UPDATE: Judge rules against activist groups and DOJ by denying TRO request

February 24, 2016

On Tuesday, February 23, a federal judge in D.C. ruled against several activist organizations (“Plaintiffs”) and the U.S. Department of Justice (“DOJ”) in a lawsuit (League of Women Voters, et al. v Newby, et al., Civil Action No. 16-cv-236) that seeks to nix the decision of the Election Assistance Commission’s (“EAC”) Executive Director to grant Kansas, Alabama, and Georgia’s request to amend their state specific instructions that accompany the National Mail Voter Registration Form (“Federal Form”) to include instructions regarding their respective state’s requirement in law that persons desiring to register to vote must provide proof of U.S. citizenship. The Plaintiffs had asked the court for a Temporary Restraining Order to reverse the EAC decision. IRLI attorneys appeared at a hearing on Monday on behalf of the Kansas Secretary of State, Kris Kobach, who filed a motion to intervene as a defendant and a motion to be heard at the hearing. The court granted both of Secretary Kobach’s motions.

The court issued an order regarding the TRO a day after the hearing (attached here), denying the request. The court found that the Plaintiffs had failed to establish that they will suffer irreparable harm before the Plaintiffs could be heard on their motion for a preliminary injunction. The court also stated that it was not yet convinced that the Plaintiffs had demonstrated a substantial likelihood of success on the merits. The court ordered full briefing before the March 9 hearing on the Plaintiffs’ preliminary injunction motion.

The court also expressed its general displeasure with the way DOJ had conducted itself during the briefing and argument in the matter, so much so that the court took DOJ’s half hour argument time and gave it to Secretary Kobach and the other Defendant-intervenor, the Public Interest Legal Foundation. Before the hearing, DOJ had conceded victory to the Plaintiffs, against its client’s (the EAC) wishes by agreeing to the entry of a preliminary injunction. The judge began the hearing by reading into the record a letter from the EAC chairwoman and Executive Director noting DOJ’s obstinance and unwillingness to defend the EAC. The judge called DOJ’s actions “unprecedented” and said, “This is the first time in 14 years I’ve seen this.” The EAC also brought to the judge’s attention a possible conflict of interest because DOJ is alleged to have drafted a controversial 2014 EAC decision ruling the other way on the states’ requests when the EAC merely had an acting Executive Director and no quorum of board members. The EAC has since requested the judge or the U.S. Attorney General provide it with independent counsel (letters attached here and here).

Although the Plaintiffs’ case rests on the theory that the EAC Executive Director did not have the authority to grant Kansas, Alabama, and Georgia’s request, the real underlying issue is whether States can enforce their laws to require proof of citizenship to register to vote. The Obama Administration desires that they don’t, as evidenced by DOJ’s conduct. Importantly, Kansas has produced proof in this case that non-citizens have indeed successfully registered to vote in Kansas for state and national elections. Every vote of a non-citizen cancels out a vote of a citizen.IRLI will keep up the fight on behalf of Americans and the integrity of the ballot box.