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

Sat Feb 8 10:56:19 PST 2014

One of the ironies associated with the generally laudable Bauer-Ginsberg
report is that the commission relied heavily on 'best practices" documents
generated by the EAC, rightly fingered problems associated with the EAC not
being able to update voting equipment standards and generated a list of
recommendation that cry out for some national entity at a minimum to
monitor progress and keep studying/reporting best practices. Yet it
couldn't muster a bipartisan recommendation to challenge attempts to
nullify the law establishing the EAC.

It's long overdue for the Senate to take steps for the EAC to do its job.
The onus should be on those who don't want the EAC, to uphold the law until
they change it and propose an election administration regime that avoids
all the problems identified by the Bauer-Ginsberg commission and the steady
stream of commissions that have reviewed American elections with concern
over the past 13 years since the 2000 elections.

There's no doubt that if Ohio had been the tipping state in 2012 and had a
margin within a recount, we would have had bitter disputes over any number
of aspects of its elections,  had a national conversation about the
pathetic state of so many of those election practices,  and maybe even
passed a new and improved HAVA. But rather than take action, it's easier to
put heads in sand, put out good recommendations that we can hope some
jurisdictions will act on, and wait for the next breakdown.

- Rob Richie

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On Sat, Feb 8, 2014 at 8:13 AM, Steve Kolbert <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
> @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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