Lawyers’ Committee Issues Statement Responding to District Court’s Decision To Postpone Argument on Summary Judgment in Case Challenging EAC Director Brian Newby’s Directive on Proof of Citizenship


SEPTEMBER 12, 2016

WASHINGTON, D.C.–United States District Judge Richard Leon indicated that he was inclined to defer argument and decision on plaintiffs’ motion for summary judgment  to vacate a decision by Executive Director Brian Newby of the Election Assistance Commission (EAC) that had granted the requests of Alabama, Georgia, and Kansas to include documentary proof of citizenship requirements in the state-specific instructions to the federal voter registration form, used for mail-in registration. Instead, Judge Leon indicated that he might await the opinion of the United States Court of Appeals for the District of Columbia Circuit, which, on September 9, had issued a Judgment reversing Judge Leon’s prior decision to deny plaintiffs’ motion for a preliminary injunction.

After the hearing before Judge Leon, Jon Greenbaum, chief counsel of the Lawyers’ Committee for Civil Rights Under Law, said, “We are hopeful that, when he eventually considers the summary judgment motion, Judge Leon follows the leads of the Supreme Court and the Court of Appeals, which had indicated that plaintiffs had demonstrated a probability of success on the merits, and strikes down Mr. Newby’s unauthorized and unlawful action.  Congress intended that the EAC act only in a bi-partisan manner, and Mr. Newby’s unilateral act is antithetical to that intent.  People in Alabama, Georgia and Kansas should be able to register to vote by mail, using the Federal Form, without being rejected because of an unnecessary and burdensome requirement.”

“Proof of citizenship requirements are yet another tactic used by those seeking to make it more difficult for people to register and vote across our country,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law.  “We hope that the D.C. District Court ultimately grants relief that will help ensure that tens of thousands of eligible citizens in Kansas, Georgia, and Alabama are not denied the right vote by an unnecessary and burdensome restriction.”

The plaintiffs, which included the Georgia State Conference of NAACP Branches, the Peoples’ Coalition for the Peoples’ Agenda, and the League of Women Voters of the United States, Alabama, Georgia and Kansas, argued that the executive director’s decision was outside the scope of his authority because the EAC could act only with the approval of three Commissioners, and no such action had been taken by the Commissioners to approve the states’ requests.  In fact, as argued by plaintiffs’ counsel, including the Lawyers’ Committee for Civil Rights Under Law, the ACLU, the Brennan Center, Project Vote, Stroock & Stroock & Lavan LLP, Steptoe & Johnson LLP, Kirkland & Ellis LLP, and Arnold & Porter LLP, the long-standing EAC policy had been to reject requests to include the requirement of proof of citizenship, which issue had been litigated up to the Supreme Court in Arizona v. Inter Tribal Council of Ariz.  Among the errors committed by the executive director and the EAC, plaintiffs argued, was the failure of the decision to be based on a finding that granting of the request was necessary in accordance with the express terms of the National Voter Registration Act.

Late last week, the United States Court of Appeals for the District of Columbia Circuit, in a 2-1 ruling, reversed Judge Leon’s prior decision denying plaintiffs’ motion for a preliminary injunction and ordered the EAC  to take all actions necessary to restore the status quo ante, pending a determination on the merits, including promptly removing from the state-specific instructions those requirements directing voter registration applicants to submit proof of their United States citizenship, and informing Kansas, Alabama and Georgia that Federal Form applications filed since Mr. Newby’s decision should be treated as if they did not contain the now-stricken state-specific instructions.