League of Women Voters of the U.S. v. Newby

238 F.Supp.3d 6

LEAGUE OF WOMEN VOTERS OF the UNITED STATES, et al., Plaintiffs,

v.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.

Civil Case No. 16-236 (RJL)

United States District Court, District of Columbia.

Filed February 24, 2017

Jonathan D. Janow, Kirkland & Ellis LLP, Linda Sue Stein, Steptoe & Johnson LLP, Amelia J. Schmidt, Stroock & Stroock & Lavan, Ezra David Rosenberg, Michelle E. Kanter Cohen, Project Vote, Jon M. Greenbaum, Lawyers' Committee for Civil Rights under Law, John Arak Freedman, Arnold & Porter Kay Scholer LLP, Washington, DC, Joel Dodge, Michael Keats, Stroock, Stroock & Lavan, Jonathan Brater, Robert Brent Ferguson, Tomas Lopez, Wendy Robin Weiser, Dale E. Ho, R. Orion Danjuma, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Galen Nicholas Thorp, Julie Straus Harris, U.S. Department of Justice, Dale L. Wilcox, John Michael Miano, Immigration Reform Law Institute, Washington, DC, Garrett R. Roe, Law Office of Garrett R. Roe, Topeka, KS, Kaylan L. Phillips, Public Interest Legal Foundation, Indianapolis, IN, J. C. Adams, Public Interest Legal Foundation, Alexandria, VA, for Defendants/Defendant-Intervenors.

Kris W. Kobach, Topeka, KS, pro se.

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge

Plaintiffs 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

The 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., ––– U.S. ––––, 133 S.Ct. 2247, 2252, 186 L.Ed.2d 239 (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."

On 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 citizenshipto enforce their qualifications that registered voters be citizens and stated such a consideration was "irrelevant to [his] analysis." AR0004.

Plaintiffs filed this lawsuit against Newby, in his official capacity as Executive Director of the EAC, and the EAC itself (collectively "defendants"), on February 12, 2016.¹ 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.

On 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, I 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...