This column by ACRU Policy Board member Hans von Spakovsky was published February 22, 2016 by National Review.
I attended a hearing on Monday afternoon before District of Columbia federal district court Judge Richard J. Leon that was one of the most “extraordinary” federal court hearings I have ever attended, to use Judge Leon’s description of the case. The hearing was over the temporary restraining order (TRO) and preliminary injunction (PI) being sought by the League of Women Voters and a host of other leftist groups to stop the recent decision of the U.S. Election Assistance Commission (EAC) to allow Kansas, Georgia, Alabama, and Arizona to enforce their proof-of-citizenship voter-registration requirement.
This morning, as I predicted would happen in an article on Sunday, the U.S. Justice Department took a dive and filed a pleading in which it not only failed to defend the actions of the EAC, but agreed with the plaintiffs and consented to both a TRO and a PI. Judge Leon called the pleading “unprecedented” and “extraordinary.” He said he had never seen such a document in his entire experience as a lawyer or a judge. He was obviously astonished that the Justice Department was not defending the agency, and it was soon clear he was not going to allow DOJ to just roll over.
The courtroom was so full that Judge Leon was obviously surprised by the size of the audience when he walked into the courtroom, calling it a “traveling roadshow.” In fact, the plaintiffs showed up with over a dozen lawyers. There were so many lawyers (even though only one lawyer was there to argue for the plaintiffs) that, before the hearing started, the clerk asked them to move from the plaintiffs’ table to the gallery.
The judge issued orders just before the hearing started granting the motions of both the State of Kansas and the Public Interest Legal Foundation to intervene in the case in order to defend the EAC’s position. So Kris Kobach, the Secretary of State of Kansas, was given time to argue against the TRO motion, as was Christian Adams of PILF. The judge opened the hearing by reading into the record an astonishing letter he had just received from the chair of the EAC, Christie McCormick. It informed the court that DOJ had told the EAC that it would not defend the agency, and that it would not allow the EAC to hire its own counsel. McCormick informed the judge that she believed DOJ was not fulfilling its duty and obligation to defend the EAC and had a potential conflict of interest.
It was clear that Judge Leon was shocked at what DOJ had done. While he gave the plaintiffs 20 minutes to argue their case, he gave the lawyer from the Federal Programs Branch of DOJ only five minutes because he said that DOJ was obviously on the same side as the plaintiffs. He also said almost immediately that he would not grant a PI without a complete briefing and arguments on the case — despite DOJ wanting to consent to the PI. Judge Leon made clear that there was “no chance at all — zero” that he would do what the plaintiffs and the Justice Department wanted him to do on that issue.
When the DOJ lawyer got up, he was asked very tough questions about DOJ’s actions in this case by Judge Leon, including the potential conflict of interest that I discussed in my Sunday article and which Commissioner McCormick referred to in her letter to the judge. The DOJ lawyer denied that there was a conflict and gave rambling, vague answers that clearly did not satisfy the judge. Leon was obviously annoyed at the lawyer’s inability to answer some of his questions, saying “I gave you the weekend to get ready for this — what have you been doing?”
Judge Leon talked about all of the cases in which the Federal Programs Branch has been involved in his courtroom, and said he had never seen the type of incomplete brief that DOJ had filed in this case. He said that those briefs “usually cover the waterfront” in terms of raising every legal argument to defend an agency. Leon was very dismissive of the DOJ’s position, its behavior, and its failure to mount a defense consistent with its usual practice.
Secretary of State Kobach did a much better job than the plaintiffs in explaining why the plaintiffs had not met the standards for the issuance of a TRO. Kobach pointed out the many errors and mistakes made by the plaintiffs’ lawyer. And he laid out the evidence of noncitizens registering and voting in Kansas — which is why this proof-of-citizenship law is needed.
The plaintiffs’ lawyer was stumped by the judge on several occasions. One example: Judge Leon asked about the requirements for voting in the upcoming primaries in Georgia, Alabama, and Kansas. The lawyer, who was there supposedly representing voters in those states, didn’t know the basics about whether those elections were open primaries or caucuses or whether you have to register by party in those states in order to be able to vote.
It was clear that this hearing did not go the way the plaintiffs’ lawyers and DOJ had tried to arrange it to go. They thought the fix was in. In fact, it went so badly, particularly with DOJ being called on the carpet by Judge Leon, that at the end when the plaintiffs’ lawyer got up to try to repair all the holes that Kobach had knocked in their case, the lawyer tried to compare the EAC action to Nazi Germany. He waved the EAC opinion at issue in the air and said “this is what Nazis do behind closed doors!” You know a lawyer is desperate when he tries to equate a dispute over an election administration issue to Nazi Germany.
Judge Leon ended the hearing by saying that he would announce his decision on the TRO on Tuesday. With regard to the PI, he set a hearing date for March 9, and left the record open for supplemental pleadings to be filed. He also told the lawyers that they could file requests for limited discovery if they felt it was needed. DOJ will probably try to avoid that; I am sure they don’t want any discovery that could lead to more information being disclosed about their interference in the internal workings of what is supposed to be an independent, bi-partisan agency — the EAC.