UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LEAGUE OF WOMEN VOTERS OF THE
UNITED STATES, et al.,

Plaintiffs,

v.

BRIAN D. NEWBY, in his capacity as the
Executive Director of the United States Election
Assistance Commission, and UNITED
STATES ELECTION ASSISTANCE
COMMISSION,

Defendants,

KANSAS SECRETARY OF STATE KRIS
W. KOBACH and PUBLIC INTEREST
LEGAL FOUNDATION,

Defendant-Intervenors.

MEM()RANDUM
(February

Civil Case N0. 16-236 (RJL)

FILED
FE3242017

C|erk, U.S. D|str|ct & Bankrupmy
Courts for the D|str|ct of Co|umbla

V\/VVVVVVVVVVVVVVVVV

\\-'-/

PINION

,2017)

Plaintiffs bring this action against defendants alleging that the Executive Director

of the United States Election Assistance Commission (“EAC” or “Commission”), Brian

Newby, acted outside of his authority and in violation of the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 551_706, When he granted Kansas’s, Georgia’s, and Alabama’s

requests to modify the instructions on the National Mail Voter Registration Form (“the

Federal Form”) to direct voter registration applicants in those three States to submit

documentary proof of their United States citizenship in accordance With the States’

respective laws and regulations Pending before the Court are the parties’ cross-motions
for summary judgment Upon careful consideration of the parties’ motions, oppositions,
replies, and oral arguments, the briefs of amici curiae Landmark Legal Foundation and
Eagle Forum Education & Legal Defense Fund, the relevant law, and the entire record, the
Court REMANDS the challenged determinations to the Commission for the limited
purpose of providing an interpretation of its internal directive which is necessary for
resolution of the threshold issue of whether Newby acted within his subdelegated authority.
BACKGROUND

The background of this case was set forth in detail during the preliminary injunction
phase by our Court of Appeals and by this Court. See League of Women Voters of United
States v. Newby, 838 F.3d l, 4-6 (D.C. Cir. 2016); League of Women Voters ofthe United
States v. Newby, 195 F. Supp. 3d 80, 83-88 (D.D.C. 2016). The Court will therefore limit
its present statement of the facts and law to only that necessary for the present disposition.
In the National Voter Registration Act of 1993 (“NVRA”), Congress directed the Federal
Election Commission (“FEC”), “in consultation with the chief election officers of the
States,” to create a single federal voter registration form that “[e]ach State shall accept and
use” to register voters for elections for federal office via mail. 52 U.S.C. §§ 20501(b)(l);
20505(a)(l); 20508(a)(l). That form is known colloquially as the “Federal Form.” Would-
be voters fill out the application portion of the Federal Form, which is attached to both
general instructions for all applicants and a state-by-state guide that includes state-specific
instructions “which tell residents of each State what additional information they must

provide and where they must submit the form.” Arz'zona v. later Trz'bal Council of Arizona,

2

Inc., 133 S. Ct. 2247, 2252 (2013). “Each state-specific instruction must be approved by
the EAC before it is included on the Federal Form.” Id. Congress established the EAC
through the Help America Vote Act of 2002 (“HAVA”). 52 U.S.C. § 20921. The HAVA
specifies that the “Commission shall have four members appointed by the President, by
and with the advice and consent of the Senate.” Id. § 20923(a)(l). The HAVA transferred
authority over the Federal Form from the FEC to the newly formed EAC. Id. §§ 20508,
20929. The HAVA specifies that “[a]ny action which the Commission is authorized to
carry out under [the HAVA] may be carried out only with the approval of at least three of
its members.” 52 U.S.C. § 20928. The NVRA, the HAVA, and the associated regulations
do not, however, set forth a particular process for EAC review of States’ requests to modify
their respective state-specific instructions on the Federal Form. As such, I will hereinafter
refer to such requests as “state instruction requests.”

On January 29, 2016, the EAC’s Executive Director Brian Newby granted Kansas’s,
Alabama’s, and Georgia’s state instruction requests to include instructions regarding their
respective laws requiring voter registration applicants to prove their citizenship, either
through documentary proof or alternative processes. AR0063-64; AR()O70-7 l; AR0109-
ll(). Newby was the decisionmaker; the three sitting Commissioners did not formally
consider or vote upon the States’ requests. The approved modifications to the state-specific
instructions were promptly inputted, and a new version of the Federal Form was posted on
the EAC website. Newby’s approval letters were matter of fact and did not contain any
explanation as to how he reached his decisions. He did, however, provide an explanation

in a roughly contemporaneous internal memorandum dated February l, 2016. AROOOl-

3

07. Newby explained that several state instruction requests were awaiting review when he
became Executive Director in November 2015. AR0001. Feeling a sense of urgency given
the upcoming presidential elections, Newby stated that he worked quickly to develop a
process for considering and ultimately resolving the requests. AR0001-02. He considered
“[s]tate-specific instructional changes [to be] ministerial, and thus, routine,” and concluded
therefore that “[t]he Executive Director [was to] review the request [only] for clarity and
accuracy.” AR0002. Newby also explained that_in his view_review of proposed state-
speciflc instructions was not a “policy” function that would require the Commissioners’
approval under their February 24, 2015 “Election Assistance Commission Organizational
Management Policy Statement,” which set forth in general terms the respective
responsibilities of the Commissioners and the EAC’s Executive Director and which will
be discussed in more detail below. AR0004; See also AR0226-29. Unlike changes to the
F ederal Form’s general application page, Newby stated, alterations to state-specific
instructions impact only applicants in the State to which they apply, and therefore their
approval or denial is not a broadly applicable “policy” decision. AR0004. He also noted
that previous EAC executive directors had handled requests to amend state-specific
instructions “without Commissioner involvement.” AR0004. Finally, Newby stated, in
essence, that his focus was on whether a voter could become registered under state law
without the information requested by the proposed state-specific instruction. AR0004. He
did not, however, consider whether the states “need[ed]” documentary proof of citizenship
to enforce their qualifications that registered voters be citizens and stated such a

consideration was “irrelevant to [his] analysis.” AR0004.

4

Plaintiffs filed this lawsuit against Newby, in his official capacity as Executive
Director of the EAC, and the EAC itself (collectively “defendants”), on February 12, 2016.l
Their Complaint alleges five counts: (1) that pursuant to Section 208 of the HAVA
Alabama’s, Georgia’s, and Kansas’s requests could be granted, if at all, only by approval
of three Commissioners and thus Newby’s grant of the request exceeded his statutory
authority in violation of the APA, Compl. 1111 70-74; (2) that Newby’s grant of Alabama’s,
Georgia’s, and Kansas’s requests constituted a reversal of the Commission’s policy as to
documentation of citizenship requirements and that he therefore exceeded the scope of his
authority as set forth in the 2015 Policy Statement; Compl. 1111 75~78; (3) that, because in
plaintiffs’ view granting the States’ requests marked a reversal of Commission policy,
Newby was required by the APA to first undergo notice and comment rulemaking, which
he did not, Compl. 1111 83-86; (4) that Newby’s failure to provide an explanation of the
bases for his decision to depart from what plaintiffs claim to be “longstanding policy and
legal determination that documentary proof of citizenship was not ‘necessary’ within the
meaning of the NVRA” was contrary to the APA’s requirements for reasoned decision

making, Compl. 1111 87-91; and (5) that Newby’s failure to determine that the States’

 

' Defendant-intervenor the Public Interest Legal Foundation challenges plaintiffs’ standing Def.-
lntervenor PILF’s Cross-Mot. for Summ. J. 11-15 [Dkt. #105]. Because the Court’s present Opinion does
not rule on the merits of plaintiffs’ claims, the Court “defers ruling on its jurisdiction to decide those
claims.” In re Polar Bear Endangered Species Act Listing & 4(d) Rule Litig., 748 F. Supp. 2d 19, 22 n.5
(D.D.C. 2010) (citing Warth v. Sela’l`n, 422 U.S. 490, 498 (1975) (“In essence the question of standing is
whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”)).
For now, the Court will merely note that it has already held that at least one organizational plaintiff from
Alabama, Georgia, and Kansas has demonstrated a substantial likelihood of standing League of Women
Voters ofthe United States v. Newby, 195 F. Supp. 3d 80, 92 (D.D.C. 2016); see also League Of Women
Voters of United States v. Newby, 838 F.3d l, 9 (D.C. Cir. 2016) (stating the organizational plaintiffs have
demonstrated the injury prong of standing).

documentation of citizenship requirements are “necessary” under the NVRA before
granting their requests was contrary to the APA’s requirements for reasoned decision
making, Compl. 1111 92-96.

On February 17, 2016, plaintiffs moved for a temporary restraining order and
preliminary injunction ordering immediate reversal of Newby’s changes to the Federal
Form on the Commission’s website, ordering defendants to immediately withdraw the
January 29, 2016 letters issued to Alabama, Georgia and Kansas, and requiring defendants
to instruct election officials in those States to replace any copies of the Federal Form that
contained the changes authorized by Newby. On February 22, I granted Kansas Secretary
of State Kris W. Kobach’s and the Public Interest Legal Foundation’s (“PILF”) motions to
intervene as defendants l then denied plaintiffs’ motion as to the request for a temporary
restraining order on February 23, 2016, Mem. Order [Dkt. #34], and as to the request for a
preliminary injunction on June 29, 2016, Mem. Op. and Order [Dkts. ##92, 93]. Plaintiffs
promptly appealed to the Court of Appeals for the District of Columbia Circuit. Notice of
Appeal (July 1, 2016) [Dkt. #95]. Argument was heard by that Court on September 8,
2016, and the next day it issued a judgment granting a preliminary injunction forbidding
the Commission or anyone acting on its behalf from giving effect to Newby’s decisions to
grant the relevant requests, and requiring the Commission to “take all actions necessary to
restore the status quo ante, pending a determination on the merits.” League of Women
Voters v. Newby, No. 16-cv-5196, 2016 WL 4729502, at *1 (D.C. Cir. Sept. 9, 2016). Such
steps included “promptly removing” the challenged instructions from the Federal Form and

“informing Kansas, Alabama, and Georgia that Federal Form applications filed since

6

January 29, 2016 should be treated as ifthey did not contain the now-stricken state-specific
instructions.” Ia’. Our Circuit Court then issued an opinion explaining its decision more
fully on September 26, 2016. League of Women Voters of United States v. Newby, 838
F.3d l (D.C. Cir. 2016).

During the pendency of the appeal, the parties went forth with filing and briefing
their respective motions for summary judgment2 Plaintiffs move for summary judgment
in their favor on all five counts of the Complaint. Pls.’ Cross-l\/Iot. for Summ. J.
[hereinafter “Pls.’ Mem.”] [Dkt. #103]. Defendants, represented by the Department of
Justice’s Federal Programs Branch, concede that, at minimum, Newby failed to apply the
correct statutory standard in reaching his decision and thereby violated the APA. Defs.’

Mot. for Summ. J. 14-20 [hereinafter “Def`s.’ Mot.”] [Dkt. #101]. Defendants state the

 

2 As this litigation has been pending, so has a challenge to Kansas’s enforcement of its documentary
proof of citizenship requirement “as to individuals who apply to register to vote in federal elections at the
same time they apply for or renew a driver’s license.” Fish v. Kobach, 189 F. Supp. 3d 1107, 1152 (D.
Kan. 2016). ln that challenge, United States District Judge Julie Robinson issued a preliminary injunction
directing Secretary Kobach to “register for federal elections all otherwise eligible motor voter registration
applicants that have been cancelled or are in suspense due solely to their failure to provide [documentary
proof of citizenship].” Id.; see also Fl'sh v. Kobach, No. l6-cv-2105, 2016 WL 3000356, at *7 (D. Kan.
l\/Iay 25, 2016). The Court of Appeals for the Tenth Circuit affirmed the District Court’s grant of the
preliminary injunction in ajudgment issued September 30, 2016. Fish v. Kobach, No. 16-cv-3147, 2016
WL 5791539, at *1 (10th Cir. Sept. 30, 2016); see also Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016)
(opinion supportingjudgment). Of relevance to this case, the parties in Fz'sh filed a Joint Status Report on
September 29, 2016. They reported to Judge Robinson that they had reached an lnterim Agreement
regarding Kansas’s administration ofthe November 8, 2016 election. Joint Status Report, Fish v. Kobach,
No. 16-2105 (D. Kan. Sept. 29, 2016), ECF No. 225. Under the terms ofthe Interim Agreement, Secretary
Kobach was to notify “otherwise eligible motor voter registration and Federal Form applicants that have
been cancelled or are in suspense due solely to their failure to provide documentary proof of citizenship”
that they were "‘deemed registered and qualified to vote for the appropriate loca|, srate, and federal elections
for purposes of the November 8, 2016 general election, subject only to further official notice."` Ic.\’. 1-2.
This interim agreement was therefore consistent with the preliminary injunction in place in this case. This
Court held oral argument on the parties’ motions for summaryjudgment on 0ctober 13, 201 6. At that lime,
the parties were in agreement that the practical reality was that little, ifanything, could be done in this case
to affect registration for the November 8, 2016 election. /tccordingly1 it was the parties’ view that there
was no need for the Court to issue an opinion prior to the election.

7

proper remedy is to set aside the challenged actions on that narrow ground and to reserve
judgment on any other issue presented in this case. Ia’. at 21-25. Defendant-intervenors
argue that, particularly when viewed in light of what they perceive to be serious
constitutional questions that would be raised were the Commission ordered to revoke
Newby’s grant of the States’ requests, Newby’s actions were lawful and that plaintiffs
therefore are not entitled to summary judgment on any count. Def.-Intervenor PILF’s
Cross-l\/Iot. for Summ. J. 17-32 [hereinafter “PILF’s Mem.”] [Dkt. #105]; Def.-Intervenor
Kobach’s Mem. of P. & A. in Supp. of his Cross-Mot. for Summ. J. [hereinafter “Kobach’s
Mem.”] [Dkt. #107].
DISCUSSION

lt would be an understatement to say that the parties’ briefing presents difficult
questions In urging the Court to impart a narrow ruling on summary judgment that would
thread the proverbial needle by reaching only Counts IV and V of plaintiffs’ Complaint,
the Department of Justice has recalled the sage words of Justice Frankfurter: “These are
perplexing questions Their difficulty admonishes [the Court] to observe the wise
limitations on [its] function and to confine [itself] to deciding only what is necessary to the
disposition of the immediate case.” Whitehouse v. Illinoz's Central R. Co., 349 U.S. 366,
372-73 (1955). 1 wholeheartedly agree, but in my view it is Counts I and Il, which address
the Executive Director’s authority to rule upon the States’ requests, that present the true
opportunity for a narrow disposition. After all, these are threshold questions and are
potentially dispositive lf Newby’s actions were ultra vires, they must be set aside, and it

matters not whether his reasoning can withstand APA review. To say the least, it would

8

not be prudent for this Court to make rulings regarding the thorny statutory and
constitutional questions presented in the parties’ briefing regarding Counts III and IV if its
ruling in Counts l or ll dictate that, either under the HAVA, administrative law principles,
or the Commission’s 2015 Policy Statement, the Commissioners, and not the Executive
Director, are to rule upon state instruction requests

Thus, in evaluating the cross-motions for summary judgment, the first issue for the
Court is whether, as plaintiffs claim, the EAC may rule upon States’ requests only through
a vote ofthe Commissioners. See Pls.’ Mem. 20-22 (relying on 52 U.S.C. § 20928, which
states that “[a]ny action which the Commission is authorized to carry out under [the
HAVA] may be carried out only with the approval of at least three of its members”).
Assuming, without deciding, that the Commissioners may subdelegate their authority to
grant or deny States’ requests for modification of their state-specific instructions on the
F ederal Form to the Executive Director, the next question for the Court will be whether
they did so. The Administrative Procedure Act compels courts to “hold unlawful and set
aside agency action, findings, and conclusions” if they are “in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). A
corollary of this directive is that courts reviewing agency action must determine that “the
particular official acting on behalf of the agency [was] delegated the authority to act;
otherwise such agency action is invalid.” Am. Vanguara’ Corp. v. Jackson, 803 F. Supp.
2d 8, 12 (D.D.C. 2011). When faced with the question of whether a particular agency
official was subdelegated authority to act, courts in this Circuit examine the record, the

relevant statute, and the implementing regulations to discern whether subdelegation

9

occurred. See Cir. for Auto Safely v. Naz"l Highway Trajj‘z`c Safely Aa'mz`n., 452 F.3d 798,
810 (D.C. Cir. 2006); Town ofE. Hartfora’ v. Harris, 648 F.2d 4, 6 (D.C. Cir. 1980).3

l will thus begin by evaluating the record’s evidence as to any subdelegation of the
authority to rule upon States’ requests to modify their state-specific instructions The
record here reveals that there has been no consistent or longstanding practice as to the
Executive Director’s authority to grant or deny state instruction requests ln the early days
of the F ederal Form, the FEC made changes to state-specific instructions by a vote of the
Commissioners AR0163; AR0204. ln August 2000, the FEC shifted gears and modified
its procedure to provide that the staff of its Office of Election Administration would be
responsible for making any changes to state-specific instructions AR0163; AR0204.
Under the new procedure, however, FEC Commissioners would continue to vote on any
changes to the Federal Form that were applicable to more than one State. AR0163. When
Congress transferred responsibility over the F ederal Form to the EAC, the Commission’s

Associate General Counsel and Executive Director were initially responsible for approving

 

3 Plaintiffs argue that “[i]t is a long-settled principle that absent express and explicit delegation, a
subdelegatee does not have authority to act.” Pls.’ Mem. 23. They rely on Greene v. McElroy, 360 U.S.
474, 506-07 (1959). That case discusses delegation from Congress or the President to agencies in areas of
“questionable constitutionality.” Ia’.; see also ia'. at 507 (“Without explicit action by lawmakers, decisions
of great constitutional import and effect would be relegated by default to administrators who, under our
system of government, are not endowed with authority to decide them.”); United -.S'm!.es v. Dockery, 447
F.2d l 178, 1192 (D.C. Cir. 1971) (describing the Greene Court’s approach as narrowly interpreting the
relevant delegation in order to avoid a constitutional issue). Greene does not address intra-agency
subdelegations of authority that has been delegated by statute to the agency heads Cf. U.S. Telecom Ass 'n
v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004) (explaining that intra-agency subdelegations are “presumptively
permissible absent affirmative evidence of a contrary congressional intent”). Without binding precedent
the Court will not impose a standard that requires clear and explicit subdelegations in all instances, as such
a standard could hamper the functionality of federal agencies as they carry out their duties

10

and denying state instruction requests See AR0230~32, AR0233-35. This practice,
however, does not appear to have been memorialized in any written procedure.

On March 6, 2006, pursuant to that arrangement, the Executive Director rejected
Arizona’s request to include its documentary proof of citizenship requirement in its state-
specific instructions AR0233-35. Four months later, in light of ensuing litigation and voter
confusion in Arizona, the Commissioners departed from the practice of staff management of
state instruction requests and conducted a vote amongst themselves as to whether to include
Arizona’s proposed instruction AR0261-62. The vote was 2-2, which meant the instruction
was not approved. AR0245-50. ln the years that followed, the Commissioners discussed
on several occasions the lack of procedure for dealing with state instruction requests, and
they considered several options for structuring the process and allocating duties among the
Commissioners and the Executive Director. AR0375-76; AR0530-32; AR0700; AR0711~
19; see also AR0732-78. For example, under one proposal the Executive Director would
have implemented a state instruction request if it was a request to “update” its state-specific
instructions, meaning “bring up to date information that (1) is presently contained on the
state specific instructions of the Federal Form, and (2) is information required by and
consistent with Federal statute.” AR0776-77 (describing requests regarding state voter
eligibility requirements, state contact information, state voter registration deadlines, and
voter identification numbers as “updates”). However, if the posed request was not an
“update,” the Executive Director would have forwarded it to the Commissioners for action.
AR0778. The Commissioners also considered adopting the procedure the FEC had used

under which staff approved and rejected state instruction requests and the Commissioners

ll

voted on Federal Form items that affect more than one State. AR0767. But the
Commissioners were ultimately unable to adopt any policies or procedures Thus, on March
20, 2008, Commissioner Hillman recommended that the Commissioners themselves conduct
aa’ hoc votes on the requests pending at that time. AR0793-94. The Commissioners agreed
to adopt this new practice and then voted unanimously to approve seven state instruction
requests, and they again deadlocked as to a request from Arizona to include its documentary
proof of citizenship requirement AR0793-96.

On September 12, 2008, the Commissioners adopted a document entitled “Roles
and Responsibilities of the Commissioners and Executive Director of the U.S. Election
Assistance Commission,” which “identif[ied] the specific roles and responsibilities of the
. . . Executive Director and [the] four Commissioners.” AR0209-16; Kobach v. U.S.
Election Assistance Comm ’n, 772 F.3d 1183, 1190 (10th Cir. 2014). The document stated
that the Executive Director was “expected to (1) prepare policy for commissioner approval,
(2) implement policies once made, and (3) take responsibility for administrative matters.”
AR0209. Moreover, the Executive Director was to “[p]rovide for the overall direction and
administration of EAC’s operating units and programs, consistent with the agency’s
strategic plan and any . . . commissioner adopted policies,” and “[m]aintain the Federal
Voter Registration Form consistent with the NVRA and EAC Regulations and policies.”
AR0215. The document further provided that the Commissioners would “not directly act”
on matters that they had delegated to the Executive Director. AR0216.

lmportantly, immediately following the adoption of the 2008 Roles and

Responsibilities document, the Commissioners themselves continued to vote on all state

12

instruction requests AR0217, AR219-20. lndeed, from 2008 to 2010 every decision on
state instruction requests was made through a vote of the Commissioners AR0217,
AR0219~20. However, at the end of 2010, the Commission found itself with only two
Commissioners and thus, its quorum was lost. Executive Director Thomas Wilkey instituted
an interim procedure under which the Executive Director, after consultation with the General
Counsel and other Commission staff, would generally make determinations regarding state
instruction requests but that any “[r]equests that raise[d] issues of broad policy concern to
more than one State w[ould] be deferred until the re-establishment of a quorum.” AR0217-
18. Wilkey asserted that the interim procedure was consistent with the Commission’s past
precedent, in that, prior to 2008, the practice had been for staff to approve or deny state
instruction requests AR0218. Pursuant to Wilkey’s memorandum, EAC staff made
determinations regarding state instruction requests from 2011 to 2014, including Executive
Director Alice Miller’s 2014 denial of Arizona’s, Georgia’s, Kansas’s requests to include
instructions regarding their documentary proof of citizenship requirements AR0220-25;
AR0283-328. ln subsequent litigation, the Court of Appeals for the Tenth Circuit found the
Executive Director to be acting within her subdelegated authority under the 2008 Roles and
Responsibilities document Kobach, 772 F.3d at 1191-92.

When the Commission regained a quorum in early 2015, the three newly minted
Commissioners adopted via unanimous vote an “Organizational Management Policy
Statement.” AR0226-229; AR0857-861. The 2015 Policy Statement expressly
superseded the 2008 Roles and Responsibilities document. AR0226. However, the two

documents bear striking similarities As to the “[d]ivision of authority regarding

13

policymaking and day-to-day operations,” the 2015 Policy Statement provides that “[t]he
Commissioners shall make and take action in areas of policy.” AR0227. Further,
“[p]olicymaking is a determination setting an overall agency mission, goals and objectives,
or otherwise setting rules, guidance or guidelines Policymakers set organizational purpose
and structure, or the ends the agency seeks to achieve. The EAC makes policy through the
formal voting process.” AR0227. Finally, “[t]he Executive Director in consultation with
the Commissioners is expected to: (1) prepare policy recommendations for commissioner
approval, (2) implement policies once made, and (3) take responsibility for administrative
matters The Executive Director may carry out these responsibilities by delegating matters
to staf .” AR0227. Notably, however, the 2015 Policy Statement did not delegate any
specific tasks to the Executive Director, as the 2008 Roles and Responsibilities document
did when it provided, inter alia, that the Executive Director “[m]aintain the Federal Voter
Registration Form consistent with the NVRA and EAC Regulations and policies.”
Compare AR00226-29 with AR0209-16. At the meeting in which the Commissioners
adopted the 2015 Policy Statement, Commissioner Hicks, then Vice-Chair of the
Commission, stated, “1 and my fellow Commissioners agree that [the 2015 Policy
Statement] continues to instruct the Executive Director to continue maintaining the federal
form consistent with the Commissioners’ past directives, unless and until such directions
were counter made should the agency find itself again without a quorum.” AR0860.

Due to this near-constant fluctuation of procedures for processing state instruction
requests the Court cannot draw conclusions from the Commission’s practices as revealed

in the record. The HAVA and the NVRA are silent on the procedures for evaluating state

14

instruction requests, and, as the record demonstrates, deadlock_or perhaps dysfunction_
has prevented the Commission from adopting any relevant implementing regulations that
would shed light on the subdelegation issue. Thus, the Court is left with only the 2015
Policy Statement The federal defendants state that “the choice not to list specific tasks for
the Executive Director” in the 2015 Policy Statement “did not remove those
responsibilities” set forth in the 2008 Roles and Responsibilities document including the
responsibility of maintaining the Federal Form. Defs’ Mem. 11; see also PlLF’s Mem.
22-23.4 But regardless of the level of deference it warrants, this litigating position is not
much help. From 2008 to 2010, a time in which the 2008 Roles and Responsibilities
document was in effect and explicitly delegated to the Executive Director the authority to
maintain the Federal Form, the Commissioners voted on every requested modification to
the state-specific instructions AR0217, AR0219-20. Thus, even if the Executive Director
continued to possess the delegated authority to “maintain” the Federal Form under the 2015
Policy Statement, it is far from clear that authority included the power to approve or reject
requests related to changes to the state-specific instructions5 Defendant-intervenor PILF
argues that evaluating individual States’ requests is not “policymaking” and therefore is

not part of that function that the Commissioners reserved for themselves in the 2015 Policy

 

4 Plaintiffs argue to the contrary, stating the 2015 Policy Statement rescinds the Executive Director’s
subdelegated authority to maintain the Federal Form, Pls.’ Mem. 24.
5 Analyzing the 2008 Roles and Responsibilities document, the Court of Appeals for the Tenth

Circuit found that “maintenance” of the Federal Form necessarily included some authority to make
decisions “concerning the contents” of the form. Kobach, 772 F.3d at 1191. ln doing so, the Court relied
on the EAC’s litigating position to that effect. Id. The EAC has staked no such position in this litigation.
instead its counsel have persisted that the Court should not reach the issue. Defs.’ Mem. 23. Moreover,
the Tenth Circuit did not grapple with the significance of the Commissioners themselves continuing to vote
on States’ requests after the 2008 Roles and Responsibilities document was in effect.

15

Statement. PILF Mem. 21-22. That position appears to be in line with Newby’s view that
he was not wading into a “policy” matter when approving the requests AR0003-04.6 But
it is not clear that making determinations regarding modifications to the state-specific
instructions amounts to “tak[ing] responsibility for administrative matters” as the
Executive Director is authorized to do. AR0227; cf Exxon Corp. v. F.T.C., 665 F.2d 1274,
1279 (D.C. Cir. 1981) (recognizing that implicit subdelegation of authority to conduct a
specific task can be found where that task is “necessarily include[d]” in a power explicitly
subdelegated). This is especially true in light of evidence in the record that over the years
some Commissioners and Commission staff have expressed the view that some requests
for modification of the state-specific requests are clear-cut, routine while others are
anything but. AR0555-79; AR0700; AR0737-38; AR0776.

lt is also unclear that approving, or denying, requests actually amounts to
“implement[ing] policies,” made by the Commissioners, AR0227, as the Executive
Director has the delegated authority to do. The 2015 Policy Statement describes
“policymaking” as “setting an overall agency mission, goals and objectives, or otherwise
setting rules, guidance or guidelines.” AR0227. The Commissioners have never adopted

or issued generally applicable guidelines regarding state-specific instructions lnstead,

 

" Defendant-intervenor Secretary Kobach argues that Newby’s statements describing his
understanding of his authority under the 2015 Policy Statement constitute an agency interpretation that
warrant Auer deference Kobach’s Mem. 29-30 (citing Auer v. Robbi'ns_. 5 l9 U.S. 452 (1997)). But one of
the prerequisites for Auer deference is that there be “no basis to suspect that the agency’s position represents
anything less than its considered opinion.” Bz'gelow v. Dep 'r ofDef, 217 F.3d 875, 878 (D.C. Cir. 2000).
Given that the claim here is that Newby acted outside his subdelegated authority, the Court finds that there
a reason to suspect a memorandum authored by Newby and justifying his actions does not constitute the
considered judgment of the Commission itself on the topic of the scope of Newby’s authority.

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they have only voted in an aa’ hoc manner on specific pending requests Plaintiffs persist
that the Commissioners previous vote on Arizona’s state instruction requests form part of
the body of the Commission’s “policy” towards documentary proof of citizenship state
instruction requests Pls.’ Mem. 27.7 But it is not clear from the 2015 Policy Statement
that the Commissioners engage in “policymaking,” as defined in the statement, when they
vote on any given state instruction request The statement does not clarify whether such a
vote would constitute setting a mission, goals objectives rules guidance, or guidelines
especially given the fact that the Commissioners did not issue joint statements or
explanations along with their votes See AR0227 lndeed, their votes on state instruction
requests regarding documentary proof of citizenship were deadlocked, and it is far from
apparent from the 2015 Policy Statement that a deadlocked vote constitutes “mak[ing]
policy through the formal voting process” AR0227.

For all these reasons the 2015 Policy Statement is ambiguous Generally, when an
agency’s own rule or regulation is ambiguous the agency’s interpretation is “give[n]

substantial deference.” Confea’eratea’ Tri'bes of Grana’ Rona’e Cmty. of Oregon v. Jewell,

830 F.3d 552, 559 (D.C. Cir. 2016). “Logic suggests that this rule should apply with even

 

7 They also argue that previous Executive Directors’ actions on state instruction requests regarding
documentary proof of citizenship are evidence of the Commission’s policy. But in Count ll, the analysis
hinges on whether Newby exceeded the scope of his subdelegation. Pls.’ Mem. 23-30. Thus the focus is
on whether he exceeded his own authority or encroached the Commissioners’ role as set forth in the 2015
Policy Statement That document states that policymaking is the function of the Commissioners and that
the Executive Director is to implement the Conimissioners’ policies AR0227. lt does not state that
“policymaking” has previously been conducted by Executive Dii'ectors or the current Executive Director is
to implement the “policies” of any previous Executive Director. Whether Newby was obligated to explain
his departure from any relevant EAC precedent on the issue of documentary proof of citizenship state
instruction requests including actions previous Executive Directors, goes to the separate question of
whether his analysis passes muster under the APA’ reasoned decisionmaking requirements That question
is therefore properly reached in Counts lll and IV and not in Count lI.

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greater force, where, as here, the agency is neither exercising legislative rulemaking
authority nor interpreting a statute, but rather issuing rules governing its own internal
operations.” Grossman v. Unitea’ States, 57 Fed. Cl. 319, 326 (2003). The Commission
has expertise and insight that makes it better situated to interpret the meaning of its
ambiguous organizational directive than is this Court, and it would therefore be imprudent
for me to impose my own interpretation at this juncture. But in order to afford substantial
deference to a reasonable interpretation set forth by the Commission, the Commission must
first adopt one. Mindful of the ordinary practice, under which the court remands to the
agency after identifying statutory ambiguity in order for the agency to make an initial
interpretation, see INS. v. Orlana'o Ventura, 537 U.S. 12, 16-17 (2002); PDK Labs. lnc. v.
DEA, 362 F.3d 786, 798 (D.C. Cir. 2004), l have concluded that a remand is indeed
warranted here. Put simply, remand, as opposed to supplemental briefing, is necessary to
ensure the Commission_not Government counsel_brings its expertise and insight to
bear.8 On remand, the Commission will have the opportunity to provide a reasonable
interpretation of the Executive Director’s authority to grant and deny state instruction
requests under the 2015 Policy Statement The Commission’s interpretation, at a
minimum, should address the facets of ambiguity discussed above, including whether

deadlocked votes of the Commission constitute “policymaking” and whether approving

 

8 Given plaintiffs’ lack of objection on procedural grounds to the adoption of the 2015 Policy
Statement, the Court is satisfied that the Commission’s interpretation of the ambiguous language in that
document on remand will not require notice and comment rulemaking

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and denying state instruction requests is an administrative task, a policy implementation
function, or neither.
CONCLUSION

For all the foregoing reasons the Court hereby REMANDS to the Election
Assistance Commission Newby’s grants of Kansas’s, Alabama’s, and Georgia’s requests
to include their documentary proof of citizenship requirements in their state-specific
instructions on the Federal Form. Because remand is appropriate for the disposition of a
threshold issue, the Court defers ruling on the merits of the parties’ cross-motions for
summary judgment See In re Polar Bear Erta’angerea’ Specz'es Act Listing & 4(a’) Rule
Litig., 748 F. Supp. 2d 19, 22 (D.D.C. 2010); cf. In re Checkosky, 23 F.3d 452, 463 (D.C.
Cir. 1994) (noting that “reviewing courts will often and quite properly pause before
exercising full judicial review and remand to the agency for a more complete explanation
of a troubling aspect of the agency’s decision”). The Court will stay this case during the
remand period, but, as the case will still be pending, the preliminary injunction will remain
in place. See League of Womert Voters of United States v. Newby, 838 F.3d 1, 15 (D.C.
Cir. 2016) (issuing a preliminary injunction to remain in place “pending entry of the final
judgment”). The federal defendants shall file the Commission’s explanation and any
supporting materials on or before June 1, 2017. Within fourteen days (14) of the filing, the

parties shall confer and file a joint proposed schedule for any supplemental briefing

7a.aa/

RICH J L ON
United States District Judge

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