The EAC’s Troubles

April 12, 2016
posted by Bob Bauer

When the Presidential Commission on Election Administration held hearings around the country, the future of the Election Commission Administration came up regularly in discussions and testimony.  The EAC had no Commissioners, and the concern was chiefly that it could not attend to its responsibility for voting machine standards and certification. There was also a sense that the absence of the EAC—amid indications of neglect, partisan stand-off, or both—highlighted the weakness of a national commitment to progress in professional election administration.  The EAC was an invaluable resource for administrators, and, if it could steer clear of partisan conflict, it could perform a valuable service to the election administration community—and to the voters.

The EAC then got enough Commissioners for a quorum and full operations.  This was a period of considerable promise, and those working in the field moved quickly to engage with the EAC.  For example, early on Ben Ginsberg and I sent a letter urging that the newly functional Commission initiate steps to improve the standard-setting and certification process for voting machines.  The Commission subsequently acted, and it did so unanimously.  EAC-sponsored discussions in which former PCEA Commissioners and election administrators participated heightened the expectation that the Commission could help mark out the ground for professional administration even in a period of intense political and other conflict over voting rights.  There were warm and encouraging words all around.

Brian Newby, appointed Executive Director in November of 2015, has quickly managed to put all of this at risk.  Claiming authority to disregard past EAC policy and precedent–and understanding full well that he was ignoring disagreement among the Commissioners and provoking fresh partisan conflict–he purported to consent to state requests to modify the Federal Form for registration applicants to include a requirement of documentary proof of citizenship.  On this highly visible and divisive issue, in the face of its long and actively litigated history, Newby concluded that this is what he should do.

Now there is litigation, and the Department of Justice has declined to defend the Newby action, maintaining that it clearly does not meet the requirements of lawful administration action.  EAC Commissioners are divided over both Newby’s assertion of authority and the DOJ’s litigating position, and the usual political adversaries are preparing for battle.  As would be expected, Members of Congress have been heard from.

And what is Mr. Newby’s answer to all this? The Declaration he submitted in defense of his actions is not a model of coherence, nor is it reassuring to anyone searching for evidence that he had the appropriate understanding of his role or of the damage he would do to the Commission by acting as he did.

Here is one strikingly obscure sentence, in his defense of disregarding past EAC actions on the requested modifications of the Federal Form: “Conclusions in the most recent EAC past appeared to be drawn by emotion regarding specific requests.”  Then he recounts a conversation with Commissioner Hicks who, in Newby’s account, quite reasonably points out to his Executive Director that in light of the heavily litigated background to the issue, “it seemed logical that this was a big enough topic to go to the Commissioners.”  Retreating behind vague utterances, Newby suggests that he has a different theory of the case and “and that review [of the state requests] should determine what would go to the Commissioners, rather than just moving along a topic because it had visibility or was controversial.”  This more or less says it all. Newby doesn’t see (or is claiming not to see) why it is essential for EAC that its presidentially appointed and Senate-confirmed Commissioners pass on major “visible” or “controversial” issues.

The New York Times has argued that the Republican Party interests have “hijacked” the agency, looking to misuse its powers to advance a partisan voting rights agenda.  This is one predictable and understandable perspective.  There is another: the damage done to the EAC as an agency that, by careful choice of process and program, could have maintained the credibility needed to help in promoting professionalism in election administration.  Maybe it still can, but it is far from clear that it can do so if any of the Commissioners condone this Executive Director’s view of his role and accept from him this quality of judgment.

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