Must-read Zach Roth for MSNBC:

Newby’s move sparked instant criticism. In astatement posted online Tuesday, the panel’s lone Democratic commissioner, Vice Chair Thomas Hicks, wrote that Newby had acted “unilaterally,” and that his decision “contradicts policy and precedent established by the Commission.” Hicks noted that a 2015 EAC statement makes clear that the executive director lacks the authority to set policy, which must be done by the commissioners. Hicks said any change to the federal voter registration form would need to be voted on by the commissioners after a public comment period, neither of which occurred in this case.

“This is a shocking departure from two previous rejections by the EAC of requests to change the federal form along these lines, with no explanation, and, what’s worse, with no opportunity for public notice and comment,” said Dale Ho, the director of the ACLU’s voting rights program, which is suing Kobach over the proof-of-citizenship requirement, calling it “troubling on a number of levels.”…

In an interview with MSNBC, Newby conceded that he lacks the authority to change EAC policy. But he argued that changing the state-specific instructions that accompany the federal voter registration form, unlike changing the form itself, constituted an administrative matter, rather than a policy change— even though the agency had twice rejected Kansas’ requests to change the instructions. In fact, Newby said, he believes he’s required to change the instructions if a state asks him to.

“If a state requests that we modify the state-specific instructions based on their state law, yes, I believe that my role is to put those [changes] in our state-specific instructions,” Newby said.

If there’s a meaningful distinction between the federal form and the instructions that accompany the federal form, it was lost even on Kobach. In his court filing this week seeking to have the lawsuit against him dismissed, he referred to Newby’s decision thus: “On January 29, 2015 (sic), the EAC granted Kansas’s request to modify the Federal Form.”

William Lawrence, a Kansas lawyer who is challenging Kobach’s effort to remove the roughly 30,000 would-be voters who didn’t provide proof of citizenship, said the distinction Newby is seeking to draw doesn’t hold water….

Newby admitted to MSNBC he’d been in contact with Kobach on the issue, as well as with the secretaries of state of Alabama and Georgia. He said there was nothing improper about doing so, or about not including the the EAC’s commissioners in his conversations with state officials.