United States District Court, District of Columbia
LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, et al., Plaintiffs,
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.
RICHARD J. LEON, United States District Judge
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 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."
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.
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. 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.
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).
the pendency of the appeal, the parties went forth with
filing and briefing their respective motions for summary
judgment. 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].
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.
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).
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.
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.
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 ...