The Corner

Law & the Courts

Does the Justice Department Want to Enable Noncitizen Voting?

We continue to get rapid developments in the noncitizen voter-registration lawsuit involving the U.S. Election Assistance Commission (EAC), the League of Women Voters, the NAACP, and the U.S. Department of Justice. DOJ has been siding with the League and the NAACP instead of defending the EAC. The latest actions of the Justice Department (DOJ), which include filing a motion for a protective order, seek to shield from discovery potential government misbehavior that could affect election outcomes.

Last week, federal district judge Richard Leon refused to grant the Temporary Restraining Order requested by the plaintiffs (and acceded to by DOJ), and set March 9 for a hearing on their request for a preliminary injunction. The plaintiffs — and DOJ — want to stop the EAC from changing the instructions on the federal voter registration form to accommodate state laws in Kansas, Alabama, Georgia, and Arizona that require residents using that form to provide proof of citizenship when they register to vote.

On February 24, EAC Chairwoman Christy McCormick sent a letter to U.S. Attorney General Loretta Lynch asking her to allow the EAC to hire its own special counsel to defend the agency. McCormick expressed her “grave concerns regarding the potential conflict of interest and failure of the Department of Justice to provide” the EAC with proper representation. A similar request was sent to Judge Leon. Two days later, Benjamin Mizer, the Principal Deputy Assistant Attorney General of the Civil Division of DOJ, sent a letter to Judge Leon refusing Commissioner McCormick’s request.

Mizer based his refusal on federal statutes that give DOJ authority over the “conduct of litigation” involving federal agencies. Thus, he says that DOJ has the “exclusive authority to make any and all litigation decisions in cases in which the [EAC] is a party.” He dismissed McCormick’s allegation of a conflict of interest over DOJ’s involvement in a 2014 decision on this same issue when the acting executive director refused the states’ requests. DOJ represents the interests of the United States, Mizer asserted. Therefore, he claims there can’t be a “conflict of interest with a subsidiary component of the Executive Branch in litigation.”

But Mizer ignores the fact that the EAC is an independent federal agency, not just a component of the Executive Branch under the direct control of the president. Further, the alleged conflict of interest did not arise from DOJ lawyers providing legal advice to the EAC, which had no sitting commissioners at the time. It arose from a 2014 decision by DOJ lawyers to take over the decision-making process of the EAC and determine on their own what the agency’s policy should be on proof-of-citizenship requirements for voter registration. The DOJ lawyers weren’t handling or defending litigation, they were usurping the independent policy-making function of what is supposed to be a bipartisan commission run by White House-appointed and Senate-confirmed officers of the United States.

Mizer’s letter makes no mention of those circumstances whatsoever as it rejects the EAC’s request for a lawyer that will actually defend the agency now that the EAC has reversed the prior decision apparently made by DOJ, not the EAC.

To get more details on these issues, Kansas Secretary of State Kris Kobach, who was allowed to intervene in the lawsuit by Judge Leon, filed a motion for limited discovery, asking to depose Commissioner McCormick. Judge Leon granted that request this Monday over strenuous objections from both DOJ and the lawyer representing the League of Women Voters, Michael Keats, a partner at Stroock, Stroock & Lavan in New York. Her deposition is Wednesday.

Keats is the same lawyer who at the oral argument on February 22 compared what the EAC had done to the way things were done in Nazi Germany, a completely outrageous claim. After Leon granted the deposition request in a telephone conference call, Keats started arguing with the judge to the point where Judge Leon threatened him with contempt if he didn’t stop.

On March 1, the Justice Department also filed a motion for a protective order, asking Judge Leon to prevent Commissioner McCormick from disclosing any information or EAC documents that the Justice Department claims are privileged. That includes any information about the 2014 incident. In other words, the Justice Department wants to make sure that no information about its involvement in trying to prevent states from verifying the citizenship status of individuals registering to vote is disclosed to the public — or any information showing the conflict of interest that Benjamin Mizer claims doesn’t exist.

Meanwhile, Michael Keats, the League’s lawyer, has also served a subpoena on Commissioner McCormick, that the Justice Department apparently is not going to contest, requiring her to produce all communications she has had with Secretary of State Kobach and with the Public Interest Legal Foundation, whose motion to intervene in the lawsuit was also granted by Judge Leon. It seems that Keats, who thought the fix was in on the case with the Justice Department, is upset over a state official and a nonprofit legal foundation coming in to do the job that DOJ is not doing: defending the EAC and trying to prevent noncitizens from diluting the votes of Americans by illegally registering and voting in elections.

The hearing on March 9 over the preliminary injunction request may prove to be just as full of fireworks as the February 22 hearing was. Let’s hope for the sake of the integrity of our election process that both Michael Keats and the Justice Department walk away just as disappointed.

Hans A. von Spakovsky — Heritage Foundation – As a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Center for Legal and Judicial Studies, Hans von Spakovsky concentrates on voting, ...

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