“This is the first time in 14 years I’ve seen this.”
Those were some of federal district judge Leon’s comments regarding what the Department of Justice asked for in court today, as part of an important case that could impact the integrity of the 2016 election.
The DOJ sought to not fight a lawsuit against the federal Election Assistance Commission (EAC), conceding to a temporary restraining order and preliminary injunction filed by the League of Women voters and other activist groups. The EAC had decided to allow Kansas, Arizona, Georgia, and other states “to enforce state laws ensuring that only citizens” would be able to register to vote when they use the federally designed voter registration form.
“Inconceivably,” the DOJ did not want to fight against the activists’ suit trying to stop the implementation of these voter integrity laws.
As Kansas Secretary of State Kris Kobach argued today, not allowing states to do this would run afoul of Article I, Section 2, Clause 1 of the Constitution, which reserves voting qualifications for the states. Kansas has already documented 17 cases of non-citizens seeking to register to vote, putting a practical reason behind that state’s decision to require that voters provide some sort of evidence of citizenship (passport, birth certificate, naturalization documents, some other enumerated documentation, or any other adequate proof).
And yet DOJ had sought to roll over. Judge Leon would not allow it.
The first action he took from the bench today was to read into the record a letter he had received from a sitting EAC commissioner, noting the possible conflicts that DOJ had in representing the EAC. He then allowed the Kansas secretary of state time to argue, along with J. Christian Adams of the Public Interest Legal Group (Adams is PJ Media’s legal editor).
Judge Leon had other harsh words for the plaintiffs and the DOJ. He said that, ordinarily, DOJ briefs “cover the waterfront,” making numerous legal arguments defending their position. Yet in this case, DOJ was refusing to defend an independent agency’s right to follow its statutory duty. Judge Leon asked if this represented a possible conflict. The DOJ attorney answered that there was no conceivable set of circumstances in which DOJ might have a conflict of interest vis-à-vis its representation of an independent agency in federal court, something that the judge clearly questioned.
Judge Leon noted that the filings reflected upon the quality of “your section [the Federal Programs branch of DOJ] and you specifically [the DOJ attorney].” He said the DOJ position was “very unusual,” and “is inconsistent with what I’ve seen before.”
He also appeared perturbed that, after he had granted extra time to the DOJ to get its facts straight, the attorney was still unable to answer questions about the case:
I gave you the weekend … what the heck have you been doing?
Plaintiff’s counsel in the case didn’t fare any better, referring repeatedly to other attorneys in the front row for elementary facts of the case:
No, they can’t answer — you can go talk with them.
At the outset, the judge noted the large crowd appearing for the plaintiff. Over 20 lawyers representing an alphabet soup of activist groups had sought to sit in the front of the courtroom at the counsels’ table, but a number were moved back to the gallery. Said Leon:
This is a traveling roadshow, and those must be all your fans.
I overheard a lawyer for the plaintiff say upon reseating:
I guess if you get to be a dictator in your own little fiefdom, that’s pretty good.
Why such emotion in a federal court on a motion for a temporary restraining order? Simply put, the case could impact the ability of states to require citizenship proofs to register to vote. While the EAC has no statutory or constitutional authorization to tell states who qualifies as a voter, it does have authority over the federal form that states must use when registering individuals for federal elections. So while the agency has authority over the form, it is required by statute — and the Constitution, as Secretary Kobach noted in a discussion of federalism and election law — to allow states a way to place their qualifications on the form.
Judge Leon expressed interest in the communications between the DOJ and the EAC. When pressed, Secretary Kobach named Civil Rights Division attorney Bradley Heard as the attorney he thought was responsible for “commandeering” EAC internal processes, and encouraging it to prohibit proof of citizenship requirements on the federal form prior to this year’s decision that is the subject of the current litigation. Judge Leon was interested in hearing about DOJ involvement in developing the EAC form, because this bears on the legality of EAC action and on the propriety of continued DOJ representation of the EAC.
Ultimately, this case appears to be on the fast-track in federal district court. A decision in this case, and a subsequent appeal to the D.C. Circuit, will bear on the ability of states to protect the integrity of their ballots in the 2016 election and in years to come.