Proof of Citizenship Case Will Turn on Administrative Law, Judge Rules

[Image courtesy of keepcalm-o-matic]

Yesterday, a federal judge in Topeka ruled that a suit by Kansas, Arizona and Georgia against the U.S. Election Assistance Commission (EAC) can proceed – but denied the states’ request to introduce additional evidence in the case. Richard Winger of Ballot Access News has the details:

On February 5, U.S. District Court Judge Eric Melgren signed an order restricting the scope of the Kansas-Arizona challenge to the Election Assistance Commission’s decision not to allow those two states to amend the federal voter registration postcard form. The two states wanted a trial to submit evidence that the federal form doesn’t offer enough protection against aliens registering to vote. The federal form requires applicants to sign under penalty of perjury that they are citizens, but the two states want to change the form to require the applicant to attach proof.

The Election Assistance Commission had already [solicited comment] last year [during] which both sides presented evidence. The EAC record on this matter consists of 1,912 pages [including comments from the States themselves]. After the EAC’s hearing, the EAC issued a 46-page determination that there is no need to amend the form. The judge ruled that, therefore, there is no need for a trial on this issue in his court. Instead, the District Court will simply rule on whether the EAC has the authority to make the decision it did. Kansas and Arizona will now probably argue that the EAC’s determination was “arbitrary, capricious, or an abuse of discretion”, and the two states will also probably argue that the EAC is required to honor the request of the states. The two states may also argue that the EAC had no authority to act because, although it has a full-time professional staff, it has no sitting commissioners. [links added]

This is a very significant ruling. Basically, the judge in this case is telling the states that if they want to challenge the administrative decision of a federal agency, they have to use administrative law to do it. That’s important because it:

1. Makes the EAC decision presumptively valid – “arbitrary and capricious” is very deferential to the decisionmaker;
2. Limits the record to the documents that the agency considered in making its decision; and
3. Will (hopefully) resolve once and for all the lingering question of whether the EAC still has the authority to act in its current state.

In short, Judge Melgren is ready to “call the question” on the EAC’s remaining authority – a decision which will have HUGE ramifications for the continued relevance of the EAC, not to mention the fate of proof-of-citizenship requirements and the prospect of dual-track state registration lists.

Many years ago, my friend and mentor Roy Schotland chided me for saying at an election event that administrative law – one of his many passions – was “boring” (he sent me a clipping with that phrase circled and the notation “Et tu, Chapin?”). As usual, he was right – administrative law is about to be not boring at all in the field of elections.