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Cummings, Brady and Clyburn Call on EAC Executive Director to Rescind Unilateral Action

Sep 28, 2016
Press Release
Newby Failed to Weigh Potential for Voter Disenfranchisement

Washington, D.C.  —  Today, Rep. Elijah E. Cummings, Ranking Member of the House Committee on Oversight and Government Reform, Rep. Robert A. Brady, Ranking Member of the Committee on House Administration, and Assistant Democratic Leader James E. Clyburn sent a letter to the Election Assistance Commission (EAC) outlining troubling findings from their investigation into EAC Executive Director Brian Newby’s unilateral decision to grant requests from Alabama, Georgia, and Kansas to require proof of citizenship on federal voter registration forms.

“We remain extremely concerned that Mr. Newby’s actions violated internal EAC policies and precedent and may already have impaired the legitimate right to vote of many Americans,” the Members wrote.  “These concerns have been validated recently by the U.S. Court of Appeals for the D.C. Circuit, which has now issued an order temporarily halting and reversing Mr. Newby’s action because of ‘irreparable harm’ and the ‘public interest.’”

Their letter set forth the following findings based on a briefing that Mr. Newby and EAC General Counsel Cliff Tatum provided to congressional staff last month:

Mr. Newby conducted no written analysis regarding the impact of his unilateral decision to require proof of citizenship on the ability of eligible voters to register to vote.  He conducted no cost-benefit analysis of the impact of his decision to compare the potential for voter fraud to the potential for eligible voter disenfranchisement.  This is concerning given reports that in Kansas alone, state records show that, as early as April, at least 30,000 applicants had been denied registration due to lack of documents, and some believe the actual number could have been as high as 45,000.

Mr. Newby conceded that neither Alabama nor Georgia submitted any evidence that proof of citizenship requirements are necessary for those states to effectively administer their elections as required in the U.S. Supreme Court’s ruling in Arizona v InterTribal Council of Arizona and the Tenth Circuit Court of Appeals’ decision in Kobach v. EAC.  Kansas reportedly submitted a report of only one ineligible voter in a single county.

Mr. Newby, the Executive Director of the nation’s top election administration agency, claimed that he had been unaware until recently that proof of citizenship laws could have a disproportionate impact on people of color.  This is especially disturbing since it has been widely reported that these proof of citizenship laws unduly burden not only people of color, but young voters, women, the elderly, people with disabilities, low-income voters, and the homeless.

Mr. Newby was aware that in the past, EAC had denied similar requests by states to require proof of citizenship through the state instructions to the federal form.  Mr. Newby was also aware that his unilateral decision would depart from that past precedent, but he claimed that he “needed to have a point of view” and did not want to “rubber stamp” past precedent.

Mr. Newby knew prior to his action that Commissioner Hicks, the Vice Chairman of the EAC at the time, believed that the requests regarding proof-of-citizenship constituted a question of policy and therefore could not be handled by the Executive Director unilaterally.

Disregarding past precedent, EAC policies, and his conversation with the then-Vice Chairman, Mr. Newby decided to act alone rather than requesting a vote of the EAC or seeking public comment.

Mr. Newby admitted that, at the time of the decision, he did not believe the action would violate the National Voter Registration Act (NVRA), but now he believes that it is unclear.

Today’s letter followed a document request from the Members in June.  EAC withheld large categories of documents, claiming they are privileged or unable to be produced as a result of a protective order.  Mr. Tatum committed to responding about whether EAC would produce redacted copies of these documents, but he has not responded to date.

“Given these troubling findings, we request that you produce all documents withheld for attorney-client or deliberative process privileges, with the privileged portions redacted,” the Members wrote.  “We also request that you arrange for staff to hold meetings with each EAC Commissioner to learn more about their conversations with Mr. Newby and about his unilateral decision.”  The Members also asked “that Mr. Newby rescind his unilateral decision and reconsider it in a manner consistent with the U.S. Constitution, the NVRA, past EAC precedent, and current EAC policies and procedures.”  The Members requested a response by October 6, 2016.

EAC Chairman Thomas Hicks is scheduled to testify at a hearing today at 2 p.m. before the Subcommittee on Information Technology.

 

Click here to read the full letter.

 

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