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

[Scarberry, Mark]

This is very interesting. It does seem that lack of a quorum is critical. The statute deprives the EAC of the power to act, if it only has two members. It's hard to see why a court would then give deference to the lack of action. To turn the tables, would a 2-0 vote in *favor* of Arizona and Kansas be entitled to deference as a decision to *deny* their request? Why would it matter how the two commissioners might vote?

I might also disagree that appointment of two commissioners would "strengthen the EAC's hand." Unless the staff constitutes the EAC, it would seem at this point that the EAC is not playing a hand -- hasn't taken a position -- that can be strengthened. (I don't remember whether the staff has taken a position, but that shouldn't matter.) Like the song says, "there'll be time enough for countin', when the dealing's done." (I couldn't bring myself to say, "as the song says;" Kenny Rogers wouldn' like that. And I grew up in Bakersfield.)

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Feb 8, 2014, at 5:14 AM, "Steve Kolbert" <steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>> wrote:

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<mailto:steve.kolbert at gmail.com>
@Pronounce_the_T

On Fri, Feb 7, 2014 at 10:00 PM, Rick Hasen <rhasen at law.uci.edu<mailto: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?

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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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