(Update) Judge sends Arizona Prop. 200 voter registration case back to the EAC

Posted by AzBlueMeanie:

The Wichita Eagle reports today, Judge sends voter citizenship suit back:

A federal judge has sent back to federal elections officials a request by Kansas and Arizona to force modifications in a national voter registration form so the states can fully enforce proof-of-citizenship requirements.

U.S. District Judge Eric Melgren on Friday sent the states' lawsuit back to the U.S. Election Assistance Commission, with instructions that the commission has to have a final decision by Jan. 17.

The states want the federal form to include instructions requiring Kansas and Arizona residents to provide a birth certificate, passport or other proof of U.S. citizenship when registering to vote.

The Justice Department says such a change places an additional obstacle for eligible voters and would affect nationwide policy by setting a precedent.

Well Judge, here's the problem with your order. The EAC has no commissioners to comply with your order.

Senate Tea-Publicans have used obstruction of presidential appointments to the EAC to "nullify" the agency out of existence without ever enacting legislation to terminate the agency. This unprecedented form of "nullification" is being remedied with executive and judicial nominees now that Democrats exercised the constitutional option to eliminate the Senate filibuster rule, but the confirmation process has not yet made it down to presidential appointments to the EAC.

Nominees Myrna Perez and Thomas Hicks sat before a pair of U.S. senators on Wednesday for a hearing on their presidential nominations to the Election Assistance Commission.

The hearing morphed into a debate on whether the Election Assistance Commission — created by Congress in 2002 to help prevent voting meltdowns like those experienced during the 2000 presidential election — should exist at all. Kill the Election Assistance Commission?:

“The Election Assistance Commission has fulfilled its purpose and should be eliminated,” declared Sen. Pat Roberts, R-Kansas, the ranking member of the Senate Rules and Administration Committee, which conducted the hearing.

He quickly added: “None of my comments are a reflection of the nominees.”

Reflection or not, the nominees find themselves in a political purgatory and legislative limbo soupy as any Congress is stirring.

Consider that Hicks, Democratic senior elections counsel for Congress’ Committee on House Administration, and Perez, deputy director of the Brennan Center for Justice’s Democracy Program at the New York University School of Law, have been waiting for senators to confirm them since their initial nominations in early 2010 and early 2011, respectively.

Both are Democrats. Both have previously testified at a Senate Rules and Administration Committee hearing. And both say they’ve slogged along because they firmly believe the EAC should exist as an independent, bipartisan body that in large part tests and certifies voting equipment and serves as “national clearinghouse and resource” for election administration. 

“Elections don’t allow for do-overs. Above all else, we must always uphold the public’s trust and ensure confidence in the process,” Hicks told Roberts and Sen. Angus King, I-Maine, during his testimony before them. 

“The EAC, if operating well, is a valuable resource to election administrators because of its nationwide scope, targeted focus and expressly delineated responsibilities,” Perez said during her testimony.

The EAC’s reality, however, is marked by leadership vacuums and little sense of purpose.

It’s endowed with almost no regulatory powers. All four commissioner positions and have been vacant since 2011, and it hasn’t conducted a public meeting since then. It hasn’t had a quorum of three commissioners — what’s needed for the EAC to conduct votes, write policy and issue advisory opinions — since 2010. The commission has no permanent executive director or general counsel. It used to distribute grants to states so they may better administer elections. But today, lacking leaders, the EAC no longer make grants.

* * *

Commission resources, meanwhile, have plummeted. President Barack Obama’s 2014 budget proposal calls for taxpayers to fund the EAC with $11,062,500. The agency is slated to carry 29 full-time positions.

That’s notably down from its funding and staffing levels in 2009, Obama’s first year in office, when it received $17,959,000 and carried 43 full-time positions, budget records show.

And when Obama declared this year he wanted to “identify non-partisan ways to shorten lines at polling places, promote the efficient conduct of elections and provide better access to the polls for all voters,” he didn’t tap the EAC.

Instead, he created the Presidential Commission on Election Administration, to which he named 10 people. His executive order notes that his commission will terminate after it produces a final report to him and “strive to avoid duplicating the efforts of other governmental entities.”

Rep. Gregg Harper, R-Miss., thinks the EAC is such a waste that he's sponsored the Election Assistance Commission Termination Act, which has advanced out of committee but has not passed the full House. "It’s a commission that has far outlived its purpose and yet still wastes millions of tax dollars each year," he told the Center for Public Integrity

King, the other senator attending Wednesday's hearing, acknowledged the “unusual situation” the EAC finds itself in. But he vowed to push the nominations of Hicks and Perez to a committee vote, and then, a vote by the full Senate. Neither are likely to occur before next year.

“It’s our job to find a way to move forward,” King told the nominees.

Roberts remained adamant that the committee conduct a full oversight hearing on the EAC’s efficacy. He noted, however, that Democrats run the Senate and may simply want to keep the commission operating, in which case “it must be balanced” with two Republican nominees.

Both Perez and Hicks said they’d welcome GOP colleagues on the EAC, themselves noting that a commission of two is still one commissioner short of a quorum to conduct official business. The GOP will not approve any nominee to prevent a quorum.

So Judge, thanks to the unprecedented obstruction by Senate Tea-Publicans, "the lights are on but no one is home" at the EAC. There is no one who can respond to the complaint filed by Arizona and Kansas, nor to comply with your Court order. And that is exactly how the Tea-Publicans want it.

This is a scandal about Tea-Publican abuse of the Senate rules and "nullification" that receives almost no attention from the feckless corporate media. I doubt it will be reported that way.

UPDATE: Rick Hasen at Electionlawblog.com posts “Judge sends Arizona, Kansas voter citizenship suit back to US Election Assistance Commission”:

There is zero chance the EAC will have a decision by that date, given that the commission lacks any commissioners who could act.

As Justice Scalia wrote in the Inter-tribal case:

The EAC currently lacks a quorum-indeed, the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §706(1) . It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking. If the answer to that is no, Arizona might then be in a position to assert a constitutional right to demand concrete evidence of citizenship apart from the Federal Form.

So this is all about satisfying Justice Scalia's work-around to allow him to decide the issue in the end.

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