This column by ACRU Policy Board member Hans von Spakovsky was published June 30, 2016 by National Review.
Yesterday was a great day for election integrity and everyone (other than the Obama administration and its political allies) who wants to make sure non-citizens don’t illegally vote in our elections. Federal district-court judge Richard Leon issued an order Wednesday refusing to grant the injunction sought by the League of Women Voters (and the U.S. Justice Department to its everlasting shame) against the U.S. Election Assistance Commission (EAC) in litigation over a state requirement that individuals registering to vote provide proof of citizenship.
As I previously explained to readers of The Corner here, here, here, here, and here, in February, several well-funded groups including the League and the NAACP filed a lawsuit trying to reverse a decision by the EAC granting the requests of Kansas, Georgia, and Alabama to modify the instructions on the federal voter registration form. The modification would notify residents of those states that they have to provide proof of citizenship if they use the federal form to register to vote.
The U.S. Justice Department, which is charged with defending federal agencies when they are sued, tried instead to throw the case. It came into court, to Judge Leon’s great surprise, attempting to concede the case and agreeing to the temporary restraining order and preliminary injunction the plaintiffs wanted.
Commissioner Christy McCormick, the chairwoman of the EAC, was so concerned over the Justice Department’s misbehavior and potentially unethical conduct, that she sent a letter to Leon asking for permission to get outside counsel to represent the EAC. She expressed her “grave concerns regarding the potential conflict of interest and failure of the Department of justice to provide” the EAC with proper representation. DOJ later requested (and got) a protective order sealing her deposition, which apparently included discussions of DOJ’s potentially improper behavior and prior involvement in EAC decision-making. Makes you wonder what DOJ wants to hide.
In February, Leon denied the request for a temporary restraining order. Yesterday in a 25-page opinion, he also denied the request for a preliminary injunction — the same injunction the Justice Department wanted to agree to when it tried to lose the case. Leon held that the plaintiffs had not proved they will suffer an irreparable harm from this change in instructions on the federal registration form. He obviously did not put much stock in their claim that this would damage them because their voter registration drives would be less successful and require more effort on their part to educate the public about the fact that you have to be a citizen to register to vote. But as Leon said, “let’s be candid; doing so pales in comparison to explaining to the average citizen how the ACA or tax code works!”
Leon also faulted the plaintiffs for going far beyond what one would normally ask for in a preliminary injunction, which is an extraordinary remedy. They asked the court to “void and vacate” the EAC actions and “reverse the changes to the Federal Form and withdraw [the] letters granting the States’ requests.”
As Leon said, “these demands are dramatized all the more by the fact the United States Department of Justice has somehow decided to consent to such remarkable relief! To say the least, this is not the stuff of a typical preliminary injunction; indeed, it is, in effect, a thinly veiled request for the relief normally accorded in a final judgment.” According to Leon, “Prudence, alone, therefore dictates against granting such comprehensive relief masquerading as a preliminary injunction.” Leon then cites the Supreme Court’s recognition that the authority under the Constitution granted to the states “to establish voting requirements is of little value without the power to enforce those requirements.”
Leon concluded his opinion with quite a stab at the Justice Department’s misbehavior in this case: “But, in the final analysis, what lies at the heart of this case are the scope of the authority and legality of the actions of an independent federal agency that is represented here by Executive Branch counsel who, for the most part, decline to defend it.”