[EL] Kobach v. EAC and appointment of two Dem EAC Comm'rs
JBoppjr at aol.com
JBoppjr at aol.com
Sat Feb 8 12:40:18 PST 2014
I suppose that President Obama can just decide not to enforce the quorum
requirement, like so many other laws he has decided to waive, change, not
enforce, etc and voila, the EAC has acted. Jim Bopp
In a message dated 2/8/2014 12:26:38 P.M. Eastern Standard Time,
Mark.Scarberry at pepperdine.edu writes:
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-vote
rs-/) _discussion_ (http://cjonline.com/news/2014-02-0
3/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=Commi
tteeHearings&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?
_<share_save_171_16.png>_ (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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