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

Sat Feb 8 19:47:02 PST 2014

In reply to Steve's thoughtful analysis, I will say again that a 3-3 FEC deadlock involves voting by enough commissioners that they could have decided either way. A vote of only two EAC members could not result in anything other than a failure to act, no matter how they might vote. Two commissioners acting alone simply have no power to do anything. A decision (or non-decision) that the statute would not have permitted to come out differently can't be entitled to deference.

It seems at least to be a nonobvious extension of the DC Circuit FEC cases to find that they apply here to require deference to a 0-2 vote by fewer than the number of commissioners whose concurrence would be required for any action to be taken. It seems to me that even if those cases were correctly decided on their facts, Congress shouldn't be considered to have in effect ratified their application to this very different question, by not explicitly rejecting them.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

-------- Original message --------
From: Steve Kolbert
Date:02/08/2014 4:32 PM (GMT-08:00)
To: "Scarberry, Mark" ,law-election at uci.edu
Subject: Re: [EL] Kobach v. EAC and appointment of two Dem EAC Comm'rs

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

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