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

[Steve Kolbert]

I appreciate the thoughtful responses. Mark, in particular, makes some
interesting points:

*"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?"*
- The DC Circuit line of cases explains that the "no"-voting commissioners
constitute a controlling group in a deadlocked vote. That is, the agency
takes no action because of the "no" votes (even though those votes do not
constitute a majority). Accordingly, those "no" votes (and the rationale
behind them) become the agency's decision.
- A 2-0 vote at the EAC *in favor* of Arizona and Kansas would still not
result in the agency taking any action -- a 2-0 vote is short the required
third vote to take action, and so the agency still takes no action,
notwithstanding the two "yes" votes. The "yes" votes, in other words, do
not become the decision of the agency.
- Contrast that with a 0-2 vote to reject Arizona's and Kansas' request:
just two "no" votes *are *sufficient to *block *action. So the "no" votes
become the agency's decision, even though they do not constitute a majority.
- To be clear, I'm not sure I agree with these cases, and the *Kobach *court
(being in the Tenth Circuit) might decide not to follow them. But the cases
exist, and these are the consequences of following them.

*"It does seem that lack of a quorum is critical."*
- It's not clear there is any such "quorum" requirement. HAVA never applies
the word "quorum" to the EAC: HAVA uses the word "quorum" only twice, when
the Act imposes a quorum requirement on two entities *other than the EAC*. *See
*HAVA §§ 221(c)(2), 601(a). The fact that Congress, in a single act, used
the word "quorum" to apply to two other groups, but did not use the word to
apply to the EAC, suggests that Congress meant to impose no such quorum
requirement on the EAC.
- HAVA does impose a "quorum-like" requirement on the EAC, *see *42 U.S.C.
§ 15328, but it's not the same as a quorum requirement. Section 15328
merely requires the EAC to have three affirmative votes before taking
action -- i.e., to amend the form. There's no statutory requirement that at
least three commissioners be present for the EAC to take *no *action.
Consequently, two votes are sufficient to *block *action. When two
commissioners vote to block action, then according to the DC Circuit line
of cases, those two "no" votes become the decision of the agency, entitled
to *Chevron *deference, notwithstanding the fact that the no votes do not
constitute a majority.
- It seems to me that if Congress wanted to impose a strict quorum
requirement -- that is, a requirement that at least three commissioners be
present to take no action, even if the third commissioner's vote would have
no effect -- it would have used the word "quorum." Additionally, Congress
should be considered on notice of the DC Circuit line of cases on
deadlocked FEC votes, all of which were decided prior to the enactment of
HAVA in 2002. If Congress didn't like that line of cases, it would have
written the statute differently when creating a new agency headed by a
bipartisan, even-numbered commission, deliberately patterned after the FEC.
But Congress didn't write the statute differently. Congress didn't use the
word "quorum" to apply to the EAC. That should give us pause before we
reflexively assume that HAVA actually imposes a "quorum" requirement on the
EAC.
- All that said, it's possible that the EAC has some sort of
internally-adopted procedures (akin to the FEC's Directive
10<http://www.fec.gov/directives/directive_10.pdf>)
which impose a non-statutory quorum requirement. I'm not aware of any such
internally-adopted procedures, but if they exist, that certainly might
change the analysis.


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



On Sat, Feb 8, 2014 at 12:25 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> 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
>
>
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