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League of Women Voters of the United States v. Newby

United States District Court, District of Columbia

February 24, 2017

LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, et al., Plaintiffs,
v.
BRIAN D. NEWBY, in his capacity as the Executive Director of the United States Election Assistance Commission, and UNITED STATES ELECTION ASSISTANCE COMMISSION, Defendants, KANSAS SECRETARY OF STATE KRIS W. KOBACH and PUBLIC INTEREST LEGAL FOUNDATION, Defendant-Intervenors.

          MEMORANDUM OPINION

          RICHARD J. LEON, United States District Judge

         Plaintiffs bring this action against defendants alleging that the Executive Director of the United States Election Assistance Commission ("EAC" or "Commission"), Brian Newby, acted outside of his authority and in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, when he granted Kansas's, Georgia's, and Alabama's requests to modify the instructions on the National Mail Voter Registration Form ("the Federal Form") to direct voter registration applicants in those three States to submit documentary proof of their United States citizenship in accordance with the States' respective laws and regulations. Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the parties' motions, oppositions, replies, and oral arguments, the briefs of amici curiae Landmark Legal Foundation and Eagle Forum Education & Legal Defense Fund, the relevant law, and the entire record, the Court REMANDS the challenged determinations to the Commission for the limited purpose of providing an interpretation of its internal directive which is necessary for resolution of the threshold issue of whether Newby acted within his subdelegated authority.

         BACKGROUND

         The background of this case was set forth in detail during the preliminary injunction phase by our Court of Appeals and by this Court. See League of Women Voters of United States v. Newby, 838 F.3d 1, 4-6 (D.C. Cir. 2016); League of Women Voters of the United States v. Newby, 195 F.Supp.3d 80, 83-88 (D.D.C. 2016). The Court will therefore limit its present statement of the facts and law to only that necessary for the present disposition. In the National Voter Registration Act of 1993 ("NVRA"), Congress directed the Federal Election Commission ("FEC"), "in consultation with the chief election officers of the States, " to create a single federal voter registration form that "[e]ach State shall accept and use" to register voters for elections for federal office via mail. 52 U.S.C. §§ 20501(b)(1); 20505(a)(1); 20508(a)(1). That form is known colloquially as the "Federal Form." Would-be voters fill out the application portion of the Federal Form, which is attached to both general instructions for all applicants and a state-by-state guide that includes state-specific instructions "which tell residents of each State what additional information they must provide and where they must submit the form." Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247, 2252 (2013). "Each state-specific instruction must be approved by the EAC before it is included on the Federal Form." Id. Congress established the EAC through the Help America Vote Act of 2002 ("HAVA"). 52 U.S.C. § 20921. The HAVA specifies that the "Commission shall have four members appointed by the President, by and with the advice and consent of the Senate." Id. § 20923(a)(1). The HAVA transferred authority over the Federal Form from the FEC to the newly formed EAC. Id. §§ 20508, 20929. The HAVA specifies that "[a]ny action which the Commission is authorized to carry out under [the HAVA] may be carried out only with the approval of at least three of its members." 52 U.S.C. § 20928. The NVRA, the HAVA, and the associated regulations do not, however, set forth a particular process for EAC review of States' requests to modify their respective state-specific instructions on the Federal Form. As such, I will hereinafter refer to such requests as "state instruction requests."

         On January 29, 2016, the EAC's Executive Director Brian Newby granted Kansas's, Alabama's, and Georgia's state instruction requests to include instructions regarding their respective laws requiring voter registration applicants to prove their citizenship, either through documentary proof or alternative processes. AR0063-64; AR0070-71; AR0109-110. Newby was the decisionmaker; the three sitting Commissioners did not formally consider or vote upon the States' requests. The approved modifications to the state-specific instructions were promptly inputted, and a new version of the Federal Form was posted on the EAC website. Newby's approval letters were matter of fact and did not contain any explanation as to how he reached his decisions. He did, however, provide an explanation in a roughly contemporaneous internal memorandum dated February 1, 2016. AR0001- 07. Newby explained that several state instruction requests were awaiting review when he became Executive Director in November 2015. AR0001. Feeling a sense of urgency given the upcoming presidential elections, Newby stated that he worked quickly to develop a process for considering and ultimately resolving the requests. AR0001-02. He considered "[s]tate-specific instructional changes [to be] ministerial, and thus, routine, " and concluded therefore that "[t]he Executive Director [was to] review the request [only] for clarity and accuracy." AR0002. Newby also explained that-in his view-review of proposed state-specific instructions was not a "policy" function that would require the Commissioners' approval under their February 24, 2015 "Election Assistance Commission Organizational Management Policy Statement, " which set forth in general terms the respective responsibilities of the Commissioners and the EAC's Executive Director and which will be discussed in more detail below. AR0004; see also AR0226-29. Unlike changes to the Federal Form's general application page, Newby stated, alterations to state-specific instructions impact only applicants in the State to which they apply, and therefore their approval or denial is not a broadly applicable "policy" decision. AR0004. He also noted that previous EAC executive directors had handled requests to amend state-specific instructions "without Commissioner involvement." AR0004. Finally, Newby stated, in essence, that his focus was on whether a voter could become registered under state law without the information requested by the proposed state-specific instruction. AR0004. He did not, however, consider whether the states "need[ed]" documentary proof of citizenship to enforce their qualifications that registered voters be citizens and stated such a consideration was "irrelevant to [his] analysis." AR0004.

         Plaintiffs filed this lawsuit against Newby, in his official capacity as Executive Director of the EAC, and the EAC itself (collectively "defendants"), on February 12, 2016.[1] Their Complaint alleges five counts: (1) that pursuant to Section 208 of the HAVA Alabama's, Georgia's, and Kansas's requests could be granted, if at all, only by approval of three Commissioners and thus Newby's grant of the request exceeded his statutory authority in violation of the APA, Compl. ¶¶ 70-74; (2) that Newby's grant of Alabama's, Georgia's, and Kansas's requests constituted a reversal of the Commission's policy as to documentation of citizenship requirements and that he therefore exceeded the scope of his authority as set forth in the 2015 Policy Statement; Compl. ¶¶ 75-78; (3) that, because in plaintiffs' view granting the States' requests marked a reversal of Commission policy, Newby was required by the APA to first undergo notice and comment rulemaking, which he did not, Compl. ¶¶ 83-86; (4) that Newby's failure to provide an explanation of the bases for his decision to depart from what plaintiffs claim to be "longstanding policy and legal determination that documentary proof of citizenship was not 'necessary' within the meaning of the NVRA" was contrary to the APA's requirements for reasoned decision making, Compl. ¶¶ 87-91; and (5) that Newby's failure to determine that the States' documentation of citizenship requirements are "necessary" under the NVRA before granting their requests was contrary to the APA's requirements for reasoned decision making, Compl. ¶¶ 92-96.

         On February 17, 2016, plaintiffs moved for a temporary restraining order and preliminary injunction ordering immediate reversal of Newby's changes to the Federal Form on the Commission's website, ordering defendants to immediately withdraw the January 29, 2016 letters issued to Alabama, Georgia and Kansas, and requiring defendants to instruct election officials in those States to replace any copies of the Federal Form that contained the changes authorized by Newby. On February 22, 1 granted Kansas Secretary of State Kris W. Kobach's and the Public Interest Legal Foundation's ("PILF") motions to intervene as defendants. I then denied plaintiffs' motion as to the request for a temporary restraining order on February 23, 2016, Mem. Order [Dkt. #34], and as to the request for a preliminary injunction on June 29, 2016, Mem. Op. and Order [Dkts. ##92, 93]. Plaintiffs promptly appealed to the Court of Appeals for the District of Columbia Circuit. Notice of Appeal (July 1, 2016) [Dkt. #95]. Argument was heard by that Court on September 8, 2016, and the next day it issued a judgment granting a preliminary injunction forbidding the Commission or anyone acting on its behalf from giving effect to Newby's decisions to grant the relevant requests, and requiring the Commission to "take all actions necessary to restore the status quo ante, pending a determination on the merits." League of Women Voters v. Newby, No. 16-cv-5196, 2016 WL 4729502, at *1 (D.C. Cir. Sept. 9, 2016). Such steps included "promptly removing" the challenged instructions from the Federal Form and "informing Kansas, Alabama, and Georgia that Federal Form applications filed since January 29, 2016 should be treated as if they did not contain the now-stricken state-specific instructions." Id. Our Circuit Court then issued an opinion explaining its decision more fully on September 26, 2016. League of Women Voters of United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016).

         During the pendency of the appeal, the parties went forth with filing and briefing their respective motions for summary judgment.[2] Plaintiffs move for summary judgment in their favor on all five counts of the Complaint. Pis.' Cross-Mot. for Summ. J. [hereinafter "Pis.' Mem."] [Dkt. #103]. Defendants, represented by the Department of Justice's Federal Programs Branch, concede that, at minimum, Newby failed to apply the correct statutory standard in reaching his decision and thereby violated the APA. Defs.' Mot. for Summ. J. 14-20 [hereinafter "Defs.' Mot."] [Dkt. #101]. Defendants state the proper remedy is to set aside the challenged actions on that narrow ground and to reserve judgment on any other issue presented in this case. Id. at 21-25. Defendant-intervenors argue that, particularly when viewed in light of what they perceive to be serious constitutional questions that would be raised were the Commission ordered to revoke Newby's grant of the States' requests, Newby's actions were lawful and that plaintiffs therefore are not entitled to summary judgment on any count. Def.-Intervenor PILF's Cross-Mot. for Summ. J. 17-32 [hereinafter "PILF's Mem."] [Dkt. #105]; Def.-Intervenor Kobach's Mem. of P. & A. in Supp. of his Cross-Mot. for Summ. J. [hereinafter "Kobach's Mem."] [Dkt. #107].

         DISCUSSION

         It would be an understatement to say that the parties' briefing presents difficult questions. In urging the Court to impart a narrow ruling on summary judgment that would thread the proverbial needle by reaching only Counts IV and V of plaintiffs' Complaint, the Department of Justice has recalled the sage words of Justice Frankfurter: "These are perplexing questions. Their difficulty admonishes [the Court] to observe the wise limitations on [its] function and to confine [itself] to deciding only what is necessary to the disposition of the immediate case." Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 372-73 (1955). I wholeheartedly agree, but in my view it is Counts I and II, which address the Executive Director's authority to rule upon the States' requests, that present the true opportunity for a narrow disposition. After all, these are threshold questions and are potentially dispositive. If Newby's actions were ultra vires, they must be set aside, and it matters not whether his reasoning can withstand APA review. To say the least, it would not be prudent for this Court to make rulings regarding the thorny statutory and constitutional questions presented in the parties' briefing regarding Counts III and IV if its ruling in Counts I or II dictate that, either under the HAVA, administrative law principles, or the Commission's 2015 Policy Statement, the Commissioners, and not the Executive Director, are to rule upon state instruction requests.

         Thus, in evaluating the cross-motions for summary judgment, the first issue for the Court is whether, as plaintiffs claim, the EAC may rule upon States' requests only through a vote of the Commissioners. See Pis.' Mem. 20-22 (relying on 52 U.S.C. § 20928, which states that "[a]ny action which the Commission is authorized to carry out under [the HAVA] may be carried out only with the approval of at least three of its members"). Assuming, without deciding, that the Commissioners may subdelegate their authority to grant or deny States' requests for modification of their state-specific instructions on the Federal Form to the Executive Director, the next question for the Court will be whether they did so. The Administrative Procedure Act compels courts to "hold unlawful and set aside agency action, findings, and conclusions" if they are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(C). A corollary of this directive is that courts reviewing agency action must determine that "the particular official acting on behalf of the agency [was] delegated the authority to act; otherwise such agency action is invalid." Am. Vanguard Corp. v. Jackson, 803 F.Supp.2d 8, 12 (D.D.C. 2011). When faced with the question of whether a particular agency official was subdelegated authority to act, courts in this Circuit examine the record, the relevant statute, and the implementing regulations to discern whether subdelegation occurred. See Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 810 (D.C. Cir. 2006); Town of E. Hartford v. Harris, 648 F.2d 4, 6 (D.C. Cir. 1980).[3]

         I will thus begin by evaluating the record's evidence as to any subdelegation of the authority to rule upon States' requests to modify their state-specific instructions. The record here reveals that there has been no consistent or longstanding practice as to the Executive Director's authority to grant or deny state instruction requests. In the early days of the Federal Form, the FEC made changes to state-specific instructions by a vote of the Commissioners. AR0163; AR0204. In August 2000, the FEC shifted gears and modified its procedure to provide that the staff of its Office of Election Administration would be responsible for making any changes to state-specific instructions. AR0163; AR0204. Under the new procedure, however, FEC Commissioners would continue to vote on any changes to the Federal Form that were applicable to more than one State. AR0163. When Congress transferred responsibility over the Federal Form to the EAC, the Commission's Associate General Counsel and Executive Director were initially responsible for approving and denying state instruction requests. See AR0230-32, AR0233-35. This practice, however, does not appear to have been memorialized in any written procedure.

         On March 6, 2006, pursuant to that arrangement, the Executive Director rejected Arizona's request to include its documentary proof of citizenship requirement in its state-specific instructions. AR0233-35. Four months later, in light of ensuing litigation and voter confusion in Arizona, the Commissioners departed from the practice of staff management of state instruction requests and conducted a vote amongst themselves as to whether to include Arizona's proposed instruction. AR0261-62. The vote was 2-2, which meant the instruction was not approved. AR0245-50. In the years that followed, the Commissioners discussed on several occasions the lack of procedure for dealing with state instruction requests, and they considered several options for structuring the process and allocating duties among the Commissioners and the Executive Director. AR0375-76; AR0530-32; AR0700; AR0711-19; see also AR0732-78. For example, under one proposal the Executive Director would have implemented a state instruction request if it was a request to "update" its state-specific instructions, meaning "bring up to date information that (1) is presently contained on the state specific instructions of the Federal Form, and (2) is information required by and consistent with Federal statute." AR0776-77 (describing requests regarding state voter eligibility requirements, state contact information, state voter registration deadlines, and voter identification numbers as "updates"). However, if the posed request was not an "update, " the Executive Director would have forwarded it to the Commissioners for action. AR0778. The Commissioners also considered adopting the procedure the FEC had used under which staff approved and rejected state instruction requests and the Commissioners voted on Federal Form items that affect more than one State. AR0767. But the Commissioners were ultimately unable to adopt any policies or procedures. Thus, on March 20, 2008, Commissioner Hillman recommended that the Commissioners themselves conduct ad hoc votes on the requests pending at that time. AR0793-94. The Commissioners agreed to adopt this new practice and then voted unanimously to approve seven state instruction requests, and they again deadlocked as to a request from Arizona to include its documentary proof of citizenship requirement. AR0793-96.

         On September 12, 2008, the Commissioners adopted a document entitled "Roles and Responsibilities of the Commissioners and Executive Director of the U.S. Election Assistance Commission, " which "identified] the specific roles and responsibilities of the Executive Director and [the] four Commissioners." AR0209-16; Kobach v. U.S. Election Assistance Comm 'n,772 F.3d 1183, 1190 (10th Cir. 2014). The document stated that the Executive Director was "expected to (1) prepare policy for commissioner approval, (2) implement policies once made, and (3) take responsibility for administrative matters." AR0209. Moreover, the Executive Director was to "[p]rovide for the overall direction and administration of EAC's operating units and programs, consistent with the agency's strategic plan and any . . . commissioner adopted policies, " and "[m]aintain the Federal Voter Registration Form consistent with the NVRA and ...


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