Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

American Civil Liberties Union v. Trump

United States District Court, District of Columbia

July 18, 2017

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,
v.
DONALD TRUMP, et al., Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge.

         This case arises from the establishment by Executive Order of the Presidential Advisory Commission on Election Integrity (the “Commission”). Plaintiffs allege that the Commission is an advisory committee subject to the disclosure, notice, and reporting requirements of the Federal Advisory Committee Act, codified at 5 U.S.C. app. 2 (“FAC A ”). Pending before the Court is Plaintiffs' [3] Motion for Temporary Restraining Order and Preliminary Injunction. That motion seeks an order requiring the Commission, “in advance of the Commission's planned July 19 meeting, to: (1) ensure that any telephonic meetings held by the Commission comply with the notice and public access requirements of FACA; (2) make available for public inspection and copying at a single, [publicly] accessible location all minutes, agendas, reports, studies and documentary material made available to or prepared for or by Commission members; and (3) provide physical access to the July 19 meeting by moving it, with public notice, to a [publicly] accessible location.” Pls.' Mem. at 4-5. The only jurisdictional basis pursued by Plaintiffs is in the form of mandamus. Because the Court concludes that mandamus jurisdiction is unavailable in this case at the present time, Plaintiffs' motion must be denied. Accordingly, upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, Plaintiffs' [3] Motion for Temporary Restraining Order and Preliminary Injunction is DENIED WITHOUT PREJUDICE.[2]

         I. BACKGROUND

         A. Statutory Background

         FACA imposes a number of procedural requirements on “advisory committees, ” which are defined to include “any committee . . . which is . . . established or utilized by the President . . . in the interest of obtaining advice or recommendations for the President . . . .” 5 U.S.C. app. 2 § 3(2). The statute exempts “any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government . . . .” Id. FACA was enacted out of

a desire to assess the need for the numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government. . . . Its purpose was to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature.

Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 445-46 (1989) (internal quotation marks and citations omitted).

         To achieve that purpose, FACA requires that an advisory committee, inter alia, file a charter before meeting or taking any action, 5 U.S.C. app. 2 § 9(c), hold its meetings “open to the public, ” id. § 10(a)(1), publish “timely notice” of each such meeting in the Federal Register, id. § 10(a)(2), keep minutes and other records of its meetings, id. § 10(c), and allow “interested persons . . . to attend, appear before, or file statements with” the committee, id. § 10(a)(3). FACA also mandates that, unless an exception applies under the Freedom of Information Act (“FOIA”), “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying . . . .” Id. § 10(b). Finally, FACA requires that each advisory committee be “fairly balanced in terms of the points of view represented and the functions to be performed, ” id. § 5(b)(2), and “not be inappropriately influenced by the appointing authority or by any special interest, ” id. § 5(b)(3).

         B. Factual Background

         The Commission was established by Executive Order on May 11, 2017. Executive Order No. 13, 799, 82 Fed. Reg. 22, 389 (May 11, 2017) (“Exec. Order”). According to the Executive Order, the Commission's purpose is to “study the registration and voting processes used in Federal elections.” Id. § 3. The Executive Order states the Commission is “solely advisory, ” and that it shall disband 30 days after submitting a report to the President on three areas related to “voting processes” in Federal elections. Id. §§ 3, 6. The Vice President is the chair of the Commission, and the President may appoint 15 additional members. From this group, the Vice President is permitted to appoint a Vice Chair of the Commission. On the same day the Commission was established, Kris W. Kobach, Secretary of State for Kansas, was named Vice Chair. Compl. ¶ 31; Decl. of Kris Kobach, Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity, No. 17-cv-1320 (D.D.C. July 3, 2017) (“EPIC”), ECF No. 8-1, at 1.

         Apart from the Vice President and the Vice Chair, there are presently ten other members of the Commission, including Commissioner Christy McCormick of the Election Assistance Commission (the “EAC”), who is currently the only federal agency official serving on the Commission, and a number of state election officials, both Democratic and Republican, and a Senior Legal Fellow of the Heritage Foundation. Decl. of Andrew J. Kossack, ECF No. 16-1 (“Kossack Decl.”), ¶ 1. According to Defendants, “McCormick is not serving in her official capacity as a member of the EAC.” EPIC, Second Decl. of Kris W. Kobach, ECF No. 11-1, at 2. The Executive Order also provides that the General Services Administration (“GSA”), a federal agency, will “provide the Commission with such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission on a reimbursable basis, ” and that other federal agencies “shall endeavor to cooperate with the Commission.” Exec. Order, §§ 7(a), (b). Furthermore, the Administrator of General Services-the agency head of the GSA-is charged with performing “any functions of the President under [FACA], except for those in section 6[, ]” to the extent that FACA applies to the Commission. Id. § 7(c).

         The Commission filed a charter on June 23, 2017. See Charter, available at https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/commission-charter.pdf (last accessed on July 18, 2017). In pertinent part, the Charter provides that the Commission “will function solely as an advisory body, ” id. ¶ 4; that the Commission is established in accordance with the Executive Order “and the provisions of the Federal Advisory Committee Act, ” id. ¶ 2; and that the GSA “shall provide the Commission with such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission[, ]” id. ¶ 6. Defendants represent that the Commission is voluntarily complying with FACA. Kossack Decl. ¶ 2.

         On June 28, 2017, the Vice President held a teleconference with members of the Commission, during which the Vice Chair discussed his intention to send letters to state election officials requesting certain information on registered voters. Compl. ¶¶ 52, 56. There is no evidence in the record that advance notice of this teleconference was provided by the Commission, or that it was accessible to the public, but a “readout” of the call has been made publicly available, which describes the event as an “organizational call” and states that the Commission “set July 19 as its first meeting, which will take place in Washington, D.C.” Id. ¶¶ 52, 54; see Readout of the Vice President's Call with the Presidential Advisory Commission on Election Integrity, available at https://www.whitehouse.gov/the-press-office/2017/06/28/readout-vice-presidents-call-presidential-advisory-commission-election (last accessed on July 18, 2017). According to Defendants, the teleconference was merely a preliminarily, organizational call, and members were expressly advised that the conversation “would be limited to preparatory and administrative work, and would not address matters on which the Commission was charged with advice and recommendations.” Kossack Decl. ¶ 4 (citing Ex. A). Furthermore, although “[t]he Vice Chair and staff described the request, . . . members were not given a copy of any requests in advance of the call and did not see the request until shortly before it was sent to states.” Id. ¶ 5. The request was, however, discussed for several minutes, and although members did not vote on whether to send the request or any other matter, the “request was modified in response to some of [their] comments.” Id.

         Subsequently, on June 29, 2017, the Vice Chair directed that identical letters “be sent to the secretaries of state or chief election officers of each of the fifty states and the District of Columbia.” EPIC, Decl. of Kris Kobach, ECF No. 8-1, at 2. In addition to soliciting the views of state officials on certain election matters by way of seven broad policy questions, each of the letters requests that state officials provide the Commission with the “publicly available voter roll data” of their respective states, “including, if publicly available under the laws of [their] state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.” Id., Ex. 3 (June 28, 2017 Letter to the Honorable John Merrill, Secretary of State of Alabama). A substantial number of states have either fully or partially declined to comply with the Commission's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.