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United to Protect Democracy v. Presidential Advisory Commission on Election Integrity

United States District Court, District of Columbia

December 29, 2017



          RUDOLPH CONTRERAS, United States District Judge


         In May 2017, the President of the United States signed Executive Order 13, 799, which established the Presidential Advisory Commission on Election Integrity (the “Commission”). Approximately one month later, that Commission issued letters to each of the 50 states and the District of Columbia requesting that they provide certain publically available voter roll information so that the Commission might “fully analyze vulnerabilities and issues related to voter registration and voting” in the United States. These requests have been the subject of substantial public attention and have generated several lawsuits challenging their legality. This is but another one of those lawsuits. In this case, Plaintiffs, United to Protect Democracy and The Protect Democracy Project, Inc., challenge the Commission's failure to adhere to the notice and comment procedures specified by the Paperwork Reduction Act, 44 U.S.C. §§ 3501 et seq. Now pending before the Court are Plaintiffs' Motion for a Preliminary Injunction (ECF No. 10) and Defendants' Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 22). For the reasons stated below, the Court grants Defendants' Motion to Dismiss and denies as moot Plaintiffs' Motion for a Preliminary Injunction.


         A. The Paperwork Reduction Act

         The Paperwork Reduction Act (44 U.S.C. § 3501, et seq.) (“PRA”) sets standards for federal agencies when collecting information from the public. “The Paperwork Reduction Act was enacted in response to one of the less auspicious aspects of the enormous growth of our federal bureaucracy: its seemingly insatiable appetite for data.” Dole v. United Steelworkers of Am., 494 U.S. 26, 32 (1990). Thus, in 1980, Congress enacted the PRA to institute a comprehensive scheme for federal information collection and “designated [the Office of Management and Budget (“OMB”)] the overseer of other agencies with respect to paperwork.” Id. Under the PRA, an agency is required to submit any proposed collection of information to the OMB for review and approval. See 44 U.S.C. § 3507(a)(1)(C). In addition, the agency must publish notice of its proposed collection in the Federal Register, stating that it is seeking approval from the Director of OMB and soliciting comments from the public. See Id. at § 3507(a)-(b). In that notice, the agency must set forth (1) a title for the collection of information, (2) a summary of the collection of information, (3) a brief description of the need for the information and the proposed use of the information, (4) a description of the likely respondents and proposed frequency of response to the collection of information, and (5) an estimate of the burden that shall result from the collection of information. Id. at § 3507(a)(1)(D)(ii)(I)-(V). After providing the public an opportunity to comment on the collection for at least 30 days, the Director may then decide whether to approve the proposed collection. See Id. at § 3507(b). If the Director approves, the agency may proceed with its collection and the Director will issue a control number that must be displayed on the collection of information. See Id. at § 3507(a)(2), (3).

         B. The Presidential Advisory Commission on Election Integrity

         On May 11, 2017, President Donald Trump signed Executive Order 13, 799, which established the Commission. See Exec. Order No. 13, 799, 82 Fed. Reg. 22, 389 (May 11, 2017). The Commission is chaired by the Vice President of the United States and may include an additional fifteen members appointed by the President. Id. at § 2. The President's Executive Order charged the newly constituted Commission with “study[ing] the registration and voting processes used in Federal elections” and mandated that the Commission submit a report to the President on various topics, including “vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.” Id. at § 3(c). The Commission, however, is to be “solely advisory” and must dissolve within thirty days after it submits its report. Id. at §§ 3, 6.

         On June 28, 2017, in furtherance of its mandate, the Commission sent substantially similar letters to Secretaries of State and other election officials in all 50 states and the District of Columbia. These letters invited recipients to provide information and opinions on seven broad policy questions relating to the administration of elections. Compl. ¶¶ 28-29. For example, the Commission sought opinions on potential changes to federal election law related to election integrity, “evidence or information” relating to voter fraud, information on “convictions for election-related crimes” since November 2000, and recommendations for preventing voter intimidation or disenfranchisement. Compl. ¶ 29. In addition, the Commission requested that recipients voluntarily “provide to the Commission the publicly-available voter roll data for [their states].” Compl. ¶ 30. Specifically, the Commission requested “the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in [that] 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.” Compl. ¶ 30; see also Decl. Kris W. Kobach, Ex. 3 (“June 28 Letter”), ECF No. 21-2. The Commission purportedly sought this data “in order for the Commission to fully analyze vulnerabilities and issues related to voter registration and voting.” See June 28 Letter. The Commission requested that recipients respond to the letter by July 14, 2017 and directed recipients to submit their responses either via email or through a secure electronic file transfer protocol site that the federal government uses for transferring large data files. Compl. ¶ 31.

         The Commission's request for voter data has become a subject of significant public debate. For example, voting rights experts have articulated a broad set of concerns about how the requests might be used to suppress voters and cybersecurity experts have identified risks inherent in consolidating sensitive voter data without a clear security plan. See Compl. ¶¶ 37- 38. These requests have also been the topic of several legal challenges. See Compl. ¶ 40. And the recipients of the letters have been far from unanimous in how they plan to respond. Indeed, as of September 27, 2017, seventeen states had indicated that they would provide the requested data while eight states had declined. Compl. ¶ 33. An additional eleven states had stated that they would only release data subject to certain restrictions. Compl. ¶ 33.

         C. The Present Suit

         On September 29, 2017, Plaintiffs, United to Protect Democracy and The Protect Democracy Project, Inc., filed suit in this Court asserting that the Commission's request for voter data constituted a violation of the PRA. According to Plaintiffs' Complaint, the Commission violated the PRA when it failed to undertake the appropriate notice and comment procedures prior to issuing its request for voter data. See Compl. ¶¶ 60-76. As non-profit advocacy organizations engaged in public education and outreach, Plaintiffs claim that they have been injured by the Commission's failing because they have been deprived of certain information that they claim the Commission was required to disclose pursuant to the terms of the PRA. Compl. ¶ 73. Although Plaintiffs premise their claims on the text of the PRA, the PRA does not provide for a private right of action. Thus, Plaintiffs instead seek declaratory relief under 28 U.S.C. §§ 2201-02 and mandamus relief under 28 U.S.C. § 1361. See Compl. ¶¶ 60-76, 84-87.

         Plaintiffs' Complaint also challenges the inaction on the part of the OMB and the Director of OMB (collectively the “OMB Defendants”). See Compl. ¶¶ 77-83. Under 44 U.S.C. § 3517(b), “[a]ny person may request the Director [of OMB] to review any collection of information conducted by or for an agency to determine, if, under [the PRA], a person shall maintain, provide, or disclose the information to or for the agency.” The statute further directs that, “[u]nless the request is frivolous, the Director shall, in coordination with the agency responsible for the collection of information (1) respond to the request within 60 days after receiving the request, unless such period is extended by the Director to a specified date and the person making the request is given notice of such extension; and (2) take appropriate remedial action, if necessary.” 44 U.S.C. § 3517(b). On July 3, 2017, Plaintiff United to Protect Democracy allegedly sent a letter to the Director of OMB explaining the ways in which the Commission had allegedly violated the PRA's procedural requirements and, pursuant to § 3517, requested that the Director review the matter and take necessary remedial action as soon as possible. Compl. ¶ 80. Because more than 60 days have elapsed since United to Protect Democracy sent its letter and the Director has neither responded nor taken any other remedial action, Plaintiffs seek declaratory and injunctive relief against the OMB and its Director under section 706(1) of the APA for unlawfully withholding or unreasonably delaying action on its request. See Compl. ¶¶ 77-87.

         Two motions are now pending before the Court. First, on October 11, 2017, Plaintiffs filed a Motion for a Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. See Pls.' Mot. Prelim. Inj. Plaintiffs request that this Court issue a preliminary injunction requiring that (1) the Commission cease its collection of data and delete and/or sequester any information collected unless and until it satisfies the procedures prescribed by the PRA; and (2) the Director of OMB to review the Commission's alleged violation of the PRA and take appropriate remedial action to cure that violation. See Pls.' Mot. Prelim. Inj. Defendants opposed the motion and simultaneously filed their own motion to dismiss the action on various grounds. See Defs.' Mem. Opp'n Pls.' Mot. Prelim. Inj. & Defs.' Mot. Dismiss (“Defs.' MTD”), ECF No. 21. Both motions have been fully briefed by the parties and are now ripe for decision.

         III. ANALYSIS

         Before the Court can reach Plaintiffs' Motion for Preliminary Injunction, Plaintiffs must first overcome two fundamental obstacles presented by Defendants' Motion to Dismiss. First, Plaintiffs must demonstrate that they have somehow been injured by Defendants' actions and that they have standing to bring this suit at all. The Court is satisfied that Plaintiffs have met this burden, having alleged that they have been deprived of certain information that works a particularized and concrete harm upon them. Next, Plaintiffs must allege facts from which this Court can determine that the Commission is actually subject to the PRA's requirements, as the Plaintiffs claim. On this second obstacle, however, Plaintiffs stumble. The PRA applies only to “agencies, ” as it defines that term. Based on the current state of the record, the Court cannot find that the Commission is an “agency” for purposes of the PRA because the pleadings and other evidence provided to the Court support the notion that the Commission works solely to advise and assist the President and there has been no allegation or other showing that the Commission has any substantial authority independent of the President. Accordingly, the Court cannot find that the Commission is subject to the terms of the PRA and thus Plaintiffs' claims-all of which are based on this premise-must be dismissed.

         A. Standing

         The Court must first begin with the threshold question of whether Plaintiffs have constitutional standing to assert their claims at all. Article III of the United States Constitution grants the Judiciary authority to adjudicate only “Cases” and “Controversies.” U.S. Const. Art. III. One of the hallmarks of the “‘Case[s]'” and ‘Controversies' that are of the justiciable sort referred to in Article III . . . is the doctrine of standing.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Indeed, “the requirement that a claimant ...

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