Hot Potato (cont.): EAC Tells Court It Is Still Divided on Authority of Executive Director

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Back in March, I wrote about a “hot potato” from a federal court to the U.S. Election Assistance Commission: a request for guidance on agency policy regarding the Executive Director’s authority under the NVRA to add state-specific proof of citizenship instructions to the federal voter registration form. Yesterday, the EAC returned that hot potato to the court, telling the judge that it is still divided on several key aspects of that question.

The EAC’s filing (which Rick Hasen has shared here) consists of a proposed memorandum, a tally vote and a short statement by Commissioner Tom Hicks. The tally vote was 2-1 (Masterson and McCormick in favor, Hicks opposed), meaning that the proposed statement of policy fails for lack of the required three votes. [As the Brennan Center’s Wendy Weiser observed to Hasen, “3 votes are critical.”]

The Commissioners do agree that in most cases the Executive Director does have the authority to handle state-specific requests, and has done so in the past. As the filing makes clear, however, the crux of the disagreement continues to be whether or not the changes in this case were significant enough to constitute “policy” requiring a formal vote. There is also disagreement over whether or not the failure to achieve three votes as required by HAVA continued a previous “policy” or left the Executive Director free to “move the agency forward”. Indeed, these are the two points Commissioner Hicks cites in his statement explaining his recommendation to disapprove the proposed memorandum.

The bottom line, however, is that the agency is still divided on this matter, meaning that it will be up to the judge to decide the fate of the state-specific changes to the federal form.

To be candid, this filing isn’t very surprising, given what we’ve seen and heard from the Commissioners on this matter. But now, at least, the court is fully aware of the scope of the disagreement and can rule both on whether the changes at issue were valid and, perhaps, how such requests should be handed going forward.

Stay tuned …