UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LEAGUE OF WOMEN VOTERS OF
)
THE UNITED STATES, et al., )
)
Plaintiffs, )
) Civil Case No. 16-00236 (RJL)
V. )
)
MONA HARRINGTON, et al., )
)
)
Defendants.
fx
MEMORANDUM OPINION
(September / (22021) [Dkts, #101, #103, #105, #107]
Plaintiffs bring this action under the Administrative Procedure Act (“APA”)
alleging that in 2016 the then-Executive Director of the Election Assistance Commission
(“EAC” or “Commission”), Brian Newby,' acted outside of his authority and in violation
of the APA when he granted Kansas’s, Georgia’s, and Alabama’s (collectively the
“States”) requests to modify the National Mail Voter Registration Form (the “Federal
Form’’) to include documentary proof of citizenship (““DPOC”) instructions for prospective
voters. Currently pending before the Court are the parties’ cross-motions for summary
judgment. Upon consideration of the parties’ briefing, the submissions of amici curiae,
the relevant law, and the entire record herein, I agree with plaintiffs that Newby failed to
apply the appropriate statutory standard in approving the States’ requests and therefore
' Mona Harrington, the current Executive Director, has been automatically substituted for Newby under
Rule 25 of the Federal Rules of Civil Procedure.
violated the APA. Accordingly, I GRANT plaintiffs summary judgment on Count V of
their Complaint, VACATE the contested decisions, and REMAND to the Commission to
reconsider Georgia’s and Alabama’s requests under the appropriate standard.
BACKGROUND‘
In 1993, Congress enacted the National Voter Registration Act (“NVRA”), which
directed the Federal Election Commission (“FEC”) to create a uniform federal form to
register voters for federal elections by mail. See 52 U.S.C.§ 20508(a)(2). That form,
colloquially known as the Federal Form, contains general registration instructions for all
applicants as well as state-specific instructions for each individual state. Arizona v. Inter
Tribal Council of Arizona, Inc., 570 U.S. 1, 5—7 (2013) (hereinafter “77CA”), States must
“accept and use” the Federal Form to register voters for federal elections. See 52 U.S.C.
? Previously in this litigation, I suggested a narrow disposition may be possible through addressing solely
Counts I and II of the Complaint regarding the Executive Director’s authority. Mem. Op. [Dkt. #133] at
8-9. Unfortunately, that path has been foreclosed by the Commission, which, after a remand to it to
“provide a reasonable interpretation of the Executive Director’s authority to grant and deny state
instruction requests,” id. at 18-19, failed to produce an answer. Although the Commissioners considered
and voted on the matter, no three Commissioners agreed on the critical issue of whether Newby possessed
the authority to render the decisions at issue here. See EAC Tally Vote and Mem. [Dkt. #141-1].
Accordingly, the ambiguity and uncertainty surrounding the Executive Director’s authority remains. See
Mem. Op. [Dkt. #133] at 8-18; see also 52 U.S.C. § 20928 (requiring the votes of three Commissioners
for any action by the EAC). Thankfully, the Court need not settle this internal dispute for the agency.
Instead, it can provide a narrow disposition of this case by examining only Count V of the Complaint.
Although the Court recognizes this approach may potentially lead to further administrative gridlock and,
possibly, further litigation, this path is preferable to intruding on the expertise of the agency in
interpreting its internal operational rules until absolutely necessary. See Whitehouse v. Ill. Cent. R. Co.,
349 US. 366, 372-73 (1955).
3 In Fish v. Schwab, the Tenth Circuit held the proof of citizenship requirement that precipitated
Kansas’s request to the EAC unconstitutional and permanently enjoined Kansas from enforcing the
statute and associated regulation. 957 F.3d 1105, 1134-36 (10th Cir. 2020), cert. denied 141 S. Ct. 965
(Dec. 14, 2020). Accordingly, Kansas’s request may not be renewed or otherwise reconsidered.
4 The background of this case has been discussed at length in prior Opinions of this Court and our
Circuit Court. See Mem. Op. [Dkt. #92]; Mem. Op. [Dkt. #133]; see also League of Women Voters of
U.S. v. Newby, 838 F.3d 1, 4-6 (D.C. Cir. 2016). Only the limited background necessary for the present
disposition is repeated here.
2
§ 20505(a). Regardless of how a state approaches voter registration for its own elections,
it cannot decline to register for federal elections an applicant who timely completes and
submits a Federal Form.° JTCA, 570 U.S. at 10-13. As the Supreme Court described the
process: “States retain the flexibility to design and use their own registration forms, but
the Federal Form provides a backstop: No matter what procedural hurdles a State’s own
form imposes, the Federal Form guarantees that a simple means of registering to vote in
federal elections will be available.” /7CA, 570 U.S. at 12.
In 2002, Congress passed the Help America Vote Act (“HAVA”), which
transferred authority to “develop” the Federal Form from the FEC to the newly created
EAC. See 52 U.S.C. §§ 20508, 20921. The EAC is compromised of four
Commissioners, two from each major political party. See 52 U.S.C. § 20923(a), (b). The
Commission may act “only with the approval of at least three of its members.” 52 U.S.C,
§ 20928. Thus, generally, any act of the Commission requires bipartisan support.
Like its predecessor, the EAC must develop the Federal Form “in consultation
with the chief election officers of the States.” 52 U.S.C § 20508(a)(2). As states change
voter registration criteria, they may request changes to the corresponding state-specific
instructions on the Federal Form. But each state-specific instruction must be approved by
the EAC before it is included. TCA, 570 US. at 6.
> While the general rule is that a complete and valid Federal Form must be accepted as sufficient to
register an applicant, there are exceptions. For example, where a state possesses information that an
applicant is not a U.S. citizen or fails to meet another eligibility requirement, the state may deny
registration. See TCA, 570 U.S. at 15.
Congress regulated this approval process by stating,
[The Federal Form] may require only such identifying information (including
the signature of the applicant) and other information (including data relating
to previous registration by the applicant), as is necessary to enable the
appropriate State election official to assess the eligibility of the applicant and
to administer voter registration and other parts of the election process.
52 U.S.C. § 20508(b)(1) (emphasis added). As our Circuit Court has stated, this
provision “at once requires and restricts the inclusion of certain information on the
Federal Form.” League of Women Voters, 838 F.3d at 5; see also ITCA, 570 U.S. at 19
(holding the statute “acts as both a ceiling and a floor with respect to the contents of the
Federal Form”).
On January 29, 2016, then-Executive Director Newby approved three requests to
amend the state-specific instructions on the Federal Form. See AR0063-64, 70—71, 109—
10. Specifically, he granted Kansas’s, Georgia’s, and Alabama’s requests to include
instructions regarding their respective state laws requiring voter registration applicants to
prove citizenship through documentary proof or alternative processes.° Id.
Newby’s approval letters did not contain any explanation regarding his decisions.
In a roughly contemporaneous internal memorandum dated February 1, 2016, however,
6 The Federal Form at the time already included certain information regarding the necessity of being a
U.S. citizen in order to register to vote. For example, the general instructions explained that “[a]ll States
require that you be a United States citizen by birth or naturalization to register to vote in federal and State
elections. Federal law makes it illegal to falsely claim U.S. citizenship to register to vote in any federal,
State, or local election.” ARO034. Applicants also were required to affirmatively represent their
citizenship status. In the portion of the form where the applicant fills in his or her information, the first
question required the applicant to check the box for “yes” indicating that they were “a citizen of the
United States.” ARO0036. In bold letters, the form indicated that “[i]f you checked ‘No’ .. . do not
complete form.” /d. Then, in a separate portion, an applicant was required to sign their name and
“swear/affirm” that they were a “United States citizen.” Id.
4
Newby elaborated on his reasoning for approving the States’ requests.’ ARO001—07.
Newby stated that, in his view, “the role and rights of the states” include “set[ting] the
framework for acceptance and completion of the [Federal] form.” ARO005. He
described “[s|tate-specific instructional changes” as “ministerial, and thus, routine,” and,
as a result, concluded that “[t]he Executive Director [was to] review the request[s] for
clarity and accuracy.” AR0002. Based on this reasoning, Newby examined only
whether the States’ requests were uniformly applied to all voters and accurately reflected
state law regarding registration requirements. AR0004. In approving the States’
requests, he explicitly clarified that “while proof of citizenship will be the focal point
many will place upon these requests, it’s not the issue I am evaluating,” ARO004, and
found that the examples put forward by Kansas to demonstrate the “need” for the
requested changes were “irrelevant to [his] analysis.” Jd.
Litigation ensued almost immediately after Newby’s decisions. On February 12,
2016, plaintiffs filed the instant Complaint alleging five Counts: (I) that pursuant to
Section 208 of HAVA, the States’ requests could be granted, if at all, only by approval of
three Commissioners and thus Newby’s decisions exceeded his statutory authority,
Compl. {| 70-74; (II that Newby’s decisions constituted a reversal of the Commission’s
policy as to DPOC requirements and that he therefore exceeded the scope of his
7 Several weeks after his memorandum and after litigation ensued, Newby issued a declaration further
explaining his decisions. Declaration of Brian Dale Newby (“Newby Decl.”) [Dkt. #28-2]. There, he
reiterated his view that “state-specific voter instructions should be accepted if they were duly passed state
laws affecting the state’s registration process.” Jd. 425. He also averred that he approved the requests at
issue here “[a]fter determining that the changes to the state-specific instructions were necessary and
proper.” Id. 7 48.
delegated authority as set forth in a 2015 Policy Statement, Compl. J] 75-82; (III) that
Newby’s decisions violated the APA because the agency was required to undergo notice
and comment rulemaking prior to approving the requests, Compl. 483-86; (IV) that
Newby’s failure to provide an explanation for his decision to depart from what plaintiffs
claim to be a “longstanding policy and legal determination that documentary proof of
citizenship was not ‘necessary’ within the meaning of the NVRA” was contrary to law,
an abuse of discretion, and arbitrary and capricious in violation of the APA, Compl. {]
87-91; and (V) that Newby’s failure to determine that the States’ requested instructions
were “necessary” under the NVRA before approving the requests was contrary to law, an
abuse of discretion, and arbitrary and capricious in violation of the APA, Compl. 4] 92—
96.
On February 17, 2016, plaintiffs moved for a temporary restraining order and
preliminary injunction. Mot. for TRO and Prelim. Inj. [Dkt. #11]. Federal defendants
consented, taking the position that the 2016 decisions could not be upheld on the merits
because Newby violated the APA by failing to make the necessity determination required
by the NVRA. Defs.’ Resp. to Pls.’ Mot. for TRO and Prelim. Inj. [Dkt. #28] at 10-11. I
subsequently permitted the Kansas Secretary of State (“Kansas Secretary”) and Public
Interest Legal Foundation (“PILF”) (collectively “intervenor-defendants’’) to intervene to
defend Newby’s decisions on the merits. Then, on February 23 and June 29, 2016
respectively, I denied plaintiffs’ motions for a temporary restraining order and
prelimihary injunction. See Mem. Order [Dkt. #34]; Mem. Op. and Order [Dkts. ##92,
93].
Plaintiffs appealed, and our Court of Appeals issued a preliminary injunction,
requiring the Commission to “take all actions necessary to restore the status quo ante,
pending a determination on the merits.” League of Women Voters of U.S. v. Newby, F.
App’x 820, 821 (D.C. Cir. Sept. 9, 2016). In a subsequently issued opinion, the split
panel elaborated on its decision by holding that plaintiffs had shown likely irreparable
harm as well as a “substantial (perhaps overwhelming) likelihood of success on the
merits” with respect to Count V of plaintiffs’ Complaint. League of Women Voters, 838
F.3d at 7-10.
During the pendency of the appeal, the parties litigated cross-motions for summary
judgment, which are now fully ripe and resolved herein. Plaintiffs move for summary
judgment on all five Counts. See generally Pls.’ Cross-Mot. for Summ. J. (“Pls.’ Mot.’’)
[Dkt. #103]. Federal defendants maintain their concession that Newby violated the
APA—and therefore contend plaintiffs are entitled to summary judgment on Counts IV
and V—but urge the Court not to address the remaining Counts. See Defs.’ Mot. for
Summ. J. (“Defs.’ Mot.”) [Dkt. #101] at 1-2. Intervenor-defendants, on the other hand,
argue that summary judgment is warranted in their favor on all Counts because Newby’s
actions were lawful and survive APA scrutiny. Def.-Intervenor PILF’s Cross-Mot. for
8 The parties also make numerous standing arguments. See PILF’s Mot. at 11-15; Kansas’s Mot. at 12-
13; Fed. Defs.” Supp. Mem. in Support of Fed. Defs.’ Mot. for Summ. J. [Dkt. #172] at 3-7; Pls.’ Reply
to Resp. of Def.-Intervenor to Order to Show Cause [Dkt. #181] at 1. In permitting the Kansas Secretary
and PILF to intervene as defendants, I necessarily found they possessed Article [II standing to do so. See
Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312, 316 (D.C. Cir. 2015). I also previously
held that at least “the League of Women Voters of Georgia, the League of Women Voters of Kansas, and
the League of Women Voters of Alabama . . . met their burden to demonstrate organizational standing.”
Mem. Op. [Dkt. #92] at 15. While superseding events have cast some doubt on the continued standing of
at least the Kansas Secretary and the Kansas-related plaintiffs, Fish, 957 F.3d at 1134-36 (striking down
the Kansas DPOC statute that precipitated Kansas’s request to the EAC as unconstitutional), there is no
7
Summ. J. (““PILF’s Mot.”) [Dkt. #105] at 17-32; Def-Intervenor Kobach’s Mem. of P. &
Auth. in Supp. of His Cross-Mot. for Summ. J. (“Kansas’s Mot.”) [Dkt. #107-1] at 13-
39;
DISCUSSION
Under the APA, courts must “hold unlawful and set aside agency action, findings,
and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). Arbitrary and capricious review is
“narrow.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
USS. 29, 43 (1983). A court may not substitute its judgment for that of the agency. Id.
But courts must ensure that “the agency . . . examine[d] the relevant data and articulated]
a satisfactory explanation for its action.” Jd.
Courts look to whether “the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.” Bowman Transp. Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974). An agency decision will fail
under arbitrary and capricious review where “the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view
need to revisit the standing of every party at this time. See Ry. Labor Execs.’ Ass’n v. United States, 987
F.2d 806, 810 (D.C. Cir. 1993) (“[I]f one party has standing in an action, a court need not reach the issue
of the standing of other parties when it makes no difference to the merits of the case.”). Because I am
satisfied that, as previously held, at least the League of Women Voters of Georgia and the League of
Women Voters of Alabama maintain standing, see Mem. Op. [Dkt. #92] at 13-18; League of Women
Voters, 838 F.3d at 9, I will proceed to the merits without further analysis.
8
or the product of agency expertise.” State Farm, 463 U.S. at 43. While courts will
“uphold a decision of less than ideal clarity if the agency’s path may reasonably be
discerned,” Bowman Transp., 419 U.S. at 286, courts may not make up for agency
deficiencies by supplying a reasoned basis for the disputed action where the agency has
failed to supply one. Jd.
Plaintiffs and federal defendants argue that in approving the States’ requests, Newby
failed to make a finding that the proposed instructions were “necessary to enable the
[States] to assess the eligibility of [] applicant[s] and to administer voter registration and
other parts of the election process” as required by the NVRA. Defs.’ Mot. at 14 (quoting
52 U.S.C. § 20508(b)(1)); Pls.” Mot. at 37-41. This failure, they contend, renders the 2016
decisions arbitrary and capricious under the APA. See Supp. Mem. in Support of Pls.’
Cross-Mot. for Summ. J. [Dkt. #119] at 4-8; Pls.” Mot. at 41. Intervenor-defendants
counter that Newby’s decisions complied with the NVRA, were justified by record
evidence demonstrating the necessity of the States’ proposed instructions, and were
compelled by an FEC regulation and constitutional concerns. See Kansas’s Mot. at 13-40;
PILF’s Mot. at 29-33. Unfortunately for intervenor-defendants, I agree with plaintiffs and
federal defendants that Newby violated the APA by failing to apply the appropriate legal
standard in approving the States’ requests. How so?
The administrative record shows Newby proceeded under a mistaken view—that
neither he nor the EAC was required to make a necessity determination under the NVRA
prior to approving the States’ requests. See ARO001-—05. In his roughly contemporaneous
memorandum, Newby explains that he approved the requests because he viewed the States
9
as possessing the authority to “set the framework for acceptance and completion of the
[Federal] form.” ARO005. The memorandum makes clear that so long as the requested
instructions accurately reflected valid state laws affecting voter registration, Newby viewed
the EAC as bound to approve the requests without analyzing whether the proposed
instructions were “necessary to enable the [State] to assess the eligibility of the applicant,”
52 U.S.C. § 20508(b)(1). See AROOO2 (describing the agency’s role as “ministerial” and
stating that his review encompassed only an analysis of the proposed instruction’s
“accuracy and clarity”). Indeed, Newby explicitly refused to consider the examples Kansas
submitted demonstrating the State’s supposed “need for the changes,” rejecting such
potential evidence of necessity as “irrelevant to [his] analysis.” AR0004.
The NVRA, as interpreted by the Supreme Court and our Circuit Court, demands
something more. In /TCA, the Supreme Court interpreted the relevant statutory language
as requiring a necessity determination by the EAC prior to updating the instructions
accompanying the Federal Form in response to a state’s request. 570 U.S. at 5, 18-20. The
Court specifically rejected a contrary reading of the statute that “would permit a State to
demand of Federal Form applicants every additional piece of information the State requires
on its state-specific form.” Jd. at 13; see also League of Women Voters, 838 F.3d at 10.
Because Newby failed to make—and indeed, explicitly repudiated the requirement that he
make—a necessity determination prior to approving the States’ requests, his decisions
failed to comport with the statutory requirements of the NVRA and therefore violated the
10
APA.’ See State Farm, 463 U.S. at 43. As our Circuit Court previously found in reviewing
the preliminary injunction decision in this case, “it is difficult to imagine a more clear
violation of the APA’s requirement[s].” See League of Women Voters, 838 F.3d at 10.
Intervenor-defendants resist this conclusion, but none of their arguments succeeds.
First, intervenor-defendants challenge plaintiffs and federal defendants’ proposed reading
of ITCA. See PILF’s Mot. at 30. They contend “[t]he Supreme Court... made clear that
.. . the determination of necessity does not reside with the EAC, but resides with the
States.” Jd. Not so. As our Circuit Court and the Tenth Circuit have held, the TCA
decision, read as a whole, supports plaintiffs and federal defendants’ position that the
agency must make the necessity determination. See JTCA, 570 U.S. at 5, 15-20; see also
League of Women Voters, 838 F.3d at 10 (“In JTCA, the Court made plain that the
Commission, not the states, determines necessity.”); Kobach v. U.S. Election Assistance
Comm'n, 772 F.3d 1183, 1196 (10th Cir. 2014) (holding the Court’s decision in JTCA
“would make no sense if the EAC’s duty [to approve states’ requests] was
nondiscretionary” and triggered merely by a “state[’s] averment that [its] requested text is
necessary”). Were it otherwise, a state would have the ability to require Federal Form
applicants to include every piece of information the state required on its state-specific form
and, in the process, render the NVRA “a feeble means of” achieving its purpose—
“increas[ing] the number of eligible citizens who register to vote in elections for Federal
’ The Court need not define the precise contours of a necessity determination under the NVRA to reach
this conclusion. It is sufficient to hold that where, as here, the Commission explicitly refuses to consider
evidence submitted to demonstrate the supposed “‘need” for the proposed changes, see ARO002—04, it has
failed to comply with the statute.
11
office.”!° See ITCA, 570 USS. at 13 (quoting 52 U.S.C. § 20501(b)(1)).
Next, intervenor-defendants argue that under the doctrine of constitutional
avoidance, the Court must adopt their proposed reading of the NVRA. See Kansas’s Mot.
at 19-22; see also Supp. Br. on Summ. J. of Def.-Intervenor Kansas Sec. of State Kris
Kobach (“Kansas’s Supp. Br.”) [Dkt. #122] at 8. Were this Court writing on a blank
canvas, this argument may have significant force. As I previously noted, serious
constitutional concerns regarding the balance of election-regulation authority are
implicated by this case.!! See Mem. Op. [Dkt. #133] at 8-9 (noting the “thorny...
constitutional questions” at issue). Unfortunately for intervenor-defendants, however, their
argument has already been put to, and rejected by, several courts, including our Circuit
Court and the Tenth Circuit. See League of Women Voters, 838 F.3d at 9-12; Kobach,
10 The Kansas Secretary’s reliance on a FEC regulation, 11 C.F.R. § 9428.4(b), fails for a similar reason.
The Kansas Secretary argues that the regulation—which states the Federal Form “shall list U.S.
Citizenship as a universal eligibility requirement and include a statement that incorporates by reference
each state’s specific additional eligibility requirements’”—compels Newby’s approval of the States’
requests and deprives the EAC of any discretion in the decision. See Kansas’s Mot. at 25-26. But this
interpretation is squarely foreclosed by the reasoning of JTCA and our Circuit Court’s prior decision in
this case. See JTCA, 570 U.S. at 13; League of Women Voters, 838 F.3d at 10.
11 The constitutional concerns arise in this case from the fear that the federal government may encroach
upon the states’ rights to establish voter qualifications. The Elections Clause empowers states to
prescribe the “[t]imes, [p]laces, and [m]anner of electing federal representatives, but confers on Congress
the power to preempt those regulations. 77CA, 570 U.S. at 8; Art. I, § 4, cl. 1. As the Supreme Court has
held, “[t]ime, place, and manner,” as used in the Clause, are “comprehensive words” that “embrace
authority to provide a complete code for congressional elections,” including regulations relating to voter
registration. TCA, 570 U.S. at 8-9 (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)).
Notwithstanding this Congressional authority, however, Article I and the Seventeenth Amendment
preserve for the states the authority to set qualifications for electors. Compare U.S. Const. Art. I, § 2, cl.
1 with id. Art. 1, § 4, cl. 1. As the Supreme Court put it, “the Elections Clause empowers Congress to
regulate how federal elections are held, but not who may vote in them.” JTCA, 570 U.S. at 16. As
relevant here, intervenor-defendants argue that if the EAC may decide what information is “necessary” to
assess voter eligibility under the NVRA, the federal government will effectively be able to alter voter
qualifications under the guise of time, place, and manner regulations. See Int.-Def. PILF’s Supp. Br.
(“PILF’s Supp. Br.”) [Dkt. #120] at 7.
12
772 F.3d at 1194-96; see also Fish v. Kobach, 840 F.3d 710, 718 (10th Cir. 2016); Fish v.
Schwab, 957 F.3d 1105, 1139-41 (10th Cir. 2020). Both appellate courts held that the
EAC’s discretion to determine necessity under the NVRA and reject unsubstantiated state
instruction requests does not run afoul of constitutional constraints. League of Women
Voters, 838 F.3d at 10-12; Kobach, 772 F.3d at 1195-96. Indeed, both courts recognized
that the constitutional argument presented by intervenor-defendants was effectively
rejected by the majority in ITCA. See League of Women Voters, 838 F.3d at 11 (“[T]he
interpretation advanced by [intervenor-defendants] is that reflected in Justice Alito’s
dissenting opinion, additional evidence that the TCA majority considered and rejected that
reading.”); Kobach, 772 F.3d at 1188 (“This is one of those instances in which the dissent
clearly tells us what the law is not.”). Accordingly, I must reject intervenor-defendants’
constitutional arguments. !*
Next, relying on Newby’s declaration that was created and filed in this Court
several weeks after litigation ensued, intervenor-defendants argue Newby actually did
12 Intervenor-defendants argue in favor of disregarding our Circuit Court’s decision, see Kansas’s Supp.
Br. at 8-13; PILF’s Supp. Br. at 2-4, but our Circuit’s holdings on the legal issues discussed here are
likely binding on this Court. 18B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE §
4478.5 (“A fully considered appellate ruling on an issue of law made on a preliminary injunction appeal .
. . does become the law of the case for further proceedings in the trial court.”); see also Sherley v.
Sebelius, 689 F.3d 776, 782-83 (D.C. Cir. 2012). Intervenor-defendants suggest the decision was
“clearly erroneous” in its constitutional analysis and therefore may be cast aside, Kansas’s Supp. Br. at 3
(citing LaShawn A. v. Berry, 87 F.3d 1389, 1393 (D.C. Cir. 1996), but this is hardly the case. Although
the constitutional implications of the NVRA have generated significant controversy and numerous
dissenting opinions, see TCA, 570 U.S. at 22 (Thomas, J. dissenting); Jd. at 38 (Alito, J. dissenting);
League of Women Voters, 838 F.3d at 15 (Randolph, J. dissenting), disagreement alone does not
constitute the “extraordinary circumstances” necessary to reconsider issues already decided. See
LaShawn A., 87 F.3d at 1393. Moreover, no appellate court has yet adopted intervenor-defendants’
constitutional argument, and several have explicitly rejected it. Accordingly, our Circuit Court’s analysis
is far from “clearly erroneous.”
13
make the necessity determination required by the NVRA. See PILF’s Mot. at 32.
Newby’s declaration, however, must be disregarded as it is little more than a post-hoc
rationalization of the type routinely rejected by courts in APA proceedings. Ass’n of
Civilian Technicians v. Fed. Labor Rels. Auth., 269 F.3d 1112, 1117 (D.C. Cir. 2001)
(“Agency decisions must generally be affirmed on the grounds stated in them . . . Post-
hoc rationalizations, developed for litigation are insufficient.”); see also Camp v. Pitts,
411 US. 138, 143 (1973) (holding where a “contemporaneous explanation of the agency
decision” “indicate[s] the determinative reason for the final action,” the action’s validity
“must... stand or fall on the propriety of that finding’). Excluding Newby’s self-serving
declaration, the record lacks any evidence of the necessity determination required by the
NVRA. It is on this record that the agency’s determination must be reviewed.
Finally, the Kansas Secretary argues that the second clause of § 20508(b)(1)
justifies Newby’s decisions. That is, even if Kansas’s proposed instructions were not
necessary “to enable the appropriate State election official to assess the eligibility” of
applicants, the Kansas Secretary contends they were necessary to “administer voter
registration and other parts of the election process.” See Kansas’s Mot. at 13-14 (quoting
52 U.S.C. § 20508(b)(1)). Unfortunately for the Kansas Secretary, however, the record
lacks any evidence of such a finding on behalf of the agency.'? Just as it does with
intervenor-defendants’ primary APA argument, the absence of a necessity determination
with respect to the second prong of §20508(b)(1) similarly precludes the Court from
13 This absence is not surprising considering that Kansas framed its request to the EAC by describing its
proposed instructions as “necessary to enable Kansas county election officers to assess the eligibility of
an applicant.” ARO00Q73.
14
upholding the agency’s decisions on that basis. Bowman Transp., 419 US. at 285-86.
In light of Newby’s failure to apply the correct legal standard, the appropriate
course is to vacate the contested decisions and remand to the agency to reconsider the
States’ requests. Fla. Power & Light Co. y. Lorion, 470 U.S. 729, 744 (1985); PPG
Indus. v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995) (“Under settled principles of
administrative law, when a court reviewing agency action determines that an agency
made an error of law, the court’s inquiry is at an end: the case must be remanded to the
agency for further action consistent with the corrected legal standards.”). Intervenor-
defendants urge this Court, in lieu of vacating and remanding, to either find the States’
proposed instructions necessary based on evidence submitted in the course of this
litigation or order additional explanations from the agency. See PILF’s Supp. Br. at 9;
Kansas’s Supp. Br. at 15-17. Neither alternative, however, is warranted. Simply put,
intervenor-defendants put forward no authority justifying a departure from the ordinary
remedy available in APA cases, and it would be inappropriate at this juncture to
substitute the Court’s judgment on the issue of necessity for that of the agency. See
LaRouche’s Comm. for a New Bretton Woods v. FEC, 439 F.3d 733, 737 (D.C. Cir.
2006).
CONCLUSION
For all of the foregoing reasons, the Court GRANTS federal defendants’ motion
for summary judgment and plaintiffs’ cross-motion for summary judgment with respect
to Count V of the Complaint; DENIES intervenor-defendants’ cross-motions for
summary judgment; VACATES the Commission’s 2016 decisions approving Kansas’s,
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Georgia’s, and Alabama’s requests to modify the state-specific instructions of the
National Mail Voter Registration Form; and REMANDS this case to the Commission to
reconsider Georgia’s and Alabama’s requests consistent with this Memorandum Opinion,
to the extent those States continue to seek the state-specific instructions at issue here. An
Order consistent with this decision accompanies this Memorandum Opinion.
RICHARDG, LEON
United States District Judge
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