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Lawyers' Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity

United States District Court, District of Columbia

July 18, 2017

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Plaintiff,
v.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, 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”). Plaintiff alleges 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 Plaintiff's [3] Motion for Temporary Restraining Order and Preliminary Injunction. That motion seeks an order requiring the Commission to hold a scheduled July 19, 2017 meeting “open to in-person public attendance and participation” and to disclose certain records to the public prior to the meeting. Proposed Order, ECF No. 3-2. Although the Commission's affairs have drawn substantial public attention, the legal issues involved are highly technical, implicating the jurisdiction of this Court and its ability to afford judicial review for Plaintiff's claims, and requiring a finegrained analysis of a federal law-FA CA -that is likely unfamiliar to even seasoned legal practitioners. Given the preliminary and emergency nature of the relief sought, the Court need not at this time decide conclusively whether Plaintiff is, or is not, ultimately entitled to relief on the merits. Rather, if Plaintiff has standing to bring this lawsuit, then relief may be granted if the Court finds that Plaintiff has a likelihood of succeeding on the merits, that it would suffer irreparable harm absent injunctive relief, and that other equitable factors- that is, questions of fairness, justice, and the public interest-warrant such relief.

         At this juncture, the Court finds that although Plaintiff has standing, it has not shown a likelihood of success on the merits, principally because it has not demonstrated that, at the present time, Defendants are out of compliance with FA C A's open meetings and document disclosure provisions. The Court further concludes that Defendants' disclosures to date are sufficient for the public and Plaintiff to engage in an informed debate regarding the activities of the Commission, meaning that Plaintiff has not demonstrated that it will suffer an irreparable informational injury. Finally, the balance struck to date between the equitable and public interests in prompt disclosure, on the one hand, and permitting the Commission to operate without undue burden, on the other, obviates the need for emergency injunctive relief, at least for the time being. Nonetheless, to the extent the factual or equitable circumstances change, the Court may be required to revisit this and other determinations made herein. Accordingly, upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, Plaintiff's [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, the Vice President appointed Kris W. Kobach, Secretary of State for Kansas, to serve as the Vice Chair. Compl. ¶ 32; 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. 15-1 (“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. Compl. § 29, Ex. A. 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. ¶ 35. 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.; 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 request for voter roll data-the exact number and the specific details of the states' responses are unknown to the Court and are not relevant to the disposition of the pending motion. Without doubt, however, substantial public attention has been focused on the Commission's request for voter roll information. See, e.g., Compl. ¶¶ 37-38.

         On July 5, 2017, a meeting notice was published in the Federal Register indicating that the “first Commission meeting will be held on Wednesday, July 19, 2017, from 11:00 a.m., Eastern Daylight Time (EDT) until no later than 5:00 p.m., EDT.” 82 Fed. Reg. 31063 (July 5, 2017). The notice appears to have been published by the GSA, and under the section entitled “Agency, ” both the GSA, and the Office of Government-wide Policy (“OGP”), a component of the GSA, are listed. Furthermore, the notice states that the Commission is “a Federal Advisory Committee established in accordance with the Federal Advisory Committee Act . . . .” The notice further provides that the July 19 meeting “will be open to the public through livestreaming on https://www.whitehouse.gov/live, ” which is the “same livestreaming system regularly used by the White House to stream White House press briefings, speeches by the President and Vice President, and other events with significant viewership.” Kossack Decl. ¶ 7. The notice states that individuals may submit written comments to the Commission via email in advance of the meeting, and that the meeting “will consist of a ceremonial swearing in of Commission members, introductions and statements from members, a discussion of the Commission's charge and objectives, possible comments or presentations from invited experts, and a discussion of next steps and related matters.” Although the notice indicates that there “will not be oral comments from the public at th[e] initial meeting[, ]” it adds that “[t]he Commission will provide individuals interested in providing oral comments the opportunity to do so at subsequent meetings.” According to Defendants, members of the general public will be excluded from the July 19 meeting due to security concerns posed by the attendance of the Vice President, but “a number of accredited members of the White House press corps will be invited to attend in person, ” as space permits. Kossack Decl. ¶ 8.

         In a submission to this Court, Defendants have represented that the Commission intends to “publish to a public webpage all documents which were made available to or prepared for or by the Commission, in accordance with FACA.” Id. ¶ 2. Furthermore, prior to the July 19 meeting, the Commission will post to its website the agenda of the meeting, “public comments received through the Commission's staff email account within a reasonable time in advance of the meeting, and other documents that are prepared for or by the Commission.” Id. ¶ 10. The Commission has received over 30, 000 public comments via the Commissions' email address. Id.

         On July 3, 2017, Plaintiff submitted a request for the Commission's records pursuant to section 10(b) of FACA. In particular, Plaintiff requested that, prior to the July 19 meeting, the Commission produce:

All emails since May 11, 2017 relating to the Commission's establishment, organization, operation, or work sent from or to the Commission's Chair, Vice Chair, other Commission members, or any federal employee (including special ...

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