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Cummings, Brady, Clyburn Investigate Unprecedented Action on Voter Registration

Jun 1, 2016
Press Release
Questions Raised About EAC Executive Director’s Unilateral Action to Amend Federal Voter Registration Form in Three States

Washington, D.C. (June 1, 2016)—Today, Rep. Elijah E. Cummings, Ranking Member of the House Committee on Oversight and Government Reform, Rep. Robert A. Brady, Ranking Member of the Committee on House Administration, and Assistant Democratic Leader James E. Clyburn sent a letter to Election Assistance Commission (EAC) Chairman Thomas Hicks seeking information about how and why EAC Executive Director Brian Newby—unilaterally and without action by the Commissioners—amended the federal voter registration form to require proof of citizenship in Alabama, Georgia, and Kansas.

The Members wrote:  “we are concerned that the actions of the EAC Executive Director could impair, and already may have impaired, the legitimate right to vote of many Americans, and we are seeking a better understanding of how the changes to the federal form were approved.”

Earlier this year, Thomas Hicks—now the EAC Chairman—issued a statement warning that Newby’s action “contradicts policy and precedent previously established by this Commission” and that it “constitutes a change of policy, which can only be made following official adoption by at least three Commissioners.”

According to an April 2016 report from the New York Times, Newby’s action has already impacted at least 30,000 people whose attempts to register to vote in Kansas were denied due to lack of documentary proof of citizenship.

EAC Commissioners have rejected similar requests from states in the past, concluding that requiring sworn statements of citizenship under penalty of perjury is sufficient.  Courts including the U.S. Supreme Court have upheld this approach. 

In February, the League of Women Voters of the United States filed suit against the EAC, arguing that Newby’s decision is illegal because he did not take the decision to the Commissioners, and that he violated EAC policies by engaging in ex parte communications with state officials.  

The U.S. Department of Justice filed in support of the League of Women Voters’ motion to halt the action while it is being challenged in court, arguing that Newby’s action violates federal voting laws. 

The Members’ letter seeks all communications relating to the states’ requests for modification between Newby and EAC General Counsel Cliff Tatum; the Secretaries of State of all three states; and all EAC commissioners.

The Members also request an explanation of Newby’s legal authority to unilaterally modify the forms, and analyses regarding the impact the change would have on voters in those states.

Click here or read below for the full letter:

June 1, 2016

The Honorable Thomas Hicks

Chairman

U.S. Election Assistance Commission

1335 East West Highway, Suite 4300

Silver Spring, MD 20910

Dear Commissioner Hicks:

We are writing to request information about the decision by Brian D. Newby, the Executive Director of the U.S. Election Assistance Commission (EAC), on January 29, 2016, to amend the federal voter registration form to require proof of citizenship in Alabama, Georgia, and Kansas.  

The New York Times reports that in Kansas alone, state records show that at least 30,000 applicants have been denied registration due to lack of documents, and some believe the actual number could be as high as 45,000.[1]

In addition, the League of Women Voters of the United States has filed suit against the EAC alleging that (1) the Executive Director did not obtain approval of the Commissioners despite the presence of a quorum, rendering his actions ultra vires; (2) the Executive Director did not have the authority under internal EAC policies to make the decision unilaterally and violated internal policies by engaging in prohibited ex parte communications with state officials; (3) the Executive Director did not provide formal notice and opportunity to comment or present the states’ requests to the Commissioners pursuant to the Administrative Procedure Act; (4) the Executive Director did not explain the grounds for this change even though it is a dramatic shift in EAC policy and precedent that had been reaffirmed only two years prior; and (5) the Executive Director exceeded the scope of his statutory authority which precludes proof of citizenship absent a showing of necessity.[2]

Given these troubling allegations, we are concerned that the actions of the EAC Executive Director could impair, and already may have impaired, the legitimate right to vote of

many Americans, and we are seeking a better understanding of how the changes to the federal form were approved. 

As part of this review, we request that you produce copies of the following documents:

1.      For the period from November 2, 2015, to the present, please provide all documents relating to requests from Alabama, Georgia, and Kansas to modify their voter registration forms, including but not limited to emails, text messages, reports, or memoranda, between the Executive Director or his staff and the following individuals or offices:

a.       EAC General Counsel Cliff Tatum;

b.      the Office of Alabama Secretary of State John Merrill;

c.       the Office of Georgia Secretary of State Brian Kemp;

d.      the Office of Kansas Secretary of State Kris Kobach;

e.       EAC Commissioner Thomas Hicks;

f.        EAC Commissioner Matthew Masterson; and

g.      EAC Commissioner Christy A. McCormick.

2.      For the period from November 2, 2015, to the present, please provide all analyses of, or documents relating to, the impact of modifying the federal voter registration form in Alabama, Georgia, and Kansas on the residents of these states.

3.      For the period from November 2, 2015, to the present, please provide all documents relating to the Executive Director’s legal authority to unilaterally modify the federal voter registration forms in Alabama, Georgia, and Kansas, including, but not limited to, EAC policies and procedures and emails sent to or received by EAC General Counsel Cliff Tatum and the EAC Commissioners.

We request that you respond by June 15, 2016.  Please contact Karen Kudelko of Ranking Member Cummings’s staff at (202) 225-5051, Khalil Abboud of Ranking Member Brady’s staff at (202) 225-2061, or Amy Miller Pfeiffer of Assistant Democratic Leader Clyburn’s staff at (202) 226-3210 with any questions. 

Thank you for your consideration of this request.

Sincerely,


[1] The Voter Support Agency Accused of Suppressing Votes, New York Times (Apr. 8, 2016).

[2] Plaintiffs’ Complaint for Declaratory and Injunctive Relief (Feb. 12, 2016), League of Women Voters v. Newby, D.D.C. (No. 1:16 CV 00236).

114th Congress