Non-Citizen Voting Case Pits Justice Department Against States That Require Proof-Of-Citizenship

They’re tussling over the right of states to require proof-of-citizenship from people using the federal voter registration form.

The free-for-all boxing match between the U.S. Election Assistance Commission (EAC), the League of Women Voters, the NAACP, Kansas, and the U.S. Department of Justice (DOJ) resumed on Wednesday, March 9.

They’re tussling over the right of states to require proof-of-citizenship from people using the federal voter registration form.

Federal Voter Registration

In Courtroom 18 of the D.C. federal courthouse, Judge Richard Leon presided over a sometimes contentious hearing on the plaintiffs’ request for a preliminary injunction that would rescind the Election Assistance Commission’s change of the instructions on the federal voter registration form to accommodate a request by Kansas. The Sunflower State wants the form to note that Kansans wishing to register must meet a proof-of-citizenship requirement.

At the first hearing in this case on Feb. 22, Leon refused to grant a temporary restraining order requested by the League of Women Voters and the NAACP, the plaintiffs who don’t want the Election Assistance Commission to mention proof-of-citizenship.

Justice Department Unwilling to Defend Election Assistance Commission

Normally, the Justice Department would be expected to defend the Election Assistance Commission in court. Instead, the Justice Department lawyers tried to throw the case by agreeing to a temporary restraining order. Leon expressed astonishment at the Department of Justice’s behavior, calling it “unprecedented” and “extraordinary.”

Rather than take that as a warning about the Department of Justice’s potentially unethical and unprofessional behavior in refusing to carry out its duty to defend its client, the Federal Programs Branch came into this week’s hearing once again trying to lose the case.

The Justice Department’s lawyer told Leon that it was willing to agree to a preliminary injunction. While Leon gave the lawyer for the plaintiffs, Michael Keats, 30 minutes to argue his motion for a preliminary injunction, he gave the Justice Department only 10 minutes since it was essentially on the same side as the plaintiffs.

Just as in the earlier hearing, Leon gave the Justice Department lawyer a very tough time. Leon asked how long it would take Justice Department to get “the record filed in this case” since the Department of Justice was urging the court to limit its review to the record. He was clearly annoyed when the lawyer said “several weeks,” since the record in this case is not that large.

“Why do you need a couple of weeks?” the judge asked, “What do you anticipate the size of the record to be, 10 pages, 50, 100, 200, a thousand?”

When the lawyer said it would only be a “couple of hundred pages,” Leon asked “why would it take” so long to prepare the record? Pointing at the government lawyers at the table, he remarked: “You’ve got quite a sizable team helping you there, Mr. Thorp. Of course, I realize some are along for the ride, but you’ve got lots of lawyers in the Federal Programs Branch.”

He obviously was not satisfied with the Justice Department’s answers.

Leon then asked the Department of Justice about an issue that arose after the earlier hearing. The State of Kansas, represented by Secretary of State Kris Kobach, had been granted intervention in the lawsuit to do what Department of Justice is refusing to do: defend the Election Assistance Commission.

Over the objections of both Department of Justice and the plaintiffs, Kobach deposed EAC Commissioner Christie McCormick last week. McCormick had sent letters to both Leon and Attorney General Loretta Lynch complaining about the Department of Justice’s refusal to defend the agency and raising the issue of DOJ having a conflict of interest.

The Department of Justice was so concerned over McCormick’s testimony and the internal communications between DOJ and the EAC produced for the deposition that it asked Leon for a protective order sealing the deposition.

The Justice Department claims those communications are protected by the attorney-client privilege. Because of the protective order, we don’t know what is in those communications.

Potential Conflict of Interest

But the Justice Department’s attempt to keep them from coming to light suggests that the conflict of interest mentioned in McCormick’s letters may be very serious indeed. Given the discussions in the courtroom, however, it is also clear that the broad protective order includes information that is publicly available: In other words, DOJ is seeking to hide information that is already public and which should not be sealed.

Leon asked the Justice Department if it was really taking the position that it “has the exclusive authority to decide whether a privilege is waived or invoked” and that the “independent agency”—in this case the EAC and Commissioner McCormick—cannot waive it.

The attorney/client privilege only runs one way—the client has the right to waive it at any time even if the lawyer doesn’t want to reveal what he told or advised the client. Leon asked the struggling lawyer if he could name “any statute or any case precedent, Supreme Court on down, that a Commission created by Congress doesn’t have the authority to invoke or waive attorney-client privilege?”

The lawyer could not provide any such legal precedent for what Judge Leon termed the “hyper-aggressive position” of DOJ. In fact, the judge said “there is no such authority. We’ve looked. There is no such authority anywhere…Indeed, the cases that we were able to find indicate and refer to the privilege as the agency’s privilege. It’s the agency’s decision to waive it or invoke it.”

It is also noteworthy that the director of the Federal Programs Branch, John Griffith, was sitting at the counsel table.

When the judge was grilling Justice Department attorney Galen Thorp about what the Department’s legal authority and actual position was, one might have expected the head of the branch to confer with Thorp, who was clearly confused and didn’t know what to say or what theory to advance. While this question of litigation strategy should have been prepped ahead of the hearing, it is odd that, rather than clarifying the Justice Department’s position, Griffith was satisfied with the confusion he could have easily remedied on the spot.

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Source: Non-Citizen Voting Case Pits Justice Department Against States That Require Proof-Of-Citizenship