United States District Court, District of Columbia
UNITED TO PROTECT DEMOCRACY, et al. Plaintiffs,
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al. Defendants.
MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO
DISMISS; DENYING AS MOOT PLAINTIFFS' MOTION FOR
PRELIMINARY INJUNCTION; DENYING AS MOOT PLAINTIFFS'
MOTION FOR LEAVE TO FILE DECLARATION
RUDOLPH CONTRERAS, United States District Judge
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
The Paperwork Reduction Act
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).
The Presidential Advisory Commission on Election
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.
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.
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. ¶
The Present Suit
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. ¶¶
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.
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.
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
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
‘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