Inspector General Investigation Requested into U.S. Election Assistance Commission Leader

April 7, 2016

Reports Document Coordination to Complicate Voter Registration, Cast Light on Effort to Deny Americans Access to the Ballot Box 

WASHINGTON, DC – Today, Allied Progress called on the Inspector General of the U.S. Election Assistance Commission (EAC) to open an investigation into the conduct of Brian Newby, the Commission’s executive director. The request follows last week’s Associated Press report that showed extraordinary and possibly illegal coordination between Newby and his former boss, Kansas Secretary of State Kris Kobach.

As the result of an open records request, the AP uncovered multiple emails between Kobach and Newby. In one such message, Newby reassured Kobach that he could “count on” Newby and said he would keep Kobach “in the loop” during the months before he went on to unilaterally restrict voter registration access in his home state of Kansas, as well as Georgia and Alabama.

The EAC’s Ex Parte Communications Policy makes it clear that EAC staff is barred from private communications with “any individual representing an entity or industry which is regulated” by the EAC. If Newby’s claims to MSNBC in February are also proven true, his private conversations with the Secretaries of State for Georgia and Alabama may have violated EAC policy as well.

Allied Progress executive director Karl Frisch said: “We’ve formally requested that Inspector General Patricia Layfield open an investigation into Brian Newby’s communication with Secretary Kobach and the Secretaries of State in Alabama and Georgia. In light of the Election Assistance Commission’s policy prohibiting secretive communications between commission staff and those who have business before the commission, Newby’s private discussions or correspondence with election officials from several states appears to violate Commission policy. As our letter to Ms. Layfield states, actions like those taken by Mr. Newby go to the heart of the EAC’s integrity and efficacy.”

He continued: “These reports not only raise questions of unethical coordination, they appear to prove what many voting right activists have long feared: Kansas Secretary of State Kris Kobach is using his protégé Brian Newby to exploit the role and purpose of the Election Assistance Commission in an effort to erect undemocratic barriers to voting. Citizenship requirements undermine access to the ballot box, disenfranchise minority voters, and are part and parcel of an extreme nationalistic, anti-immigrant agenda that Kobach and Newby appear to share.”

Letter to Inspector General Layfield (PDF Version):

April 6, 2016

The Honorable Patricia Layfield
Inspector General
U.S. Election Assistance Commission
1335 East West Highway, Suite 4300
Silver Spring, MD  20910-3225

RE:  Request for Investigation of Brian D. Newby

Dear Ms. Layfield:

Allied Progress requests that your office investigate whether Brian D. Newby, Executive Director of the U.S. Election Assistance Commission (EAC), violated EAC’s ex parte communications policy through private communications he likely had with Kansas Secretary of State Kris Kobach and others, that led Mr. Newby to unilaterally modify the national uniform mail-in voter registration forms of Kansas, Georgia, and Alabama to require voter registration applicants to submit documentary proof of U.S. citizenship.

Documents recently obtained by the Associated Press in response to open records requests reveal email communications between Mr. Newby and Mr. Kobach in which Mr. Newby, then a county elections official in Kansas, offered the following reassurance to Mr. Kobach, his benefactor who helped him later obtain the position of executive director of EAC:

I wanted you [Mr. Kobach] in the loop, in part because of other issues in the past with the EAC… I also don’t want you thinking that you can’t count on me in an upcoming period that will tax our resources.

Mr. Kobach, the “architect of voter ID and other restrictive voter registration laws,” has been urging the EAC for years to make this change but was unsuccessful until Mr. Newby’s appointment as EAC executive director.

Given their close relationship and Mr. Newby’s reassurance that Secretary Kobach could “count on [him],” it is reasonable to assume that their private communications continued after Mr. Newby became EAC executive director and unilaterally implemented Secretary Kobach’s preferred changes to the voter registration forms.

Moreover, several months ago in an MSNBC interview, Mr. Newby admitted he had communicated with the secretaries of state in Kansas, Alabama, and Georgia concerning the issue of changing the voter registration forms to require proof of U.S. citizenship. In the same interview, Mr. Newby also disclosed that he intentionally excluded EAC commissioners from these discussions, remarking, “It wouldn’t have been proper to include the commissioners in any of the discussions I had with the secretaries of state.”

The EAC Ex Parte Communications Policy, adopted on May 25, 2006, states unequivocally: “No Commissioner or staff member with decision making authority shall communicate ex parte with any prohibited individual regarding a particular matter before the Commission.”  The policy defines “ex parte communications” as “communications. . . off the record or nonpublic communications.” Further, “prohibited individuals” include “any individual representing an entity or industry which is regulated” by the EAC, while a “particular matter” includes, among other things, “matters over which EAC has decision making authority.”

We believe Mr. Newby may have violated this policy by having what appear to be several private, off-the-record communications with state election officers regarding the imposition of a requirement that applicants for voter registration include documentary proof of U.S. citizenship. We therefore respectfully request that your office immediately open an investigation into Mr. Newby’s actions.

Mr. Newby’s unilateral changes to the voting forms in three states have generated tremendous controversy and raised serious questions about his authority to sanction these changes.  The EAC was created in the wake of the United States Supreme Court’s Bush v. Gore decision, and was intended to assist states with state elections.  Actions like those taken by Mr. Newby, apparently rooted in ex parte communications, go to the heart of the EAC’s integrity and efficacy.  Accordingly, as we head into an active election season, we look forward to your prompt action on this matter.

Sincerely,

Karl Frisch
Executive Director
Allied Progress

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