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

[Zachary Roth]

Right, I was reporting William Lawrence's allegation. Also reported Newby's
response that there's nothing improper about it. I report you decide.

On Thu, Feb 4, 2016 at 8:30 PM, Steve Kolbert <steve.kolbert at gmail.com>
wrote:

> 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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