[EL] prohibition on ex parte communication with EAC executive director

[Steve Kolbert]

MSNBC piece's piece questions whether Newby gave Kobach advance notice of
the changes to the Federal Form's instructions (emphasis mine):

Lawrence also alleges that Kobach may have known two weeks ago that the EAC
> had decided to make the change, *suggesting improper collusion between
> Kobach and Newby*. Lawrence said that at an appearance before a Kansas
> Senate committee January 21, Kobach was asked about the voter registration
> form controversy, and twice said the federal form would be changed before
> the next elections. Lawrence said those comments suggest *Newby may have
> improperly communicated with Kobach* on the issue without the knowledge
> of the EAC’s commissioners.
>
> “Given Mr. Kobach’s knowledge that this change was coming beforehand and
> his close relationship with Mr. Newby, this has the appearance of a closed
> door deal not done through proper channels.”
>

Assuming that this in fact happened, I'm curious about the complaint that
Newby's communication with Kobach is itself improper. Is ex parte
communication prohibited between state election officials and the EAC
executive director? Is the EAC executive director required by rule or
internal operating procedure to get permission from the commissioners to
speak with state election officials, or to alert them before he speaks with
them?

To be clear, giving advance notice of an important and controversial
decision to a former colleague outside your agency without alerting your
agency heads--if that's what happened--certainly seems like a bone-headed
move. But bone-headed does not equal wrongdoing. Is there something else
that makes Newby's alleged communication with Kobach constitute "improper
collusion," as MSNBC puts it?

(Also to be clear, my questions are not about the executive director's
authority to make these changes--only about the propriety of Newby's
alleged ex parte communication.)

On Thu, Feb 4, 2016 at 11:08 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> EAC’s Brian Newby Defends His Actions Helping His Buddy Kobach
> <http://electionlawblog.org/?p=79575>
> Posted on February 4, 2016 7:38 am <http://electionlawblog.org/?p=79575>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Must-read Zach Roth
> <http://www.msnbc.com/msnbc/federal-agency-helps-red-states-make-voter-registration-harder>for
> MSNBC:
>
> Newby’s move sparked instant criticism. In astatement
> <http://electionlawblog.org/?p=79529> posted online Tuesday, the panel’s
> lone Democratic commissioner, Vice Chair Thomas Hicks, wrote that Newby had
> acted “unilaterally,” and that his decision “contradicts policy and
> precedent established by the Commission.” Hicks noted that a 2015 EAC
> statement
> <http://www.eac.gov/assets/1/Documents/Organizational%20Management%20Policy%20Statement%20%28final%20adopted%202-24-15-cm%29.pdf%20%20%20%20>
>  makes clear that the executive director lacks the authority to set
> policy, which must be done by the commissioners. Hicks said any change to
> the federal voter registration form would need to be voted on by the
> commissioners after a public comment period, neither of which occurred in
> this case.
>
> “This is a shocking departure from two previous rejections by the EAC of
> requests to change the federal form along these lines, with no explanation,
> and, what’s worse, with no opportunity for public notice and comment,” said
> Dale Ho, the director of the ACLU’s voting rights program, which is suing
> Kobach over the proof-of-citizenship requirement, calling it “troubling on
> a number of levels.”…
>
> In an interview with MSNBC, Newby conceded that he lacks the authority to
> change EAC policy. But he argued that changing the state-specific
> instructions that accompany the federal voter registration form, unlike
> changing the form itself, constituted an administrative matter, rather than
> a policy change— even though the agency had twice rejected Kansas’ requests
> to change the instructions. In fact, Newby said, he believes he’s
> *required* to change the instructions if a state asks him to.
> “If a state requests that we modify the state-specific instructions based
> on their state law, yes, I believe that my role is to put those [changes]
> in our state-specific instructions,” Newby said.
>
> If there’s a meaningful distinction between the federal form and the
> instructions that accompany the federal form, it was lost even on Kobach.
> In his court filing this week seeking to have the lawsuit against him
> dismissed, he referred to Newby’s decision thus: “On January 29, 2015
> (sic), the EAC granted Kansas’s request to modify the Federal Form.”
> William Lawrence, a Kansas lawyer who is challenging Kobach’s effort to
> remove the roughly 30,000 would-be voters who didn’t provide proof of
> citizenship, said the distinction Newby is seeking to draw doesn’t hold
> water….
> Newby admitted to MSNBC he’d been in contact with Kobach on the issue, as
> well as with the secretaries of state of Alabama and Georgia. He said there
> was nothing improper about doing so, or about not including the the EAC’s
> commissioners in his conversations with state officials.
>
> “It wouldn’t have been proper to include the commissioners in any of the
> discussions I had with the secretaries of state,” Newby said. “It was
> really my jurisdiction, my process.”
>
> [image: Share]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79575&title=EAC%26%238217%3Bs%20Brian%20Newby%20Defends%20His%20Actions%20Helping%20His%20Buddy%20Kobach&description=>
> Posted in election administration <http://electionlawblog.org/?cat=18>, Election
> Assistance Commission <http://electionlawblog.org/?cat=34>, The Voting
> Wars <http://electionlawblog.org/?cat=60>
>
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