cf6-c060-43b3-a600-ea6eaa00693c&ContentType_id=14f995b9-dfa5-407a-9d35-56cc7152a7ed&Group_id=1983a2a8-4fc3-4062-a50e-7997351c154b&MonthDisplay=2&YearDisplay=2014>the Rules Committee is going to move forward on the nominations of Tom
> Hicks and Myrna Perez for the EAC.
>
> As I've noted <http://electionlawblog.org/?p=58109>, the Bauer-Ginsberg
> report is written as though the EAC is toast, and many Republicans who
> follow this issue on the Hill are adamantly opposed to a revived EAC. There
> are no Republican commissioners being nominated, and it takes 3
> commissioners to take any action at the EAC.
>
> So what's up with moving the Hicks and Perez nomination forward?  They can
> now get through (if the majority leader is willing to burn enough hours)
> with the filibuster rule for these nominations gone.  Is that the end game?
>  [image: Share] <http://www.addtoany.com/share_save>
>    Posted in election administration <http://electionlawblog.org/?cat=18>,
> Election Assistance Commission <http://electionlawblog.org/?cat=34>, PCEA
> (Bauer-Ginsberg Commission) <http://electionlawblog.org/?cat=79>, The
> Voting Wars <http://electionlawblog.org/?cat=60>
>
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