WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley is asking questions about the Justice Department’s refusal to defend the actions of the Election Assistance Commission, an independent federal agency without litigation authority, despite the law requiring the department to represent the commission in court. The Justice Department’s actions could result in state voter ID laws not being followed and non-citizens being allowed to vote.
Specifically, at issue is the Justice Department’s unprecedented action in the case League of Women Voters of the U.S., et al. v. Brian Newby, et al. Although the Election Assistance Commission is an independent agency that is supposed to be outside of the control of the administration, it is required by law to have the Justice Department represent it in litigation because the commission does not have its own litigation authority. However, in an unheard of act, the Justice Department refused to defend the independent, bipartisan agency regarding its update of the state-specific instructions to the federal voter registration form, siding instead with the plaintiffs against its own client. The department’s move was so unusual that the judge refused to grant the plaintiffs’ motion to force the commission to remove the updates to the instructions, and is requiring a full adversarial briefing.
In a letter to the Commissioner and Executive Director of the Election Assistance Commission as well as one to the Attorney General, Grassley expressed concern that the Justice Department was trying to force the judge to order the Election Assistance Commission to take actions against the commission’s will and contrary to the commission’s own legal judgment. Removing the updated instructions would likely make it easier for non-citizens to register to vote.
Grassley wrote, “The Committee must evaluate the situation and determine whether the EAC (Election Assistance Commission) needs independent litigation authority in order to truly be free from political influence from the administration. This case involves the integrity of elections and is taking place in the context of an ongoing Presidential election process. The potential appearance that the administration is substituting its judgment for the EAC’s is a matter of significant concern.”
The text of Grassley’s letters to the U.S. Election Assistance Commission and the Justice Department can be found below. A copy of the letter to the Election Assistance Commission can be found here, and the letter to the Justice Department can be found here.
March 7, 2016
VIA ELECTRONIC TRANSMISSION
The Honorable Christy McCormick
Commissioner
U.S. Election Assistance Commission
1335 East West Highway, Suite 400
Silver Spring, MD 20910
The Honorable Brian Newby
Executive Director
U.S. Election Assistance Commission
1335 East West Highway, Suite 400
Silver Spring, MD 20910
Dear Commissioner McCormick and Executive Director Newby:
I am writing regarding troubling developments in League of Women Voters of the U.S., et al. v. Brian Newby, et al., 1:16-cv-00236 (RJL). Based on filings in that case, as well information relayed in a recent hearing, it appears that the Department of Justice has taken positions in court that, while purportedly made on the Election Assistance Commission’s (EAC) behalf, are in fact taken over your objections and against your will.
Specifically, in response to Plaintiffs’ motion for a temporary restraining order and a preliminary injunction, the Department of Justice did not advocate for the legality of the EAC’s actions but rather sided with the Plaintiffs by asking the judge to grant the Plaintiffs’ requested preliminary injunction against the EAC. The Department did not even raise a defense for the EAC’s decision to update the State-specific instructions to the Federal voter registration form against any of the other theories contained in the Plaintiffs’ motion, but conceded to the issuance of a preliminary injunction against its client on the ground that Mr. Newby’s failure to address the necessity of the changes violated the Administrative Procedure Act.
As you are likely aware, at the hearing on the Plaintiffs’ motion, Judge Leon stated that by attempting to side with the Plaintiffs against the EAC, the Department of Justice had taken the “unprecedented action…of conceding not only a [temporary restraining order], but a [preliminary injunction].” He further stated, “I’ve never heard of it in all my years as a lawyer. And certainly, the 14 years I’ve been on this Court, I’ve never heard of the Department of Justice conceding to a preliminary injunction, which is an extraordinary relief in its own right.” Indeed, he noted that “there is no situation that I can conceive of, including this one, where I would grant a [preliminary injunction] on a concession. It’s inconceivable. It’s too important and sensitive an exercise of power by a court without having full briefing and full argument on it.”
Judge Leon declined the Justice Department’s invitation to enter a preliminary injunction, denied in part the Plaintiffs’ motion for a temporary restraining order, and in light of the Justice Department’s refusal to offer a defense for its client, ordered the Intervenor-Defendants, the Secretary of State of Kansas and the Public Interest Legal Foundation, to submit oppositions to Plaintiffs’ motion, stating he “looks forward to the benefit of full, adversarial briefing on the complex and important issues this case presents.”
Conceding a preliminary injunction is so inconceivable, in part, because if the EAC believed, as the Department of Justice apparently does, that the Executive Director’s actions at issue in the case were unlawful, the EAC could simply undo those actions and inform the Court that the Plaintiffs’ motion was moot. The only reason for the Department of Justice to concede the preliminary injunction motion would be to try to force the judge to order the EAC to take action against the EAC’s will.
According to a letter you sent to Judge Leon, which he read into the record at the hearing, “the Department of Justice has filed a response that reflects the interests and positions of the Department of Justice and not of the defendants.” In another letter to the Court, referenced by the Justice Department, you asked: “[I]f it is within the Court’s jurisdiction and the Court is willing, I request that the court permit Mr. Newby and the Election Assistance Commission to seek outside counsel to represent EAC in this matter.” The Justice Department also noted that you had made a similar written request for outside counsel to the Attorney General.
Although the EAC is an independent agency, you are represented by the Department of Justice in the case because the EAC was not granted independent litigation authority when it was created. Absent such a grant of independent litigation authority, the Department of Justice has exclusive litigation authority on behalf of federal government agencies. In other words, the Justice Department is the EAC’s lawyer, and the EAC is unable to fire its lawyer and seek other representation, for any reason.
The Department of Justice filed a response to your letters, stating that it has exclusive and non-delegable litigation authority over the EAC. The response further stated that this exclusive authority includes “the absolute discretion to settle, compromise, or even concede claims, even over the objection of its client agency.” The response also stated that the “Department has informed the Court that because the Executive Director expressly declined to apply the proper statutory standard, his decisions cannot be upheld under the Administrative Procedure Act” but claimed “the Department is not interfering with the Commission’s authority to reach its own conclusions about whether to accept or reject the states’ requests – so long as it applies the correct statutory standard.”
By law, the EAC is an independent and bipartisan agency. It is intended to be free of an administration’s interference in its functions. If the Department of Justice believes it can use its litigation authority, in concert with lawsuits from certain groups, to require the EAC to take actions against its will and contrary to the EAC’s own legal judgment, then the Committee must evaluate the situation and determine whether the EAC needs independent litigation authority in order to truly be free from political influence from the administration. This case involves the integrity of elections and is taking place in the context of an ongoing Presidential election process. The potential appearance that the administration is substituting its judgment for the EAC’s is a matter of significant concern.
In order for the Committee to fully evaluate this situation, please answer the following by March 21, 2016:
1. As noted above, you reportedly sent two letters to the Court, as well as one to Attorney General Lynch, voicing your concerns about the Justice Department’s representation of the EAC in this case. One of those letters was read into the record by Judge Leon at a recent hearing, and another selectively quoted in a Justice Department filing. Please provide copies of the full letters, as well as copies of any responses received.
2. As noted in a filing by the Justice Department, you have suggested that the Justice Department’s representation of EAC in this case poses a conflict of interest because the Department was “intimately involved with actions dealing with the same matters that the Commission took [in 2013 and 2014] during the time the Commission was vacant and prior to the appointment of the current Commissioners.” Please explain the underlying factual situation, and why it leads you to believe the Department of Justice has a conflict of interest in this case. Please provide all relevant documents relating to this issue.
3. Are there any portions of the Department of Justice, or particular Justice Department attorneys, that you believe could represent the EAC without this conflict of interest?
4. Do you believe that the EAC requires independent litigation authority in order to be free from political interference from the administration exerted via the Justice Department’s current litigation authority over the EAC?
5. Is there any other information about these matters that you would like to share with the Committee?
As a reminder, “the right of [federal] employees…to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.” See 5 U.S.C. § 7211. Moreover, Federal employees who deny or interfere with any other Federal employee’s right to furnish information to Congress are not entitled to have their salaries paid by taxpayers’ dollars.
Thank you for your attention to this important matter. If you have any questions, please contact Jay Lim of my Committee Staff at (202) 224-5225.
Sincerely,
Charles E. Grassley
Chairman
Senate Committee on the Judiciary
cc: The Honorable Patrick J. Leahy
Ranking Member
Senate Committee on the Judiciary
March 7, 2016
VIA ELECTRONIC TRANSMISSION
The Honorable Loretta Lynch
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Lynch:
I am writing regarding troubling developments in League of Women Voters of the U.S., et al. v. Brian Newby, et al., 1:16-cv-00236 (RJL). As you know, the Plaintiffs in that case have sued the Executive Director of the Election Assistance Commission (EAC), Mr. Brian Newby, in his official capacity, as well as the EAC itself. The EAC is an independent, bipartisan commission created by the Help America Vote Act of 2002. Its mission is to assist State and local election officials with the administration of Federal elections. Upon its creation, the EAC assumed the functions originally assigned by the National Voter Registration Act (NVRA) to the Federal Election Commission. Among those functions is the management of a mail voter registration application form (Federal form), to be developed in consultation with the States, which each State is required to accept in the voter registration process. The Federal form consists of three components: the application, general instructions, and State-specific instructions.
As the Supreme Court has recognized, Article I Section 2 of the United States Constitution reserves to the States the exclusive power to establish the qualifications of voters. Kansas, Alabama, and Georgia each enacted laws directing election officials to reject voter registration applicants who fail to prove they are United States citizens, with a variety of identification documents, such as a birth certificate, passport, or naturalization papers, serving as such proof. Each of these States asked the EAC to update its respective State-specific instructions in the Federal form to reflect these laws. After some consideration of the issues, the EAC’s Executive Director accepted the States’ requested updates to the State-specific instructions on January 29, 2016, and updated the EAC’s website accordingly.
In response, the Plaintiffs filed suit on February 12, 2016. Plaintiffs allege that it was unlawful, for a variety of reasons, for the EAC’s Executive Director to update the State-specific directions in the Federal form to accurately reflect current state law. One of Plaintiffs’ arguments was that under the NVRA the Federal form may only require such information as is necessary to enable the States to assess an applicant’s eligibility to vote, but Mr. Newby had expressly stated that he did not evaluate such necessity in deciding to approve the requested changes. Plaintiffs moved for a temporary restraining order and a preliminary injunction.
Although it is an independent agency, the EAC is represented by the Department of Justice in the case because it was not granted independent litigation authority when it was created. Absent such a grant of independent litigation authority, the Department of Justice has exclusive litigation authority on behalf of federal government agencies. In other words, the Justice Department is the EAC’s lawyer, and the EAC is unable to fire its lawyer and seek other representation for any reason.
In response to Plaintiffs’ motion, the Department of Justice did not advocate for the legality of the EAC’s actions but rather sided with the Plaintiffs by asking the judge to grant the Plaintiffs’ requested preliminary injunction against the EAC. The Department did not even raise a defense for the EAC’s decision against any of the other theories contained in the Plaintiffs’ motion, but conceded to the issuance of a preliminary injunction against its client on the ground that Mr. Newby’s failure to address the necessity of the changes violated the Administrative Procedure Act.
At the hearing on the Plaintiffs’ motion, Judge Leon stated that by attempting to side with the Plaintiffs against the EAC, the Department of Justice had taken the “unprecedented action…of conceding not only a [temporary restraining order], but a [preliminary injunction].” He further stated, “I’ve never heard of it in all my years as a lawyer. And certainly, the 14 years I’ve been on this Court, I’ve never heard of the Department of Justice conceding to a preliminary injunction, which is an extraordinary relief in its own right.” Indeed, he noted that “there is no situation that I can conceive of, including this one, where I would grant a [preliminary injunction] on a concession. It’s inconceivable. It’s too important and sensitive an exercise of power by a court without having full briefing and full argument on it.”
Judge Leon declined the Justice Department’s invitation to enter a preliminary injunction, denied in part the Plaintiffs’ motion for a temporary restraining order, and in light of the Justice Department’s refusal to offer a defense for its client, ordered the Intervenor-Defendants, the Secretary of State of Kansas and the Public Interest Legal Foundation, to submit oppositions to Plaintiffs’ motion, stating he “looks forward to the benefit of full, adversarial briefing on the complex and important issues this case presents.”
Conceding a preliminary injunction is so inconceivable, in part, because if the EAC believed, as the Department of Justice apparently does, that the Executive Director’s modifications of the state instructions were unlawful, the EAC could simply undo the change and inform the Court that the Plaintiffs’ motion was moot. The only reason for the Department of Justice to concede the preliminary injunction motion would be to try to force the judge to order the EAC to take action against the EAC’s will. The EAC’s Commissioner, Christy McCormick, and its Executive Director, Brian Newby, took the drastic step of writing to the Court to inform it that “the Department of Justice has filed a response that reflects the interests and positions of the Department of Justice and not of the defendants.” In another letter to the Court, Ms. McCormick asked: “[I]f it is within the Court’s jurisdiction and the Court is willing, I request that the court permit Mr. Newby and the Election Assistance Commission to seek outside counsel to represent EAC in this matter” and noted that she had made a similar written request for outside counsel to you.
The Department of Justice responded to Commissioner McCormick’s letters, stating that, by law, it has exclusive and non-delegable litigation authority over the EAC. The response further stated that this exclusive authority includes “the absolute discretion to settle, compromise, or even concede claims, even over the objection of its client agency.” The response also stated that the “Department has informed the Court that because the Executive Director expressly declined to apply the proper statutory standard, his decisions cannot be upheld under the Administrative Procedure Act” but claimed “the Department is not interfering with the Commission’s authority to reach its own conclusions about whether to accept or reject the states’ requests – so long as it applies the correct statutory standard.”
By law, the EAC is an independent and bipartisan agency. It is intended to be free of an administration’s interference in its functions. If the Department of Justice believes it can use its litigation authority, in concert with lawsuits from certain groups, to require the EAC to take actions against its will and contrary to the EAC’s own legal judgment, then the Committee must evaluate whether the EAC needs independent litigation authority in order to truly be free from political influence from the administration. The potential appearance that the administration is substituting its judgment for the EAC’s is a matter of significant concern.
In order for the Committee to fully evaluate this situation, please answer the following by March 21, 2016:
1. The Justice Department’s attempted concession was based solely on the argument that Mr. Newby failed to consider whether the requested changes were necessary for State officials to assess an applicant’s eligibility to vote, a consideration mandated by the NVRA, and that such failure constitutes a violation of the Administrative Procedure Act thus warranting the preliminary injunction. If Mr. Newby were to withdraw his prior acceptance of the modifications to the State-specific instructions, re-evaluate the States’ requests in the context of their necessity, and subsequently make a written decision including that analysis, would the Justice Department then defend the legality of that decision?
2. Has any part of the Justice Department conducted an analysis of this area of the law prior to the current case? If so, please provide copies of the documents containing such analyses.
3. In addition to Justice Department’s Federal Programs Branch, are attorneys from the Civil Rights Division involved in this case?
4. The EAC reportedly believes that attorneys within the Civil Rights Division have previously acted in such a manner as to create a conflict in representing the EAC in this case. Have you considered using your authority to assign only Department attorneys from offices that the EAC believes have no such conflict, if any?
5. If, while this case is ongoing, a law were enacted granting the EAC independent litigating authority, is it the Department of Justice’s view under its own regulations that the EAC would then be free to dismiss the Department in this case and take up its defense under the newly-granted litigating authority?
Thank you for your attention to this important matter. If you have any questions, please contact Jay Lim of my Committee Staff at (202) 224-5225.
Sincerely,
Charles E. Grassley
Chairman
Senate Committee on the Judiciary
cc: The Honorable Patrick J. Leahy
Ranking Member
Senate Committee on the Judiciary
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