Hot Potato: Judge Returns Proof-of-Citizenship Decision to EAC

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The U.S. Election Assistance Commission already has a very full plate for 2017: voting technology standards and testing, a central role in the discussion over Homeland Security’s designation of elections as critical infrastructure – not to mention watching Congress for a bill that would eliminate the agency. But now a federal judge has added a huge hot potato by returning to the EAC a long-running and controversial case regarding inclusion of state proof-of-citizenship requirements on the federal voter registration form.

I’ve covered the specifics of this case more extensively elsewhere, but the main issue here is this: was the EAC executive director within his authority when he added those requirements to the federal form, or should the question have been referred to the three Commissioners for a vote? The issue was extensively litigated in a Washington, DC federal court – with particular focus on how different documents and procedures (most recently a 2015 Policy Statement) have defined the executive director’s duties throughout the agency’s history. Ultimately, the judge decided in his ruling that he could not defer to the agency’s policy until it had actually established one:

Thus, the court has now returned the issue to the EAC with the requirement that it clarify this issue of the executive director’s authority and report back to the court by June 1, 2017 – after which the case will resume. It’s likely to be difficult to reach consensus, given that any vote of the Commission requires three votes and two of the Commissioners are already essentially on record on opposite sides of the issue. The timing is also less than ideal for the agency given both the length of its to-do list and increased scrutiny from Capitol Hill.

I don’t envy the EAC having to resolve this issue, but resolve it they must – or the Court will presumably do it for them. It will be interesting to see what happens – but it’s another reason to keep a close eye on the EAC in the weeks and months to come. Stay tuned …

 

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