Election Assistance Commission Issues Controversial Decision Without Commissioners and Approaching Midnight Deadline

In an ongoing dispute between the federal government and the states of Arizona and Kansas over voter registration (which already earlier made it to the Supreme Court), the U.S. Election Assistance Commission issued a decision only minutes before a court-imposed deadline to respond. What makes the order even more remarkable is that the EAC issued its decision without any of its four commissioners (thanks to a stalemate in Congress over whether the EAC should exist at all.  You can find the EAC’s decision at EAC Issues Decision on State Requests for NVRA Proof-of-Citizenship Instructions.

At issue is whether the EAC would modify a universal voting form used throughout the U.S. for voter registration (as mandated by the 1993 National Voter Registration Act—or “motor voter”) to allow for the states of Kansas, Arizona, and Georgia to demand documentary proof of citizenship for voters who register for the first time by mail.  The EAC initially failed to act on Arizona’s request. In the Supreme Court’s Arizona v. Intertribal Council opinion from last term, the Supreme Court rejected Arizona’s challenge but gave Arizona a roadmap to further challenge the issue. (See The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013).

In the Intertribal opinion, Justice Scalia noted the odd issue of how the EAC might respond if it has no commissioners thanks to Senate deadlock. It is therefore not clear whether the EAC executive director has the authority to issue the memorandum issued tonight. Even if it does, it is unclear whether it is entitled to any deference in a judicial proceeding.  These are very complex administrative law issues and we will have to see how the question get resolved.

Even past the administrative law issues, there are then complex issues of statutory construction and deference to earlier agency determinations which will come up.  It is worth noting that the initial dispute over what do to about Arizona’s request marked the beginning of a period of partisan discord at the EAC, as I describe in The Voting Wars.

Stay tuned.  This is far from over.

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