Inspector General Citied Court Case in Initial Decision to Forgo Investigation – Case Has Now Been Resolved
WASHINGTON, D.C. – Today, Allied Progress renewed its call for an Inspector General investigation of U.S. Election Assistance Commission (EAC) executive director Brian D. Newby to determine whether he violated EAC policies through his private communications with Kansas Secretary of State Kris Kobach (and others), that led Mr. Newby to unilaterally change national voter registration forms for Kansas, Georgia, and Alabama to require proof of citizenship.
Following the group’s initial request for an investigation in April, EAC Inspector General Patricia Layfield indicated that her office would not open an investigation at that time because the United States District Court of Appeals was hearing a case brought by the League of Woman Voters and others against Mr. Newby and the EAC.
That case has since been resolved with the court enjoining the enforcement of “decisions of [EAC] Executive Director, Brian D. Newby, approving requests by Kansas, Alabama, and Georgia to add a proof of citizenship requirement to the state-specific instructions that accompany the National Mail Voter Registration Form.” In reaching the decision, the court made clear that enforcing Newby’s unilateral decision would result in “irreparable harm.”
The renewed request for an investigation of Mr. Newby’s conduct was sent to Ms. Layfield late yesterday afternoon by fax, e-mail, and United States Postal Service certified mail.
Text of Letter to EAC Inspector General (PDF Download):
The Honorable Patricia Layfield
U.S. Election Assistance Commission
1335 East West Highway, Suite 4300
Silver Spring, MD 20910-3225
RE: RENEWING REQUEST FOR INVESTIGATION OF BRIAN D. NEWBY
Dear Ms. Layfield:
In a letter dated April 7, 2016, we requested 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 had with Kansas Secretary of State Kris Kobach, and likely 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.
In your April 12, 2016, response to our request, you indicated that your office would not open an investigation at that time because the United States District Court of Appeals for the District of Columbia was hearing a case brought by the League of Woman Voters et al against Mr. Newby and the EAC. You wrote:
Because the question of whether Mr. Newby had the authority to make this decision (and consequently whether and how he is subject to EAC’s ex parte communication policy) is pending before the Court, the Office of Inspector General has decided not commence an investigation at this time. We may revisit this matter, if necessary, after the Court’s final determination.
Responding to your decision, in a letter dated April 15, 2016, we noted that Mr. Newby’s apparent ex parte communications were not central to the litigation cited as your reason for forgoing an investigation. Furthermore, our response emphasized the responsibility of the Inspector General’s office to ensure that staff members are performing their duties in accordance with the law. Underscoring our point, we detailed examples of other Inspectors General launching investigations while parallel litigation was proceeding.
As you likely know, the lawsuit used in your response as the central reason for declining an investigation concluded late last week with the court enjoining the enforcement of “decisions of [EAC] Executive Director, Brian D. Newby, approving requests by Kansas, Alabama, and Georgia to add a proof of citizenship requirement to the state-specific instructions that accompany the National Mail Voter Registration Form.” In reaching the decision, the court made clear that enforcing Newby’s unilateral decision would result in “irreparable harm.”1
To be clear, the court did not consider the issue of Mr. Newby’s ex parte communications when it resolved the litigation over his actions. Therefore, we renew our request that your office open an investigation into his conduct as Executive Director of the U.S. Election Assistance Commission.
As noted in our initial request, documents obtained by the Associated Press(AP) last spring in response to open records requests revealed e-mail communications between Mr. Newby and Mr. Kobach in which Mr. Newby offered the following reassurance to Mr. Kobach, his benefactor who helped him 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.2
Mr. Kobach, the “architect of voter ID and other restrictive voter registration laws,”3 has been urging the EAC for years to make this change but was unsuccessful until Mr. Newby’s appointment as EAC executive director.4
Additionally, several months ago Mr. Newby admitted that 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.5 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.”6
Mr. Newby may have violated this policy by having what appear to be private, off-the-record communications with state officials from Kansas, Georgia, and Alabama regarding the imposition of a requirement that applicants for voter registration include documentary proof of U.S. citizenship. We therefore renew our request that your office open an investigation into Mr. Newby’s actions without further delay.
The controversial and unilateral changes to the voting forms in three states by Mr. Newby have now been reversed by a federal appeals court, which determined he did not have the authority to sanction such changes. The EAC was created in the wake of the United States Supreme Court’s Gore v. Bush decision, and was intended to assist states with 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. Now that the litigation concerning his decision has concluded, we look forward to your prompt action on this matter.
1 League of Women Voters of the United States v. Brian D. Newby, No. 1:16-cv-00236, 2016 U.S. App. LEXIS 16835 (DC Cir. September 9, 2016), https://www.cadc.uscourts.gov/internet/opinions.nsf/14C80589DDE01F4F8525802A00009F33/$file/16-5196CHMJ.pdf
2 Roxana Hegeman, “U.S. Elections Head Used Political Ties, Then Curbed Voting,” Associated Press, March 31, 2016, http://bigstory.ap.org/article/a10a148107c246908326cea16a3f531f/us-elections-official-parlayed-ties-gain-influence.
4 Zachary Roth, “Federal Agency Helps Red States Make Voter Registration Harder,” MSNBC, February 4, 2016, http://www.msnbc.com/msnbc/federal-agency-helps-red-states-make-voter-registration-harder.
6 U.S. Election Assistance Commission, “EAC Ex Parte Communications Policy,” May, 25, 2006, http://eac.gov/assets/1/Documents/Statement on EAC Ex Parte Communications Policy may 25 2006.pdf.
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