Case: 1:17-cv-1398 As of: 10/15/2018 01:37 PM EDT 1 of 9
CLOSED,TYPE I−PRIVACY
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−01398−RCL

COMMON CAUSE v. PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY et al Assigned to: Judge Royce C. Lamberth Cases: 1:17−cv−01355−RCL
1:17−cv−02016−RC Cause: 05:552 Right to Privacy Act
Plaintiff

Date Filed: 07/14/2017 Date Terminated: 08/29/2018 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

COMMON CAUSE

represented by Josephine T. Morse DEMOCRACY FORWARD FOUNDATION 1333 H Street NW Washington, DC 20005 (202) 448−9090 Email: jmorse@democracyforward.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karianne Melissa Jones DEMOCRACY FORWARD FOUNDATION 1333 H Street NW Washington, DC 20005 (202) 448−9090 Email: kjones@democracyforward.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Skye L. Perryman DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, DC 20043 (202) 448−9090 Email: sperryman@democracyforward.org TERMINATED: 05/03/2018 LEAD ATTORNEY

Javier M. Guzman DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, DC 20043 (202) 448−9090 Email: jguzman@democracyforward.org ATTORNEY TO BE NOTICED

Plaintiff THOMAS KENNEDY

represented by Skye L. Perryman (See above for address) TERMINATED: 05/03/2018 LEAD ATTORNEY

Plaintiff ANTHONY GUTIERREZ

represented by

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Skye L. Perryman (See above for address) TERMINATED: 05/03/2018 LEAD ATTORNEY

Plaintiff JAN CANTLER

represented by Skye L. Perryman (See above for address) TERMINATED: 05/03/2018 LEAD ATTORNEY

Plaintiff ELLEN NAKHNIKIAN

represented by Skye L. Perryman (See above for address) TERMINATED: 05/03/2018 LEAD ATTORNEY

V.
Defendant
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY

represented by Carol Federighi U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 6108 Washington, DC 20530 (202) 514−1903 Email: carol.federighi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Shapiro U.S. DEPARTMENT OF JUSTICE 1100 L Street NW Room 12100 Washington, DC 20530 (202) 514−5302 Fax: (202) 616−8470 Email: Elizabeth.Shapiro@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Evan Borson U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20530 (202) 514−1944 Fax: (202) 616−8460 Email: joseph.borson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristina Ann Wolfe U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Ben Franklin Station Washington, DC 20044 (202) 353−4519 Email: kristina.wolfe@usdoj.gov LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Defendant
U.S. DEPARTMENT OF HOMELAND SECURITY

represented by Carol Federighi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Evan Borson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristina Ann Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. SOCIAL SECURITY ADMINISTRATION

represented by Carol Federighi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth J. Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Evan Borson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristina Ann Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant KRIS W. KOBACH

represented by Joseph Evan Borson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristina Ann Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
NATIONAL SECURITY AND TECHNOLOGY OFFICIALS

represented by David A. Newman MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 202−887−1500 Fax: 202−887−0763

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LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Geltzer INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION 600 New Jersey Avenue, NW Washington, DC 20001 (202) 662−9042 Email: jg1861@law.georgetown.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert S. Litt MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Suite 6000 Washington, DC 20006−1888 (202) 887−1547 Fax: (202) 942−5999 Email: RLitt@mofo.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Junie−Taj Moore MORRISON & FOERSTER 250 W. 55th Street New York, NY 10019 212−468−8000 Fax: 202−468−0800 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia M. Brill MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 202−887−1500 Fax: 202−887−0763 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 07/14/2017
07/17/2017 07/17/2017 07/17/2017

# Docket Text
1 COMPLAINT against PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION ( Filing fee $ 400 receipt number 0090−5032548) filed by COMMON CAUSE. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Related Cases, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(Guzman, Javier) (Entered: 07/14/2017)
Case Assigned to Judge Colleen Kollar−Kotelly. (sb) (Entered: 07/17/2017)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by COMMON CAUSE (Guzman, Javier) (Entered: 07/17/2017)
3 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Karianne M. Jones, :Firm− Democracy Forward Foundation, :Address− P.O. Box 34553. Phone No. − 202−448−9090. Filing fee $ 100, receipt number 0090−5034467. Fee Status: Fee Paid. by COMMON CAUSE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Guzman, Javier) (Entered: 07/17/2017)

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07/17/2017
07/18/2017
07/19/2017 07/27/2017
07/27/2017 07/27/2017 07/28/2017
07/31/2017 07/31/2017 07/31/2017 07/31/2017 07/31/2017 07/31/2017 08/01/2017 08/01/2017 08/01/2017

4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Josephine Morse, :Firm− Democracy Forward Foundation, :Address− P.O. Box 34553. Phone No. − 202−448−9090. Filing fee $ 100, receipt number 0090−5034518. Fee Status: Fee Paid. by COMMON CAUSE (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Guzman, Javier) (Entered: 07/17/2017)
5 SUMMONS (5) Issued Electronically as to PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachments # 1 Consent Form)(zsb) (Entered: 07/18/2017)
6 Case directly reassigned to Judge Royce C. Lamberth as related to 17−cv−1355 (RCL). Judge Colleen Kollar−Kotelly is no longer assigned to the case. (ztnr) (Entered: 07/21/2017)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY served on 7/24/2017; U.S. DEPARTMENT OF HOMELAND SECURITY served on 7/24/2017; U.S. SOCIAL SECURITY ADMINISTRATION served on 7/24/2017 (Attachments: # 1 Affidavit)(Guzman, Javier) (Entered: 07/27/2017)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/24/2017. (Attachments: # 1 Affidavit)(Guzman, Javier) (Entered: 07/27/2017)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/24/2017. Answer due for ALL FEDERAL DEFENDANTS by 9/22/2017. (Attachments: # 1 Affidavit)(Guzman, Javier) (Entered: 07/27/2017)
10 WITHDRAWN PURSUANT TO NOTICE FILED 8/3/2017..... MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by COMMON CAUSE (Attachments: # 1 Memorandum in Support, # 2 Exhibit Flynn Declaration, # 3 Exhibit McClenaghan Declaration, # 4 Exhibit Gutierrez Declaration, # 5 Text of Proposed Order)(Guzman, Javier) Modified on 8/4/2017 (znmw). (Entered: 07/28/2017)
11 NOTICE of Appearance by Joseph Evan Borson on behalf of All Defendants (Borson, Joseph) (Entered: 07/31/2017)
12 NOTICE of Appearance by Elizabeth J. Shapiro on behalf of All Defendants (Shapiro, Elizabeth) (Entered: 07/31/2017)
13 NOTICE of Scrivener's Error by COMMON CAUSE re 10 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction (Guzman, Javier) (Entered: 07/31/2017)
MINUTE ORDER Setting Hearing on Motion 10 for Temporary Restraining Order on 8/1/2017 at 10:30 AM in Courtroom 15 before Judge Royce C. Lamberth. So ordered by Judge Royce C. Lamberth on 7/31/17. (lsj) Modified on 7/31/2017 (zlsj). (Entered: 07/31/2017)
14 NOTICE of Appearance by Kristina Ann Wolfe on behalf of PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION (Wolfe, Kristina) (Entered: 07/31/2017)
15 NOTICE of Appearance by Carol Federighi on behalf of All Defendants (Federighi, Carol) (Entered: 07/31/2017)
16 ORDER granting 3 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 8/1/17. (lsj) (Entered: 08/01/2017)
17 ORDER granting 4 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 8/1/17. (lsj) (Entered: 08/01/2017)
Minute Entry for Motion Hearing held before Judge Royce C. Lamberth on 8/1/2017. Motion 10 for Temporary Restraining Order, argued. For reasons stated on the record,

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08/01/2017 08/03/2017
08/03/2017 09/13/2017 09/14/2017 09/14/2017 09/22/2017 09/22/2017
09/27/2017 10/18/2017

it is hereby ORDERED that the Motion for Preliminary Injunction is RESERVED and the Motion for Temporary Restraining Order is DENIED. Court Reporter Janice Dickman. (lsj) (Entered: 08/01/2017)
18 ORDER denying 10 Motion for Temporary Restraining Order. Signed by Judge Royce C. Lamberth on 8/1/17. (lsj) (Entered: 08/01/2017)
19 TRANSCRIPT OF PROCEEDINGS before Judge Royce C. Lamberth held on August 1, 2017; Page Numbers: 1−41. Date of Issuance: August 3, 2017. Court Reporter/Transcriber Janice Dickman, Telephone number 202−354−3267, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 8/24/2017. Redacted Transcript Deadline set for 9/3/2017. Release of Transcript Restriction set for 11/1/2017.(Dickman, Janice) (Entered: 08/03/2017)
20 NOTICE OF WITHDRAWAL OF MOTION by COMMON CAUSE re 10 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction (Guzman, Javier) (Entered: 08/03/2017)
21 AMENDED COMPLAINT against PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, KRIS W. KOBACH filed by COMMON CAUSE, Thomas Kennedy, Anthony Gutierrez, Jan Cantler, Ellen Nakhnikian. (Attachments: # 1 Notice to Counsel/Party of Filing Amended Complaint, # 2 Summons to Kris Kobach, US Attorney General, and US Attorney)(Perryman, Skye) (Entered: 09/13/2017)
22 SUMMONS (1) Issued Electronically as to KRIS W. KOBACH. (nmw) (Entered: 09/14/2017)
23 SUMMONS (2) Reissued Electronically as to U.S. Attorney, U.S. Attorney General. (nmw) (Entered: 09/14/2017)
24 Unopposed MOTION for Extension of Time to Respond to Amended Complaint and Joint Proposed Briefing Schedule by KRIS W. KOBACH, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Wolfe, Kristina) (Entered: 09/22/2017)
25 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. KRIS W. KOBACH served on 9/18/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 9/18/2017., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/18/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 11/17/2017.) (Attachments: # 1 Declaration of Benjamin Link)(Perryman, Skye) (Entered: 09/22/2017)
26 ORDER granting 24 Motion for Extension of Time. Signed by Judge Royce C. Lamberth on 9/27/17. (lcrcl2) (Entered: 09/27/2017)
27 MOTION to Dismiss Amended Complaint by KRIS W. KOBACH, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Text of Proposed Order)(Borson, Joseph) (Entered: 10/18/2017)

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10/26/2017 11/09/2017 11/28/2017 11/28/2017 11/28/2017 12/04/2017 12/05/2017
12/05/2017 12/05/2017 12/05/2017 12/05/2017

28 Unopposed MOTION for Extension of Time to File Response/Reply as to 27 MOTION to Dismiss Amended Complaint by JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN (Attachments: # 1 Text of Proposed Order)(Perryman, Skye) (Entered: 10/26/2017)
29 ORDER granting 28 Motion for Extension of Time to File Response/Reply. It is furthered ORDERED that the Defendants Response to Dispositive Motions due by 12/15/2017. Signed by Judge Royce C. Lamberth on 11/9/17. (lsj) (Entered: 11/09/2017)
30 Memorandum in opposition to re 27 MOTION to Dismiss Amended Complaint filed by JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Perryman, Skye) (Entered: 11/28/2017)
31 NOTICE attaching Appendix of Unpublished Authority and Proposed Order by JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN re 30 Memorandum in Opposition, (Attachments: # 1 Appendix of Unpublished Authority, # 2 Text of Proposed Order)(Perryman, Skye) (Entered: 11/28/2017)
32 MOTION for Discovery Concerning Jurisdiction, In The Alternative by JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN (Attachments: # 1 Text of Proposed Order)(Perryman, Skye) (Entered: 11/28/2017)
33 Unopposed MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Discovery Concerning Jurisdiction, In The Alternative by KRIS W. KOBACH, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Wolfe, Kristina) (Entered: 12/04/2017)
34 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− David A. Newman, :Firm− Morrison & Foerster LLP, :Address− 2000 Pennsylvania Avenue NW, Washington, D.C. 20006. Phone No. − 202−887−1500. Fax No. − 202−887−0763 Filing fee $ 100, receipt number 0090−5234801. Fee Status: Fee Paid. by National Security and Technology Officials (Attachments: # 1 Declaration of David A. Newman in Support, # 2 Text of Proposed Order)(Geltzer, Joshua) (Entered: 12/05/2017)
35 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Robert S. Litt, :Firm− Morrison & Foerster LLP, :Address− 2000 Pennsylvania Avenue NW, Washington, D.C. 20006. Phone No. − 202−887−1500. Fax No. − 202−887−0763 Filing fee $ 100, receipt number 0090−5234819. Fee Status: Fee Paid. by National Security and Technology Officials (Attachments: # 1 Declaration of Robert S. Litt in Support, # 2 Text of Proposed Order)(Geltzer, Joshua) (Entered: 12/05/2017)
36 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Sophia M. Brill, :Firm− Morrison & Foerster LLP, :Address− 2000 Pennsylvania Avenue NW, Washington, D.C. 20006. Phone No. − 202−887−1500. Fax No. − 202−887−0763 Filing fee $ 100, receipt number 0090−5234820. Fee Status: Fee Paid. by National Security and Technology Officials (Attachments: # 1 Declaration of Sophia M. Brill in Support, # 2 Text of Proposed Order)(Geltzer, Joshua) (Entered: 12/05/2017)
37 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Robert Junie−Taj Moore, :Firm− Morrison & Foerster LLP, :Address− 250 W. 55th Street, New York, NY 10019. Phone No. − 212−468−8000. Fax No. − 212−468−0800 Filing fee $ 100, receipt number 0090−5234825. Fee Status: Fee Paid. by National Security and Technology Officials (Attachments: # 1 Declaration of Robert Moore in Support, # 2 Text of Proposed Order)(Geltzer, Joshua) (Entered: 12/05/2017)
38 MOTION for Leave to File Brief of Former National Security and Technology Officials as Amici Curiae Supporting Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss by National Security and Technology Officials (Attachments: # 1 Brief of Former National Security and Technology Officials as Amici Curiae Supporting Plaintiffs' Memorandum, # 2 Text of Proposed

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12/11/2017
12/15/2017 12/15/2017
12/22/2017 01/03/2018 01/26/2018 02/12/2018 03/19/2018 03/19/2018 03/19/2018 03/19/2018 05/03/2018 07/24/2018 08/03/2018 08/13/2018

Order)(Geltzer, Joshua) (Entered: 12/05/2017)
MINUTE ORDER granting 33 Motion for Extension of Time to File Response/Reply re 33 Unopposed MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Discovery; Set/Reset Deadlines: Response due by 12/15/2017. Signed by Judge Royce C. Lamberth on 12−11−17. (lcrcl2) Modified event title on 12/12/2017 (znmw). (Entered: 12/11/2017)
39 REPLY to opposition to motion re 27 MOTION to Dismiss Amended Complaint filed by KRIS W. KOBACH, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION. (Borson, Joseph) (Entered: 12/15/2017)
40 Memorandum in opposition to re 32 MOTION for Discovery Concerning Jurisdiction, In The Alternative filed by KRIS W. KOBACH, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 12/15/2017)
41 REPLY to opposition to motion re 32 MOTION for Discovery Concerning Jurisdiction, In The Alternative filed by JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN. (Perryman, Skye) (Entered: 12/22/2017)
42 NOTICE of Executive Order by KRIS W. KOBACH, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION (Attachments: # 1 Exhibit Executive Order)(Borson, Joseph) (Entered: 01/03/2018)
43 NOTICE of Errata by JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN re 17 Order on Motion for Leave to Appear Pro Hac Vice (Attachments: # 1 Errata Letter to Clerk of Court)(Guzman, Javier) (Entered: 01/26/2018)
44 NOTICE by JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN (Guzman, Javier) (Entered: 02/12/2018)
45 ORDER granting 34 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 3/19/18. (lsj) (Entered: 03/19/2018)
46 ORDER granting 35 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 3/19/18. (lsj) (Entered: 03/19/2018)
47 ORDER granting 36 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 3/19/18. (lsj) (Entered: 03/19/2018)
48 ORDER granting 37 Motion for Leave to Appear Pro Hac Vice. Signed by Judge Royce C. Lamberth on 3/19/18. (lsj) (Entered: 03/19/2018)
49 NOTICE OF WITHDRAWAL OF APPEARANCE as to JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN. Attorney Skye L. Perryman terminated. (Morse, Josephine) (Entered: 05/03/2018)
50 ORDER directing the parties to meet & confer and submit a status report to the Court by 8/3/2018. Signed by Judge Royce C. Lamberth on 7/20/18. (lsj) (Entered: 07/24/2018)
51 Joint STATUS REPORT by KRIS W. KOBACH, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION. (Borson, Joseph) (Entered: 08/03/2018)
52 ORDER denying as moot 27 Motion to Dismiss; denying 32 Motion for Discovery and denying 38 Motion for Leave to File. Signed by Judge Royce C. Lamberth on 8/8/18. (lsj) (Entered: 08/13/2018)

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08/29/2018 08/29/2018

53 NOTICE of Deletion by KRIS W. KOBACH, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. SOCIAL SECURITY ADMINISTRATION (Attachments: # 1 Declaration of Charles C. Herndon)(Borson, Joseph) (Entered: 08/29/2018)
54 STIPULATION of Dismissal by JAN CANTLER, COMMON CAUSE, ANTHONY GUTIERREZ, THOMAS KENNEDY, ELLEN NAKHNIKIAN. (Morse, Josephine) (Entered: 08/29/2018)

 
 Case 1:17-cv-01398-RCL Document 1 Filed 07/14/17 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE 805 15th Street N.W.
Washington, D.C. 20005,

Plaintiff,

Case No.

vs.

PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY The White House 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20405,

and

U.S. DEPARTMENT OF HOMELAND SECURITY 245 Murray Lane, S.W. Washington, D.C. 20528,

and

U.S. SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, MD 21235,

Defendants.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Plaintiff, Common Cause, hereby sues Defendants, Presidential Advisory Commission on Election Integrity (“PACEI” or the “Commission”), the U.S. Department of Homeland Security (“DHS”), and the U.S. Social Security Administration (“SSA”), and alleges as follows.
Introduction 1. This is an action under the Privacy Act of 1974, 5 U.S.C. § 552a(e)(7), and the Administrative Procedure Act (APA), 5 U.S.C. § 706, to halt the unlawful collection,

Case 1:17-cv-01398-RCL Document 1 Filed 07/14/17 Page 2 of 22
maintenance, use, and dissemination of the sensitive and personal voting data of millions of Americans by the Commission. 2. In the wake of the Watergate scandal and revelations that the White House had compiled information on individuals with opposing political viewpoints, Congress passed the Privacy Act to regulate the collection, maintenance, use, and dissemination of sensitive personal information by federal agencies. Among other safeguards, the Act proscribes the collection of information that “describ[es] how any individual exercises rights guaranteed by the First Amendment.” 5 U.S.C. § 552a(e)(7). 3. After campaigning on unsubstantiated claims of voter fraud and rigged elections, President Donald J. Trump asserted that he “won the popular vote if you deduct the millions of people who voted illegally.” Within days of his inauguration, President Trump called for “a major investigation into VOTER FRAUD.” 4. The Commission was created with the aim of examining this purported voter fraud and has opened a broad and unprecedented investigation into Americans’ voting habits and political affiliations. The Commission’s first project is to assemble a national voter file and compare this information to data sets maintained by other federal agencies (including the Department of Homeland Security and the Social Security Administration) in order to discover the names of individuals that it believes are ineligible to vote. To carry out this review, it initially gave all 50 states and the District of Columbia a deadline of July 14, 2017 to comply with a sweeping request for their residents’ voting and other personal data, including information regarding the quintessentially First Amendmentprotected activities of voting history and party affiliation.
2

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5. The Commission initially sought to have states upload the voting data to a Department of Defense website, from which the data would then be transferred to White House computers. But after the Court in a separate lawsuit filed against the Commission inquired of the Government if the Department of Defense should be joined as a defendant, the Commission abruptly shifted course to “repurpos[e]” a computer system within the White House’s Information Technology “enterprise” to collect, maintain, and use the data. See Elect. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-1320 (CKK) (D.D.C.) (EPIC lawsuit). And when asked by the Court to describe the involvement of other federal agencies in this enterprise, the Government stated that the “mechanics” of it were “something that may not be appropriate to say in a public setting.” See id. 6. The Privacy Act’s protections—designed to curb this very type of encroachment on citizens’ First Amendment activities by an earlier White House—cannot be so circumvented. The Commission’s collection, maintenance, and use of this data in cooperation with DHS and SSA, among other federal agencies either within or outside the White House,1 violates both the Privacy Act and the APA. Plaintiff therefore seeks to enjoin Defendants from collecting, maintaining, using, or disseminating this data and to destroy or return any such data that has already been collected and is being maintained in violation of the law.
1 Plaintiff intends to seek discovery from the federal defendants and third-parties, if necessary, to determine whether additional agencies should be added as defendants based on their activities with regard to the electronic databases described herein. Bailey v. U.S. Marshal Serv., 584 F. Supp. 2d 128, 134 (D.D.C. 2008) (“[I]t is generally proper to allow discovery to determine the identity of unknown defendants.”).
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Parties 7. Plaintiff, Common Cause, is a nonprofit corporation organized and existing under the laws of the District of Columbia. Common Cause is one of the nation’s leading democracy reform organizations and has over 900,000 members nationwide. Common Cause also has a strong presence in 30 states, with either staff or volunteer boards. Since its founding in 1970, Common Cause has been dedicated to the promotion and protection of the democratic process, such as the right of all citizens, including its eligible members, to be registered for and vote in fair, open, and honest elections. Common Cause brings this action on behalf of itself and its members. 8. Common Cause conducts significant nonpartisan voter-protection, advocacy, education, and outreach activities to ensure that voters are registered to vote and have their ballots counted as cast. Common Cause also advocates for policies, practices, and legislation – such as automatic and same-day registration – that facilitate voting for eligible voters and ensure against disenfranchisement. Common Cause opposes efforts that burden registration and/or voting, including restrictive voter identification laws, partisan gerrymandering, and any other effort that could potentially chill citizens' rights to register or stay registered. Common Cause advocates the safeguarding of personal information, in keeping with the dictates of both state and federal law. 9. Common Cause and its members have been and will be injured by the Defendants’ activities, including the efforts to obtain personal and private information regarding voter affiliation, vote history, and other related details. Common Cause has already expended staff time and resources to engage in non-litigation related outreach and communications efforts to oppose the impermissible collection of voter information as
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sought by the Commission, diverting resources from its core activities. These expenditures are aimed at counteracting the harm that the Commission’s impermissible attempt to collect voter information will cause to Common Cause’s mission of encouraging and facilitating voter participation and engagement. 10. The Commission’s attempt to collect voter information will also harm Common Cause’s and its members’ efforts to encourage voter registration and participation. For voters and prospective voters facing political polarization, the threat that the federal government will monitor their electoral participation and even their party affiliations is deeply troubling and has deterred and will continue to deter the exercise of their First Amendment-protected rights to express their views through the ballot box. Further, the Commission’s effort to collect voter information may cause registrants and voters, including Common Cause members, to cancel their registration status (as has already occurred in Florida and Colorado) or forgo registering and voting altogether. Such actions would directly undo the work to which Common Cause has devoted itself over the past few decades and would limit voter engagement and participation in our democracy. 11. Defendant PACEI is a federal agency within the meaning of 5 U.S.C. § 552a(a)(1) and 5 U.S.C. § 551(1) that is headquartered in Washington, D.C. 12. Defendant U.S. Department of Homeland Security is a federal agency within the meaning of 5 U.S.C. § 552a(a)(1) and 5 U.S.C. § 551(1) that is headquartered in Washington, D.C.
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13. Defendant U.S. Social Security Administration is a federal agency within the meaning of 5 U.S.C. § 552a(a)(1) and 5 U.S.C. § 551(1) that is headquartered in Baltimore, MD.
Jurisdiction and Venue 14. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, because this action arises under federal law, specifically the Privacy Act, 5 U.S.C. § 552a(e)(7), and the APA, 5 U.S.C. §§ 701-706. 15. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e), because at least one of Defendants is headquartered in Washington, D.C. and a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred here.
Factual Allegations Candidate Donald J. Trump’s Repeated, Unsubstantiated Claims of Voter Fraud 16. Prior to his election, then-presidential candidate Donald J. Trump repeatedly made unsubstantiated assertions of voter fraud. 17. On October 10, 2016, Candidate Trump tweeted that, “Of course there is large scale voter fraud happening on and before election day.” @realDonaldTrump, Twitter (Oct. 10, 2016, 8:33 AM), available at https://twitter.com/realdonaldtrump/ status/787995025527410688?lang=en. 18. On October 17, 2016, candidate Trump told supporters at a campaign rally in Wisconsin that “voter fraud is very, very common,” including voting by “people that have died 10 years ago” and “illegal immigrants.” C-SPAN, Donald Trump Campaign Event in Green Bay, Wisconsin (Oct. 17, 2016), available at https://www.c-span.org/ video/?417019-1/donald-trump-campaigns-green-bay-wisconsin.
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19. On November 8, 2016, Donald J. Trump was elected as the forty-fifth president of the United States. 20. On November 27, 2016, president-elect Trump tweeted that, “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.” @realDonaldTrump, Twitter (Nov. 27, 2016, 3:30 PM), available at https://twitter.com/realdonaldtrump/status/ 802972944532209664. 21. Three days later, Kansas Secretary of State Kris W. Kobach echoed the presidentelect’s assertion, telling reporters that, “I think the president-elect is absolutely correct when he says the number of illegal votes cast exceeds the popular vote margin between him and Hillary Clinton.” Hunter Woodall, Kris Kobach Agrees With Donald Trump That ‘Millions’ Voted Illegally But Offers No Evidence, Kansas City Star (Nov. 30, 2016), available at http://www.kansascity.com/news/politics-government/ article117957143.html. 22. Asked in a televised interview on December 2, 2016 about president-elect Trump’s claim that “millions of people voted illegally,” Trump senior adviser Kellyanne Conway said that she has “been receiving information about the irregularities and about the illegal votes, particularly from sources, officials like Kris Kobach.” Emily Shapiro, Kellyanne Conway Dodges Question on Trump’s Claim That ‘Millions’ Voted Illegally, ABC News (Dec. 2, 2016), available at http://abcnews.go.com/Politics/ kellyanne-conway-dodges-question-trumps-claim-millions-voted/story?id=43924056.
Creation of the Presidential Advisory Commission on Election Integrity
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23. On January 20, 2017, Donald J. Trump was inaugurated as President of the United States. 24. Five days later, President Trump tweeted on his official Twitter account: “I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!” @realDonaldTrump, Twitter (Jan. 25, 2017, 7:10 AM and 7:13 AM), available at https://twitter.com/realDonaldTrump/status/824227824903090176 and https://twitter.com/realdonaldtrump/status/824228768227217408?lang=en. 25. In a televised interview on January 25, 2017, President Trump reiterated his claims that allegedly fraudulent votes were cast for his opponent: “We’re gonna launch an investigation to find out. And then the next time—and I will say this, of those votes cast, none of ‘em come to me. None of ‘em come to me. They would all be for the other side. None of ‘em come to me. But when you look at the people that are registered: dead, illegal and two states and some cases maybe three states—we have a lot to look into.” He vowed to “make sure it doesn’t happen again.” TRANSCRIPT: ABC News anchor David Muir interviews President Trump, ABC News (Jan. 25, 2017), available at http:// abcnews.go.com/Politics/transcript-abc-news-anchor-david-muir-interviewspresident/story?id=45047602. 26. That same day, CNN reported that according to a senior administration official, “President Donald Trump could sign an executive order or presidential memorandum initiating an investigation into voter fraud as early as Thursday.” Dan Merica, Eric Bradner, and Jim Acosta, Trump considers executive order on voter fraud, CNN (Jan. 25,
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2017), available at http://www.cnn.com/2017/01/25/politics/trump-calls-for-majorinvestigation-into-voter-fraud/index.html. The official further informed CNN that “[t]he investigation would be carried out through the Department of Justice.” Id. 27. On May 11, 2017, the White House issued Executive Order No. 13,799 establishing the Commission, which President Trump has described as a “Voter Fraud Panel.” See Executive Order No. 13,799, 82 Fed. Reg. 22389 (May 11, 2017); @realDonaldTrump, Twitter (July 1, 2017, 9:07 AM) available at https://twitter.com/ realdonaldtrump/status/881137079958241280. 28. The Commission’s stated “mission” is studying, “consistent with applicable law,” the “registration and voting processes used in Federal elections.” Id. 29. The Commission is chaired by Vice President Michael Pence and is to be composed of up to 15 additional members having knowledge and experience in “elections, election management, election fraud detection and voter integrity efforts” or having “knowledge or experience that the President determines to be of value to the Commission.” Id. 30. On the same day that the Commission was established, Kansas Secretary of State Kobach was appointed as a member and Vice Chair. Kobach is the only Secretary of State in the nation with the power to prosecute voter fraud directly. See Interview of Kris W. Kobach on Fox News Channel (May 11, 2017), available at https://www.youtube. com/watch?v=Fm0MjHmYSJU. 31. The Commission presently has ten additional members, consisting of a current member of the United States Elections Assistance Commission, present and former state
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officials, and an employee of the Heritage Foundation. It will also have a staff of approximately three full-time equivalent employees. 32. The Executive Order directs “relevant” executive departments and agencies to “endeavor to cooperate with the Commission.” Executive Order No. 13799, 82 Fed. Reg. 22389 (May 11, 2017). 33. The Commission’s estimated annual operating costs for Fiscal Years 2017 and 2018 are approximately $250,000. 34. Consistent with President Trump’s description of the Commission as a voter fraud panel, Kobach has described the Commission’s focus as “voter fraud more broadly, all forms of it,” see Gary Moore, Tucker Carlson: Kris Kobach - Trump Executive Order Creates Voter Fraud Commission: 5/11/2017, YouTube (May 11, 2017), available at https://www.youtube.com/watch?v=Fm0MjHmYSJU, and has explained that the Commission’s “goal is to, for the first time, have a nationwide fact-finding effort, to see what evidence there is of different forms of voter fraud across the country.” See Transcript of Interview of Kris W. Kobach on New Day, CNN (May 15, 2017), available at http://www.cnn.com/TRANSCRIPTS/1705/15/nday.06.html. 35. Asked how the Commission would prove President Trump’s unsubstantiated claims of widespread voter fraud, Kobach explained that, “The federal government has a database of every known alien who has a greencard or a temporary visa. States have in the past asked, ‘can we please run our voter rolls against that database, and see if any of those aliens are on our voter rolls?’ The federal government has always said no. Well, now we’re going to be able to run that database against one or two states and see how many people are known aliens residing in the United States and also on the voter rolls.”
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Gary Moore, Tucker Carlson: Kris Kobach - Trump Executive Order Creates Voter Fraud Commission: 5/11/2017, YouTube (May 11, 2017), available at https://www. youtube.com/watch?v=Fm0MjHmYSJU. 36. Describing in further detail which other agencies’ data the Commission would be working with on its voter fraud investigation, Kobach explained that “what we’ll be doing is for the first time in our country’s history, we’ll be gathering data from all 50 states and we’ll be using the federal government’s databases which can been very valuable. The Social Security Administration has data on people when they pass away. The Department of Homeland Security knows of the millions of aliens who are in the United States legally and that data that’s never been bounced against the state’s voter rolls to see whether these people are registered.” Kobach talks goals of new voter fraud commission, Fox News, Sunday Morning Futures (May 14, 2017), available at http:// www.foxnews.com/transcript/2017/05/14/kobach-talks-goals-new-voter-fraudcommission-commerce-secretary-on-nkorea-missile-test-china-trade-deal.html.
The Commission’s Sweeping and Unprecedented Request for Personal and Voter Data 37. Despite the Executive Order’s directive that the Commission hold public meetings, it convened as a group for the first time on June 28, 2017 without any prior public notice. A brief “readout” of the meeting supplied by the White House later that day stated Kobach had informed the other commissioners that a letter would be sent to all 50 states and the District of Columbia requesting data from state voter rolls. See Press Release, The White House, Readout of the Vice President’s Call with the Presidential Advisory Commission on Election Integrity (June 28, 2017), available at https://
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www.whitehouse.gov/the-press-office/2017/06/28/readout-vice-presidents-callpresidential-advisory-commission-election. 38. On June 28, 2017, Kobach “directed” that a letter be sent under his signature to the Secretaries of State or other election officials in all 50 states and the District of Columbia. Declaration of Kris W. Kobach ¶ 4 (July 5, 2017). The other commissioners neither reviewed nor vetted the actual language of the letter before it was sent. Sam Levine, Trump Voter Fraud Commission Was Cautioned About Seeking Sensitive Voter Information, Huffington Post (July 5, 2017), available at http://www.huffingtonpost.com/ entry/trump-voter-fraud-commission_us_595d511fe4b02e9bdb0a073d; Celeste Katz, Trump election integrity commission member: “We should have predicted” the backlash, Mic (July 5, 2017), available at https://mic.com/articles/181510/trump-election-integritycommission-member-we-should-have-predicted-the-backlash#.oeqOZx3hl. 39. Kobach’s letter “invite[d]” state officials, among other things, to share “evidence or information . . . you have regarding instances of voter fraud or registration fraud in your state” and asked how the Commission could “support” state election officials “with regard to information technology security and vulnerabilities.” See, e.g., Letter from Kris W. Kobach, Vice Chair, PACEI to the Honorable Matt Dunlap Secretary of State of Maine, at 1 (June 28, 2017). 40. The letter requested that the recipients provide by July 14, 2017 “the publicly available voter roll data for [your state], including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006
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onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.” Id. at 1-2. 41. The letter instructed recipients to “submit your responses electronically to ElectionIntegrityStaff@ovp.eop.gov or by utilizing the Safe Access File Exchange (“SAFE”), which is a secure FTP site the federal government uses for transferring large data files. You can access the SAFE site at https://safe.amrdec.army.mil/safe/ Welcome.aspx.” Id. at 2. 42. The letter closed by warning that “any documents that are submitted to the full Commission will also be made available to the public.” Id. 43. After reports indicated that certain state officials might decline to provide some or all of the personal and voter data requested by Kobach, President Trump tweeted: “Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?” @realDonaldTrump, Twitter (July 1, 2017, 9:07 AM) available at https://twitter.com/realdonaldtrump/status/ 881137079958241280. 44. Kobach has stated that the purpose of his request is “to have the best data possible” to support the Commission’s “purpose . . . to quantify different forms of voter fraud and registration fraud and offer solutions.” Bryan Lowry, Kris Kobach Wants Every U.S. Voter’s Personal Information for Trump’s Commission, Kansas City Star (June 29, 2017), available at http://www.kansascity.com/news/politics-government/ article158871959.html.
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45. The Vice President’s office has confirmed that the Commission intends to run the data it receives “through a number of different databases” to check for potential fraudulent registration. Jessica Huseman, Election Experts See Flaws in Trump Voter Commission’s Plan to Smoke Out Fraud, ProPublica (July 6, 2017), available at https://www.propublica.org/article/election-experts-see-flaws-trump-voter-commissionsplan-to-smoke-out-fraud. 46. The same day that Kobach sent his letter, the Voting Section of the Civil Rights Division of the Department of Justice (“DOJ”) sent its own letter to states requesting their procedures for complying with the statewide voter registration list maintenance provisions of the National Voter Registration Act. DOJ stated that under the NVRA states must make reasonable efforts to remove from voter rolls the names of voters who have become ineligible by reason of death or change of address. DOJ requested that states provide their policies for removing ineligible voters and identify the officials responsible for doing so. See, e.g., Letter from DOJ to Hon. Kim Westbrook Strach, Executive Director, N.C. State Bd. of Elections (June 28, 2017).
The Commission Shifts Its Plans to House the Personal and Voting Data 47. In a declaration filed on July 5, 2017 in the EPIC lawsuit against the Commission for failure to comply with federal privacy laws, Kobach stated that he “intended” that only “narrative responses” provided in response to the letter be sent to the eop.gov email address in the letter and that “voter roll data” be uploaded onto the Safe Access File Exchange (SAFE), which he described as a “tested and reliable method of secure file transfer used routinely by the military for large, unclassified data sets” that “also supports encryption by individual users.” Declaration of Kris W. Kobach ¶ 4.
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48. The SAFE website is operated by the U.S. Army Aviation and Missile Research Development and Engineering Center, a component within the U.S. Army. 49. After the Court in the EPIC lawsuit inquired at a July 7, 2017 hearing if the Department of Defense, by virtue of its role in collecting and maintaining the data on the SAFE website, should be joined as a defendant the Commission changed course on its storage plans. In a subsequent declaration filed on July 10, 2017, Kobach stated that “[i]n order not to impact the ability of other customers to use” SAFE, the Director of White House Information Technology was “repurposing an existing system” to collect the information “within the White House Information Technology enterprise.” Third Declaration of Kris W. Kobach ¶ 1. 50. Asked by the Court at the same July 7 hearing what other federal agencies support the White House’s computer system, the Government stated that the “mechanics” of the White House’s information technology program are “something that may not be appropriate to say in a public setting.” Transcript, Temporary Restraining Order Hearing in Elect. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 1:17cv-1320 (CKK) (D.D.C.) (July 7, 2017).
Several States Intend to Provide Voter History and Party Affiliation Data 51. As of July 5, 2017, “20 states have agreed to provide the publicly available information requested by the Commission and another 16 states are reviewing which information can be released under their state laws.” Press Release, The White House, Statement from Kris Kobach, Kansas Secretary of State and Vice Chair of the Presidential Advisory Commission on Election Integrity (July 5, 2017) available at
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https://www.whitehouse.gov/the-press-office/2017/07/05/statement-kris-kobachkansas-secretary-state-and-vice-chair-presidential. 52. The State of Arkansas had provided the Commission voter history and party affiliation through the SAFE website. In light of the pending motion for a temporary restraining order in the EPIC lawsuit, the Commission advised the Court that the Arkansas data would not be downloaded to White House computers and would be deleted from the SAFE website. 53. Several states intend to provide the Commission with voter history and party affiliation data. This group includes Arkansas, Colorado, Florida, North Carolina, and Ohio. See, e.g., “Arkansas to give partial voter information to Voter Integrity Commission,” 40/29 NEWS (July 5, 2017), available at http://www.4029tv.com/ article/arkansas-to-give-partial-voter-information-to-voter-integrity-commission/ 10261303; “News Release: Secretary Williams’ Response to request for public voter files,” COLORADO SECRETARY OF STATE (June 29, 2017), available at https://content.govdelivery.com/accounts/COSOS/bulletins/1a66cee; Ltr from Ken Detzner, Florida Secretary of State to Kris W. Kobach (July 6, 2017), available at http://www.politico.com/states/f/?id=0000015d-19cb-d1a7-a95d5bcf970e0001; Request Voter Registration Data, SUPERVISOR OF ELECTIONS, BREVARD COUNTY available at http://www.votebrevard.com/statistics-and-data/request-voterregistration-data; North Carolina: Q&A: Election Integrity Commission’s Data Request, NORTH CAROLINA STATE BOARD OF ELECTIONS AND ETHICS ENFORCEMENT (July 10, 2017), available at https://s3.amazonaws.com/dl.ncsbe. gov/Requests/QA_Election_Integrity_Commission_Request.pdf; Statement from
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Secretary Husted, OHIO SECRETARY OF STATE (June 30, 2017), available at http://www.sos.state.oh.us/sos/mediaCenter/2017/2017-06-30-a.aspx; Dana Branham, “Ohio’s Jon Husted to Trump election commission: We won’t turn over confidential voter info,” CINCINNATI.COM (June 30, 2017), available at http://www.cincinnati .com/story/news/2017/06/30/kentucky-refuses-federal-request-voter-roll-data-while-ohiomulls-over/442492001/. 54. The Commission has directed states not to provide the requested voter data while the motion for a temporary restraining order is pending in the EPIC lawsuit.
The Privacy Act 55. The Privacy Act of 1974 regulates the government’s collection, maintenance, use, and dissemination of sensitive personal information. 56. Congress, which passed the Act following revelations during Watergate that the White House had collected information on its political adversaries, was “concerned with curbing the illegal surveillance and investigation of individuals by federal agencies that had been exposed during the Watergate scandal.” Department of Justice, Overview of the Privacy Act of 1974 (2015 edition), available at https://www.justice.gov/opcl/policyobjectives. 57. Section 552a(e)(7) of the Act provides that an agency shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.” 58. As the D.C. Circuit has explained: “The legislative history of the Act reveals Congress’ own special concern for the protection of First Amendment rights, as borne out
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by statements regarding ‘the preferred status which the Committee intends managers of information technology to accord to information touching areas protected by the First Amendment of the Constitution.’” Albright v. United States, 631 F.2d 915, 919 (D.C. Cir. 1980) (citing S. Rep. No. 1183, 93d Cong., 2d Sess., reprinted in (1974) U.S. Code Cong. & Admin. News, pp. 6916, 6971.)). That same legislative history also “reveals a concern for unwarranted collection of information as a distinct harm in and of itself.” Id. In particular, Congress directed Section 552a(e)(7) at “inquiries made for research or statistical purposes which, even though they may be accompanied by sincere pledges of confidentiality are, by the very fact that government make (sic) the inquiry, infringing on zones of personal privacy which should be exempted from unwarranted Federal inquiry.” Id. (citing S. Rep. No. 1183, (1974) U.S. Code Cong. & Admin. News at 6971-72)). 59. The initial implementation guidelines for the Act promulgated by the Office of Management and Budget (OMB) underscore the special status accorded by the Act to records concerning individuals’ First Amendment-protected activities. According to OMB’s guidelines, Section 552a(e)(7) established a “rigorous standard governing the maintenance of records regarding the exercise of First Amendment rights,” including “political beliefs” and “freedom of assembly,” and asked agencies to “apply the broadest reasonable interpretation” in determining whether a particular activity is protected by Section 552a(e)(7). OMB, Responsibilities for the Maintenance of Records About Individuals by Federal Agencies, 40 Fed. Reg. 28,948, 28,965 (July 9, 1975). 60. Accordingly, the D.C. Circuit has held that an agency “may not so much as collect information about an individual’s exercise of First Amendment rights except under very circumscribed conditions” and that Section 552a(e)(7) applies regardless
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whether a record is maintained in an agency’s system of records. Albright, 631 F.2d at 919. 61. The Privacy Act incorporates the definition of “agency” found in the Freedom of Information Act, id. § 552a(a)(1), which in turn defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” Id. § 552(f). 62. The Commission is an agency. In cooperation with an as-yet-unknown number of other federal agencies, the Commission will function as a federal investigative body with a dedicated staff and budget to conduct a widescale and first-of-its-kind investigation into alleged voter fraud. Presently, the Commission is amassing the personal and voting data of millions of American citizens and will cross-check this information against databases maintained by other federal agencies, including the Department of Homeland Security and the Social Security Administration, to identify and ultimately have removed individuals whom it believes have fraudulently registered to vote. 63. The Commission’s functions and actions therefore go well beyond solely advising and assisting the President, and its structure shows that it is self-contained, is not operationally close to the President, and exercises substantial independent authority.
Claims for Relief Count One (Violation of 5 U.S.C. § 552a(e)(7)) 64. Plaintiff hereby realleges all allegations in the above paragraphs as if fully set forth herein.
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65. Section 552a(e)(7) of the Privacy Act provides that an agency shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.” 66. The Privacy Act defines “maintain” to include “maintain, collect, use, or disseminate.” 5 U.S.C. § 552a(a)(3). 67. Through the collection, maintenance, use, and/or dissemination of data on individuals’ voter history and party affiliation, activity that is protected by the First Amendment, Defendants have violated, and will violate, Section 552a(e)(7). 68. The collection, maintenance, use, and/or dissemination of these records was not within the scope of a valid law enforcement activity. 69. Defendants’ violation has caused and continues to cause ongoing harm to Plaintiff.
Count Two (Violation of APA – Arbitrary and Capricious Action) 70. Plaintiff hereby realleges all allegations in the above paragraphs as if fully set forth herein. 71. In collecting, maintaining, using, and/or disseminating data on individuals’ voter history and party affiliation, activity that is protected by the First Amendment, in violation of 5 U.S.C. § 552a(e)(7), Defendants have acted arbitrarily, capriciously, in excess of statutory jurisdiction and authority, and otherwise contrary to law, in violation of the APA, 5 U.S.C. § 706.
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Prayer for Relief WHEREFORE, plaintiff pray that this Court:
1. Declare that Defendants’ collection, maintenance, use, and dissemination of voter history and party affiliation data violates the Privacy Act and the APA;
2. Enjoin Defendants from the collection, maintenance, use, and dissemination of voter history and party affiliation data;
3. Order Defendants to provide an accounting of all voter history and party affiliation data in its custody, possession, or control; all copies that have been made of that data; all persons and agencies with whom Defendants have shared that data; and all uses that have been made of that data;
4. Order Defendants to return to any supplying State all voter history and party affiliation data received from that state or otherwise securely delete such data; and
5. Award Plaintiff its costs and reasonable attorneys’ fees incurred in this action; and
6. Grant such other relief as the Court may deem just and proper.
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Dated: July 14, 2017

Respectfully submitted,
/s/ Javier Guzman
Javier M. Guzman (D.C. Bar No. 462679) Karianne M. Jones (pro hac vice motion to be filed)* Democracy Forward Foundation P.O. Box 34553 Washington, D.C. 20043 (202) 448-9090 jguzman@democracyforward.org kjones@democracyforward.org
*Admitted in the State of Minnesota; practicing under the supervision of firm principals.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE 805 15th Street, N.W. Washington, D.C. 20005,
and
JAN CANTLER c/o DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, D.C. 20043,
and
ANTHONY GUTIERREZ c/o DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, D.C. 20043,
and
THOMAS KENNEDY c/o DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, D.C. 20043,
and
ELLEN NAKHNIKIAN c/o DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, D.C. 20043,
Plaintiffs,
vs.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY The White House 1600 Pennsylvania Avenue, N.W. Washington, D.C. 20405,
and

Case No. 1:17-cv-01398 (RCL)

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U.S. DEPARTMENT OF HOMELAND SECURITY 245 Murray Lane, S.W. Washington, D.C. 20528, and KRIS W. KOBACH, in his official capacity as ViceChair of the Presidential Advisory Commission on Election Integrity Defendants.
AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Plaintiffs Common Cause, Anthony Gutierrez, Thomas Kennedy, Ellen Nakhnikian, and Jan Cantler, hereby sue the Presidential Advisory Commission on Election Integrity (“Commission”), the U.S. Department of Homeland Security (“DHS”), and Kris W. Kobach, in his official capacity as Vice-Chair of the Commission.
Preliminary Statement Plaintiffs bring this action to enjoin the Commission and its Vice-Chair, Defendant Kris W. Kobach, from conducting an unprecedented and sweeping investigation into alleged voting misconduct by individual American citizens. Neither the Constitution nor federal law permits this investigation, for which the Commission, acting in concert with other Defendants, has already amassed the politically sensitive voting data of millions of individual American citizens. Moreover, the Commission’s continued maintenance of data regarding Americans’ political affiliations and voting history violates the Privacy Act of 1974, a Watergate-era law which specifically proscribes the government’s collection of information that “describ[es] how any individual exercises rights guaranteed by the First Amendment.” 5 U.S.C. § 552a(e)(7).
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Although Executive Order No. 13,799 established the Commission as a “solely advisory” body, the Commission and Defendant Kobach have undertaken multiple actions that not only far outstrip this limited mission but also lack any legal authority. Among these actions, the Commission’s investigation began on June 28, 2017, when Defendant Kobach, acting on his own, requested the voting rolls (including individuals’ party affiliation and voter history) from all 50 states and the District of Columbia without permitting his fellow Commission members to vote on the data request. Defendant Kobach likewise failed to even notify his fellow Commission members before sending a second data request to the states on July 26, 2017.
In his role as Vice-Chair, Defendant Kobach has made clear his intention to “crosscheck” the data the Commission intakes from the states against other federal databases containing information on individuals (including databases maintained by Defendant DHS and other federal agencies) in order to identify individuals whom the Commission believes to be fraudulently registered to vote. At the Commission’s July 19, 2017 meeting, Defendant Kobach spoke openly of modelling the Commission’s investigation on the multi-state voting crosscheck program that he runs out of Kansas— known as the Interstate Voter Registration Crosscheck Program—that compares states voting data to identify potential misconduct and target individuals for removal from state voter rolls, including by criminal prosecution. To that end, Defendant Kobach, with the consent of the Commission, directed Commission staff to obtain “whatever data” there was within the federal government (including multiple sources of data on individuals held by Defendant DHS and other federal agencies subject to the Privacy Act) to assist the Commission in its investigation. These actions have driven at least one member of the
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Commission, Maine Secretary of State Matthew Dunlap, to publicly question the propriety of the Commission’s pursuit of individuals’ voting data and to withhold the data of Maine’s voters until he better understands “the Commission’s goal.” But multiple other states have complied with the Commission’s request, and, as a result, the Commission is continuing to collect and maintain voting data on millions of American voters.
In one of his Breitbart columns, Defendant Kobach has stated that he contemplates that “every investigation” the Commission undertakes will require individuals’ state voter roll data. Defendant Kobach has discussed the need to call witnesses to testify before the Commission concerning specific individuals who allegedly voted fraudulently in elections and believes the state voter data is needed to, among other things, “confirm” the identity and voting history of the individuals named. Just days before the filing of this Amended Complaint, Defendant Kobach publicly targeted and accused a group of voters in New Hampshire of voter fraud in another Breitbart column, citing to information presented to the Commission for its September 12 meeting. Defendant Kobach continued to make these accusations in New Hampshire at the Commission’s most recent September 12 meeting. In an apparent attempt to continue their investigation unchecked and keep the public in the dark, neither Defendant Kobach nor other Commission members updated the Commission or the public at the September 12 meeting on the work that the Commission has been conducting.
Defendants may not, under the cloak of a presidential “advisory” Commission, establish a new federal agency within the White House to conduct an unauthorized investigation of the validity of millions of Americans’ participation in the political
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process. Doing so directly circumvents the Privacy Act’s protections on the collection of information regarding citizens’ First Amendment activities as well as the Act’s restrictions on disclosure of individuals’ information, and lacks any basis in the Constitution or federal law. Accordingly, Defendants’ actions—which are ultra vires and violate the Privacy Act and the Administrative Procedure Act—should be enjoined.
Parties 1. Plaintiff, Common Cause, is a nonprofit corporation organized and existing under the laws of the District of Columbia. Common Cause is one of the nation’s leading democracy reform organizations and has over one million members and supporters nationwide. Since its founding in 1970, Common Cause has been dedicated to the promotion and protection of the democratic process, such as the right of all citizens, including its eligible members, to be registered for and vote in fair, open, and honest elections. Common Cause brings this action on behalf of itself and its members. 2. Common Cause conducts significant nonpartisan voter-protection, advocacy, education, and outreach activities to ensure that voters are registered to vote and have their ballots counted as cast. Common Cause also advocates for policies, practices, and legislation—such as automatic and same-day registration—that facilitate voting for eligible voters and ensure against disenfranchisement. Common Cause opposes efforts that burden registration and/or voting, including restrictive voter identification laws, partisan gerrymandering, and any other effort that could potentially chill citizens' rights to register or stay registered. Common Cause advocates the safeguarding of personal information, in keeping with the dictates of both state and federal law.
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3. Common Cause and its members have been and will be injured by the Defendants’ activities, including the efforts to obtain personal and private information regarding voter affiliation, vote history, and other related details. Common Cause has already expended staff time and resources to engage in non-litigation related outreach and communications efforts to oppose the impermissible collection of voter information as sought by the Commission, diverting resources from its core activities. The expenditures of resources that Common Cause has been forced to make as a result of the Commission’s activities are aimed at counteracting the harm that the Commission’s impermissible attempt to collect voter information will cause to Common Cause’s mission of encouraging and facilitating voter participation and engagement. 4. The Commission’s attempt to collect voter information will also harm Common Cause’s and its members’ efforts to encourage voter registration and participation. For voters and prospective voters facing political polarization, the threat that the federal government will monitor their electoral participation and even their party affiliations is deeply troubling and has deterred and will continue to deter the exercise of their First Amendment-protected rights to express their views through the ballot box. Further, the Commission’s effort to collect voter information is causing registrants and voters to cancel their registration status (as has already occurred in Florida and Colorado) or forgo registering and voting altogether. Such actions would directly undo the work to which Common Cause has devoted itself over the past few decades and would limit voter engagement and participation in our democracy. To counteract these harmful effects, Common Cause has been engaged in direct counseling of individual voters seeking to de-
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register from voting as a result of the fear they have for what the Commission will do with their personal First Amendment information. 5. Plaintiff Anthony Gutierrez is a United States citizen and resident of the State of Texas. Mr. Gutierrez is registered to vote in Texas and his personal information, including political party affiliation and voting history, has been sought by the Commission. Texas’s Secretary of State has stated that he will be providing the Commission with voting information regarding Texas-registered voters such as Mr. Gutierrez. Mr. Gutierrez has experienced grave concern over his voting history, party, and other personal data being collected by the Commission. He is also concerned that the Commission’s plans to crosscheck the data collected against other federal databases, including those maintained by Defendant DHS, will create obstacles to his future participation in the political process. 6. Plaintiff Thomas Kennedy is a United States citizen and a resident of the State of Florida, where he is registered to vote. Originally from Argentina, Mr. Kennedy became a citizen of the United States in 2016 and, upon completing his citizenship ceremony, immediately registered to vote. The Commission has obtained voter information regarding Florida-registered voters such as Mr. Kennedy. Mr. Kennedy is highly concerned and anxious about the Commission’s collection of his voter information as well as its stated plans to perform a crosscheck in concert with other federal agencies, including Defendant DHS, which has and/or imminently will disclose Mr. Kennedy and other naturalized citizens’ data to the Commission without consent. Such a crosscheck will disproportionately disenfranchise and/or hamper recently naturalized citizens, like Mr. Kennedy, from voting and/or participating fully in the political process. Mr.
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Kennedy is especially concerned about Defendants’ actions given Defendant Kobach’s direct public attacks and animus towards immigrants, like himself. Mr. Kennedy’s participation in the political process is, accordingly, threatened by Defendants’ actions. 7. Plaintiff Ellen Nakhnikian is a United States citizen and resident of New York. She is a registered voter. The Commission has obtained voter information regarding New York-registered voters such as Ms. Nakhnikian. Ms. Nakhnikian is highly concerned about the Commission’s collection of her voter information as well as its stated plans to perform a crosscheck in concert with other federal agencies. Such actions undermine her confidence and participation in the political process and also invade her privacy. 8. Plaintiff Jan Cantler is a United States citizen and resident of New York. She is a registered voter. Ms. Cantler is highly concerned about the Commission’s collection of her voter information as well as its stated plans to perform a crosscheck in concert with other federal agencies. Such actions undermine her participation in the political process and also invade her privacy. 9. Ms. Cantler supported the Governor of New York’s stance that voter data would not be disclosed to the Commission, but became anxious and concerned when the Commission took steps to override the Governor’s decision in order to obtain her and other New York voters’ data. To express her opposition and in an attempt to persuade the Commission and Defendant Kobach to change its course, Ms. Cantler called Defendant Kobach’s office—the Secretary of State’s office in Kansas—to reach him. Ms. Cantler was not connected to Defendant Kobach but was connected to someone in the Secretary of State’s office. After making clear that she was not a Kansas constituent, Ms. Cantler expressed her concerns regarding Defendant Kobach and the Commission’s
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activities to this individual. The individual rebuffed Ms. Cantler’s concerns, stating only that the data that was being collected by the Commission was “public data.” Ms. Cantler explained that the data that the Commission was directing the states to provide was not of the type that could be accessed by the general public without going through certain steps and that the matching logic that would be used by the Commission to crosscheck individual voter data could lead to inaccurate and problematic results as well as invasions of privacy. The individual continued to rebuff her concerns. 10. Defendant Commission is a federal agency within the meaning of 5 U.S.C. § 552a(a)(1) and 5 U.S.C. § 551(1) that is headquartered in Washington, D.C. 11. Defendant U.S. Department of Homeland Security is a federal agency within the meaning of 5 U.S.C. § 552a(a)(1) and 5 U.S.C. § 551(1) that is headquartered in Washington, D.C. DHS (including its components) maintains multiple “systems of records” containing records concerning individuals’ immigration status, including, for example, files of individuals’ citizenship applications as well as the Systematic Alien Verification for Entitlements Program (“SAVE”), a system administered by the U.S. Citizenship and Immigration Services, a component of DHS, that tracks the legal status of non-citizens for use in administering benefit programs. Multiple states have previously attempted to use the SAVE database to verify individuals’ names as part of voter list maintenance programs. 12. Defendant Kris W. Kobach is the Vice-Chair of the Commission. He is sued in his official capacity as Vice-Chair of the Commission. Defendant Kobach was appointed Vice-Chair of the Commission by President Donald J. Trump. Laws and policies
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Defendant Kobach has championed have been the subject of multiple lawsuits by voters’ rights and civil rights groups and have been responsible for suppressing votes.
Jurisdiction and Venue 13. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, because this action arises under federal law, specifically the Privacy Act, 5 U.S.C. §§ 552a(b), (e)(7), and the APA, 5 U.S.C. §§ 701-706. 14. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e), because at least one of Defendants is headquartered in Washington, D.C. and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred here.
Legal Framework 15. Advisory commissions are governed by the Federal Advisory Committee Act, which sets forth various statutory requirements for commissions established by the President or other federal agencies, including requirements regarding public access to committee materials and meetings. See 5 U.S.C. app. 2 § 2; Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 445-47 (1989). 16. Lawfully constituted federal agencies are empowered to act by statute and may exercise only the authority prescribed by Congress. See City of Arlington v. FCC, 569 U.S. 290, 290 (2013) (“Both [agencies’] power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.”). Multiple statutes, including the Privacy Act of 1974 and the Administrative Procedure Act, govern agencies’ actions and interactions with members of the public.
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17. The Privacy Act of 1974 regulates the government’s collection, maintenance, use, and dissemination of sensitive personal information. 18. Congress, which passed the Act following Watergate, was “concerned with curbing the illegal surveillance and investigation of individuals by federal agencies that had been exposed during the Watergate scandal.” Overview of the Privacy Act of 1974, Dep’t of Justice (last updated July 16, 2015), https://www.justice.gov/opcl/policyobjectives. 19. Section 552a(b) of the Privacy Act prohibits the “disclos[ure of] any record which is contained in a system of records by any means of communication to any person, or to another agency,” unless certain exceptions apply. 20. Section 552a(e)(7) provides that an agency shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.” 21. As the D.C. Circuit has explained: “The legislative history of the Act reveals Congress’ own special concern for the protection of First Amendment rights, as borne out by statements regarding ‘the preferred status which the Committee intends managers of information technology to accord to information touching areas protected by the First Amendment of the Constitution.’” Albright v. United States, 631 F.2d 915, 919 (D.C. Cir. 1980) (citing S. Rep. No. 1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916, 6971). Congress directed Section 552a(e)(7) at “inquiries made for research or statistical purposes which, even though they may be accompanied by sincere pledges of confidentiality are, by the very fact that government make (sic) the inquiry, infringing on
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zones of personal privacy which should be exempted from unwarranted Federal inquiry.” Id. (citing S. Rep. No. 1183). This same legislative history also “reveals a concern for unwarranted collection of information as a distinct harm in and of itself.” Id.; see also Bassiouni v. FBI, 436 F.3d 712, 718 (7th Cir. 2006) (“[I]n enacting § 552a, Congress was motivated by a general concern with the potential for abuse if the Government is allowed to collect political dossiers about American citizens.”). 22. Moreover, in interpreting the Privacy Act, the D.C. Circuit has “taken particular care not to undermine the Act’s fundamental goals,” Pilon v. U.S. Department of Justice, 73 F.3d 1111, 1118 (D.C. Cir. 1996), and has resisted “‘neat legal maneuver[s]’ attempted by the government that, while literally consistent with the Act’s terms, were not in keeping with the privacy-protection responsibilities that Congress intended to assign to agencies under the Act,” id. (alteration in original; citation omitted) (quoting Benavides v. U.S. Bureau of Prisons, 995 F.2d 269, 272 (D.C. Cir. 1993)); see also Bartel v. FAA, 725 F.2d 1403, 1409 (D.C. Cir. 1984) (declining to adopt interpretation that would have “circumvent[ed]” the Act’s privacy protections); Tijerina v. Walters, 821 F.2d 789, 797 (D.C. Cir. 1987) (same, regarding interpretation that “would give agencies license to defang completely the strict limitations on disclosure that Congress intended to impose”). 23. Accordingly, the D.C. Circuit has held that an agency “may not so much as collect information about an individual’s exercise of First Amendment rights except under very circumscribed conditions,” and that Section 552a(e)(7) applies regardless whether a record is maintained in an agency’s system of records. Albright, 631 F.2d at 919.
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24. The Privacy Act incorporates the definition of “agency” found in the Freedom of Information Act, 5 U.S.C. § 552a(a)(1), which in turn defines “agency” as “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” Id. § 552(f)(1). 25. Whether a governmental entity is an “agency” under the Privacy Act is a case-bycase determination where “the specific evidence bearing upon that question varies with the entity in question.” Armstrong v. Exec. Office of the President, 90 F.3d 553, 558-59 (D.C. Cir. 1996). Courts in this circuit look at several factors in making this determination, including whether an entity’s sole function is to advise and assist the President and whether the entity exercises substantial independent authority. Citizens for Responsibility & Ethics in Wash. (“CREW”) v. Office of Admin., 566 F.3d 219, 222-23 (D.C. Cir. 2009). Thus, depending on its specific functions, a commission or other governmental body can be deemed to be an agency to which the Privacy Act applies. 26. Although it was formed as a “commission,” Defendant Commission is an “agency” for the purposes of the Privacy Act.
Factual Allegations Candidate Donald J. Trump’s Repeated, Unsubstantiated Claims of Voter Fraud 27. Prior to his election, then-presidential candidate Donald J. Trump repeatedly made unsubstantiated assertions of voter fraud.
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28. On October 10, 2016, candidate Trump tweeted, “Of course there is large scale voter fraud happening on and before election day.”1 29. On October 17, 2016, candidate Trump told supporters at a campaign rally in Wisconsin that “voter fraud is very, very common,” including voting by “people that have died 10 years ago” and “illegal immigrants.”2 30. On November 8, 2016, Donald J. Trump was elected as the forty-fifth president of the United States. 31. On November 27, 2016, president-elect Trump tweeted, “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.”3 32. Three days later, Defendant Kobach echoed the president-elect’s assertion, stating that, “I think the president-elect is absolutely correct when he says the number of illegal votes cast exceeds the popular vote margin between him and Hillary Clinton.”4 33. In December 2016, addressing president-elect Trump’s claim that “millions of people voted illegally,” Trump senior advisor Kellyanne Conway stated that she has
1 @realDonaldTrump, Twitter (Oct. 17, 2016, 8:33 AM), https://twitter.com/ realdonaldtrump/status/787995025527410688?lang=en. 2 Donald Trump Campaign Event in Green Bay, Wisconsin, C-SPAN (Oct. 17, 2016), https://www.c-span.org/video/?417019-1/donald-trump-campaigns-green-bay-wisconsin. 3 @realDonaldTrump, Twitter (Nov. 27, 2016, 3:30 PM), https://twitter.com/ realdonaldtrump/status/802972944532209664. 4 Hunter Woodall, Kris Kobach Agrees with Donald Trump That ‘Millions’ Voted Illegally But Offers No Evidence, Kansas City Star (Nov. 30, 2016), available at http://www.kansascity.com/news/politics-government/article117957143.html.
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“been receiving information about the irregularities and about the illegal votes, particularly from sources, officials like Kris Kobach.”5 34. Indeed, president-elect Trump met with Defendant Kobach in the days after the election. Defendant brought to the meeting a document entitled “Department of Homeland Security: Kobach Strategic Plan for the First 365 Days,” which outlined various objectives for DHS in the first year of the Trump Presidency, and mentioned voter rolls. 35. In separate litigation challenging Kansas’s non-compliance with the National Voter Registration Act (“NVRA”), Defendant Kobach has resisted releasing the photographed document, which outlines proposed amendments to the NVRA, and consequently he has been fined $1,000 by the court for “deceptive conduct and lack of candor.”6 Creation of the Presidential Advisory Commission on Election Integrity to Investigate Voter Fraud 36. On January 20, 2017, Donald J. Trump was inaugurated as President of the United States. 37. Five days later, President Trump tweeted on his official Twitter account: “I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and even, those registered to vote who are dead
5 Emily Shapiro, Kellyanne Conway Dodges Question on Trump’s Claim That ‘Millions’ Voted Illegally, ABC News (Dec. 2, 2016), http://abcnews.go.com/Politics/ kellyanne-conway-dodges-question-trumps-claim-millions-voted/story?id=43924056. 6 Christopher Ingraham, Federal Judge Upholds Fine Against Kris Kobach for ‘Pattern’ of ‘Misleading the Court’ in Voter-ID Cases, Wash. Post, July 2016, https://www .washingtonpost.com/news/wonk/wp/2017/07/26/federal-judge-upholds-fine-against-kriskobach-for-pattern-of-misleading-the-court-in-voter-id-cases/?utm_term=.1b1d8491cf31.
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(and many for a long time). Depending on results, we will strengthen up voting procedures!”7 38. On January 25, 2017, President Trump reiterated his claims that allegedly fraudulent votes were cast for his opponent: “We’re gonna launch an investigation to find out. And then the next time—and I will say this, of those votes cast, none of ‘em come to me. None of ‘em come to me. They would all be for the other side. None of ‘em come to me. But when you look at the people that are registered: dead, illegal and two states and some cases maybe three states—we have a lot to look into.” He vowed to “make sure it doesn’t happen again.”8 39. That same day, CNN reported that according to a senior administration official, “President Donald Trump could sign an executive order or presidential memorandum initiating an investigation into voter fraud as early as Thursday.” The official further informed CNN that “[t]he investigation would be carried out through the Department of Justice.”9
7 @realDonaldTrump, Twitter (Jan. 25, 2017, 7:10 AM and 7:13 AM), https://twitter .com/realDonaldTrump/status/824227824903090176 and https://twitter.com/ realdonaldtrump/status/824228768227217408?lang=en. 8 TRANSCRIPT: ABC News anchor David Muir interviews President Trump, ABC News (Jan. 25, 2017), available at http://abcnews.go.com/Politics/transcript-abc-news-anchor -david-muir-interviews-president/story?id=45047602. 9 Dan Merica et al., Trump Considers Executive Order on Voter Fraud, CNN, Jan. 25, 2017, http://www.cnn.com/2017/01/25/politics/trump-calls-for-major-investigation-intovoter-fraud/index.html.
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40. On May 11, 2017, the White House issued Executive Order No. 13,799 establishing the Commission, which President Trump has described as a “Voter Fraud Panel.”10 41. The Executive Order states that the Commission “shall be solely advisory” and that its “[m]ission” is to study, “consistent with applicable law,” the “registration and voting processes used in Federal elections.”11 42. The Commission is chaired by Vice President Michael Pence and is to be composed of up to 15 additional members having knowledge and experience in “elections, election management, election fraud detection, and voter integrity efforts” or having “knowledge or experience that the President determines to be of value to the Commission.”12 43. The Executive Order directs “[r]elevant” executive departments and agencies to “endeavor to cooperate with the Commission.”13 44. The Commission’s Charter provides for a dedicated, full-time staff of approximately three employees; an annual budget of approximately $250,000 for Fiscal Years 2017 and 2018; and “administrative services, funds, facilities, staff, equipment, and other support services” furnished by the General Services Administration.14
10 See Exec. Order No. 13,799 (“Exec. Order”), 82 Fed. Reg. 22,389 (May 11, 2017); @realDonaldTrump, Twitter (July 1, 2017, 9:07 AM) (capitalization omitted), https:// twitter.com/realdonaldtrump/status/881137079958241280. 11 Exec. Order No. 13,799. 12 Id. 13 Id. 14 Charter of the Presidential Advisory Commission of Election Integrity ¶¶ 6-7 (“Charter”), White House, https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/ commission-charter.pdf; Exec. Order § 7.
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45. While the Charter of the Commission provides for three full-time staff members, Defendant Kobach has publicly stated that the Commission’s staff is “substantial” and includes both full-time staff as well as individuals detailed from other federal agencies.15 46. Apart from the Chair and Vice-Chair, the Commission presently has ten additional members, consisting of a current member of the United States Elections Assistance Commission, present and former state election and judicial officials, the President and General Counsel of the Public Interest Legal Foundation (“PILF”), and an employee of the Heritage Foundation who also serves on the board of PILF.16 47. According to its bylaws, the Commission acts by votes of its membership.17 48. The Charter for the Commission indicates that the Commission was established in accordance with Executive Order 13,799 and the provisions of the Federal Advisory Committee Act (“FACA”), as amended (5 U.S.C. app. 2). However, the bylaws state that the Commission only “has voluntarily agreed to operate in accordance with [FACA].”18 Appointment of Defendant Kris Kobach as Vice-Chair of the Commission 49. The Charter for the Commission permits the Vice President to appoint a ViceChair of the Commission “who may perform the duties of the chair if so directed by the
15 Sam Levine, Watchdog Groups Sue for Documents on Trump Voter Fraud Probe, Huffington Post, Aug. 22, 2017, http://www.huffingtonpost.com/entry/trump-voter-fraudprobe_us_599c4ae9e4b04c532f448f59. 16 Pam Fessler, Amid Skepticism and Scrutiny, Election Integrity Commission Holds First Meeting, NPR, July 19, 2017, http://www.npr.org/2017/07/19/537910132/amidskepticism-and-scrutiny-election-integrity-commission-holds-first-meeting. 17 Presidential Advisory Commission on Election Integrity By-Laws and Operating Procedure § 5, White House, https://www.whitehouse.gov/sites/whitehouse.gov/files/ docs/pacei-bylaws_final.PDF. 18 Id. § 2.
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Vice President.”19 Yet, President Donald Trump appointed the Vice-Chair of the Commission. 50. In a press release on May 11, 2017, the White House announced that President Trump had appointed Kris W. Kobach as Vice-Chair.20 Defendant Kobach is the only Secretary of State in the nation with the power to prosecute voter fraud directly, and is known as a drafter and proponent of many policies that disenfranchise racial and ethnic minorities from the political process. 51. As Secretary of State of Kansas, Defendant Kobach has supported a multi-state crosscheck program, the Interstate Voter Registration Crosscheck Program, that compares names of individuals among several states to identify potential voter fraud. The program has been accused of vastly over-identifying cases of alleged voter fraud and has had the effect of erroneously removing eligible voters from the rolls. The press release announcing Defendant Kobach’s appointment as Vice-Chair stated that the Commission “will utilize all available data, including state and federal databases.”21 52. After being named Vice-Chair, Defendant Kobach described the Commission’s mission as focused on “voter fraud more broadly, all forms of it,”22 and has explained that the Commission’s “goal is to, for the first time, have a nationwide fact-finding
19 Charter ¶ 11. 20 President Announces Formation of Bipartisan Presidential Commission on Election Integrity, White House (May 11, 2017), https://www.whitehouse.gov/the-press-office/ 2017/05/11/president-announces-formation-bipartisan-presidential-commission. 21 Id. 22 Gary Moore, Tucker Carlson: Kris Kobach - Trump Executive Order Creates Voter Fraud Commission: 5/11/2017, YouTube (May 11, 2017), https://www.youtube.com/ watch?v=Fm0MjHmYSJU.
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effort” focused on assessing “evidence” of “different forms of voter fraud across the country.”23 53. Defendant Kobach has stated that the Commission intends to utilize databases from federal agencies in order to “crosscheck” against the names of individual voters to determine if there are alleged fraudulently registered voters on the rolls. Defendant Kobach has explained that the federal government has always prohibited states from doing such a crosscheck, but that with the creation of the Commission, the government is “going to be able to run [federal] database[s] against one or two states and see how many people are known aliens residing in the United States and also on the voter rolls.”24 54. Yet, Defendant Kobach’s efforts go far beyond matching a federal database with data from “one or two states.” Defendant Kobach has expanded the scope of the Commission’s data collection and crosscheck efforts—stating that the Commission “for the first time in our country’s history . . . [will] be gathering data from all 50 states” and using the “federal government’s databases” to “bounce[]” the data on individual voters against the federal databases. He specifically referenced data on individuals in the hands of Defendants DHS, indicating that such data could be checked against state voter rolls to identify fraud.25 A spokesman for the Commission has confirmed that the Commission
23 Transcript: Trump Forms Voter Fraud Commission, CNN (May 15, 2017), http:// transcripts.cnn.com/TRANSCRIPTS/1705/15/nday.06.html. 24 Moore, supra note 24. 25 Transcript: Kobach Talks Goals of New Voter Fraud Commission, Fox News (May 14, 2017), http://www.foxnews.com/transcript/2017/05/14/kobach-talks-goals-new-voterfraud-commission-commerce-secretary-on-nkorea-missile-test-china-trade-deal.html.
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intends to run the voting data it receives on individuals through a number of different databases to check for alleged fraudulent voter registrations.26
55. Defendant Kobach’s written public statements as a paid columnist for Breitbart
have discussed the Commission’s need to hear witness testimony concerning voter fraud
committed by specific individuals and that it will use data it collects from the states to “confirm” the identity of individual American voters alleged to have committed fraud.27
56. In a Breitbart column posted on the Commission’s website, Defendant Kobach
has targeted and publicly accused a group of individual voters in New Hampshire of
fraud, indicating that he has found “proof” within materials provided to the Commission for its most recent meeting that these individuals committed voter fraud.28
57. Defendant Kobach has continually emphasized that the data comparison tactics
used by the Commission have never before been used by the federal government. He
bragged that as Secretary of State in Kansas, he implemented a similar program that was
challenged in court by the ACLU.
26 Jessica Huseman, Election Experts See Flaws in Trump Voter Commission’s Plan to Smoke Out Fraud, ProPublica (July 6, 2017), available at https://www.propublica.org/ article/election-experts-see-flaws-trump-voter-commissions-plan-to-smoke-out-fraud. 27 Kris W. Kobach, Why States Need to Assist the Presidential Commission on Election Integrity, Breitbart (July 3, 2017), available at http://www.breitbart.com/biggovernment/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commissionon-election-integrity/. 28 Kris W. Kobach, It Appears That Out-of-State Voters Changed the Outcome of the New Hampshire U.S. Senate Race, Breitbart (Sept. 7, 2017), available at http://www.breitbart .com/big-government/2017/09/07/exclusive-kobach-out-of-state-voters-changedoutcome-new-hampshire-senate-race/; Letter from Sec’y of State William Gardner and Commissioner John Barthelmes to Hon. Shawn N. Jasper (Sept. 6, 2017), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/pacei-response-to-nhspeaker-jasper-from-depts-state-safety.pdf; Speaker Receives Voter Registration Statistics Requested of Departments of State and Safety, State of New Hampshire House of Representatives, (Sept. 7, 2017) available at https://www.whitehouse.gov/sites/ whitehouse.gov/files/docs/pacei-nh-speaker-jasper-report.pdf.
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The Commission’s First Meeting and Its Unprecedented and Unauthorized Request for Personal and Voter Data 58. Despite the Executive Order’s directive and the requirements under FACA that the Commission hold public meetings with prior notice, the Commission first convened as a group on a June 28, 2017, call without any prior public notice. Following brief welcoming remarks, Vice President Pence disconnected from the call. 59. Neither the Commission nor the White House provided the public with a transcript of the teleconference. A brief “readout” of the meeting supplied by the White House stated that Defendant Kobach had informed the other Commission members that a letter would be sent to all 50 states and the District of Columbia requesting data from state voter rolls. 60. That same day, Defendant Kobach “directed” that a letter be sent under his signature to the Secretaries of State or other election officials in all 50 states and the District of Columbia. Declaration of Kris W. Kobach ¶ 4, Elec. Privacy Info. Ctr. (“EPIC”) v. Presidential Advisory Comm’n on Election Integrity, No. 17-1320 (D.D.C. July 5, 2017). The other Commission members neither reviewed nor vetted the actual language of the letter before it was sent. Nor did the members vote on sending out the letter. 61. Defendant Kobach’s June 28 letter “invite[d]” state officials, among other things, to share “evidence or information . . . you have regarding instances of voter fraud or registration fraud in your state” and asked how the Commission could “support” state election officials “with regard to information technology security and vulnerabilities.”29
29 See, e.g., Letter from Kris W. Kobach, Vice Chair, Presidential Advisory Comm’n on Election Integrity, to Hon. Elaine Marshall, Sec’y of State, N.C. 1 (June 28, 2017),
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62. The letter requested that the recipients provide by July 14, 2017, “the publiclyavailable voter roll data for [your state], including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.”30 63. The letter instructed recipients to “submit your responses electronically to ElectionIntegrityStaff@ovp.eop.gov or by utilizing the Safe Access File Exchange (‘SAFE’), which is a secure FTP site the federal government uses for transferring large data files. You can access the SAFE site at https://safe.amrdec.army.mil/safe/ Welcome.aspx.”31 64. Shortly after Defendant Kobach sent the letter, one Commissioner, Luis Borunda, Maryland’s Secretary of State, resigned from the Commission. 65. After reports indicated that certain state officials might decline to provide some or all of the data requested by Defendant Kobach, President Trump tweeted: “Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?”32
available at https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/informationrequests-to-states-06282017.pdf. 30 Id. at 1-2. 31 Id. at 2. 32 @realDonaldTrump, Twitter (July 1, 2017, 9:07 AM), https://twitter.com/ realdonaldtrump/status/881137079958241280.
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66. The same day that Defendant Kobach sent his letter, the Voting Section of the Civil Rights Division of the Department of Justice (“DOJ”) sent its own letter to states requesting their procedures for complying with the statewide voter registration list maintenance provisions of the NVRA. DOJ requested that states provide their policies for removing ineligible voters and identify the officials responsible for doing so.33 The Commission’s Second Meeting 67. At the Commission’s second meeting on July 19, 2017, the Commission’s intentions to conduct an unauthorized investigation of alleged individual voter fraud became even more clear. 68. Defendant Kobach described his operation of the Interstate Voter Registration Crosscheck Program in Kansas, under which 30 states pool their voter data to identify those who are registered in more than one state with the aim of removing duplicative names from the voter rolls, including by criminal prosecution.34 69. The methodology and reliability of the Interstate Voter Registration Crosscheck Program have been questioned, and concerns have been raised as to whether it is being used as a tool for voter suppression. This notwithstanding, Defendant Kobach then stated his hope that the Commission’s work would be “equally successful on the national level.”35
33 See, e.g., Letter from T. Christian Herren, Jr., Chief, Voting Section, Civil Rights Div., U.S. Dep’t of Justice, to Hon. Kim Westbrook Strach, Exec. Dir., N.C. State Bd. of Elections (June 28, 2017). 34 White House, Presidential Advisory Commission on Election Integrity, YouTube (July 24, 2017), https://www.youtube.com/watch?v=oZI27wB8-po. 35 Id.
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70. One Commission member described the objective of the Commission’s investigation as “deciding . . . how accurate . . . the voter rolls” are.36 71. Referring to the “red tape” and other obstacles that have previously prevented state efforts to obtain information on individuals held by the federal government as part of voter list maintenance programs, Commission members discussed the following information maintained by federal agencies on individuals that could aid the Commission in its investigation:
• Department of Homeland Security: information on all non-citizens both legally and illegally within the United States as well as answers given by applicants on naturalization forms regarding voting history;
• U.S. Census Bureau: surveys on individuals who did not vote or did not register to vote;
• Federal district courts: information regarding individuals excused from jury duty for being non-citizens;
• Department of Justice: information regarding referrals for criminal prosecution based on non-citizens excused from jury duty or admissions on naturalization forms to having voted in an election as a non-citizen; and
• Social Security Administration: index of death records.37
72. Repeated references were made at the meeting to referrals of individuals suspected of voter fraud to the DOJ for possible criminal prosecution. For example, one
36 Id. 37 Id.
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Commission member questioned whether agencies of the federal government and the federal judiciary were forwarding data they collect to DOJ for criminal prosecution.38 73. In response to these comments, Defendant Kobach instructed Commission staff between upcoming Commission meetings to “start trying to collect whatever data there is that’s already in the possession of the federal government” that “might be helpful” to the Commission’s unauthorized voter fraud investigation.39 The Broadening Scope of the Commission’s Unauthorized Investigation 74. The scope of the Commission’s investigation has broadened even further since the issuance of the initial June 28, 2017 letter and since the two prior Commission meetings. 75. Although Defendant Kobach’s June 28 letter initially gave states a deadline of July 14 to transmit their voters’ data, the Commission put the data collection on hold pending a decision on the temporary restraining order and preliminary injunction that was filed in a separate lawsuit. 76. After preliminary motions in that suit were resolved, Defendant Kobach renewed the data request by a letter dated July 26 to the states, citing to the NVRA’s requirement that states maintain voter registration information and explaining that the Commission is interested in “gathering facts” and “going where those facts lead.”40 77. Defendant Kobach did not discuss his plans to issue the July 26 letter request with the Commission at the July 19 meeting, nor were the plans to issue the request discussed with Commission members thereafter. The lack of transparency has concerned
38 Id. 39 Id. 40 See, e.g., Letter from Kris W. Kobach, Vice Chair, Presidential Advisory Comm’n on Election Integrity, to N.Y. State Bd. of Elections 2 (July 26, 2017).
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Commission members, causing at least one of them to question the validity of the Commission’s work. 78. For example, after noting that the data request was not considered or discussed with the full Commission, Commission member Matthew Dunlap stated in a public statement after the July 19 meeting: “If we’re going to act as a Commission, we should really be considering the entire request for data as a body, and determining what it is we’re researching and how to look for it.”41 Mr. Dunlap has refused to provide data from citizens of his state (Maine) until there is clarity as to “the Commission’s goal.”42 Commission member and Indiana Secretary of State Connie Lawson has stated that she does not know what the Commission intends to do with the state voter roll data.43 West Virginia county clerk, Mark Rhodes, who is also a Commission member, stated after the July 19 meeting that he did not receive any information regarding the Commission’s post-meeting activities. Rhodes was also not informed of Kobach’s July 26 request letter prior to its being sent.44 Former Arkansas state legislator, David Dunn, who is also a
41 See Secretary Dunlap Reviewing Elections Commission’s Second Request for Voter Data, Dep’t of the Sec’y of State of Me., http://www.maine.gov/sos/news/2017/ electioncommission2.html. 42 Scott Thistle, Maine’s Sec’y of State says he will Reject Second Request for Voter Registration data, Portland Press Herald, http://www.pressherald.com/2017/07/31/ maines-secretary-of-state-says-he-will-reject-second-request-for-voter-registration-data/ (last modified Aug. 1, 2017). 43 Tony Cook and Kaitlin L Lange, Indiana’s secretary of state could be check on Trump voter fraud commission, IndyStar (July 9, 2017), http://www.indystar.com/story/news/ politics/2017/07/09/indianas-connie- lawson-could-check-trump- voter-fraudcommission/442250001/. 44 Kira Lerner, Democrats on Trump’s voting commission iced out since first meeting, ThinkProgress (Aug. 22, 2017), https://thinkprogress.org/democrats-voting-commissionceec3ea98a33/.
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Commission member, similarly stated that he has not received information on the Commission’s work after the July 19 meeting.45 79. This notwithstanding, a spokesman for the Commission confirmed that the work of the Commission was continuing and that Commission members would be informed of that work at the next meeting.46 As discussed below, such a discussion did not occur at the September 12 meeting, keeping the public and certain Commission members in the dark as to the work that is ongoing. 80. Numerous states have complied and/or have plans to comply with the Commission’s latest request for data—including the request for party affiliation and voter history protected by the First Amendment. As of the filing of this Amended Complaint, at least 17 states indicated they would provide data and 11 more have said they would do so if the Commission fulfilled certain request requirements. 81. Although certain states have indicated that they may withhold their voters’ data from the Commission, President Trump stated at the July 19 meeting that data from the rest of the states “will be forthcoming,” observing that “[i]f any state does not want to share this information, one has to wonder what they’re worried about.”47 82. The Commission has already shown that it will use other methods to obtain data even in cases where state officials have declined to provide the information in response to the request letter. For example, in New York, the Commission sought voter data through a Freedom of Information Law request after state officials refused to provide their voter
45 See id. 46 See id. 47 White House, supra note 36.
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rolls to the Commission. To obtain New York’s data, the Commission had to certify that it would not use the data, or information derived from it, for any “non-election” purpose. The Continual Shifting of the Commission’s Plans to Store Voter Information 83. The Commission has not been transparent about where it intends to store the personal voter data that it is collecting for its investigation of individual Americans but its efforts have involved other federal agencies. 84. The initial June 28, 2017 voter data request issued by Defendant Kobach directed states to submit their data to a “.eop.gov” email address. Yet, Defendant Kobach stated in a sworn declaration in a separate lawsuit over the Commission’s activities that he “intended” that only “narrative responses” provided in response to the letter be sent to the eop.gov email address in the letter and that “voter roll data” be uploaded onto the Safe Access File Exchange (SAFE), which he described as a “tested and reliable method of secure file transfer used routinely by the military for large, unclassified data sets” that “also supports encryption by individual users.”48 The SAFE website is operated by the U.S. Army Aviation and Missile Research Development and Engineering Center, a component within the U.S. Army and the Department of Defense. 85. After the court in a separate lawsuit inquired if the Department of Defense, by virtue of its role in collecting and maintaining the data on the SAFE website, should be joined as a defendant to that action, the Commission changed course on its storage plans. In a subsequent sworn declaration, Kobach stated that “[i]n order not to impact the ability of other customers to use” SAFE, the Director of White House Information Technology was “repurposing an existing system” to collect the information “within the White House
48 Declaration of Kris W. Kobach ¶ 5, No. 17-1320.
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Information Technology enterprise.”49 When asked by the same Court what other federal agencies support the White House’s computer system, the Government stated that the “mechanics” of the White House’s information technology program are “something that may not be appropriate to say in a public setting.”50 When asked by the court whether other agencies were cooperating with the Commission, it stated that none then were.51 86. A week later, another declarant, Charles Herndon, the White House’s Director of Information Technology, stated that no other federal agency will have a role in this initial “data collection process” from the states, but left unaddressed the mechanics of the upcoming data crosscheck project and the process for collecting, storing or using the data maintained by the other federal agencies.52 87. The Commission’s second data request issued on July 26 by Defendant Kobach described yet another system for collecting the voter data, stating that the “Commission is offering a new tool” to transmit the voter data to the “White House computer system” and that “detailed instructions” would be provided after states reached out to an email address provided in the letter.53 The July 26 letter once again left unaddressed any role other federal agencies may have in the operation of this “new tool.” 88. In the weeks since the Commission’s second request, at least two Commission members have confirmed that they have been using their personal email to communicate
49 Third Declaration of Kris W. Kobach ¶ 1, EPIC, No. 17-1320 (D.D.C. July 10, 2017). 50 Transcript of Temporary Restraining Order Hearing, EPIC, No. 17-1320 (D.D.C. July 7, 2017). 51 Id. at 30:5-13. 52 Declaration of Charles Christopher Herndon ¶ 6, EPIC, No. 17-1320 (D.D.C. July 17, 2017). 53 See Letter from Kobach to N.Y. State Bd. of Elections, supra note 42, at 2.
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about the Commission’s business.54 The Commission has not given any indication of what security precautions accompanied the use of personal email for Commission business and whether voter data has been transmitted in this manner. The Commission’s Third Meeting 89. The Commission convened for a third time on September 12, 2017. 90. The September 12 meeting was chaired by Defendant Kobach, not Vice President Pence. 91. At the September 12 meeting, Defendant Kobach defended his Breitbart column, in which he declared that he had “proof” that individual voters in New Hampshire committed fraud based on materials that were provided to the Commission by New Hampshire state officials. 92. Defendant Kobach’s Breitbart column now appears on the Commission’s website. 93. During the meeting, Defendant Kobach also touted his authority as Kansas Secretary of State to prosecute voter fraud, noting that he has prosecuted only 8 cases of illegal voting due to his limited resources, but that he has more cases “in the hopper.” 94. Commission member and Heritage Foundation Fellow Hans von Spakovsky testified regarding a database hosted by the Heritage Foundation that purportedly “documents 1,071 proven incidents of election fraud.”55
54 Zoe Tillman, Members Of Trump's Election Integrity Commission Used Personal Email Accounts, BuzzFeed (Sept. 6, 2017), available at https://www.buzzfeed.com/ zoetillman/at-least-one-member-of-trumps-election-integrity-commission?utm_ term=.tygxzmGG1#.krRoWnNNl]. 55 Hans Von Spakovsky, Presidential Advisory Commission on Election Integrity, The Heritage Foundation, https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/paceihans-von-spakovsky-election-presentation.pdf (last visited Sept. 11, 2017).
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95. The Commission also heard testimony from Dr. John Lott Jr., President of the
Crime Prevention Research Center, that every American voter should be subject to a
criminal background check through the federal National Instant Criminal Background
Check System and that the system should be updated to include certain immigration information.56
96. The Commission received a written presentation by Commission member J.
Christian Adams, highlighting “real life examples” of improper voter registration and
voting by named non-citizens, in part based on materials used in the citizenship process,
and recommending increased reliance on the SAVE database by state election officials as
well as opening “new information-sharing channels” between Defendant DHS and state officials in order to identify voter fraud more easily.57
97. Other presentations to the Commission recommended, among other things, that
“8,471 cases of likely duplicate voting be investigated for possible wrongdoing” by the Commission58 and that increased reliance be placed on data crosscheck methodology to identify alleged voter fraud.59
56 John R. Lott Jr., Presentation to Presidential Advisory Commission on Election Integrity: A Suggestion and Some Evidence, Crime Prevention Research Center, https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/pacei-dr-john-lottpresentation.pdf (last visited Sept. 13, 2017). 57 Submission from J. Christian Adams, Garden State Gotcha, https://www .whitehouse.gov/sites/whitehouse.gov/files/docs/pacei-submission-J-ChristianAdams_Garden-State-Gotcha_PILF.pdf (last visited Sept. 13, 2017). 58 Gov’t Accountability Inst., America The Vulnerable: The Problem of Duplicate Voting, available at https://www.whitehouse.gov/sites/whitehouse.gov/ files/docs/pacei-govt-accountability-institute-problem-duplicate-voting.pdf (last visited Sept. 13, 2017). 59 Data Mining for Potential Voter Fraud Findings and Recommendations, Simpatico Software Systems, https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/paceiken-block-presentation.pdf (last visited Sept. 13, 2017).
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98. At the September 12 meeting, the Commission was not transparent about the work it had conducted since its previous meeting on July 19. The Harmful Consequences of the Commission’s Unauthorized Voter Fraud Investigation 99. As a result of the Commission’s unauthorized investigation, thousands of voters have de-registered from the rolls, while others are gravely concerned about how their data will be used by the Commission, making them hesitant to fully participate in the political process.60 Inhibiting public participation in this way undermines public confidence in the political process, creating direct harm to Plaintiffs. 100. As detailed above, Plaintiffs Kennedy, Gutierrez, Cantler, and Nakhnikian are all registered voters whose data is at risk, given Defendants’ unauthorized actions and imminent plans. Plaintiffs are highly concerned and have experienced anxiety over the Commission and Defendant Kobach’s investigation and collection of voting data as well as how the Commission and Defendant Kobach will use their voter data. Plaintiffs are also harmed by Defendants’ efforts to crosscheck their individual data and face the imminent prospect that these crosscheck efforts will hamper, impede, and/or suppress their participation in the political process. 101. As detailed above, Plaintiff Common Cause and its members are and will be harmed by the unauthorized investigation and data collection by Defendants Commission
60 See, e.g., Thousands Unregister from Voter Rolls After Trump Panel’s Data Requests, NBC News, July 18, 2017, http://www.nbcwashington.com/news/politics/ThousandsUnregister-Voter-Rolls-Election-Integrity-435155813.html; Brian Eason, More Than 3,000 Colorado Voters Have Canceled Their Registrations Since Trump Election Integrity Commission Request, Denver Post, July 13, 2017, http://www.denverpost.com/ 2017/07/13/trump-election-integrity-commissions-colorado-voters-cancel-registration.
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and Kobach and have already expended staff time and resources to counteract the Commission’s unlawful activities. 102. As detailed above, Plaintiff Kennedy is and will be harmed by the unlawful disclosure by DHS of his individually identifiable data without his consent.
Claims for Relief Count One
(Ultra Vires Action Against Defendants Commission and Kobach) 103. Plaintiffs hereby reallege all allegations in the above paragraphs as if fully set forth herein. 104. Plaintiffs have a right of action to enjoin and declare unlawful official action that is ultra vires. 105. Executive Order No. 13,799 established the Commission as a “solely advisory” body charged to “study” the registration and voting processes used in federal elections “consistent with applicable law.” 106. Defendant Kobach and the Commission have taken multiple actions that lack any authorization in the Constitution, federal law, or the Executive Order and related documents establishing the Commission. Among them:
a. Notwithstanding the Commission’s authorization to be purely advisory, the Commission, at Defendant Kobach’s direction, has undertaken a sweeping, first-of-its-kind investigation into alleged voting misconduct by individual American citizens that will affect their most fundamental rights.
b. Defendant Kobach alone “directed” the unprecedented investigative action of seeking from all 50 states and the District of Columbia on June 28, 2017, the
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voting data of all American citizens without giving other members of the Commission the opportunity to approve or vet the request. c. Defendant Kobach did not consult with the other members of the Commission—or propose for a vote at the Commission’s July 19 meeting— before renewing the data request to the states on July 26, 2017. d. Defendant Kobach and the Commission intend to crosscheck the voting data obtained from the states against other private information on individuals maintained by agencies throughout the federal government (including databases maintained by Defendants DHS) in order to identify individuals the Commission believes are fraudulently registered to vote. e. When states have previously requested that such a crosscheck be performed with DHS databases in order to determine which of their residents may be fraudulently registered to vote, Defendant Kobach has acknowledged that the federal government has always prohibited such a check. f. Defendant Kobach has discussed the Commission’s need to hear testimony from witnesses concerning voter fraud committed by specific individuals. g. The Commission has been presented with materials claiming that multiple specific individuals have fraudulently registered or voted. h. Defendant Kobach has accused individual voters in New Hampshire of voter fraud based on materials presented to the Commission. 107. Commission member Luis Borunda, Maryland’s Deputy Secretary of State, resigned following Defendant Kobach’s June 28, 2017, data request to the states.
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108. Commission members Matthew Dunlap, Mark Rhodes, and David Dunn were kept in the dark about the substance of the Commission’s activities following the July 19 meeting. 109. As a result, Commission member Dunlap has stated he will not comply by sending the data of Maine’s voters to the Commission until he better understands “the Commission’s goal.” 110. Notwithstanding statements of non-compliance by state officials, President Trump has declared that voting data on individuals will nevertheless be “forthcoming” from every state. 111. After New York officials declined to comply with the Commission’s data request, the Commission obtained the data through other means, after certifying in a public information request that the Commission would be not be using the data for a “nonelection” purpose. 112. The allegations set forth above demonstrate that under Defendant Kobach’s leadership, and at his direction, the Commission is engaged in a lawless and unbounded investigation of individual voters for which there is no authorization in the Executive Order, the Constitution, or any act of Congress. 113. The investigative actions taken by Defendant Kobach and the Commission are completely unauthorized actions by a federal official and a governmental body that are therefore ultra vires. 114. Accordingly, the investigation is ultra vires and Plaintiffs are entitled to a declaration that the Commission is without authority to investigate and maintain the voting data of millions of American citizens, an order requiring that any and all such data
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in the Commission’s possession or that comes into its possession be returned to the states that furnished it, and an injunction preventing Defendant Kobach and the Commission from undertaking this unauthorized investigation.
Count Two (Violation of 5 U.S.C. § 552a(e)(7) By Defendant Commission) 115. Plaintiffs hereby reallege all allegations in the above paragraphs as if fully set forth herein. 116. Section 552a(e)(7) of the Privacy Act provides that an agency shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.” 117. The Privacy Act defines “maintain” to include “maintain, collect, use, or disseminate.” 5 U.S.C. § 552a(a)(3). 118. Through the collection, maintenance, use, and/or dissemination of data on individuals’ voter history and party affiliation—activity that is protected by the First Amendment—Defendants have violated, and will continue to violate, Section 552a(e)(7). 119. The collection, maintenance, use, and/or dissemination of these records was unauthorized and does not fall within the scope of a valid law enforcement activity. 120. As described above, Plaintiffs have been adversely affected by Defendant’s maintenance, use, and/or dissemination of their First Amendment-protected data.
Count Three (Violation of 5 U.S.C. § 552a(b) by Defendant Department of Homeland Security) 121. Plaintiff Kennedy hereby realleges all allegations in the above paragraphs as if fully set forth herein.
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122. Information regarding Plaintiff Kennedy is maintained by Defendant DHS in one or more Privacy Act “systems of records.” 123. Pursuant to 5 U.S.C. § 552a(b), DHS may not “disclose any record which is contained in a system of records by any means of communication to any person, or to another agency,” unless certain exceptions apply. 124. At the July 19, 2017, Commission meeting, Defendant Kobach instructed Commission staff to obtain information that Defendant DHS maintains on individuals including Plaintiff Kennedy, such as DHS’s files on the immigration status and citizenship applications of individuals including Plaintiff Kennedy. 125. On information and belief, DHS has—or imminently will—disclose to the Commission and/or Commission staff information about individuals including Plaintiff Kennedy contained in DHS’s “systems of records.” 126. At no time did Plaintiff Kennedy provide DHS either verbal or written consent to disclose information concerning himself to the Commission and its staff. 127. Upon information and belief, this disclosure was or will be intentional and willful, and no exception in 5 U.S.C. § 552a(b) applies. 128. Plaintiff Kennedy has been adversely affected as a direct and proximate cause of Defendant DHS’s disclosure as described in the paragraphs above.
Count Four (Violation of 5 U.S.C. § 706 by Defendants Commission and DHS) 129. Plaintiffs hereby reallege all allegations in the above paragraphs as if fully set forth herein. 130. In collecting, maintaining, using, and/or disseminating data on Plaintiffs’ voter history and party affiliation, activity that is protected by the First Amendment, in
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violation of 5 U.S.C. § 552a(e)(7), Defendants Commission and DHS have acted arbitrarily, capriciously, in excess of statutory jurisdiction and authority, and otherwise contrary to law, in violation of the APA, 5 U.S.C. § 706. 131. In disclosing Plaintiff Kennedy’s data in violation of 5 U.S.C. § 552a(b), Defendant DHS has acted arbitrarily, capriciously, in excess of statutory jurisdiction and authority, and otherwise contrary to law, in violation of the APA, 5 U.S.C. § 706. 132. The collection, maintenance, use, dissemination, and disclosure of Plaintiffs’ data in violation of Sections 552a(e)(7) and 552a(b) of the Privacy Act by Defendants is a final agency action that is not in accordance with law. 133. If relief is unavailable under the Privacy Act, Plaintiffs are entitled to declaratory and injunctive relief under 5 U.S.C. § 706 enjoining the Defendants from collecting, maintaining, using and/or disseminating the voter history and party affiliation data in violation of Section 552a(e)(7); directing Defendants to expunge any such voter history and party affiliation data that is in their possession or comes into their possession; enjoining Defendant DHS from disclosing individuals’ Privacy Act-protected records in violation of Section 552a(b); and directing Defendant Commission to expunge any such data received on Plaintiff Kennedy and other individuals from Defendant DHS.
Prayer for Relief WHEREFORE, Plaintiffs pray that this Court:
1. Declare that Defendant Kobach and the Commission are operating ultra vires because they are collecting and maintaining the voting data of millions of Americans as part an investigation they have no legal authority to conduct;
39

Case 1:17-cv-01398-RCL Document 21 Filed 09/13/17 Page 40 of 42
2. Enjoin Defendant Kobach and the Commission from undertaking the unauthorized investigation of individual American voters;
3. Declare that the collection, maintenance, use, and dissemination of voter history and party affiliation data by Defendant Commission violates Section 552a(e)(7) of the Privacy Act and, in the alternative, the APA;
4. Enjoin Defendant Commission from the collection, maintenance, use, and dissemination of voter history and party affiliation data;
5. Order Defendant Commission to provide an accounting of all voter history and party affiliation data in their custody, possession, or control; all copies that have been made of that data; all persons and agencies with whom the Commission has shared that data; and all uses that have been made of that data;
6. Order Defendant Commission to return to any supplying state all voter history and party affiliation data received from that state or otherwise securely and permanently delete such data;
7. Declare that the disclosure of Plaintiff Kennedy’s data by Defendant DHS to the Commission and/or Commission staff violates Section 552a(b) of the Privacy Act and, in the alternative, the APA.
8. Enjoin Defendant DHS from the disclosure of individuals’ Privacy Actprotected data to the Commission in violation of Section 552a(b).
9. Order Defendant Commission to return to DHS the data of Plaintiff Kennedy and any other data received on individuals in violation of Section 552a(b).
40

Case 1:17-cv-01398-RCL Document 21 Filed 09/13/17 Page 41 of 42

10. Award Plaintiffs costs and reasonable attorneys’ fees incurred in this action; and
11. Grant such other relief as the Court may deem just and proper.

Dated: September 13, 2017

Respectfully submitted,
/s/ Skye L. Perryman
Javier M. Guzman (D.C. Bar No. 462679) Josephine Morse pro hac vice Skye L. Perryman (D.C. Bar No. 984573) Karianne M. Jones pro hac vice Democracy Forward Foundation P.O. Box 34553 Washington, D.C. 20043 (202) 448-9090 jguzman@democracyforward.org jmorse@democracyforward.org sperryman@democracyforward.org kjones@democracyforward.org

41

Case 1:17-cv-01398-RCL Document 21 Filed 09/13/17 Page 42 of 42

CERTIFICATE OF SERVICE

I hereby certify that on this 13th day of September, 2017, the foregoing Amended

Complaint was served electronically on all parties of record via the Court’s CM/ECF

system.

Dated: September 13, 2017

/s/ Skye L. Perryman

 
 Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 1 of 41

1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

2

3

Common Cause,

)

) Civil Action

4

Plaintiff, ) No. 17-CV-1398

)

5

vs.

) MOTIONS HEARING

)

6

Presidential Advisory

) Washington, DC

Commission on Election

) August 1, 2017

7

Integrity, et al.,

) Time: 10:30 A.M.

)

8

Defendants. )

___________________________________________________________

9

TRANSCRIPT OF MOTIONS HEARING

10

HELD BEFORE

THE HONORABLE JUDGE ROYCE C. LAMBERTH

11

UNITED STATES DISTRICT JUDGE

____________________________________________________________

12

APPEARANCES

13

For the Plaintiff:

Josephine Morse

14

Skye Perryman

Javier M. Guzman

15

DEMOCRACY FORWARD FOUNDATION

P.O. Box 34553

16

Washington, DC 20043

(202) 448-9090

17

For the Defendants:

Elizabeth J. Shapiro

18

Kristina Wolfe

Carol Federighi

19

U.S. DEPARTMENT OF JUSTICE

Civil Division, Federal Programs Branch

20

P.O. Box 883

Washington, DC 20530

21

(202) 514-5302

22

____________________________________________________________

23

Court Reporter:

24

25

Janice E. Dickman, RMR, CRR Official Court Reporter United States Courthouse, Room 6523 333 Constitution Avenue, NW Washington, DC 20001 202-354-3267

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 2 of 41

2

1

THE COURTROOM DEPUTY: Your Honor, we're on the

2

record for civil case 17-1398, Common Cause versus

3

Presidential Advisory Commission on Election Integrity, et al.

4

Counsel, please approach the lectern, identify

5

yourself for the record.

6

MR. GUZMAN: Your Honor, good morning. Javier

7

Guzman on behalf of plaintiff Common Cause. I'm joined at

8

counsel table by Miss Josephine Morse and Miss Skye

9

Perryman, who intend to present argument today on behalf of

10

plaintiff. Miss Morse has a pending pro hac vice.

11

THE COURT: I have that motion here and I'll sign

12

the proposed order for Miss Morse and Miss Jones both.

13

MR. GUZMAN: And with respect to Miss Perryman,

14

Your Honor, she is a member of the District Court's bar.

15

She's awaiting her ECF registration, so she has not been

16

able to enter her appearance yet in the case.

17

And I'm also joined at the table by representatives

18

of Common Cause, Stephen Spaulding and Allegra Chapman.

19

THE COURT: Okay.

20

MR. GUZMAN: Thank you.

21

MS. SHAPIRO: Good morning, Your Honor. Elizabeth

22

Shapiro from the Department of Justice. And I'm joined

23

today by Joseph Borson, Carol Federighi, and Kristina Wolfe,

24

all from the Department of Justice.

25

(Pause.)

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 3 of 41

3

1

THE COURT: All right. I'll hand these two orders

2

to the clerk.

3

THE COURTROOM DEPUTY: Thank you.

4

THE COURT: We're here today solely on the motion

5

for temporary restraining order. The motion for preliminary

6

injunction will be separately determined.

7

It is not clear to me from reviewing the papers

8

whether this case could be determined to be one that should

9

be assigned to Judge Kotelly. Initially it was, apparently,

10

assigned to her and then randomly assigned to me upon

11

reassignment with some other cases that were not thought to

12

be related.

13

There is an opinion issued by Judge Kotelly in a

14

prior case that looks like a lot of issues are overlapping,

15

obviously. And so there will have to be some coordination

16

internally with the calendar committee, the Court and Judge

17

Kotelly as to how this case ultimately will proceed.

18

But there being a request for temporary

19

restraining order, it needs to be heard and determined. And

20

then under our local rules, an opposition to the motion for

21

preliminary injunction is due seven days from the time of

22

the filing of the motion and it needs to be heard within 21

23

days. If the case is not reassigned, that will be by me.

24

But, it may or may not be by me; it will be by some judge.

25

In any event, today I will determine the motion

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 4 of 41

4

1

for a temporary restraining order. So it's the plaintiff's

2

motion. You may proceed.

3

MS. MORSE: Thank you, Your Honor. Josephine

4

Morse on behalf of Common Cause.

5

With the Court's indulgence, I will address our

6

client's likelihood of success on the merits, and my

7

colleague, Miss Perryman, will address irreparable injury

8

and the other TRO factors.

9

This case arises under section (e)(7) of the

10

Privacy Act, which is a post Watergate statute that, as the

11

D.C. Circuit held in its Albright decision, broadly

12

prohibits federal agencies from even so much as collecting

13

information about individuals' exercise of their First

14

Amendment rights.

15

THE COURT: Okay. I agree. That's the first

16

question. Judge Kotelly thinks it's not a federal agency.

17

Why do you think it is?

18

MS. MORSE: For several reasons. First, I draw

19

your attention to, in Judge Kollar-Kotelly's opinion, the

20

very preliminary nature of the finding that she made where

21

she said that on the facts, you know, currently before her,

22

she did not, you know, think that the agency was -- that the

23

Commission was currently operating as an agency.

24

We have a different set of defendants here and a

25

different, you know, claim. And I'll address your question

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 5 of 41

5

1

about, you know, it functioning as an agency. As we sort of

2

set forth in our papers, there's --

3

THE COURT: But it was established as an advisory

4

commission by the executive order, right?

5

MS. MORSE: It was established -- the Commission

6

has said that it is voluntarily complying with the new

7

advisory -- with FACA, but it uses the words --

8

THE COURT: No, it is established by executive

9

order.

10

MS. MORSE: It was established by an executive

11

order, Your Honor.

12

THE COURT: That's the whole creation of it.

13

MS. MORSE: There's the executive order and a

14

couple of other charter documents.

15

THE COURT: There's no statute.

16

MS. MORSE: There's no statute, that's correct.

17

THE COURT: So it's established by executive order

18

and it calls it a commission.

19

MS. MORSE: That is correct.

20

THE COURT: Members are appointed by the president.

21

MS. MORSE: (Nods head.)

22

THE COURT: They're not confirmed by anybody.

23

MS. MORSE: Correct.

24

THE COURT: Traditionally, an agency is -- or,

25

nominees by the president, confirmed by the Senate. That

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 6 of 41

6

1

didn't happen here. So how do we get it to be an agency?

2

MS. MORSE: Okay. So by the -- under the -- I

3

want to first start with the -- what the D.C. Circuit has

4

said in its decisions here, which is that, you know, whether

5

an entity is an agency for purposes of the Privacy Act and

6

related statutes is a case-by-case determination.

7

If you look at the entity, you know, and all the

8

characteristics of that entity -- and here, you know, under

9

the D.C. Circuit's precedence, there's probably two main

10

factors this boils down to, which is what the agency says it

11

is doing and also what the agency is doing and how it is

12

functioning under the seminal Soucie case.

13

Here, you know, under the statements that -- you

14

know, multiple statements by commission members, and

15

including Vice-Chair Kobach, what the Commission is doing,

16

in cooperation with multiple other federal agencies, is

17

undertaken an unprecedented investigation into purported

18

voter fraud for which it has solicited and now it has

19

collected data on millions of American voters, including

20

First Amendment data of those voters. This is not a

21

situation where --

22

THE COURT: Contrary to what you said in your

23

papers. You said in your papers they demanded, or something

24

like that. And all they've done is solicited information.

25

The states are voluntarily providing it, right? No state

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 7 of 41

7

1

has been compelled to give anything?

2

MS. MORSE: No state has been compelled. They

3

don't have statutory authority to compel.

4

THE COURT: Okay. So the states are only giving

5

them things that they volunteer to give them.

6

MS. MORSE: That is correct. But I would add that

7

it is the, you know, federal body that's asking for this

8

information. And at the July 19th Commission meeting,

9

President Trump did say that notwithstanding that certain

10

states were withholding their data, the rest of it would be

11

forthcoming from all the remaining states.

12

So I think that that -- you know, whether or not

13

that's compulsion by statute, it's exertion of authority to,

14

you know, get data to be -- come forthwith to the Commission.

15

THE COURT: That's hard to keep a straight face

16

and say that, isn't it?

17

MS. MORSE: I'm sorry, I thought I did.

18

THE COURT: If there's no compulsion in the law, I

19

don't know -- the precatory statement by the president that

20

you ought to hand it over, I mean, I don't know what that

21

means.

22

MS. MORSE: I don't think there needs -- I mean, I

23

think there's sort of -- I don't think there needs to be

24

actually statutory compulsion by the statements of the

25

Commissions members. This is a first-of-it's-kind,

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 8 of 41

8

1

unprecedented endeavor. There is no, sort of, analog in the

2

prior agency cases and there is even no analog, you know,

3

under prior entities that have existed. This isn't a case

4

where, you know, a group of, you know, advisors to the

5

president are generating a report or, you know, giving best

6

practices.

7

What they are doing is collecting data on every

8

single American voter. They are doing a massive -- what

9

they call a data crosschecking exercise against data held by

10

numerous other federal agencies, including the other

11

defendants here, the outcome of which is to generate, you

12

know, a list of individuals who the Commission believes are

13

fraudulently registered to vote.

14

So while, you know, it's -- it is behaving like an

15

agency with investigative powers --

16

THE COURT: I don't know if that can be the

17

outcome. I thought I read last night -- I thought it was in

18

Judge Kotelly's opinion, maybe it wasn't. The Commission

19

has three staff members?

20

MS. MORSE: Well, there are -- they've --

21

THE COURT: How could they possibly do what you

22

just said with three staff?

23

MS. MORSE: Well, I think that goes to one of the

24

main questions in this case, which is what is the other role

25

that the other cooperating agencies are going to play? In

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 9 of 41

9

1

the executive order that you mentioned, it talks about that

2

the Commission should endeavor to cooperate with other

3

agencies. There have been a lot of shifting facts here, as

4

Judge Kollar-Kotelly's opinion notes, of the role that other

5

agencies are going to play.

6

And, you know, I think it's at least an open

7

question. And there's three staff members, also Commission

8

members. And also in some of the information that's come

9

out of the other cases, there are, sort of, IT support

10

people, I don't know how they play in the count. But, you

11

know, the role that all these other Commission -- these

12

other agencies are playing, that could be many more, you

13

know, staff and resources fueling what's going on in this

14

sweeping investigative operation.

15

You know, back to the question about whether or

16

not it's an agency. This is sort of -- as I mentioned, it's

17

a case-by-case determination, which boils down to sort of

18

what the entity is empowered to do in its founding documents

19

and how it actually functions in practice. And I think one

20

of the reasons --

21

THE COURT: The founding document allows it to

22

make advice to the president, right, and a report?

23

MS. MORSE: It says that, but it also talks about

24

this cooperating with other agencies. And I think it's

25

important, you know, and Judge Kollar-Kotelly in one of her

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 10 of 41

10

1

prior opinions in this area has specifically noted, you

2

know, looking both at the founding documents as well as how

3

the agency functions in practice, especially in a situation

4

where the founding documents have sort of broad language and

5

don't go into specifics, which is really what we have here.

6

Here we have, you know, a limited set of founding

7

documents and many, many public statements by Commission

8

members about what they are endeavoring to do and, in fact,

9

what they have started to do. At the July 19th meeting

10

Vice-Chair Kobach very clearly directed the Commission staff

11

to obtain whatever data there is, is how he put it, in the

12

hands of the government. And that was, you know -- data had

13

been talked about from defendants here, Department of

14

Homeland Security, Social Security Admission, the Department

15

of Justice, Census Bureau, and even the federal judiciary,

16

which I realize is not an agency with obligations under

17

Privacy Act.

18

But, you know, that is the sweeping scope of what

19

they are, you know, endeavoring to do here. And it's those

20

statements, sort of, overlaid on the, you know, the few

21

founding documents that we have.

22

And I think another reason I would urge the Court

23

to focus on all of the public statements and actions that

24

the Commission has taken is that, as we spell out in our

25

briefs, there already are -- the factual circumstances have

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 11 of 41

11

1

changed from these -- many of these founding documents. For

2

example, you know, we noted that the Department of Defense

3

was originally going to collect this data, and that has

4

shifted, you know -- you know, in filings the Commission has

5

said that that was shifted into the White House. However,

6

in the newest communication with the states, the Commission

7

has said that it's unveiling a new tool for the collection

8

of this data.

9

So we really don't know the, sort of, extent to

10

which -- which and what other agencies are cooperating in

11

that tool. And one of the reasons, again, I would urge you

12

to focus on the statements that are being made is because

13

the facts, in reality, have not matched up.

14

THE COURT: You want to focus on the statement of

15

each individual commissioner?

16

MS. MORSE: Well, I think the statements and the

17

actions that Vice-Chair Kobach has made -- he has, you know,

18

directed this wide-sweeping data collection effort. He, you

19

know, directed the -- you know, letters to go to the states

20

with the request for data from the states. He's also, you

21

know, at the meeting directed, whatever, to obtain whatever

22

data there is in the hands of the federal government. And

23

he has spoken repeatedly about the unprecedented,

24

first-of-its-kind nature of what's being undertaken here, as

25

well as the data crosscheck.

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 12 of 41

12

1

THE COURT: What's the evidence of that?

2

MS. MORSE: The evidence of --

3

THE COURT: Of what he's done? Are there minutes?

4

Are there statements that he's written? Or how do you know --

5

how does the Court know that?

6

MS. MORSE: As we cite in our brief, there are

7

transcripts from -- there are television appearances with

8

him on video that we've linked to. There are --

9

THE COURT: Well, I don't have that before me. I

10

don't use internet, videos, and stuff like that for court

11

evidence. What do I have?

12

MS. MORSE: There are -- well, some of them are

13

written transcripts from appearances that he's made.

14

THE COURT: Well, courts don't use that for evidence.

15

MS. MORSE: Well, on a preliminary injunction,

16

Your Honor --

17

THE COURT: I understand, for this. But, I mean,

18

for a real case, what -- how are you going to prove your

19

case? I don't understand.

20

MS. MORSE: Well, I think, you know, as the Courts

21

have -- you know, Courts looking at this have said, you

22

know, this is often an inquiry, the agency inquiry that is

23

aided by discovery.

24

THE COURT: That's after 45 days or something;

25

that's not today.

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 13 of 41

13

1

MS. MORSE: Well, I would point you to --

2

THE COURT: Cases like this don't start with

3

discovery.

4

MS. MORSE: In the usual course, Your Honor.

5

Although what we have here is sort of a fundamental right

6

that's at stake, you know, protected by --

7

THE COURT: If you make an adequate showing of

8

irreparable injury, all those things have a standstill order.

9

MS. MORSE: I would urge you -- there is, on the

10

White House, an official government video. And bearing in

11

mind what you said about video. But it is the record that

12

the Commission itself has supplied of the July 19th meeting

13

that is on the White House blog website for the Commission.

14

There are, you know, the letters from the Commission,

15

including the letter talking about the new tool that it's

16

unveiling. Those are on the government website.

17

So there is evidence, you know, that I think the

18

Court could take judicial notice of about the, sort of,

19

sweeping nature of this investigation at the Commission

20

meeting of which there is the video --

21

THE COURT: I don't take judicial notice of TV

22

things. You might be able to provide evidence in support of

23

your application, but I don't take judicial notice of -- I

24

don't take judicial notice of news articles and all that

25

kind of junk. That's not what courts do.

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 14 of 41

14

1

MS. MORSE: I understand, Your Honor.

2

THE COURT: Go ahead. I mean, I understand you

3

have to put together a TRO, but that's not going to get you

4

anything on the PI.

5

MS. MORSE: Okay. If I could address the comments

6

that you made at the beginning regarding Judge Kollar-Kotelly's

7

opinion.

8

THE COURT: Did you say she has another opinion?

9

MS. MORSE: She has -- well, there's a couple of

10

cases against the Commission. So there's --

11

THE COURT: I just read the one last night where

12

she denied the PI.

13

MS. MORSE: With the EPIC plaintiff. There are a

14

couple of other cases that raise claims under FACA.

15

THE COURT: And she's also written opinions in

16

those.

17

MS. MORSE: Yes. And one of those is on appeal to

18

the Circuit.

19

THE COURT: Okay. I haven't seen those. Okay.

20

Why do I have this one?

21

MS. MORSE: We -- we designated it as a related

22

case. It went to her and then maybe, you know, roughly a

23

week later it came to you. So, it's a mystery to us as well.

24

THE COURT: Okay.

25

MS. MORSE: But if I could address, since you're --

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 15 of 41

15

1

since we at least have you for the purposes of the TRO, you

2

know, the -- you've read her opinion, and what we think are,

3

sort of, real differences between that case and this one.

4

You know, in sum -- and I was going into a little

5

more detail. You know, that case involved different claims.

6

We have a violation here of section (e)(7) of the Privacy

7

Act. Different defendants. That was not the Social Security

8

Administration, the Department of Homeland Security. And

9

the record that was compiled for Judge Kollar-Kotelly of the

10

agency's, you know, activities was not the same as the

11

record that we're -- we've amassed for you here, which means

12

that the record that's on appeal there is much narrower

13

than, you know, what we're bringing before the Court today.

14

And besides, there aren't --

15

THE COURT: What's the status of the appeal?

16

There are two appeals?

17

MS. MORSE: There's an appeal that's been docketed

18

in the EPIC decision, which I think is the case you referred

19

to. And then one of the plaintiffs in the FACA suits has

20

docketed an appeal as well.

21

THE COURT: What's happening in those?

22

MS. MORSE: In the EPIC case I believe there's a

23

briefing schedule that ends with a reply due in late

24

September and then the Court will set it for argument. I'm

25

not familiar with the FACA case, exactly what's happened

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 16 of 41

16

1

with the Circuit in that one.

2

THE COURT: Okay.

3

MS. MORSE: So, there's different defendants here,

4

and I think that's important because part of, you know, our

5

claim here relates to the investigation that the Commission

6

is undertaking and, in particular, the data crosscheck

7

project, which is how these other defendants come into play

8

that aren't in the other case. Which primarily there were a

9

number of claims there, was seeking a Privacy Act impact

10

assessment be conducted under the E-Government Act.

11

I would also urge you, again, you know, to --

12

which you have read, to note the preliminary nature of Judge

13

Kollar-Kotelly's opinion and, you know, her discussion that

14

it may need to be revisited. Also, the new evidence that I

15

pointed to that's come out at the July 19th meeting. Again,

16

the -- summoning the data from all these other agencies.

17

There was a lot of talk at that meeting also of criminal

18

prosecution by both Vice-Chair Kobach -- again, not that

19

this entity was going to do that, but that is the kind of

20

thing they're looking for evidence of, or referrals made to

21

the Department of Justice for criminal prosecution and other

22

things like that.

23

Again, this is the kind of activity we would

24

submit that, you know, an agency conducts. And that was not

25

in the record. That meeting was after briefing closed in

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 17 of 41

17

1

the EPIC case. Also, this new tool that's been surfaced

2

was, again, after -- it was just a few days ago when the

3

renewed data requests went out.

4

THE COURT: The new tool being the crosscheck?

5

MS. MORSE: No, the new tool is after the

6

Commission re-requested the data from the states on July

7

26th. In its letter it talked about the states providing

8

their data through a new tool, and that it didn't give out

9

the specifics of that. It just directed the states --

10

THE COURT: Of how they're going to --

11

MS. MORSE: Yeah. And again, as we talked about

12

in our papers, there's been some back and forth about who

13

was going to collect the data, which is, of course,

14

incredibly --

15

THE COURT: Where are the states told to send it

16

now?

17

MS. MORSE: What? Sorry.

18

THE COURT: Where are the states told to send it

19

now?

20

MS. MORSE: Where are they? They're told to

21

contact a White House staffer, or there's a White House

22

e-mail, an EOP e-mailed provided, and then further

23

instructions will be provided. So we don't actually know

24

how it's being sent. And of course that's relevant because

25

depending on -- if and what the federal agency involvement

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 18 of 41

18

1

is, that agency would be collecting First Amendment

2

protected records in violation of section (e)(7) of the

3

Privacy Act.

4

The other relevant thing to focus on is that, you

5

know, this case that's on appeal, the EPIC case that Judge

6

Kollar-Kotelly had that made this very preliminary finding

7

on the agency question, you know, could be decided on appeal

8

on a threshold issue. So while this data is still in the

9

hands of, you know, the Commission and the other defendants,

10

you know, that could come back down without even a ruling,

11

even on the preliminary question of whether it's an agency.

12

And, you know, I -- you know, would turn it over

13

to my colleague to discuss the irreparable harm, which is,

14

of course, the other big difference between this case and

15

Judge Kollar-Kotelly's opinion, is that our client and its

16

members are suffering, you know, very different harms in

17

kind from what were discussed in that case.

18

THE COURT: And who's going to talk about standing?

19

MS. MORSE: My colleague, Miss Perryman.

20

THE COURT: Okay. Thank you, Miss Morse.

21

MS. MORSE: Thank you.

22

MS. PERRYMAN: Good morning.

23

THE COURT: Good morning.

24

MS. PERRYMAN: I'll proceed with the irreparable

25

injury discussion and the discussion of the other factors,

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 19 of 41

19

1

and then I'm happy to talk about standing, if that's the

2

order you would prefer.

3

THE COURT: That's fine.

4

MS. PERRYMAN: Temporary restraining orders aren't

5

things that litigants move for lightly. And the reason that

6

we're here today --

7

THE COURT: And courts don't grant them lightly,

8

as you know.

9

MS. PERRYMAN: And we understand that. We

10

understand that, Your Honor. And the reason we're here

11

today is because of the irreparable injury and the

12

fundamental and intrinsic injury that is at issue in this

13

case that members of Common Cause are suffering, the public

14

is suffering, and that Common Cause itself is suffering.

15

We bring this case, the privacy and the First

16

Amendment interests that are injured and threatened by the

17

government's actions in collecting and maintaining this data

18

are inherent and intrinsic injuries. That has been

19

recognized by the D.C. Circuit in the Albright opinion, it

20

has been recognized in Supreme Court precedence. It has

21

also been recognized in many other opinions by the district

22

courts in this circuit, as well as other district court

23

circuits opinions. And we believe that the precedence

24

supports a finding of irreparable injury here and a granting

25

of the temporary restraining order.

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20

1

Turning to the irreparable injury for the

2

individual members of Common Cause, as you know, we brought

3

this case on behalf of our client Common Cause and on behalf

4

of its members. The individual members, again, under the

5

Albright decision, the D.C. Circuit said that the

6

unwarranted collection -- I'm reading from the case -- of

7

information is a distinct harm in and of itself. It is, by

8

nature, irreparable. This is not something that dollars and

9

cents can compensate for somewhere down the line. This is a

10

fundamental Constitutional injury of a Constitutional nature

11

that individuals are suffering.

12

In addition to that sort of inherent injury, which

13

we believe the case law recognizes plainly, Your Honor, we

14

submitted with our temporary restraining order two exhibits

15

from Common Cause members where they describe the personal

16

injury that they are suffering. One individual in Florida

17

whose data, I believe, is likely already in the Commission's

18

hands, Florida says that it was going to provide its data,

19

another individual from Texas.

20

THE COURT: Well, Mr. Gutierrez caught my eye,

21

since he's from Texas, and I grew up in San Antonio, myself.

22

And he says he's a voter in Texas and that will affect his --

23

because Texas you register by party, and so --

24

MS. PERRYMAN: I'm a native Texan as well, Your

25

Honor.

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21

1

THE COURT: And that does give out, then, your

2

party affiliation and all that, if Texas provides that. And

3

he would just as soon everybody in the world not know how

4

he's registered to vote, which I understand.

5

MS. PERRYMAN: Yes. Yes.

6

THE COURT: So he says that gives him standing.

7

MS. PERRYMAN: So whether it's under the

8

irreparable injury prong or we go later to the standing

9

prong, which obviously is a bit less, even, sort of, less of

10

a standard, it does give him standing, I would argue, and it

11

demonstrates the irreparable injury. These are, sort of,

12

people putting the words -- what the cases have said when

13

they say this is an intrinsic injury in and of itself.

14

In addition to that, and to the individual and

15

intrinsic First Amendment and privacy interest, we cite many

16

cases in our papers. And, you know, I could give you more

17

but I know you don't need that because you've been the judge

18

some of those cases.

19

Common Cause itself as an organization is also

20

facing irreparable injury. The D.C. Circuit looks to

21

whether the government's actions have impaired an

22

organization's programs, it also looks to whether such

23

actions conflict with the organization's mission.

24

The materials we put with the TRO submission, and

25

in particular the declaration of Miss Flynn, who's the

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 22 of 41

22

1

president of Common Case, demonstrate both in concrete

2

nature and with particularity the various -- the various

3

activities that Common Cause has not been able to engage in

4

because they have been trying to manage the fallout from the

5

Commission's collection and maintenance of this data.

6

And just to be -- you know, on that point, there

7

have been reports that many voters, and I think it's in the

8

thousands now, have deregistered from the voting rolls.

9

That is something that Common Cause has been working to try

10

to counteract and it has caused a diversion of resources.

11

That, under the D.C. Circuit precedent, most recently, I

12

think, in the League of Women Voters versus Newby case, that

13

is irreparable injury for an organization. And that also

14

dates back to the Havens precedent that is longstanding, in

15

terms of how organizations can show irreparable injury.

16

There are two other factors, as you know, and one

17

is harm to others. I think that's important, the, sort of,

18

balancing of the equities and the harm to others, to note

19

that this temporary restraining order that we're seeking --

20

THE COURT: I don't really understand. I

21

understand what you're saying, but I don't understand why

22

people would deregister and why people would be affected by

23

this perceived injury. Why is that --

24

MS. PERRYMAN: So, again, I don't -- you know,

25

perceived injury is one way to frame it, but I believe the

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23

1

way the D.C. Circuit would frame it, in the context of the

2

very Privacy Act, the very data, First Amendment data that

3

this statute -- that Congress enacted the statute to

4

protect, they would frame that as an injury -- inherent

5

injury in and of itself. And that's Congress defining that

6

injury.

7

In terms of questions of deregistration, I think

8

that's just one fact among many as to how and why these are

9

such intrinsic injuries. Individuals don't like the federal

10

government collecting --

11

THE COURT: Snooping.

12

MS. PERRYMAN: Don't like the federal government

13

collecting data about who they associate with, whether

14

that's a political party or whether that's somebody else.

15

And in this case that's what the federal government is doing

16

in, as Miss Morse presented, in a fashion that is operating

17

as an agency, and we believe the Privacy Act applies.

18

So that's the irreparable harm piece. I'm happy

19

to answer more questions on that, if you have it, or I could

20

move on to the harm to others piece.

21

THE COURT: Go ahead.

22

MS. PERRYMAN: On that other, on harm to others,

23

and we used to call it the balance of the equities and now

24

that's being phrased as harm to others. But I think it's

25

important to note --

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24

1

THE COURT: I will say, as a District Judge, I

2

still think the district judge has to look at all factors.

3

It may mean be some day the Supreme Court will not say

4

that's the law, but today I'm still weighing all four

5

factors, that's my job.

6

MS. PERRYMAN: Absolutely. And that is why we

7

have prepared and presented to you all four factors as we

8

have.

9

The harm to others, I think here is a clear case

10

that favors issuing the temporary restraining order. What

11

we're seeking here, while a temporary restraining order, we

12

understand that that's an exceptional remedy; it's actually

13

a really narrow one that we're seeking. We're not trying to

14

shut the Commission down from everything it's doing. If it

15

wants to write a report or go study voter issues, as other

16

commissions have done in the past, that is not what the

17

subject of this motion is.

18

It is simply aimed to stop the collection of First

19

Amendment data by the federal government and by, you know,

20

by a Commission that's acting as an agency and potential --

21

and the maintenance and sharing of that data among other

22

agencies. That is the narrow thing we're seeking here.

23

And I believe that the public, you know, that

24

there is no -- there is no significant harm to the

25

government in putting a temporary pause on that while the

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25

1

Court reaches the merits of these very important, and as I

2

said, sort of intrinsic issues that the Circuit and Supreme

3

Court have recognized, and Congress, that are intrinsic and

4

fundamental to our Constitutional order.

5

The public interest is, of course, the final

6

factor. I mention the reports, and we cite them in our

7

papers, of voters deregistering from the rolls. You have

8

seen, in the documents that we submitted, just some examples

9

of how individual voters in states that will likely -- one

10

state that has complied, and the other one that I think

11

intends to comply, the sort of public interest that is at

12

stake here. And it's really the fundamental of our

13

Constitutional order and of what the government can do and

14

collect and what it can't do, particularly when you're

15

dealing with an executive branch agency, as we submit and as

16

Miss Morse presented, that we are here.

17

So that is the -- those are the TRO factors. If

18

you have questions about those factors, I would welcome them

19

and am happy to answer them. I could also talk briefly

20

about standing, if you wanted that.

21

THE COURT: I think I understand it. Thank you

22

very much.

23

MS. PERRYMAN: Yes.

24

THE COURT: Okay. Miss Shapiro.

25

MS. SHAPIRO: Thank you, Your Honor.

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 26 of 41

26

1

THE COURT: How does the government explain what

2

the Commission is doing? What do I have in the record? And

3

maybe in your opposition to the PI, I guess you're going to

4

set forth what the Commission is doing.

5

MS. SHAPIRO: The Commission is at its very early

6

stages. It had its initial meeting on July 19th and that

7

meeting consisted of talk and introductory remarks, all of

8

which is posted on the Commission's web page. So the next

9

meeting is --

10

THE COURT: Were there votes taken?

11

MS. SHAPIRO: The only votes taken were on

12

proposed bylaws. That was the only piece of business in the

13

meeting. Otherwise, it was very much introductions.

14

THE COURT: So the remarks of the vice-chair were

15

not adopted or ordered or anything?

16

MS. SHAPIRO: No.

17

I wanted to address, there are at least five

18

reasons why this temporary restraining order should be denied.

19

THE COURT: Okay.

20

MS. SHAPIRO: Several go to the likelihood that

21

they cannot succeed on the merits. And there are several

22

fundamental threshold issues, even before we get to the

23

question of the Commission being an agency. And first and

24

foremost, the Privacy Act only permits suits by individuals,

25

and individuals are defined as a citizen of the United

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 27 of 41

27

1

States or an alien lawfully admitted for permanent

2

residence. And the case law is very clear that the use of

3

"individual," as opposed to the use of "person," means that

4

corporations, businesses, and membership organizations like

5

Common Cause cannot bring Privacy Act claims. So as an

6

initial matter, we have no viable plaintiff to bring a claim

7

here.

8

Also, even if Common Cause could sue here, which

9

it can't, but even if it could, the Privacy Act itself

10

precludes injunctive relief for (e)(7) claims; (e)(7) is the

11

gathering of First Amendment provision that this claim is

12

predicated on. And the Privacy Act only permits injunctive

13

relief in two specified circumstances. The first is for the

14

amendment of records and the second is for individual access

15

requests, for information about a person. Otherwise, the

16

relief available under the Privacy Act is for money damages

17

and it requires that the individual plead actual damages,

18

which the Supreme Court has said is out-of-pocket pecuniary

19

harm.

20

So for the type of claim that the plaintiff is

21

bringing, there's no provision for injunctive relief and it

22

can only be brought by an individual. So those are two

23

dispositive threshold issues.

24

A third issue is that the plaintiff, even if this

25

plaintiff could sue, cannot circumvent the Privacy Act's

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 28 of 41

28

1

restrictions by suing under the APA. The case law is also

2

clear that the APA can't be used to bypass a comprehensive

3

remedial scheme and to basically thwart the intent of

4

Congress. The APA applies when there's no other remedy

5

available at law. And here Congress as enacted a

6

comprehensive scheme under the Privacy Act, so there's no

7

APA relief available.

8

So those are three threshold reasons why the

9

plaintiff is not likely to prevail on the merits here.

10

Similarly, with respect to the -- well, I guess I

11

should say even -- that's three reasons. The next reason

12

is, of course, the Commission is not an agency, as Judge

13

Kollar-Kotelly found. We would dispute that the public

14

statements of Commission members can make what is

15

essentially an advisory committee or commission into an

16

agency. And in fact, there are cases that say that an

17

entity that is an advisory committee cannot also be an

18

agency. You can't have both at the same time.

19

As Judge Kollar-Kotelly found, the executive order

20

is quite clear in establishing that this is a committee that

21

is meant to advise and assist the president. The president

22

can accept or reject whatever is given to him from the

23

Commission, and it has only a limited life span. It will

24

sunset and will not exist, separate and apart from the

25

advice and recommendations offered to the president.

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 29 of 41

29

1

THE COURT: When does it sunset?

2

MS. SHAPIRO: I don't remember. I don't have the

3

executive order in front of me and I don't remember the

4

timeframe. I think Judge Kollar-Kotelly mentioned in her

5

opinion the specific life span.

6

And so we don't have an agency as a defendant,

7

another dispositive reason why they're unlikely to succeed

8

on the merits. And with respect to the agencies that are

9

sued, the Social Security Administration and the Department

10

of Homeland Security, the claim there is purely speculative

11

because they are not receiving -- the Commission is not

12

receiving data from those agencies and those agencies have

13

not committed to any kind of data exchange.

14

So while the Commission may, in the future,

15

explore the feasibility of exchanging data with agencies,

16

they haven't done so and there's no reason to expect that

17

those agencies would violate their own Privacy Act

18

obligations in sharing information. So there's absolutely

19

no reason to believe that there would be anything improper

20

that the agencies would do in handling their own information.

21

With respect to -- those are all reasons why the

22

plaintiff is unlikely to succeed on the merits.

23

With respect to irreparable harm, I wanted to

24

stress that the information that is being requested -- and

25

there is no ability to enforce that request -- but, is being

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 30 of 41

30

1

requested, is information that is otherwise publicly

2

available from the states. So, the states have been -- have

3

been told that of course they should only provide information

4

that their own state laws permit.

5

THE COURT: So, in Texas, for example, could

6

anyone go down and find out that I'm a registered Democrat

7

or Republican, if it is publicly available?

8

MS. SHAPIRO: I don't know what the Texas state

9

laws provide. I do know that many states have very liberal

10

open government laws and normally you can get much more

11

information under a state FOI statute than you could under

12

the federal FOIA, for example.

13

But each state has differences and, in fact, the

14

communication that the vice-chair -- the letter wrote to the

15

states noted specifically that states will have different

16

pieces of information that it can or cannot provide under

17

its own state laws. And of course they're only asking for

18

them to do what they're legally authorized to do.

19

So, we don't think there can be irreparable harm

20

from collecting information that can already be collected

21

under either open government laws or that's otherwise

22

publicly available.

23

And with respect to the plaintiff's argument that --

24

THE COURT: Is the Commission requesting only

25

publicly available information or is it just requesting the

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 31 of 41

31

1

information?

2

MS. SHAPIRO: It's just requesting only publicly

3

available information.

4

THE COURT: Its requesting it if it's publicly

5

available?

6

MS. SHAPIRO: Yes.

7

THE COURT: That makes a difference.

8

MS. SHAPIRO: I brought a copy of the request, the

9

July 26th request to the states, if Your Honor is

10

interested. Again, these are posted on the -- the request

11

of all 50 states are posted.

12

THE COURT: To request publicly available voter

13

registration records. Okay. I think that makes a difference.

14

All right.

15

MS. SHAPIRO: With respect to the plaintiff's

16

argument that the harm is coming from the aggregation, that

17

harm, in terms of -- that that makes it more susceptible to

18

a data breach or something of that nature is highly

19

speculative and the case law with respect to it, data breach

20

cases, recognizes that speculation that there may be some

21

future breach of a database is insufficient to constitute

22

Article III standing. So, we think the irreparable harm

23

also fails.

24

And just to respond briefly to the argument that

25

this is collection of First Amendment information that

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32

1

automatically constitutes irreparable harm, this is not, in

2

fact, a Constitutional claim that they are bringing. That

3

might hold true for a Constitutional claim, but here this is

4

a statutory claim, under a statute that they have no ability

5

to bring in the present posture because they don't qualify

6

under the statute as an individual.

7

So, I don't think we can presume automatically

8

that there's harm. And again, because of the information

9

being public already, we don't think it's irreparable harm.

10

I think that covers the main -- the, sort of, five

11

major reasons why we think that the TRO fails. And in terms

12

of the balancing of the interests, the Commission certainly

13

should be able to proceed with doing its work. It has a

14

mandate, via the executive order from the president, and,

15

you know, a TRO would delay the, you know, information

16

gathering that is necessary to begin the work of the Commission.

17

So we think the balance of harms is, at worst, an

18

equipoise, as Judge Kotelly said, and should lean on the

19

side of completing the mission that the president has set.

20

THE COURT: Would you look again at the sunset

21

date and see if you can tell me what it is?

22

MS. SHAPIRO: Yes, I'll look to see if it

23

specifies a precise date. It might just specify that it

24

sunsets, but I'll provide that answer.

25

THE COURT: Okay. I'll give you a moment.

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33

1

MS. SHAPIRO: Excuse me.

2

(Pause.)

3

MS. SHAPIRO: Okay. Without having the order in

4

front of me, I'm advised that it expires one month after the

5

submission of the report, or within two years.

6

THE COURT: All right. Okay. Thank you.

7

MS. SHAPIRO: Thanks.

8

THE COURT: All right. The plaintiffs get the

9

last word.

10

MS. MORSE: Thank you. I'm going to address some

11

of the issues that the government raised.

12

As to the injunctive relief being precluded on an

13

(e)(7) claim, I would point you to one of your own decisions,

14

which is a 2013 case, Scott v. Conley, where you -- relying

15

on a Second Circuit case, Haase v. Sessions, a 1990 Second

16

Circuit case, you held that injunctive relief, you know, is

17

available for violations of (e)(7) under the, you know,

18

Court's inherent equitable powers.

19

And that's -- you know, the Circuit has made a

20

couple of comments about this it has not squarely held. But

21

in this Haase v. Sessions case, you know, the Circuit said --

22

which is the case that Your Honor relied on in 2013, and the

23

cite for that is 937 F.Supp.2d 60 of your case.

24

The Circuit said it is not at all clear to us that

25

Congress intended --

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34

1

THE COURT: 937 260?

2

MS. MORSE: 937 F.Supp.2d 60. F.Supp.2d, page 60.

3

Sorry for speaking over.

4

Now this is the Circuit in the Haase v. Sessions

5

case, 893 F.2d 370. "It is not at all clear to us that

6

Congress intended to preclude broad equitable relief to

7

prevent (e)(7) violations such as, for instance, a

8

hypothetical agency's secret compiling of records on

9

Americans' legitimate political activities. In the absence

10

of such an explicit intention, by creating a general cause

11

of action under (g)(1)(D), Congress presumably intended the

12

District Court to use its inherent equitable powers, at

13

least --"

14

THE COURT: Obviously I'm writing too much.

15

MS. MORSE: And I would note in that Second

16

Circuit case, the Circuit notes that the government

17

suggested that such an injunctive relief could potentially

18

be broad, even if, as -- or, as the government suggests,

19

under the Constitution common law or the APA.

20

And addressing one of the government's other

21

comments about Common Cause not being able to bring a claim,

22

we also have our APA claim that's arising next to the

23

Privacy Act claim. And, you know, there are other

24

suggestions that in certain circumstances I would point you

25

to the Doe v. Stephens case, 851 F.2d 1457, you know, an APA

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 35 of 41

35

1

case can arise next to a Privacy Act claim.

2

I also want to address the comments about this

3

entity not being able to be both an advisory committee and

4

an agency. I think that's really important. The government

5

has not conceded that this is an advisory committee in

6

litigation on this. It has said, you know -- actually, some

7

of the initial papers said that it was, you know, acting in

8

accordance with FACA and then later it has only said it's

9

voluntarily complying with FACA and that it's not conceding

10

that it is a FACA.

11

So it is not that; you know, it is something. And

12

by virtue of this sweeping investigation into, you know,

13

Americans' political activities and their associations, you

14

know, we would submit that that is classic agency --

15

textbook, classic agency behavior affecting individual's

16

rights.

17

As to another comment that the government made

18

regarding that nothing had actually happened at the July

19

19th meeting with Vice-Chair Kobach's statements, I don't

20

have the full transcript of what he said, but what I have,

21

you know, down is that he instructed if there were no, you

22

know -- if no one on the Commission said otherwise, he

23

instructed staff to obtain whatever data there is, you know,

24

from all of these other federal agencies in the interim,

25

between the next meeting. Any data that would be helpful to

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 36 of 41

36

1

the Commission. I interpreted that as an act that was, you

2

know, actually came into being at that meeting. I don't

3

know if there's a further step that would need -- that would

4

have to take place.

5

THE COURT: Is there a next meeting set?

6

MS. MORSE: The government may know more

7

information on that. I don't know if the next meeting has

8

been set.

9

MS. SHAPIRO: It hasn't been set, but they talked

10

about in September, or sometime in September.

11

MS. MORSE: And as to the comments about, you

12

know, the harm from DHS and Social Security Administration

13

being speculative, again, we would rely on that order at the

14

meeting that, you know, in the interim between, you know,

15

upcoming meetings, this data be obtained. And as you know,

16

they -- as the government referenced, there are Privacy Act

17

obligations either way, whether the First Amendment

18

information is incoming to DHS and SSA, they cannot hold

19

that in violation of (e)(7).

20

But as to all the other data that the Commission

21

is trying to obtain -- for example, as it was talked about

22

at the July 19th meeting, information on naturalization

23

forms of new citizens, you know, other kinds of information

24

like that. Outgoing there are privacy obligations, as you

25

well know, you know, system records, Privacy Act, those

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 37 of 41

37

1

sorts of things. So I would say that is not speculative

2

because the information has now been ordered at that meeting

3

and is -- for all we know, they already have it. It's been,

4

you know, weeks since that meeting.

5

And finally, my colleague is going to address some

6

of the other questions that the government had raised that

7

relate to harm --

8

THE COURT: All right.

9

MS. MORSE: -- and such.

10

MS. PERRYMAN: Very briefly, Your Honor. The

11

government talked about how the data that is being collected

12

is publicly available. The case law squarely -- I mean, the

13

Albright decision squarely is -- makes clear that it is not

14

just the -- I mean, it is the nature of the data, that's

15

it's First Amendment data. It's not that it's an individual's

16

private data that maybe no one else knows in the world, it

17

is the act of a federal executive agency collecting that

18

data, maintaining that data, in this circumstance

19

cross-referencing that data, doing all of those things; that

20

is the injury here. Whether the data that is being

21

collected, whether states complying only provide publicly

22

available data or other data, I think that's, sort of,

23

somewhat of a side question, given the fundamental interests

24

that the Privacy Act stands to vindicate.

25

In addition, the Privacy Act also prohibits the

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 38 of 41

38

1

collection of data without an individual's consent. And I

2

don't -- I'm not aware of the federal government seeking

3

individual consent in this case. So that's a -- it's

4

another, sort of, issue with the harm comment about the

5

publicly available data. And I would urge the Court to look

6

back at the Albright decision and the other decisions on the

7

Privacy Act about the inherent nature of this harm.

8

I believe there was also a comment made about how

9

when I was discussing injury, I said many things about

10

Constitutional injury, but that we did not bring a

11

Constitutional claim here. Congress made it easy for -- or,

12

relatively easy, because of the fundamental Constitutional

13

interests in privacy and in the First Amendment interest

14

that you've written about in your opinions, interests that

15

are discussed in the Albright opinion, Congress expedited a

16

way that individuals and parties representing individuals,

17

as well as organizations, could bring these claims. And

18

that is what the interest of the Privacy Act seeks to

19

vindicate.

20

We believe our client here, as you know and as the

21

papers make clear, has demonstrated the inherent sort of

22

injury and irreparable harm, and we would urge the Court to,

23

again, temporarily restrain the collection and maintenance.

24

We're not trying to shut down everything that the Commission

25

is doing, but these things that are very, very central to

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 39 of 41

39

1

our Constitutional order.

2

THE COURT: All right. Well, on the record before

3

me today, I have to say the temporary restraining order will

4

be denied.

5

I would think that it would be to plaintiff's

6

advantage, if I want to give a little advice to the

7

plaintiffs, that you amend your motion for preliminary

8

injunction and add a few things to the record. Under our

9

local rule the defendants can file their opposition in seven

10

days from when it was filed and then nothing further can be

11

filed, absent leave of the Court; so that you would not be

12

able to file additional records or supplements.

13

I think you should get the full transcript of the

14

July 19th meeting and then whatever -- if any directives

15

came from that or whatever, the Court should have that

16

record available, if some direction was given. I think it

17

would be to plaintiff's advantage to have that. You can go

18

on the current record and they can file their opposition

19

with whatever they file and whatever affidavits they file,

20

but under our local rules, the Court will hear the

21

preliminary injunction on that record.

22

So, you should let the defendants know if their

23

time is running for the seven days from when you filed your

24

original motion, or if you want to run it from when you file

25

your amended motion. But, you may have other things that

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 40 of 41

40

1

would be to your advantage to have in your amended motion

2

and let their seven days run from then. And the Court will

3

set the hearing within 21 days under our local rule for the

4

preliminary injunction motion, from when your amended motion

5

is filed. It's up to the plaintiff, though.

6

But, I take it with what's happened in the other

7

cases, we're just going to tee this up for the Court of

8

Appeals anyway. I'm just a way station, or whoever the

9

judge is that's going to hear this, is a way station on the

10

way. So I think we ought to get an adequate record for

11

whoever is going to ultimately decide these issues, to make

12

sure this gets decided on the proper record.

13

Anything else you all want to raise today? I'll

14

consult promptly with the calendar committee and Judge

15

Kotelly about who's going to do what next. But that's my

16

advice in the meantime. I'll issue a written order, just

17

saying the motion for temporary restraining order is denied.

18

Thanks very much for an interesting argument,

19

Counsel.

20

***

21

22

23

24

25

Case 1:17-cv-01398-RCL Document 19 Filed 08/03/17 Page 41 of 41

41

1

2

CERTIFICATE OF OFFICIAL COURT REPORTER

3

4

I, JANICE DICKMAN, do hereby certify that the above

5

and foregoing constitutes a true and accurate transcript of

6

my stenograph notes and is a full, true and complete

7

transcript of the proceedings to the best of my ability.

8

Dated this 2nd day of August, 2017.

9

10

11

/s/________________________

12

Janice E. Dickman, CRR, RMR

Official Court Reporter

13

Room 6523

333 Constitution Avenue NW

14

Washington, D.C. 20001

15

16

17

18

19

20

21

22

23

24

25

 
 Case 1:17-cv-01398-RCL Document 42 Filed 01/03/18 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE, et al.,
Plaintiffs,
v.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al.,
Defendants.

Civil Action No. 1:17-cv-1398 (RCL)

NOTICE OF EXECUTIVE ORDER

Today, the President signed an Executive Order terminating the Presidential Advisory

Commission on Election Integrity. See https://www.whitehouse.gov/presidential-

actions/executive-order-termination-presidential-advisory-commission-election-integrity/ (last

visited Jan. 3, 2018) (copy attached hereto). Undersigned counsel will confer with counsel for

the plaintiffs about next steps for moving forward.

Dated: January 3, 2018

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

ELIZABETH J. SHAPIRO Deputy Director

/s/ Joseph E. Borson CAROL FEDERIGHI Senior Trial Counsel KRISTINA A. WOLFE JOSEPH E. BORSON United States Department of Justice

Case 1:17-cv-01398-RCL Document 42 Filed 01/03/18 Page 2 of 2
Civil Division, Federal Programs Branch P.O. Box 883 Washington, D.C. 20044 Tel: (202) 514-1944 / Fax: (202) 616-8460 E-mail: Joseph.Borson@usdoj.gov

 
 Case 1:17-cv-01398-RCL Document 51 Filed 08/03/18 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE, et al.,
Plaintiffs,
v.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al.,
Defendants.

Civil Action No. 1:17-cv-1398 (RCL)

JOINT STATUS REPORT The parties, by their undersigned counsel, hereby provide the following joint status report in response to this Court’s July 20, 2018 order. The parties have met and conferred. The parties respectfully direct the Court’s attention to several filings made in a related case, Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity (“EPIC v. PACEI”), No. 17-1320 (CKK) (D.D.C.). There, the Director of White House Information Technology has stated that “‘[t]he White House stands ready to destroy the state voter data’ that was collected, pending the resolution of litigation holds . . . and related litigation concerning the Commission.” Order (July 19, 2018), EPIC v. PACEI, ECF No. 63 (quoting Fourth Decl. of Charles C. Herndon, ECF No. 61-1). The plaintiffs in this case have confirmed that they “do not oppose the deletion of data from the state voter rolls.” Id. (quoting Pls’ Letter, ECF No. 62-1). The EPIC court has directed the government to “file a Notice by August 20, 2018, confirming whether all state voter data

Case 1:17-cv-01398-RCL Document 51 Filed 08/03/18 Page 2 of 4

collected by the Commission has been deleted, and if not, identifying when Defendants expect to complete that process. Upon Defendants’ confirmation of deletion, the Court expects that [EPIC v. PACEI] can be dismissed.” Id.
The parties in this case have a similar expectation as they believe this case will be moot upon the government’s destruction of the state voter data. Accordingly, defendants will file a notice in this case indicating when the state voter data has been destroyed. Upon that filing, the plaintiffs will file a notice of voluntary dismissal pursuant to Federal Rule of Civil Procedure 41.

Dated: August 3, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
ELIZABETH J. SHAPIRO Deputy Director
/s/ Joseph E. Borson CAROL FEDERIGHI Senior Trial Counsel KRISTINA A. WOLFE JOSEPH E. BORSON (Va. Bar No. 85519) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 Phone: (202) 514-1944 Email: joseph.borson@usdoj.gov
Counsel for Defendants
/s/ Josephine Morse Josephine T. Morse (D.C. Bar No. 1531317) jmorse@democracyforward.org Javier M. Guzman (D.C. Bar No. 462679) jguzman@democracyforward.org
2

Case 1:17-cv-01398-RCL Document 51 Filed 08/03/18 Page 3 of 4 DEMOCRACY FORWARD FOUNDATION 1333 H Street NW Washington, DC 20005 Telephone: 202-701-1772 Attorneys for Plaintiff
3

Case 1:17-cv-01398-RCL Document 51 Filed 08/03/18 Page 4 of 4 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 3, 2018, I have electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of electronic filing to the parties.
/s/ Joseph E. Borson JOSEPH E. BORSON
4

 
 Case 1:17-cv-01398-RCL Document 54 Filed 08/29/18 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE, et al.,
Plaintiffs,
v.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al.,
Defendants.

Civil Action No. 1:17-cv-1398 (RCL)

STIPULATION OF DISMISSAL Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the parties hereby stipulate to the dismissal of this action with prejudice, with each side to bear its own fees and costs.

Dated: August 29, 2018

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
ELIZABETH J. SHAPIRO Deputy Director
/s/ Joseph E. Borson CAROL FEDERIGHI Senior Trial Counsel KRISTINA A. WOLFE JOSEPH E. BORSON (Va. Bar No. 85519) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044

Case 1:17-cv-01398-RCL Document 54 Filed 08/29/18 Page 2 of 3 Phone: (202) 514-1944 Email: joseph.borson@usdoj.gov Counsel for Defendants /s/ Josephine Morse Josephine T. Morse (D.C. Bar No. 1531317) jmorse@democracyforward.org Javier M. Guzman (D.C. Bar No. 462679) jguzman@democracyforward.org DEMOCRACY FORWARD FOUNDATION 1333 H Street NW Washington, DC 20005 Telephone: 202-701-1772 Counsel for Plaintiffs
2

Case 1:17-cv-01398-RCL Document 54 Filed 08/29/18 Page 3 of 3 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 29, 2018, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of electronic filing to the parties.
/s/ Josephine Morse JOSEPHINE MORSE
3