[Image via politico]
Today, the U.S. Department of Justice took the somewhat unusual step of consenting to a request for an injunction against the federal government – specifically, in the case challenging the recent EAC Executive Director’s decision to approve state-specific instructions requiring proof-of-citizenship for the federal voter registration form. Politico’s Josh Gerstein has the whole story, [UPDATE: On Monday, Judge Richard Leon indicated that he would deny an initial request for a temporary restraining order, holding a ruling on the injunction until after a complete hearing in a few weeks. The judge was also somewhat skeptical of DOJ’s position not to contest the case, noting that such a stance was unprecedented and saying “I’ve never heard of it in all my years as a lawyer.” He also read a letter from EAC Chair Christie McCormick and Executive Director Brian Newby suggesting DOJ has a conflict because of its previous involvement in the case and notifying the court that DOJ would not allow the agency to use outside counsel to defend its own decision.]
The most interesting part of the DOJ’s initial legal filing was the inclusion of a declaration from Newby explaining his process and rationale behind the action – a perspective that had not yet been made public.
There’s enough here that it doesn’t really require comment – so it’s simply reproduced below in full:
Declaration of Brian Dale Newby
Case No. 1:16-cv-00236-RJL
Brian Dale Newby, for his declaration, pursuant to 28 U.S.C. Section 1746, deposes and says:
1. My name is Brian Dale Newby.
2. I currently work as Executive Director of the United States Election Assistance Commission (EAC).
3. I began working in this role on November 16, 2015.
4. Previously, I worked as Election Commissioner for Johnson County, Kansas.
5. Election Commissioners are appointed in Kansas by the Secretary of State for the four most-populated counties in the state.
6. I was appointed Election Commissioner by Kansas Secretary of State Ron Thornburgh (R) on January 10, 2005, to fill an unexpired term from Connie Schmidt, who retired
7. I was re-appointed to a four-year term by Secretary Thornburgh (R) on September 1, 2006.
8. I was re-appointed to a four-year term by Secretary Chris Biggs (D) on September 1, 2010.
9. I was re-appointed to a four-year term by Secretary Kris Kobach (R) on September 1, 2014.
10. I resigned my position in October 2015 to accept my current role at the EAC.
11. In Johnson County, I held the position of Election Commissioner longer than all but one of my predecessors.
12. In this role, I administered more elections than any of my Johnson County predecessors any other election official in state history.
13. I routinely testified, in this role, on legislative issues in front of the state’s House of Representatives and State Senate.
14. As Johnson County Election Commissioner I was responsible for registering and accepting applications for voter registration.
15. Even though Johnson County includes the most registered voters in Kansas, very few registrants used the federal NVRA form when registering, yet for those who did, there was confusion regarding the new rules.
16. Federal form registrants who did not provide proof of citizenship were allowed to only vote on federal races.
17. Despite the controversy created by the media from this process, only five voters who registered using the federal form and did not provide proof of citizenship voted in Johnson County in the November 2014 election.
18. In fact, in January 2014, I filed comments with the EAC related to Rulemaking EAC- 2013-0004. I explained that non-approval of a previous request from Kansas to change state-specific instructions on the federal NVRA form impacted voter eligibility, causing voter confusion and leading some voters not qualified to vote in all Kansas races.
19. One specific area of outreach I conducted with proof of citizenship was with the League of Women Voters, where our office loaned the use of an iPad to allow the League to capture proof of citizenship from new citizens registering to vote following their naturalization ceremony. In fact, this practice earned awards from the Election Center and the League, itself, in May 2014.
20. On November 18, 2015, I received an overnighted letter from the state of Kansas. I also received an email version of that letter (dated November 17), from the Kansas election director.
21. I opened the letter with my chief operating officer, Alice Miller (previously the acting executive director), in my office. We read the letter and called another staff member in to discuss. The letter cited a new Kansas Administrative Regulation and made a new request to include in state-specific instructions language consistent with that new regulation. The regulation related to proof of citizenship. The letter also included new information that had not been provided to the EAC previously, consisting of a spreadsheet of non-citizens who recently registered to vote in Sedgwick County, Kansas.
22. Ms. Miller suggested I talk to the Department of Justice attorneys, who she said could explain to me what our position was. Because she could not articulate the substance of the final agency decision that was previously released by her, and which had been written by the Department of Justice attorneys, we discussed the value of waiting to consult with our new general counsel, who would start in December.
23. I notified Commissioners of the new request and sent the state director a brief letter acknowledging receipt of the letter. The letter also was posted to our website.
24. I began evaluating previous requests and saw that requests in the past were not consistently evaluated, but had been received by the Executive Director and staff of the Commission. There was no timetable and process clearly communicated to states for state-specific instruction requests, although they were expected to be received, as we received from Kansas, within 30 days of any legal change.
25. I began writing a document to articulate my findings. I had first-hand knowledge of the concerns raised regarding proof-of-citizenship eligibility issues in Kansas and fully analyzed and considered the spreadsheet that came with the Kansas request that detailed non-citizens who had registered to vote. After evaluating it, I began developing a point of view that previous decisions by the EAC might have been wrong, that the state-specific voter instructions should be accepted if they were duly passed state laws affecting the state’s registration process, including qualifications of voters.
26. I recognized that changes to the state-specific instructions were different than to the NVRA form itself. Changes to the form itself required Commissioner Review through a rulemaking process.
27. I discussed the request with each commissioner and received various types of feedback. All three agreed that the Executive Director, through the 2015 Roles and Responsibilities document, was the point person for a decision related to the Kansas request. I could refer it to the Commissioners or accept or reject the request.
28. In my discussion with General Counsel, we determined that acceptance or rejection by the Executive Director could still be reviewed by Commissioners and, thus, did not represent final agency action.
29. Other staff members were especially unhelpful during this time. Ms. Miller resigned in December and the staff member responsible for previous requests was very disengaged. At one point, after asking her for all information on requests, I found an entirely different binder of materials that she had provided to one of the Commissioners. This information was very helpful in my analysis.
30. That finding led to more discussions with Commissioners. During those discussions, one Commissioner even presented a letter from Alabama’s Secretary of State that represented an outstanding request similar to that in the Kansas letter. I was unaware of other outstanding requests At a staff meeting, I asked about this letter only to find we had unresolved requests from Georgia and Michigan as well.
31. In the meantime, we received different state-specific instruction requests from New Jersey and Iowa.
32. It was clear to me at this point that previous decisions regarding state-specific instructions were evaluated without Commission-enacted policy by the previous Executive Director and the Acting Executive Director. As there was no specifically defined process, other than the established procedure that requests were reviewed by staff and/or the Executive Director, I began documenting one. Conclusions in the most recent EAC past appeared to be drawn by emotion regarding specific requests.
33. In my discussion with Commissioner Hicks, he stated that the Kansas request should go to the Commissioners because it represented “policy.” However, he couldn’t define an agency view of “policy,” but did say proof of citizenship requests had been reviewed by the Supreme Court, and the Commissioners were appointed by the President, so it seemed logical that this was a big enough topic to go to the Commissioners.
34. I explained to Commissioner Hicks that I thought the review should focus on the acceptance of state-specific instructions, and that review should determine what would go to Commissioners, rather than just moving along a topic because it had visibility or was controversial.
35. It was never suggested by anyone to me during this time that the Commissioners should review these requests because they spoke to voter qualifications. I reviewed a draft statement from former Commissioner Gracia Hillman who said that EAC discretion to act on state-eligibility instructions based, she said, on Article 1, Section 2 and the Seventeenth Amendment to the U.S. Constitution.
36. Therefore, I focused on the phrase, “policy,” and decided that the only policy I could address is the Commissioners’ recently validated policy that the Executive Director administers policies, as explained in the Roles and Responsibilities document.
37. I reviewed significant materials showing decisions the Executive Director previously made regarding state-specific instructions. The policy, I concluded, was to allow changes to state-specific instructions without Commission action, and this policy had previously been followed.
38. Once I took this lens, I sought to determine if all outstanding requests were current. I attempted to contact the Secretary of State offices in Kansas, Georgia, Alabama, and Michigan. This was done in late December.
39. Believing time was of the essence and that I had already taken too long to evaluate simple state-specific requests, I had hoped to conclude this process in 2015. I was unable to ever connect with the state election director in Michigan during this time.
40. Throughout the month of December, I regularly updated the Commissioners on this activity through emails and phone calls.
41. I determined that the EAC would implement new procedures whereby we would ask states to review their state-specific instructions every two years and provide any changes to the EAC. This, and my overall review, I thought, was consistent with our role to modify changes “in consultation with the states.”
42. In early January, the EAC conducted a public meeting. I briefed these items to the Commissioners at this time.
43. The next day, in an industry conference (Joint Election Official Conference), I elaborated publicly on this process, explaining that we soon would be asking states to review their instructions.
44. I continued to discuss this topic with those staff members who previously worked on or who had direct experience with this topic while they worked at the Federal Election Commission.
45. I consulted further with EAC Counsel and sought to finalize my internal document.
46. After determining that the changes to the state-specific instructions were necessary and proper, on January 15, I drafted the letters to states explaining our acceptance of their state-specific change requests and asked our staff to work with our contractor on the instructions to be ready to post them to the website should I accept these requests.
47. On January 15, I also saw a new court decision in Kansas regarding voter qualifications associated with proof of citizenship. I forwarded this decision to the Commissioners to say that I was unsure if this had any impact on my analysis and would be discussing that with counsel.
48. I met with counsel to discuss the impact of this voter eligibility court decision and we determined that it was not inconsistent with my view to accept the state-specific instructions as submitted.
49. I finalized my letters to the states on January 29 and mailed them. I instructed our webmaster to post the instruction changes.
50. I notified the commissioners of this action.
51. I emailed the letters to the states on Monday, February 1, and also emailed copies to Commissioners. These letters also were posted to our website by 10 a.m.
52. On February 1, I also completed my documentation of my decision and titled it “Acceptance of State-Instructions to Federal Form for Alabama, Georgia, and Kansas.”
I declare under penalty of perjury that the foregoing is true and correct.
Brian Dale Newby
Executed on: February 21, 2016 Silver Spring, MD
It’ll be interesting to see what happens next … stay tuned.