Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

AMERICAN CIVIL LIBERTIES UNION, Inc., )

AMERICAN CIVIL LIBERTIES UNION

)

FOUNDATION, Inc.,

)

125 Broad Street, 18th Floor

)

New York, NY 10004

)

)

Plaintiffs,

)

)

v.

)

No.

)

DONALD TRUMP, in his official capacity

)

as President of the United States,

)

1600 Pennsylvania Avenue NW

)

Washington, DC 20500,

)

)

MICHAEL PENCE, in his official capacity

)

as Vice President of the United States

)

and chair of the Presidential Advisory

)

Commission on Election Integrity,

)

1 Observatory Circle NW

)

Washington, DC 20008,

)

)

PRESIDENTIAL ADVISORY

)

COMMISSION ON ELECTION INTEGRITY, )

an advisory committee commissioned

)

by President Donald Trump,

)

Eisenhower Executive Office Building )

1650 Pennsylvania Avenue NW

)

Washington, DC 20502

)

)

Defendants.

)

__________________________________________)

COMPLAINT FOR DECLARATORY AND MANDAMUS RELIEF

Plaintiffs American Civil Liberties Union and American Civil Liberties Union

Foundation (together, the “ACLU”) bring this action against Donald Trump, in his official

capacity as President of the United States (“President Trump”), Michael Pence, in his official

capacity as Vice President of the United States and chair of the Presidential Advisory

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 2 of 31
Commission on Election Integrity (“Vice President Pence”), and the Presidential Advisory Commission on Election Integrity (“Pence-Kobach Commission”) (collectively, “Defendants”), seeking relief in the nature of mandamus compelling Defendants to comply with the nondiscretionary requirements of the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2 §§ 1-16, and a declaration that Defendants have violated FACA.
Defendants have violated FACA in two respects. First, Vice President Pence and the Pence-Kobach Commission have already violated, and absent relief, will continue to violate the non-discretionary transparency and public access requirements of § 10 of FACA, 5 U.S.C. app. 2 § 10. The Pence-Kobach Commission has already held its first meeting without public notice; without making that meeting open to the public; and without timely notice in the Federal Register, id. § 10(a). It has also failed to make any of its “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the Pence-Kobach Commission “available for public inspection,” id. § 10(b). The second meeting of the Pence-Kobach Commission is now scheduled to take place in a building generally inaccessible to the public, and none of the documents already relied upon by the Commission have been made available to the public.
Second, President Trump has violated requirements under § 5 of FACA, 5 U.S.C. app. 2 § 5, that an advisory committee’s membership be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” id. § 5(b)(2); and that “appropriate provisions” be made “to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment[,]” id. § 5(b)(3). The Pence-Kobach Commission’s stated purpose is to “study the
2

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 3 of 31
registration and voting processes used in Federal elections” and “submit a report to the President” on related “laws, rules, policies, activities, strategies, and practices.” Exec. Order No. 13,799, § 3, 82 Fed. Reg. 22389 (May 11, 2017). But, in fact, the Commission was established for the purpose of providing a veneer of legitimacy to President Trump’s false claim that he won the popular vote in the 2016 election—once millions of supposedly illegal votes are subtracted from the count. That purpose is evident in the composition of the Commission, which is stacked with individuals who have endorsed the President’s false statements about the popular vote, and the fact that no provisions whatsoever have been made to insulate the Commission’s advice and recommendations from inappropriate influence by the person who appointed the Commission’s members—i.e., President Trump himself.
THE PARTIES 1. Plaintiff American Civil Liberties Union is a 501(c)(4) non-profit, nationwide, non-partisan membership organization with approximately 1.6 million members, many of whom are registered voters. The ACLU is dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civil rights laws, including laws protecting access to the right to vote. 2. Plaintiff American Civil Liberties Union Foundation is a 501(c)(3) non-profit, nationwide, non-partisan organization with nearly 300 staff attorneys, thousands of volunteer attorneys, and offices throughout the nation. Since 1965, the ACLU, through its Voting Rights Project, has litigated hundreds of voting rights cases and has a direct interest in ensuring that all eligible citizens are able to access the franchise and are not removed from voter rolls, and in empowering those targeted by vote suppression. The ACLU regularly litigates cases in which government officials attempt to limit access to the franchise and keep eligible voters off the
3

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 4 of 31
registration rolls, and therefore has a direct interest in the purported purpose of the Presidential Advisory Commission on Election Integrity (“Pence-Kobach Commission”).
3. Defendant Donald Trump is the President of the United States. He is sued in his official capacity. In that capacity, he issued Executive Order 13,799 of May 11, 2017, establishing the Pence-Kobach Commission, and appoints the members of the Commission.
4. Defendant Michael Pence is the Vice President of the United States. He is sued in his official capacity. In that capacity, Vice President Pence is the chair of the Pence-Kobach Commission.
5. Defendant Presidential Advisory Commission on Election Integrity (“PenceKobach Commission”) was established by President Trump pursuant to Executive Order 13,799, and is a presidential advisory committee. Exec. Order No. 13,799.
JURISDICTION AND VENUE 6. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361. Plaintiffs also seek relief pursuant to 28 U.S.C. §§ 2201 and 2202. 7. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e).
FACTS I. Statutory and Regulatory Framework
8. The Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2 §§ 1-16, was enacted because of the congressional concern with the number and utility of advisory committees. Congress found, among other things, that committees “should be established only when they are determined to be essential” and that “Congress and the public” should be kept abreast of their activities. 5 U.S.C. app. 2 § 2(b). “FACA’s principal purpose was to establish procedures aimed at enhancing public accountability of federal advisory committees.” Ctr. for
4

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 5 of 31
Law & Educ. v. U.S. Dep’t of Educ., 209 F. Supp. 2d 102, 113 (D.D.C. 2002), aff’d 396 F.3d 1152 (D.C. Cir. 2005); see also Food Chem. News, Inc. v. Davis, 378 F. Supp. 1048, 1051 (D.D.C. 1974) (purpose of FACA “to control the advisory committee process and to open to public scrutiny the manner in which government agencies obtain advice from private individuals”).
9. FACA applies to “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . established or utilized by the President . . . in the interest of obtaining advice or recommendations for the President,” denominating such groups as “advisory committees.” 5 U.S.C. app. 2 § 3(2).
10. Only those committees that are “composed wholly of full-time, or permanent parttime, officers or employees of the Federal Government” or “created by the National Academy of Sciences or the National Academy of Public Administration” fall outside the definition of “advisory committee” under the Act. 5 U.S.C. app. 2 § 3(2). And all of the provisions of FACA apply to advisory committees except when an “Act of Congress establishing any such advisory committee specifically provides otherwise.” 5 U.S.C. app. 2 § 4(a).
11. FACA requires that in establishing an advisory committee, the President “shall” follow the guidelines of the statute, 5 U.S.C. app. 2 § 5(c), including that the directive establishing the advisory committee must, among other things, “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee” and “contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.” 5 U.S.C. app. 2 § 5(b)(2)-(3).
5

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 6 of 31
12. FACA demands transparency in the procedures and meetings of advisory committees. All advisory committee meetings must be open to the public and must be timely noticed in the Federal Register. 5 U.S.C. app. 2 § 10(a)(1)-(2). Interested members of the public must “be permitted to attend, appear before, or file statements with any advisory committee,” subject only to “reasonable” regulations set by the Administrator of General Services. Id. § 10(a)(3). Although portions of meetings may be closed where the President determines that closure is provided for pursuant to 5 U.S.C. § 552b(c) (the federal Open Meetings statute), any such determination must be made in writing and set forth the reasons for the conclusion. 5 U.S.C. app. 2 § 10(d).
13. Advisory committee meetings must be noticed in the Federal Register at least fifteen days before the meeting is to be held. 41 C.F.R. § 102-3.150(a).
14. Each advisory committee meeting must be “held at a reasonable time and in a manner or place reasonably accessible to the public,” and in a place sufficient to accommodate “a reasonable number of interested members of the public.” 41 C.F.R. § 102-3.140(a)-(b).
15. If an advisory committee meeting is held via teleconference, videoconference, or other electronic medium, it still must be made accessible to the public. 41 C.F.R. § 102-3.140(e).
16. Subject to the provisions of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports.” 5 U.S.C. app. 2 § 10(b).
6

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 7 of 31
17. FACA mandates that “[d]etailed minutes of each meeting of each advisory committee shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the advisory committee. The accuracy of all minutes shall be certified to by the chairman of the advisory committee.” 5 U.S.C. app. 2 § 10(c).
18. Advisory committees must make available copies of transcripts of advisory committee meetings to “any person” at only the “actual cost of duplication.” 5 U.S.C. app. 2 § 11(a).
19. Each of the requirements of FACA is mandatory on the appointing authority, in this case, President Trump, and on the advisory committee itself. II. The Creation of the Pence-Kobach Commission
A. Events Leading to the Creation of the Pence-Kobach Commission 20. Following the 2016 Presidential Election, the official results of the popular vote
indicated that 65,853,516 votes were cast for Democratic nominee, Hillary Rodham Clinton, and 62,984,825 votes were cast for Republican nominee, Donald Trump, and the official results of the Electoral College indicated that 227 Electoral College votes were cast for Democratic nominee Hillary Rodham Clinton, and 304 Electoral College votes were cast for Republican nominee Donald Trump. Federal Election Commission (“FEC”), Official 2016 Presidential General Election Results (Jan. 30, 2017), available at https://transition.fec.gov/pubrec/ fe2016/2016presgeresults.pdf.
21. On November 20, 2016, President Elect Trump met with Kansas Secretary of State Kris Kobach, now vice-chair of the Pence-Kobach Commission. Outside that meeting, Secretary Kobach was photographed by the Associated Press with a document that appeared to
7

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 8 of 31
reference proposed amendments to the National Voter Registration Act, 52 U.S.C. §§ 20501511. See, e.g., Peter Hancock, Kobach Ordered To Turn Over Document He Used in Meeting with Trump, Lawrence J.-World (Apr. 5, 2017), http://www2.ljworld.com/news/2017/apr/ 05/kobach-ordered-turn-over-document-he-used-meeting-/; see also Order, Fish v. Kobach, No. 16-cv-2105-JAR-JPO (D. Kan. Apr. 17, 2017) (ECF No. 320); Order, Fish v. Kobach, No. 16cv-2105-JAR-JPO (D. Kan. June 23, 2017) (ECF No. 355).
22. 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.” See Donald Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 12:30 PM), https://twitter.com/realDonaldTrump/status/802972944532209664.
23. On November 30, 2016, Secretary Kobach, now vice-chair of the Pence-Kobach Commission stated, “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 at this point.” Hunter Woodall, Kris Kobach Agrees with Donald Trump that ‘Millions’ Voted Illegally But Offers No Evidence, Kan. City Star (Nov. 30, 2016), http://www.kansascity.com/news/politicsgovernment/article117957143.html [hereinafter Woodall, Kris Kobach Agrees with Donald Trump].
24. President Trump has continued to assert, contrary to all available factual evidence and the findings of the FEC, that he won the popular vote. See, e.g., Charles Ventura, Trump Revives False Claim That Illegal Ballots Cost Him Popular Vote, USA Today (Jan. 23, 2017), https://www.usatoday.com/story/news/politics/onpolitics/2017/01/23/president-trump-illegalballots-popular-vote-hillary-clinton/96976246/; Aaron Blake, Donald Trump Claims None of Those 3 to 5 Million Illegal Votes Were Cast for Him. Zero., Wash. Post (Jan. 26, 2017),
8

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 9 of 31
https://www.washingtonpost.com/news/the-fix/wp/2017/01/25/donald-trump-claims-none-ofthose-3-to-5-million-illegal-votes-were-cast-for-him-zero/?tid=a_inl&utm_term=.1e862115ce52.
25. Indeed, President Trump’s own legal team argued that “[a]ll available evidence suggests that the 2016 general election was not tainted by fraud or mistake.” Donald J. Trump and Donald J. Trump for President, Inc.’s Objs. to Dr. Jill Stein’s Recount Pet. at 2, In re Pet. for Recount for the Office of President of the United States of America (Mich. Bd. of State Canvassers Dec. 1, 2016), available at https://www.michigan.gov/documents/sos/ Objection_to_Recount_Petition_544089_7.pdf.
26. Vice President Pence attended and participated in the meeting with congressional leaders at which President Trump asserted he won the popular vote but for illegal voters. See The Latest: Trump Repeats Unproven Claim of Illegal Votes, Associated Press (Jan. 24, 2017), https://www.apnews.com/2987214f67da4b2d8900bc995e864912.
27. On February 9, 2017, at a meeting with ten Senators on the Supreme Court nomination, President Trump asserted that he and former-Senator Kelly Ayotte would both have won New Hampshire but for “‘thousands’ of people who were ‘brought in on buses’ from neighboring Massachusetts to ‘illegally’ vote in New Hampshire.” Eli Stokols, Trump Brings up Vote Fraud Again, This Time in Meeting with Senators, Politico (Feb. 10, 2017), http://www.politico.com/story/2017/02/trump-voter-fraud-senators-meeting-234909. No factual evidence supports that assertion.
B. Composition of the Pence-Kobach Commission 28. On May 11, 2017, President Trump issued Executive Order 13,799, establishing
the Pence-Kobach Commission. The Executive Order provides that the Commission would be chaired by the Vice President, be composed of not more than fifteen additional members selected
9

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 10 of 31
by the President, and that the Vice President may select a vice chair from among the other members. Exec. Order No. 13,799, § 2.
29. The purported “[m]ission” of the Pence-Kobach Commission is to “study the registration and voting processes used in Federal elections.” Exec. Order No. 13,799, § 3. The Commission is to “submit a report to the President that identifies . . . those laws, rules, policies, activities, strategies, and practices that enhance the American people’s confidence in the integrity of the voting processes used in Federal elections; . . . those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of the voting processes used in Federal elections; and . . . those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.” Id.
30. The Executive Order does not contain any provisions that “assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority,” 5 U.S.C. app. 2 § 5(b)(3), in this case, President Trump. See Exec. Order No. 13,799.
31. Also on May 11, 2017, President Trump named Secretary Kobach as Vice Chair of the Commission. Press Release, Office of the Press Secretary, President Announces Formation of Bipartisan Presidential Commission on Election Integrity (May 11, 2017), available at https://www.whitehouse.gov/the-press-office/2017/05/11/president-announcesformation-bipartisan-presidential-commission [hereinafter “Executive Order Release”].
32. Upon the issuance of the Executive Order, President Trump also named five additional members of the Pence-Kobach Commission: Connie Lawson, Secretary of State of Indiana; Bill Gardner, Secretary of State of New Hampshire; Matthew Dunlap, Secretary of State
10

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 11 of 31
of Maine; Ken Blackwell, Former Secretary of State of Ohio; and Christy McCormick, Commissioner, Election Assistance Commission. See Executive Order Release.
33. At least four out of these six initial appointees to the Commission have a record of making exaggerated and/or baseless claims about voter fraud, and/or have implemented or supported policies that have unlawfully disenfranchised voters.
34. Secretary Kobach has repeatedly made exaggerated claims about non-citizen voting. The United States Court of Appeals for the Tenth Circuit, in a decision finding that Secretary Kobach has engaged in the “mass denial of a fundamental constitutional right,” because he disenfranchised 18,000 motor-voter applicants in Kansas, found that Secretary Kobach’s assertions about widespread non-citizen voting were “pure speculation.” Fish v. Kobach, 840 F.3d 710, 755 (10th Cir. 2016). In the same case, Secretary Kobach was recently sanctioned by the magistrate judge for “deceptive conduct and lack of candor,” and for making “patently misleading representations to the court” about the document that he carried into his November 20, 2016 meeting with President-elect Trump. Fish v. Kobach, No. 16-cv-2105-JAR, 2017 WL 2719427, at *2-*3, *5 (D. Kan. June 23, 2017).
35. When recently asked about his previous statements about Donald Trump winning the popular vote and the absence of evidence to support this claim, Secretary Kobach replied, “I guess it all depends on what you define as evidence.” “Voting Commissioner Kris Kobach Defends U.S. Request For Voter Information,” All Things Considered, Nat’l Pub. Radio (June 30, 2017), http://www.npr.org/2017/06/30/535059231/voting-commissioner-kris-kobachdefends-u-s-request-for-voter-information.
36. Like Secretary Kobach, Commission member Ken Blackwell has made unfounded assertions about noncitizens voting. In response to President Trump’s claims that he
11

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 12 of 31

had won the popular vote but for illegal votes, Mr. Blackwell penned a commentary asserting

that Secretary Clinton received over 800,000 illegal votes from non-citizens, and based this

claim on the work of Old Dominion University professor Jesse Richman. Ken Blackwell,

Election Integrity Can’t Wait, The Daily Caller (Feb. 7, 2017),

http://dailycaller.com/2017/02/07/electoral-integrity-cant-wait/. Professor Richman, however,

disclaimed this use of his research, expressly stating that he has not done a study of the 2016

election. See Jesse Richman, “I Do Not Support the Washington Times Piece” (Jan. 27, 2017),

https://fs.wp.odu.edu/jrichman/2017/01/27/i-do-not-support-the-washington-times-piece/.

Professor Richman has also expressly written, “My study DOES NOT support Trump’s claim

that millions of non-citizens voted in the 2016 election.” Jesse Richman, “Why I Would Sign the

‘Open

Letter’

If

It

Were

True”

(March

10,

2017),

https://fs.wp.odu.edu/jrichman/2017/03/10/why-i-would-sign-the-open-letter-if-it-were-true/.

37. Like Secretary Kobach, Mr. Blackwell has unlawfully disenfranchised voters. As

Secretary of State of Ohio, Mr. Blackwell announced on September 7, 2004, less than a month

before the voter registration deadline for the 2004 general election, that voter registration forms

would be processed only if they were printed on eighty-pound unwaxed white paper stock,

specifying that complete voter registration forms from eligible voters that were printed on less

heavy-weight paper would not be processed. See Ohio Secretary of State Directive, No. 2004-

31, Section II (Sept. 7, 2004). The directive was later reversed. Regarding that same election,

the Sixth Circuit Court of Appeals determined that another Directive from Mr. Blackwell

violated the Help America Vote Act, denying provisional ballots to individuals clearly entitled to

cast them under the law. Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th

Cir. 2004).

12

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 13 of 31
38. Commission member Gardner has a similar record. Secretary Gardner has recently pushed for tightening access to the polls in New Hampshire, saying that the state has “drive-by voting.” See Associated Press, N.H. Pub. Radio (Nov. 26, 2016), http://nhpr.org/post/republicans-looking-tighten-nh-election-laws#stream/0.
39. Like Secretary Kobach, Secretary Gardner has been found by a court to have unlawfully disenfranchised voters in his State. The New Hampshire Supreme Court found that Gardner promulgated a voter registration form that was “confusing and inaccurate,” and “could cause an otherwise qualified voter not to register to vote in New Hampshire.” Guare v. New Hampshire, 167 N.H. 658, 665, 117 A.3d 731, 738 (2015). The Court concluded that, “as a matter of law, the burden it imposes upon the fundamental right to vote is unreasonable.” Id.
40. Commission member McCormick has a similar record of supporting policies and practices that have disenfranchised voters. In litigation involving Vice Chair Kobach’s efforts to require documentary proof of citizenship from individuals registering to vote with the federal voter registration form, EAC Commissioner McCormick attempted to reject the Department of Justice as counsel for the EAC and retain her own personal counsel, in order to file memoranda and declarations in support of Secretary Kobach’s position in the case. See Docket, League of Women Voters v. Newby, No. 16-cv-236-RJL (D.D.C.). The D.C. Circuit later ruled that the documentation requirements favored by Secretary Kobach and Commissioner McCormick created “a substantial risk that citizens will be disenfranchised in the present federal election cycle[,]” and will “make it substantially more difficult for groups like the League[ of Women Voters] to register otherwise qualified voters.” League of Women Voters v. Newby, 838 F.3d 1, 12-13 (D.C. Cir. 2016).
13

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 14 of 31
41. On June 21, 2017, President Trump named three additional Commission members: Luis Borunda, David K. Dunn, and Mark Rhodes. Press Release, Office of the Press Secretary, President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts (June 21, 2017), available at https://www.whitehouse.gov/the-pressoffice/2017/06/21/president-donald-j-trump-announces-intent-nominate-personnel-key. Two of these appointees have no experience with election administration.
42. Mark Rhodes is the county clerk of Wood County, West Virginia, a county with 56,105 registered voters. See W.V. Secretary of State, Voter Registration Totals, http://www.sos.wv.gov/elections/VoterRegistration/Pages/Voter_Registration.aspx (last visited July 6, 2017). Upon his appointment, Clerk Rhodes stated that he was not sure why he was appointed to the Pence-Kobach Commission, and that he thought that West Virginia’s Republican Secretary of State recommended him because Vice President Pence and Vice Chair Kobach were looking for a Democratic county clerk, and “there’s not a whole lot of those in West Virginia.” Kira Lerner, The White House’s Voter Fraud Commission Is Starting To Take Shape, Think Progress (June 22, 2017), https://thinkprogress.org/fraud-commission-rhodesbf8cd04daec4.
43. David K. Dunn was previously a member of the Arkansas House of Representatives. He does not have any experience in administering elections. Capitol Partners, http://www.capitolpartners.co/partners/ (last visited July 6, 2017). Upon his appointment, Mr. Dunn stated, “I don’t know why this has fallen on my shoulders . . . I’m just a very small old country boy from Arkansas in this bigger commission with Vice President Pence, and I’m just going to do the best I can, to be honest.” Arkansas’s Republican Secretary of State recommended him to the Commission. Sam Levine, Some of Trump’s New Election
14

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 15 of 31
Investigators Don’t Seem To Have Much Election Experience, Huffington Post (June 22, 2017), available at http://www.huffingtonpost.com/entry/trump-voter-fraud-commission_us_594c1068e 4b01cdedf01e75e?3pa.
44. Luis Borunda is the Deputy Secretary of State of Maryland, a position that has no elections-related responsibilities. On July 3, 2017, Deputy Secretary Borunda resigned from the Pence-Kobach Commission. See Luke Broadwater, Maryland Official Resigns from Trump Voter Fraud Panel, Balt. Sun (July 3, 2017), http://www.baltimoresun.com/news/maryland/politics/bsmd-borunda-resigns-trump-20170703-story,amp.html.
45. On June 29, 2017, President Trump named Hans A. von Spakovsky as a member of the Pence-Kobach Commission. Press Release, Office of the Press Secretary, President Donald J. Trump Announces Key Additions to his Administration (June 29, 2017), available at https://www.whitehouse.gov/the-press-office/2017/06/29/president-donald-j-trump-announceskey-additions-his-administration.
46. Mr. von Spakovsky has a long history of making baseless claims about voter fraud. See, e.g., Jane Mayer, The Voter-Fraud Myth, The New Yorker (Oct. 29-Nov. 5, 2012), http://www.newyorker.com/magazine/2012/10/29/the-voter-fraud-myth; Richard L. Hasen, The Voting Wars 62-64, 129 (Yale Univ. Press 2012). In response to President Trump’s baseless claims that he had won the popular vote but for illegal votes, Mr. von Spakovsky wrote, “there is a real chance that significant numbers of noncitizens and others are indeed voting illegally.” Hans A. von Spakovsky & John Fund, Do Illegal Votes Decide Elections?, Wall St. J. (Nov. 30, 2016), https://www.wsj.com/articles/do-illegal-votes-decide-elections-1480551000.
15

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 16 of 31
C. Offices and Logistics of the Pence-Kobach Commission 47. The office location and address of the Pence-Kobach Commission has not been
made public. 48. The Pence-Kobach Commission’s Designated Federal Officer is an Associate
Counsel in the Office of the Vice President, which is an office within the Executive Office of the President. The offices of the Office of the Vice President are primarily located within the Eisenhower Executive Office Building (“EEOB”).
49. The EEOB is not generally open to members of the public. In order to enter the EEOB, a visitor must have a set meeting with a particular person in the building, who must enter the full name, Social Security Number, date of birth, citizenship status, country of birth, gender, and city and state of residence of each visitor into the White House Worker and Visitor Entry System (“WAVES”), maintained by the United States Secret Service, for review and approval prior to entry.
50. The names of the staff of the Pence-Kobach Commission have not been made public. The Commission is apparently staffed by employees of the Executive Office of the President. See Dave Boyer, Voter Fraud and Suppression Commission to Meet in July, Wash. Times (June 27, 2017), http://www.washingtontimes.com/news/2017/jun/27/voter-fraud-andsuppression-commission-to-meet-in-/ [hereinafter Boyer, Voter Fraud and Suppression].
51. On July 1, 2017, a reporter for ProPublica requested for, the fifth time, a full list of staff working for the Commission. On information and belief, she has still not received a response. III. Activities of the Pence-Kobach Commission
52. On June 28, 2017, Vice President Pence, as chair of the Pence-Kobach
16

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 17 of 31
Commission, held a telephonic meeting with the members of the Commission. See Press Release, Office of the Vice President, Readout of the Vice President’s Call with the Presidential Advisory Commission on Election Integrity (June 28, 2017), available at https://www.whitehouse.gov/the-press-office/2017/06/28/readout-vice-presidents-callpresidential-advisory-commission-election [hereinafter Pence Release].
53. The meeting lasted for ninety minutes. See John DiStaso, NH Primary Source: Gardner Says Trump Election Integrity Commission Call “Couldn’t Have Been Better”, WMUR 9 ABC (June 29, 2017), http://www.wmur.com/article/gardner-says-trump-election-integritycommission-call-couldnt-have-been-better/10237642.
54. This meeting of the Pence-Kobach Commission was not noticed in the Federal Register nor was it held open to the public. Upon information and belief, the agenda for the June 28 meeting was not made available for public inspection and copying, nor were any of the documents provided to the members in relation to the meeting. The meeting was therefore unlawful.
55. The June 28 meeting was not merely an administrative or preparatory meeting. During that meeting, the Pence-Kobach Commission discussed substantive issues and made substantive decisions. It was not conducted solely to prepare for a future advisory committee meeting, to draft a position paper, or to discuss merely administrative matters.
56. During this unlawful telephonic meeting, Vice Chair Kobach told the members of the Commission that he was sending a letter “to the 50 states and District of Columbia on behalf of the Commission requesting publicly-available data from state voter rolls and feedback on how to improve election integrity.” Pence Release.
17

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 18 of 31
57. During this unlawful meeting, the members of the Pence-Kobach Commission discussed issues of substance, including the potential number of double registrants and how to identify such registrations. Celeste Katz, Trump Election Integrity Commission Member: ‘We Should Have Predicted’ the Backlash, Mic (July 5, 2017), https://mic.com/articles/181510/ trump-election-integrity-commission-member-we-should-have-predicted-the-backlash#. FJyGiAIZO.
58. Subsequent to the unlawful meeting, Commission member Secretary Dunlap reported that during the meeting, in regard to sending such letters to the states, he had advised the Commission, “to be careful how you go at this because election officials are very sensitive guardians of this information, so you want to make sure you’re asking for it, not demanding it, and that it really should only cover the information that is publicly available in your state.” Sam Levine, Trump Voter Fraud Commission Was Cautioned About Seeking Sensitive Voter Information, Huffington Post (July 5, 2017), http://www.huffingtonpost.com/entry/trump-voterfraud-commission_us_595d511fe4b02e9bdb0a073d [hereinafter Levine, Commission Was Cautioned].
59. At the unlawful meeting, the Commission reportedly deliberated and concluded that they did not need to review the language of the letters to the states because only Vice Chair Kobach would sign them. Levine, Commission Was Cautioned; see also Tal Kopan, PenceKobach Voting Commission Alarms States with Info Request, CNN (July 1, 2017), http://www.cnn.com/2017/06/30/politics/kris-kobach-voter-commission-rolls/index.html (citing statements from Commission member, Secretary Dunlap of Maine, and spokesperson for Vice President Pence, Marc Lotter).
18

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 19 of 31
60. Subsequent to the Commission’s determination that the Commissioners did not need to review Vice Chair Kobach’s letter, on June 28, 2017, Vice Chair Kobach sent a letter to the Secretary of State of each of the fifty states and to the District of Columbia requesting submission via e-mail or FTP site by July 14, 2017, of voter roll data, including “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.” See, e.g., Letter from Kris Kobach to Elaine Marshall, North Carolina Secretary of State (June 28, 2017), https://assets.documentcloud.org/documents/3881856/Correspondence-PEIC-Letter-to-NorthCarolina.pdf; see also Pence Release; Brandon Carter, Trump Election Panel Asks All 50 States for Voter Roll Data, The Hill (June 29, 2017), http://thehill.com/homenews/ administration/340117-trump-election-integrity-commission-requests-years-of-voter-data-from.
61. Underscoring the need for public oversight, Vice Chair Kobach’s request was of such public concern that officials in 48 states have partially or fully refused to comply with the request. See Ari Berman, Suppression Plans are Backfiring Badly, The Nation (July 5, 2017), https://www.thenation.com/article/the-trump-administrations-voter-suppression-plans-arebackfiring-badly/.
62. Cybersecurity experts have described the Commission’s plans to aggregate this data as a “gold mine” for hackers. Eric Geller & Corey Bennett, Trump Voter-Fraud Panel’s Data Request a Gold Mine for Hackers, Experts Warn, Politico (July 1, 2017), http://www.politico.com/story/2017/07/01/trump-voter-fraud-panel-hackers-240168. Michael
19

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 20 of 31
Chertoff, the former Secretary of Homeland Security under President George W. Bush, has written an op-ed titled “Trump’s Voter Data Request Poses an Unnoticed Danger,” noting that “whatever the political, legal and constitutional issues raised by this data request, one issue has barely been part of the public discussion: national security.” Michael Chertoff, Trump’s Voter Data Request Poses an Unnoticed Danger, Wash. Post (July 5, 2017), https://www.washingtonpost.com/opinions/trumps-voter-data-request-poses-an-unnoticeddanger--to-national-security/2017/07/05/470efce0-60c9-11e7-8adc-fea80e32bf47_story.html? utm_term=.47ed19183852.
63. On July 5, 2017, a planned July 19, 2017 in-person meeting of the Pence-Kobach Commission was noticed in the Federal Register, 14 days prior to the scheduled meeting. The Presidential Commission on Election Integrity (PCEI); Upcoming Public Advisory Meeting, 82 Fed. Reg. 31063 (July 5, 2017) [hereinafter Meeting Notice].
64. The notice stated that the meeting would be held in the EEOB and would be available to the public only through an internet livestream. Meeting Notice, 82 Fed. Reg. 31063.
65. Notwithstanding the fact that the Commission has not yet had a lawful public meeting, its work has already begun. On July 5, 2017, Vice Chair Kobach publicly declared under penalty of perjury that “information [had been] provided to [him] in [his] official capacity as Vice Chair of the Commission.” Decl. of Kris Kobach, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 17-cv-1320 (CKK) (D.D.C. July 5, 2017), ECF No. 8-1 [hereinafter Kobach Declaration]. Vice Chair Kobach did not identify what information contained in his declaration was provided to him in his capacity as Co-Chair, nor did he identify who provided the information, or in what form.
20

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 21 of 31

66. Also on July 5, 2017, spokesperson for Vice President Pence, Marc Lotter, stated

that the Pence-Kobach Commission had already formulated plans for the voter data that it is

collecting, explaining that the Commission intended to check the information contained in state

voter rolls against data housed in various federal databases to identify supposedly ineligible

registrants. That determination was made before any lawful meetings of the Pence-Kobach

Commission had been held. Jessica Huseman, Election Experts See Flaws in Trump Voter

Commission’s Plan to Smoke Out Fraud, ProPublica (July 6, 2017), https://www.propublica.org/

article/election-experts-see-flaws-trump-voter-commissions-plan-to-smoke-out-fraud.

Mr.

Lotter would not specify which federal databases the Commission intended to use, but public

reports from June 27, 2017 indicated that the Commission intended to compare state voter roll

data against the federal database of non-citizens, which would lead to numerous false positive

matches. Id. (citing Boyer, Voter Fraud and Suppression).

67. Election administration experts have stated that running such a comparison is

certain to lead to numerous false positives due to minor inaccuracies on the voter rolls,

inconsistencies in data collection and formatting, and the reality of common names and

birthdays. See id.; Maggie Koerth-Baker, Trump’s Voter Fraud Commission is Facing a Tough

Data Challenge, FiveThirtyEight, July 7, 2017, https://fivethirtyeight.com/features/trumps-voter-

fraud-commission-is-facing-a-tough-data-challenge/.

68. Indeed, Secretary Kobach currently operates an “Interstate Crosscheck” system,

which purports to compare voter registration files in multiple states to search for double

voters. But a team of researchers from Stanford, Harvard, the University of Pennsylvania, and

Microsoft concluded that, if Secretary Kobach’s Crosscheck system were used for voter list

maintenance in one state (Iowa), 99.5% of the purported matches would be false positives, such

21

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 22 of 31
that “200 legitimate voters may be impeded from voting for every double vote stopped.” See Sharad Goel et al., One Person, One Vote: Estimating the Prevalence of Double Voting in U.S. Presidential Elections, (Jan. 13, 2017), https://5harad.com/papers/1p1v.pdf.
69. On July 5, 2017, Plaintiffs requested that the Pence-Kobach Commission produce or make available for public inspection and copying all materials “which were made available to or prepared for or by” the Commission. As of the date of this Complaint, Plaintiffs have not received a response to this request.
70. Defendants continue to disclaim that the Pence-Kobach Commission is subject to FACA. Memorandum in Opposition to Plaintiff’s Emergency Motion for a Temporary Restraining Order at 12, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 17-cv-1320 (CKK) (D.D.C. July 5, 2017), ECF No. 8.
CLAIMS FOR RELIEF 71. District courts are authorized to issue relief in the nature of mandamus compelling federal officials to perform ministerial or nondiscretionary duties. 28 U.S.C. § 1361. Ministerial or nondiscretionary duties are those “so plainly prescribed as to be free from doubt and equivalent to a positive command.” Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218 (1930). 72. All of the duties mandated by FACA, as described in paragraphs 12-13 and 16-18, above, are “equivalent to a positive command,” each using the word “shall” to lay out a mandatory duty. Judicial Watch, Inc. v. Nat’l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 43 (D.D.C. 2002) (“by virtue of the use of the word shall, Congress has made [the duty] nondiscretionary”).
22

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 23 of 31
73. Where statutory duties are violated, courts may also act pursuant to the Declaratory Judgment Act as an alternative or in addition to granting mandamus relief. Citizens for Responsibility & Ethics in Wash. v. Cheney, 593 F. Supp. 2d 194, 222 (D.D.C. 2009).
First Claim for Relief (For Relief in the Nature of Mandamus, as provided for by 28 U.S.C. § 1361, Compelling Defendants Vice President Pence and the Pence-Kobach Commission to Comply with their Non-Discretionary Duties of Section 10 of FACA, 5 U.S.C. app. 2 § 10) 74. By holding a telephonic meeting of the Pence-Kobach Commission, without providing advance notice in the Federal Register, and by not holding the meeting open to the public or providing an option for public comment, the Vice President and the Pence-Kobach Commission have failed to carry out the non-discretionary openness requirements of § 10(a)(1)(3) of FACA. 75. By failing to create “[d]etailed minutes” of the June 28, 2017 meeting of the Pence-Kobach Commission, the Vice President and the Pence-Kobach Commission have failed to carry out the non-discretionary openness requirements of § 10(c) of FACA. 76. By failing to make available all “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the Pence-Kobach Commission for the June 28, 2017 meeting to the public for “inspection and copying at a single location” within the office of the Commission, including by failing to make public the location of the office of the Pence-Kobach Commission, and to the extent the Commission office is contained within the Office of the Vice President, by keeping the documents in an office largely closed to public access, the Vice President and the Pence-Kobach Commission have failed to carry out the non-discretionary openness requirements of § 10(b) of FACA.
23

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 24 of 31
77. By failing to provide a transcript of the June 28, 2017 telephonic meeting of the Pence-Kobach Commission at the cost of duplication, the Vice President and the Pence-Kobach Commission have failed to carry out the non-discretionary requirements of § 11(a) of FACA.
78. By failing to make available all “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the Pence-Kobach Commission since its inception, to the public for “inspection and copying at a single location” within the office of the Commission, including by failing to make public the location of the office of the Pence-Kobach Commission, and to the extent the Commission office is contained within the Office of the Vice President, by keeping the documents in an office largely closed to public access, the Vice President and the Pence-Kobach Commission have failed to carry out the non-discretionary openness requirements of § 10(b) of FACA.
79. By failing to make available the agenda and all documents made available to and/or prepared for or by the Pence-Kobach Commission members in advance of the July 19, 2017 meeting to the public for inspection and copying, including by failing to make public the location of the office of the Pence-Kobach Commission, and to the extent the Commission office is contained within the Office of the Vice President, by keeping the documents in an office largely closed to public access, the Vice President and the Pence-Kobach Commission have failed to carry out the non-discretionary openness requirements of § 10(b) of FACA.
80. By failing to make available all documents provided to Secretary Kobach in his “official capacity as Vice-Chair of the Commission,” see Kobach Declaration ¶ 2, to the public for “inspection and copying at a single location” within the office of the Commission, the Vice
24

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 25 of 31
President and the Pence-Kobach Commission have failed to carry out the non-discretionary openness requirements of § 10(b) of FACA.
81. By holding the July 19 meeting of the Pence-Kobach Commission in a building that is closed to the public without advanced screening and by not permitting the public to physically access the July 19 meeting of the Pence-Kobach Commission, the Vice-President and the Pence-Kobach Commission have failed to carry out the non-discretionary open meeting requirement of § 10(a)(1) of FACA.
Second Claim for Relief (For Relief in the Nature of Mandamus, as provided for by 28 U.S.C. § 1361,
Compelling Defendant President Trump to Comply with his Non-Discretionary Duties of Section 5 of FACA, 5 U.S.C. app. 2 § 5) 82. In stacking the Commission with individuals who have already publicly supported President Trump’s false statements regarding purported illegal voting, demonstrating the PenceKobach Commission membership is predisposed to a particular conclusion without yet having done the work to study the issues as contemplated in the Executive Order, and purportedly balancing them with members with little or no experience, President Trump has not “require[d] the membership of the advisory committee . . . be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” which is a nondiscretionary duty under FACA. 5 U.S.C. app. 2 § 5(b)(2). 83. In appointing Secretary of State Kobach, who publicly affirmed President Trump’s claims of voter fraud without evidence, as co-chair of the Commission, President Trump has not made “appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority” which is a non-discretionary duty under FACA. 5 U.S.C. app. 2 § 5(b)(3).
25

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 26 of 31
84. In appointing members von Spakovsky, Blackwell, Gardner, and McCormick, President Trump has not made “appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority,” which is a non-discretionary duty under FACA. 5 U.S.C. app. 2 § 5(b)(3). Commissioners von Spakovsky and Blackwell have each publicly affirmed the existence of massive numbers of “illegal votes,” in line with the narrative of President Trump in the creation of the Pence-Kobach Commission. Commissioner Gardner has likewise made unfounded claims about illegal voting, and Commissioner McCormick has supported policies and practices that have disenfranchised voters.
Third Claim for Relief (For Declaratory Judgment, as provided for by 28 U.S.C. § 2201-02,
that Defendants Are in Violation of FACA, 5 U.S.C. §§ 5, 10) 85. All meetings of the Pence-Kobach Commission, including those conducted through an electronic medium, must be open to the public; by conducting a telephonic meeting on June 28, 2017, without public access, Vice President Pence and the Pence-Kobach Commission violated § 10(a)(1), (3) of FACA. 86. All meetings of the Pence-Kobach Commission must be noticed in advance in the Federal Register; by conducting a telephonic meeting on June 28, 2017, without public access, Vice President Pence and the Pence-Kobach Commission violated § 10(a)(2) of FACA. 87. By failing to create “[d]etailed minutes” of the June 28, 2017 meeting of the Pence-Kobach Commission, the Vice President and the Pence-Kobach Commission violated § 10(c) of FACA. 88. By failing to make available all “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made
26

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 27 of 31
available to or prepared for or by” the Pence-Kobach Commission—including those documents related to the June 28, 2017 telephonic meeting, related to the planned July 19, 2017 meeting, made available to Vice Chair Kobach in his “official capacity as Vice-Chair of the Commission,” and all other Commission documents—to the public for “inspection and copying at a single location” within the office of the Commission, including by failing to make public the location of the office of the Pence-Kobach Commission, and to the extent the Commission office is contained within the Office of the Vice President, by keeping the documents in an office largely closed to public access, the Vice President and the Pence-Kobach Commission violate § 10(b) of FACA.
89. By not permitting the public to physically access the July 19 meeting of the Pence-Kobach Commission, and ensuring this is the case by holding the July 19 meeting of the Pence-Kobach Commission in a building that is closed to the public without advanced screening and notice of individual attendance, the Vice-President and the Pence-Kobach Commission violate § 10(a)(1) of FACA.
90. By appointing commissioners who have already publicly supported President Trump’s conclusion regarding purported illegal voting, demonstrating the Pence-Kobach Commission membership is predisposed to a particular conclusion without yet having done the work to study the issues as contemplated in the Executive Order, and purportedly balancing them with members having little or no experience or knowledge about the subject matter, and who have never held similarly high political offices, President Trump has not “require[d] the membership of the advisory committee . . . be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” in violation of § 5(b)(2).
27

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 28 of 31
91. By failing to make any “appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment,” President Trump has violated § 5(b)(3) of FACA.
92. Plaintiffs are entitled to a declaration under 28 U.S.C. § 2201 that the foregoing conduct violates FACA.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: (1) Grant relief in the nature of mandamus compelling Defendants to perform all
nondiscretionary duties required by FACA, including: a. requiring that Vice President Pence and the Pence-Kobach Commission hold all
meetings of the Commission, including meetings conducted by telephone or other electronic medium, open to the public. 5 U.S.C. app. 2 § 10(a)(1); b. requiring that Vice President Pence and the Pence-Kobach Commission publish timely notice in the Federal Register of every meeting of the Pence-Kobach Commission. 5 U.S.C. app. 2 § 10(a)(2); c. requiring that the Pence-Kobach Commission keep “[d]etailed minutes” of each meeting. 5 U.S.C. app. 2 § 10(c); d. requiring that “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by [the Pence-Kobach Commission] shall be available for public inspection and copying.” 5 U.S.C. app. 2 § 10(b);
28

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 29 of 31
e. requiring that the Pence-Kobach Commission “make available to any person, at actual cost of duplication, copies of transcripts” of each meeting and proceeding. 5 U.S.C. app. 2 § 11(a);
f. requiring that President Trump “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2 § 5(b)(2);
g. requiring that President Trump make “appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.” 5 U.S.C. app. 2 § 5(b)(3).
(2) Declare that the Defendants have violated §§ 5 and 10 of FACA, including: a. that Vice President Pence and the Pence-Kobach Commission violated § 10(a)(1), (3) of FACA by holding the June 28, 2017 meeting of the Pence-Kobach Commission; b. that Vice President Pence and the Pence-Kobach Commission violated § 10(a)(2) of FACA by holding the June 28, 2017 meeting of the Pence-Kobach Commission without first publishing advance notice in the Federal Register; c. that the Vice President and the Pence-Kobach Commission violated § 10(c) of FACA by failing to create “detailed minutes” of the June 28, 2017 meeting of the Pence-Kobach Commission; d. that the Vice President and the Pence-Kobach Commission violate § 10(b) of FACA by failing to make available all the Pence-Kobach Commission
29

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 30 of 31
documents—including those documents related to the June 28, 2017 telephonic meeting, related to the planned July 19, 2017 meeting, made available to Vice Chair Kobach in his “official capacity as Vice-Chair of the Commission,” and all other Commission documents—to the public for “inspection and copying at a single location” within the office of the Commission, including by failing to make public the location of the office of the Pence-Kobach Commission, and to the extent the Commission office is contained within the Office of the Vice President, by keeping the documents in an office largely closed to public access; e. that the Vice-President and the Pence-Kobach Commission violate § 10(a)(1) of FACA by not permitting the public to physically access the July 19 meeting of the Pence-Kobach Commission, and ensuring this is the case by holding the July 19 meeting of the Pence-Kobach Commission in a building that is closed to the public without advanced screening and notice of individual attendance; f. that President Trump has violated § 5(b)(2) of FACA by failing to “require the membership of the advisory committee . . . be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee;” and g. that President Trump has violated § 5(b)(3) of FACA by not making any provision “to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.
30

Case 1:17-cv-01351-CKK Document 1 Filed 07/10/17 Page 31 of 31
(3) Grant any other relief, including injunctive relief, that the Court may deem just and proper.
Respectfully submitted, /s/ Dale E. Ho Dale E. Ho (D.C. Bar No. NY0142) Theresa J. Lee** Sophia Lin Lakin** American Civil Liberties Union Foundation, Inc. 125 Broad Street, 18th Floor New York, NY 10004 Tel.: 212.549.2686 dho@aclu.org tlee@aclu.org slakin@aclu.org **pro hac vice application forthcoming Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union Foundation
of the District of Columbia 4301 Connecticut Avenue, N.W., Suite 434 Washington, DC 20008 Tel.: 202-457-0800 aspitzer@acludc.org
Dated: July 10, 2017
31

 
 Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs, v. DONALD TRUMP, et al.,
Defendants.

Civil Action No. 17-1351 (CKK)

MEMORANDUM OPINION (July 18, 2017)
This case arises from the establishment by Executive Order of the Presidential Advisory Commission on Election Integrity (the “Commission”). Plaintiffs allege that the Commission is an advisory committee subject to the disclosure, notice, and reporting requirements of the Federal Advisory Committee Act, codified at 5 U.S.C. app. 2 (“FACA”). Pending before the Court is Plaintiffs’ [3] Motion for Temporary Restraining Order and Preliminary Injunction. That motion seeks an order requiring the Commission, “in advance of the Commission’s planned July 19 meeting, to: (1) ensure that any telephonic meetings held by the Commission comply with the notice and public access requirements of FACA; (2) make available for public inspection and copying at a single, [publicly] accessible location all minutes, agendas, reports, studies and documentary material made available to or prepared for or by Commission members; and (3) provide physical access to the July 19 meeting by moving it, with public notice, to a [publicly] accessible location.” Pls.’ Mem. at 4–5. The only jurisdictional basis pursued by Plaintiffs is in the form of mandamus. Because the Court concludes that mandamus jurisdiction is unavailable in this case at the present time, Plaintiffs’ motion must be denied. Accordingly,

1

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 2 of 17
upon consideration of the pleadings,1 the relevant legal authorities, and the record as a
whole, Plaintiffs’ [3] Motion for Temporary Restraining Order and Preliminary Injunction is DENIED WITHOUT PREJUDICE.2
I. BACKGROUND
A. Statutory Background
FACA imposes a number of procedural requirements on “advisory committees,”
which are defined to include “any committee . . . which is . . . established or utilized by the
President . . . in the interest of obtaining advice or recommendations for the President . . .
.” 5 U.S.C. app. 2 § 3(2). The statute exempts “any committee that is composed wholly of
full-time, or permanent part-time, officers or employees of the Federal Government . . . .”
Id. FACA was enacted out of
a desire to assess the need for the numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government. . . . Its purpose was to ensure that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature.
Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 445–46 (1989) (internal quotation
marks and citations omitted).
1 The Court’s consideration has focused on the following documents: • Pls.’ Mem. in Supp. of Mot. for TRO and Prelim. Inj., ECF No. 3 (“Pls.’ Mem.”); • Defs.’ Mem. in Opp’n to Pls.’ Mot. for TRO and Prelim. Inj., ECF No. 16 (“Opp’n Mem.”); • Pls.’ Reply Mem. in Supp. of Mot. for TRO and Prelim. Inj., ECF No. 17 (“Reply Mem.”).
2 Plaintiffs have consented to the contemporaneous adjudication of both their motion for a temporary restraining order and their motion for a preliminary injunction.
2

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 3 of 17
To achieve that purpose, FACA requires that an advisory committee, inter alia, file a charter before meeting or taking any action, 5 U.S.C. app. 2 § 9(c), hold its meetings “open to the public,” id. § 10(a)(1), publish “timely notice” of each such meeting in the Federal Register, id. § 10(a)(2), keep minutes and other records of its meetings, id. § 10(c), and allow “interested persons . . . to attend, appear before, or file statements with” the committee, id. § 10(a)(3). FACA also mandates that, unless an exception applies under the Freedom of Information Act (“FOIA”), “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying . . . .” Id. § 10(b). Finally, FACA requires that each advisory committee be “fairly balanced in terms of the points of view represented and the functions to be performed,” id. § 5(b)(2), and “not be inappropriately influenced by the appointing authority or by any special interest,” id. § 5(b)(3).
B. Factual Background The Commission was established by Executive Order on May 11, 2017. Executive
Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017) (“Exec. Order”). According to the Executive Order, the Commission’s purpose is to “study the registration and voting processes used in Federal elections.” Id. § 3. The Executive Order states the Commission is “solely advisory,” and that it shall disband 30 days after submitting a report to the President on three areas related to “voting processes” in Federal elections. Id. §§ 3, 6. The Vice President is the chair of the Commission, and the President may appoint 15 additional members. From this group, the Vice President is permitted to appoint a Vice Chair of the Commission. On the same day the Commission was established, Kris W. Kobach, Secretary
3

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 4 of 17
of State for Kansas, was named Vice Chair. Compl. ¶ 31; Decl. of Kris Kobach, Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity, No. 17-cv-1320 (D.D.C. July 3, 2017) (“EPIC”), ECF No. 8-1, at 1.
Apart from the Vice President and the Vice Chair, there are presently ten other members of the Commission, including Commissioner Christy McCormick of the Election Assistance Commission (the “EAC”), who is currently the only federal agency official serving on the Commission, and a number of state election officials, both Democratic and Republican, and a Senior Legal Fellow of the Heritage Foundation. Decl. of Andrew J. Kossack, ECF No. 16-1 (“Kossack Decl.”), ¶ 1. According to Defendants, “McCormick is not serving in her official capacity as a member of the EAC.” EPIC, Second Decl. of Kris W. Kobach, ECF No. 11-1, at 2. The Executive Order also provides that the General Services Administration (“GSA”), a federal agency, will “provide the Commission with such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission on a reimbursable basis,” and that other federal agencies “shall endeavor to cooperate with the Commission.” Exec. Order, §§ 7(a), (b). Furthermore, the Administrator of General Services—the agency head of the GSA—is charged with performing “any functions of the President under [FACA], except for those in section 6[,]” to the extent that FACA applies to the Commission. Id. § 7(c).
The Commission filed a charter on June 23, 2017. See Charter, available at https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/commission-charter.pdf (last accessed on July 18, 2017). In pertinent part, the Charter provides that the Commission “will function solely as an advisory body,” id. ¶ 4; that the Commission is established in accordance with the Executive Order “and the provisions of the Federal Advisory
4

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 5 of 17
Committee Act,” id. ¶ 2; and that the GSA “shall provide the Commission with such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission[,]” id. ¶ 6. Defendants represent that the Commission is voluntarily complying with FACA. Kossack Decl. ¶ 2.
On June 28, 2017, the Vice President held a teleconference with members of the Commission, during which the Vice Chair discussed his intention to send letters to state election officials requesting certain information on registered voters. Compl. ¶¶ 52, 56. There is no evidence in the record that advance notice of this teleconference was provided by the Commission, or that it was accessible to the public, but a “readout” of the call has been made publicly available, which describes the event as an “organizational call” and states that the Commission “set July 19 as its first meeting, which will take place in Washington, D.C.” Id. ¶¶ 52, 54; see Readout of the Vice President’s Call with the Presidential Advisory Commission on Election Integrity, available at https://www.whitehouse.gov/the-press-office/2017/06/28/readout-vice-presidents-callpresidential-advisory-commission-election (last accessed on July 18, 2017). According to Defendants, the teleconference was merely a preliminarily, organizational call, and members were expressly advised that the conversation “would be limited to preparatory and administrative work, and would not address matters on which the Commission was charged with advice and recommendations.” Kossack Decl. ¶ 4 (citing Ex. A). Furthermore, although “[t]he Vice Chair and staff described the request, . . . members were not given a copy of any requests in advance of the call and did not see the request until shortly before it was sent to states.” Id. ¶ 5. The request was, however, discussed for several minutes, and although members did not vote on whether to send the request or any other matter, the
5

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 6 of 17
“request was modified in response to some of [their] comments.” Id. Subsequently, on June 29, 2017, the Vice Chair directed that identical letters “be
sent to the secretaries of state or chief election officers of each of the fifty states and the District of Columbia.” EPIC, Decl. of Kris Kobach, ECF No. 8-1, at 2. In addition to soliciting the views of state officials on certain election matters by way of seven broad policy questions, each of the letters requests that state officials provide the Commission with the “publicly available voter roll data” of their respective states, “including, if publicly available under the laws of [their] 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.” Id., Ex. 3 (June 28, 2017 Letter to the Honorable John Merrill, Secretary of State of Alabama). A substantial number of states have either fully or partially declined to comply with the Commission’s request for voter roll data—the exact number and the specific details of the states’ responses are unknown to the Court and are not relevant to the disposition of the pending motion. Without doubt, however, substantial public attention has been focused on the Commission’s request for voter roll information. See, e.g., Compl. ¶ 61.
On July 5, 2017, a meeting notice was published in the Federal Register indicating that the “first Commission meeting will be held on Wednesday, July 19, 2017, from 11:00 a.m., Eastern Daylight Time (EDT) until no later than 5:00 p.m., EDT.” 82 Fed. Reg. 31063 (July 5, 2017). The notice appears to have been published by the GSA, and under the
6

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 7 of 17
section entitled “Agency,” both the GSA, and the Office of Government-wide Policy (“OGP”), a component of the GSA, are listed. Furthermore, the notice states that the Commission is “a Federal Advisory Committee established in accordance with the Federal Advisory Committee Act . . . .” The notice further provides that the July 19 meeting “will be open to the public through livestreaming on https://www.whitehouse.gov/live,” which is the “same livestreaming system regularly used by the White House to stream White House press briefings, speeches by the President and Vice President, and other events with significant viewership.” Kossack Decl. ¶ 7. The notice states that individuals may submit written comments to the Commission via email in advance of the meeting, and that the meeting “will consist of a ceremonial swearing in of Commission members, introductions and statements from members, a discussion of the Commission’s charge and objectives, possible comments or presentations from invited experts, and a discussion of next steps and related matters.” Although the notice indicates that there “will not be oral comments from the public at th[e] initial meeting[,]” it adds that “[t]he Commission will provide individuals interested in providing oral comments the opportunity to do so at subsequent meetings.” According to Defendants, members of the general public will be excluded from the July 19 meeting due to security concerns posed by the attendance of the Vice President, but “a number of accredited members of the White House press corps will be invited to attend in person,” as space permits. Kossack Decl. ¶ 8.
In a submission to this Court, Defendants have represented that the Commission intends to “publish to a public webpage all documents which were made available to or prepared for or by the Commission, in accordance with FACA.” Id. ¶ 2. Furthermore, prior to the July 19 meeting, the Commission will post to its website the agenda of the meeting,
7

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 8 of 17
“public comments received through the Commission’s staff email account within a reasonable time in advance of the meeting, and other documents that are prepared for or by the Commission.” Id. ¶ 10.3 The Commission has received over 30,000 public comments via the Commissions’ email address. Id.
On July 5, 2017, Plaintiffs submitted a request for the Commission’s records pursuant to section 10(b) of FACA. Plaintiffs requested that the Commission “produce or make available for public inspection and copying all materials which were made available to or prepared for or by the Commission.” Compl. ¶ 69 (internal quotation marks omitted). Defendants concede that they did not respond directly to the request before this suit was filed. Kossack Decl. ¶ 3.
II. LEGAL STANDARD Preliminary injunctive relief, whether in the form of a temporary restraining order or a preliminary injunction, is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). A plaintiff seeking preliminary injunctive relief “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and
3 The Court has reviewed the website for the Commission, and it currently contains an agenda for the July 19 meeting, proposed bylaws that are to be discussed at the meeting, and a substantial number of public comments.
8

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 9 of 17
[4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20) (alteration in original; quotation marks omitted)). When seeking such relief, “the movant has the burden to show that all four factors, taken together, weigh in favor of the injunction.’” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The four factors have typically been evaluated on a ‘sliding scale.’” Davis, 571 F.3d at 1291 (citation omitted). Under this sliding-scale framework, “[i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Id. at 129192.4
III. DISCUSSION The only basis for subject-matter jurisdiction pursued by Plaintiffs in connection with the pending motion is 28 U.S.C. § 1361, which provides that “district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” In this case, that relief would be an injunction in the form of mandamus requiring
4 The Court notes that it is not clear whether this circuit’s sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court’s decision in Winter. See Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges on the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) have “read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.’” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). However, the D.C. Circuit has yet to hold definitively that Winter has displaced the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F. Supp. 3d at 112. In any event, this Court need not resolve the viability of the sliding-scale approach today, as it finds that the pending motion must be denied for lack of subject-matter jurisdiction.
9

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 10 of 17
Defendants to comply with FACA. Plaintiffs have conceded, for purposes of this motion, that “mandamus relief compelling the . . . Commission to comply with the nondiscretionary duties of FACA is the only remedy available to [Plaintiffs].” Reply Mem. at 5. In so doing, Plaintiffs have taken the position that “FACA itself does not contain a private right of action,” and that judicial review is unavailable pursuant to the Administrative Procedure Act (“APA”) because “none of the Defendants named in the ACLU’s complaint are agencies within the scope of the APA.” Id. at 6.
Mandamus is a “drastic remedy, to be invoked only in extraordinary circumstances.” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005) (internal quotation marks omitted; citing Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)). “To show entitlement to mandamus, plaintiffs must demonstrate (1) a clear and indisputable right to relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy exists.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). These requirements are jurisdictional. Id. Even when these requirements are met, however, “a court may grant relief only when it finds compelling equitable grounds. . . . The party seeking mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable.” Id. (citing Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)).
Mandamus jurisdiction is not presently available in this case, and consequently, the pending motion for injunctive relief must be denied for lack of subject-matter jurisdiction. First, despite the positions taken by Plaintiffs in this matter, the Court does not conclude that there is no “adequate alternative remedy,” because it has not yet ruled out the availability of judicial review pursuant to the APA. See Lawyers’ Committee for Civil
10

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 11 of 17
Rights Under the Law v. Presidential Advisory Commission on Election Integrity, No. 17cv-1354 (D.D.C. July 10, 2017) (“Lawyers’ Committee”), Mem. Op., ECF No. 17, at 16. True, Plaintiffs have chosen not to add certain agency parties as Defendants to this litigation—but a plaintiff’s decision not to pursue a particular remedy plainly does not establish that it has “no adequate alternative remedy.”
Second, the provisions of FACA sought to be enforced do not provide a “clear and indisputable right” to the prospective injunctive relief sought by Plaintiffs in the pending motion. Namely, they do not require that the Commission, prior to the July 19 meeting, “make available for public inspection and copying at a single, [publicly] accessible location all minutes, agendas, reports, studies and documentary material made available to or prepared for or by Commission members;” and that the Commission “provide physical access to the July 19 meeting . . . .” Pls.’ Mem. at 4–5 (emphasis added). Nor is it evident that Defendants are “violating a clear duty to act” with respect to these sections; rather, Defendants appear, at least for the time being, to be in compliance with the statutory text of FACA, and the pertinent regulations promulgated by the GSA.
All told, Plaintiffs seek injunctive relief on the basis of four FACA provisions: section 10(a)(1) mandates that “[e]ach advisory committee meeting shall be open to the public”; section 10(a)(2) mandates that “timely notice of each such meeting shall be published in the Federal Register”; section 10(a)(3) mandates that “[i]nterested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the Administrator may prescribe”; and section 10(b) mandates that “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or
11

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 12 of 17
prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.”
However, section 10(a)(1) does not prescribe the manner in which advisory committee meetings are supposed to be “open to the public.” Defendants have provided for public viewing of the July 19 meeting through a livestreaming service used by the White House for events with substantial viewership, such as official press briefings and speeches by the President and the Vice President. Supra at 7. Furthermore, Defendants have published notice with respect to the July 19 meeting, supra at 6, meaning the requirements of section 10(a)(2) have been satisfied as to that meeting—or, at the very least, have not clearly been violated. And section 10(a)(3) does not require that interested persons be permitted to attend each advisory committee meeting, nor does it even seem to require that an advisory committee provide an opportunity for in-person attendance at all, if interested persons are permitted to “file statements” with the committee. See Holy Cross Neighborhood v. Julich, 106 F. Supp. 2d 876, 887 (E.D. La. 2000) (noting “Congress’ use of the disjunctive: the Plaintiffs do not have the right to attend, appear before and file statements”). Here, the Commission has permitted interested persons to submit written comments in advance of the meeting, and has stated that it “will provide individuals interested in providing oral comments the opportunity to do so at subsequent meetings[,]” presumably where the security concerns posed by the attendance of the Vice President are not present. Supra at 7. Consequently, sections 10(a)(1), (2), and (3) do not appear to require Defendants to do anything more to comply with FACA in connection with the July 19 meeting than what they have already done, and consequently, Plaintiffs do not have a
12

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 13 of 17
“a clear and indisputable right to relief” pursuant to those sections, nor have those sections been clearly violated by Defendants’ conduct to date.
This conclusion is buoyed by a review of pertinent regulations promulgated by the GSA elaborating on how federal advisory committees are expected to comply with FACA. See generally 41 C.F.R., part 102-3 (“Federal Advisory Committee Management”). These regulations do not necessarily carry the force of law, but they are at very least instructive because the GSA is “the agency responsible for administering FACA . . . .” Pub. Citizen, 491 U.S. at 465 n.12 (citing 5 U.S.C. App. § 7(c), which authorizes the GSA to “prescribe administrative guidelines and management controls applicable to advisory committees . . . .”). Moreover, section 10(a)(3) specifically subjects the right of “persons . . . to attend, appear before, or file statements with any advisory committee, . . . to such reasonable rules or regulations as the Administrator [of the GSA] may prescribe.” With respect to the open meetings requirement of section 10(a)(1), the pertinent regulations require only that an advisory committee meeting be “held at a reasonable time and in a manner or place reasonably accessible to the public,” that the “meeting room or other forum selected is sufficient to accommodate . . . a reasonable number of interested members of the public,” and that any “advisory committee meeting conducted in whole or part by a teleconference, videoconference, the Internet, or other electronic medium [must meet] the requirements of this subpart.” 41 C.F.R. § 102-3.140 (emphasis added). Consequently, the regulations anticipate that some advisory committee meetings will be made publicly accessible via internet access, and that this is permissible so long as this method is “reasonably accessible to the public,” and can accommodate “a reasonable number of interested members of the public.” Id. Based on Defendants’ representations, the livestreaming service offered for the
13

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 14 of 17
July 19 meeting appears likely to satisfy both of these requirements, and indeed will offer more members of the public the opportunity to observe proceedings than had only physical access been permitted.
Plaintiffs have argued, in essence, that Defendants are violating these regulations because the meeting is being held in-person, while public access is being provided via the internet. Reply Mem. at 16. The Court does not read the statute or regulations so narrowly. For example, the regulations provide that each “advisory committee meeting [must be] held at a reasonable time and in a manner or place reasonably accessible to the public . . . .” 41 C.F.R. § 102-3.140(a). This only requires that the “manner” or “place” be reasonably accessible to the public, not both. Furthermore, the regulations seem to anticipate that meetings may be held in a mixed medium, as they provide for an “advisory committee meeting [to be] conducted in whole or part by a teleconference . . . .” Id. § 102-3.140(e) (emphasis added). Finally, it must be remembered that the statutory mandate only requires generally that each “advisory committee meeting shall be open to the public.” 5 U.S.C. app. 2 § 10(a)(1). No particular mode of access is specified.
With respect to the requirements of section 10(a)(3), the pertinent regulations, like the statutory text, do not require that interested persons be permitted to provide oral comments at every advisory committee meeting. See id. § 102-3.140(d) (“[a]ny member of the public may speak to or otherwise address the advisory committee if the agency’s guidelines so permit”). Accordingly, the Court finds that Plaintiffs have failed to demonstrate that Defendants’ arrangements for the July 19 meeting are clearly violative of sections 10(a)(1) or 10(a)(3) of FACA; rather, it appears that Defendants have, at least for the time being, complied with those sections and the pertinent GSA regulations.
14

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 15 of 17
Finally, although Plaintiffs allege that Defendants violated the prior notice requirement of section 10(a)(2) with respect to the July 28 teleconference, that violation is not so clear as to warrant mandamus relief at this time, given the substantial debate over whether the meeting was exempt from FACA as purely “administrative” or “preparatory” work pursuant to 41 C.F.R. § 102-3.160. Even if mandamus jurisdiction were available, however, Defendants’ alleged “failure to provide notice and public access” for the July 28 teleconference is not a basis for the prospective injunctive relief sought by Plaintiffs. See Reply Mem. at 16; Opp’n Mem. at 20.
Turning to the section 10(b) claim, Plaintiffs have requested the disclosure, prior to the July 19 meeting of “all minutes, agendas, reports, studies and documentary material made available to and/or prepared for or by Commission members.” Pls.’ Mem. at 5. Section 10(b) itself contains no deadline by which advisory committee materials must be made “available for public inspection and copying . . . .” However, in Food Chemical, the D.C. Circuit instructed that, pursuant to section 10(b), “whenever practicable, parties [should] have access to the relevant materials before or at the meeting at which the materials are used and discussed, [because opening] meetings to the public would be meaningless if the public could not follow the substance of the discussions.” Food Chem., 980 F.2d at 1472. Here, Defendants represent that because the July 19 meeting “is an initial meeting where the commissioners will introduce themselves and discuss the general direction for the Commission’s work, there are few documents that pertain to the meeting.” Kossack Decl. ¶ 10. Nonetheless, Defendants, in a declaration submitted to the Court under penalty of perjury, have represented that prior to the July 19 meeting, they will make publicly available: (i) the agenda for the meeting; (ii) public comments received by the
15

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 16 of 17
Commission via its email account within a reasonable time in advance of the meeting; and (iii) “other documents that are prepared for or by the Commission.” Id. Documents “prepared for or by the Commission” invariably must include documents that will be “used and discussed” at the July 19 meeting. Accordingly, Defendants have satisfied their obligation under Food Chemical “to release those materials before or on the date of the advisory committee meeting for which those materials were prepared,” Food Chem., 980 F.2d at 1472. Plaintiffs have consequently failed to show that they has a “clear and indisputable right to relief” under section 10(b) at this time, or that Defendants are presently in clear violation of that right.
To make clear, the Court does not conclude that mandamus relief may never be appropriate for alleged FACA violations. Other district courts have found, in different legal and factual circumstances, that such relief may indeed be available. See, e.g., Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d 28, 32 (D.D.C. 2011); Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 736 F. Supp. 2d 24, 31 (D.D.C. 2010). The Court merely concludes that, given the factual and legal circumstances of this case, it lacks jurisdiction to confer relief in the form of mandamus at the present time. Because that is the only jurisdictional basis pursued by Plaintiff, its motion for preliminary injunctive relief must be denied.5 And even were the Court to reach the preliminary injunction factors, it would conclude that injunctive relief is presently unavailable to Plaintiffs, for reasons stated in the Memorandum Opinion filed recently in Lawyers’ Committee, ECF No. 17, 15–24.
5 Although Plaintiffs have indicated that they may amend their complaint to pursue other jurisdictional bases, Reply Mem. at 6, no amendment has been filed on the public docket, and it is “axiomatic” that a party may not amend their complaint via their briefing. Singh v. District of Columbia, 55 F. Supp. 3d 55, 70 (D.D.C. 2014).
16

Case 1:17-cv-01351-CKK Document 18 Filed 07/18/17 Page 17 of 17

IV. CONCLUSION

Accordingly, for all of the foregoing reasons, Plaintiffs’ [3] Motion for Temporary

Restraining Order and Preliminary Injunction is DENIED WITHOUT PREJUDICE.

An appropriate Order accompanies this Memorandum Opinion.

Dated: July 18, 2017

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

17

 
 U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17-cv-01351-CKK

AMERICAN CIVIL LIBERTIES UNION et al v. TRUMP et al Assigned to: Judge Colleen Kollar-Kotelly Cause: 28:1361 Petition for Writ of Mandamus

Date Filed: 07/10/2017 Date Terminated: 07/22/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff
AMERICAN CIVIL LIBERTIES UNION

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE DISTRICT OF COLUMBIA 915 15th Street NW Ste 2nd Floor Washington, DC 20005 202-601-4266 Fax: 202-457-0805 Email: artspitzer@gmail.com ATTORNEY TO BE NOTICED

Sophia Lin Lakin AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 519-7836 PRO HAC VICE ATTORNEY TO BE NOTICED

Theresa J. Lee AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 284-7359 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Dale E. Ho AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549-2693 Fax: (212) 549-2649 Email: dho@aclu.org ATTORNEY TO BE NOTICED
represented by Arthur B. Spitzer (See above for address) ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theresa J. Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
DONALD J. TRUMP in his official capacity as President of the United States

represented by Carol Federighi U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Ben Franklin Station Washington, DC 20044 (202) 514-1903 Email: carol.federighi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
MICHAEL R. PENCE in his official capacity as Vice President of the United States and chair of the Presidential Advisory Commission on Election Integrity

Elizabeth J. Shapiro U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW 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 1100 L Street NW Washington, DC 20005 (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 ATTORNEY TO BE NOTICED
represented by Carol Federighi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth J. Shapiro (See above for address)

Defendant PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY an advisory committee commissioned by President Donald Trump
Defendant TIMOTHY HORNE in his official capacity as Acting Administrator of the General Services Administration

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
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
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

Defendant M. VIRGINIA WILLS in her official capacity as Committee Management Officer of the Presidential Advisory Commission on Election Integrity
Defendant GENERAL SERVICES ADMINISTRATION

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
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

Date Filed 07/10/2017
07/10/2017 07/10/2017

# Docket Text

COMPLAINT against All Defendants ( Filing fee $ 400 receipt

1

number 0090-5024737) filed by AMERICAN CIVIL LIBERTIES

UNION, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION. (Attachments: # 1 Civil Cover Sheet, # 2 Civil

Cover Sheet Related Case Form, # 3 Summons U.S. Attorney for

DC, # 4 Summons U.S. Attorney General, # 5 Summons

Presidential Advisory Comm'n on Election Integrity, # 6 Summons

Donald Trump, # 7 Summons Michael Pence)(Ho, Dale) (Entered:

07/10/2017)

2 Corporate Disclosure Statement by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Ho, Dale) (Entered: 07/10/2017)

3 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION (Attachments: # 1 Text of Proposed Order)(Ho, Dale) (Entered: 07/10/2017)

07/10/2017 07/10/2017 07/10/2017 07/10/2017
07/10/2017
07/10/2017 07/10/2017 07/10/2017 07/10/2017 07/10/2017
07/10/2017

4 NOTICE of Appearance by Dale E. Ho on behalf of AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Ho, Dale) (Entered: 07/10/2017)

ENTERED IN ERROR.....Case Assigned to Judge Emmet G. Sullivan. (jd) Modified on 7/10/2017 (jd). (Entered: 07/10/2017)

Case Reassigned to Judge Colleen Kollar-Kotelly. Judge Emmet G. Sullivan no longer assigned to the case. (jd) (Entered: 07/10/2017)

NOTICE OF RELATED CASE by AMERICAN CIVIL

5

LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION. Case related to Case No. 17-cv-1320-CKK. (jd)

(Entered: 07/10/2017)

6 SUMMONS (5) Issued Electronically as to MICHAEL PENCE, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, DONALD J. TRUMP, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Forms)(jd) (Entered: 07/10/2017)

7 NOTICE of Appearance by Joseph Evan Borson on behalf of All Defendants (Borson, Joseph) (Entered: 07/10/2017)

8 NOTICE of Appearance by Carol Federighi on behalf of All Defendants (Federighi, Carol) (Entered: 07/10/2017)

ORDER Establishing Procedures for Cases Assigned to Judge

9

Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on

07/10/2017. (DM) (Entered: 07/10/2017)

10 NOTICE of Appearance by Elizabeth J. Shapiro on behalf of All Defendants (Shapiro, Elizabeth) (Entered: 07/10/2017)

11 NOTICE of Appearance by Arthur B. Spitzer on behalf of AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Spitzer, Arthur) (Entered: 07/10/2017)

12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/10/2017. Answer due for ALL FEDERAL DEFENDANTS by 9/8/2017. (Spitzer, Arthur) (Entered: 07/10/2017)

07/10/2017 07/11/2017
07/11/2017 07/11/2017 07/11/2017

NOTICE of Hearing: Telephone Conference on the record set for 7/11/2017 at 8:30 AM in Chambers before Judge Colleen KollarKotelly. (dot) (Entered: 07/13/2017)
MINUTE ORDER: The Court has received Plaintiffs' 3 Motion for a Temporary Restraining Order and Preliminary Injunction. The parties shall adhere to the following expedited briefing schedule. Defendants shall file their opposition by July 13, 2017 at 5:00 P.M. Plaintiff shall file its reply by July 14, 2016 at 5:00 P.M. The parties' briefing should address the availability of judicial review of Plaintiffs' claims pursuant to the Federal Advisory Committee Act, including pursuant to the Administrative Procedure Act, and by way of mandamus jurisdiction. The parties have agreed to the consideration of the motion for a temporary restraining order and motion for a preliminary injunction in a single proceeding. Signed by Judge Colleen Kollar-Kotelly on 7/11/2017. (lcckk1) (Entered: 07/11/2017)
13 MOTION for Leave to Appear Pro Hac Vice :Attorney NameSophia Lin Lakin, :Firm- American Civil Liberties Union Foundation, Inc., :Address- 125 Broad St., 18th Fl., New York, NY 10004. Phone No. - (212) 519-7836. Fax No. - (212) 5492654 Filing fee $ 100, receipt number 0090-5027180. Fee Status: Fee Paid. by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Certification of Sophia Lin Lakin, # 2 Declaration of Sophia Lin Lakin, # 3 Text of Proposed Order)(Ho, Dale) (Entered: 07/11/2017)
14 MOTION for Leave to Appear Pro Hac Vice :Attorney NameTheresa J. Lee, :Firm- American Civil Liberties Union Foundation, Inc., :Address- 125 Broad St., 18th Fl., New York, NY 10004. Phone No. - (212) 284-7359. Fax No. - (212) 549-2654 Filing fee $ 100, receipt number 0090-5027354. Fee Status: Fee Paid. by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Certification of Theresa J. Lee, # 2 Declaration of Theresa J. Lee, # 3 Text of Proposed Order)(Ho, Dale) (Entered: 07/11/2017)
Minute Entry for proceedings held before Judge Colleen KollarKotelly: Telephone Conference on the record held on 7/11/2017. Defendants shall file opposition to 3 by 7/13/2017. Plaintiff shall file Reply to 3 by 7/14/2017. (Court Reporter Richard Ehrlich.) (dot) (Entered: 07/13/2017)

07/13/2017

15 NOTICE of Appearance by Kristina Ann Wolfe on behalf of All Defendants (Wolfe, Kristina) (Entered: 07/13/2017)

07/13/2017 16

RESPONSE re 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by MICHAEL PENCE, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, DONALD J. TRUMP. (Attachments:

# 1 Declaration Kossack Decl.)(Borson, Joseph) (Entered: 07/13/2017)

07/14/2017

17 REPLY to opposition to motion re 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Ho, Dale) (Entered: 07/14/2017)

07/18/2017 18

MEMORANDUM OPINION. Signed by Judge Colleen KollarKotelly on 7/18/2017. (lcckk1) (Entered: 07/18/2017)

07/18/2017

19 ORDER. Plaintiffs' 3 Motion for Temporary Restraining Order and Preliminary Injunction is DENIED WITHOUT PREJUDICE. Signed by Judge Colleen Kollar-Kotelly on 7/18/2017. (lcckk1) (Entered: 07/18/2017)

07/26/2017 20

ENTERED IN ERROR. . . . .RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DONALD J. TRUMP served on 7/11/2017 (Ho, Dale) Modified on 7/26/2017 (td). (Entered: 07/26/2017)

07/26/2017

NOTICE OF CORRECTED DOCKET ENTRY: re 20

Summons Returned Executed as to Federal Defendant was entered in error and counsel was instructed to refile said pleading. (td) (Entered: 07/26/2017)

07/26/2017

21 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/11/2017. (Ho, Dale) (Entered: 07/26/2017)

07/26/2017

22 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY served on 7/11/2017 (Ho, Dale) (Entered: 07/26/2017)

07/26/2017

23 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MICHAEL PENCE served on 7/12/2017 (Ho, Dale) (Entered: 07/26/2017)

07/26/2017

24 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DONALD J. TRUMP served on 7/11/2017. (Ho, Dale) Modified to add party served on 7/27/2017 (znmw). (Entered: 07/26/2017)

08/11/2017

MINUTE ORDER: The Court has received the 13 14 Motions for Admission Pro Hac Vice of attorneys Sophia Lin Lakin and Theresa J. Lee. The Motions are GRANTED CONTINGENT on each attorney filing a declaration, by AUGUST 18, 2017, certifying to the Court that they are familiar with the Local Rules of this Court. Signed by Judge Colleen Kollar-Kotelly on 8/11/2017. (lcckk1) (Entered: 08/11/2017)

08/18/2017

25 NOTICE of filing of Supplemental Declarations in Support of Motions for Admission Pro Hac Vice by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Declaration of Sophia Lin Lakin, # 2 Declaration of Theresa J. Lee)(Ho, Dale) (Entered: 08/18/2017)

09/06/2017 26

Unopposed MOTION to Stay Defendants' Obligation to Answer or Otherwise Respond to the Complaint by MICHAEL PENCE, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 09/06/2017)

09/08/2017 27

ORDER. Defendants' obligation to answer or otherwise respond to the complaint is STAYED. Signed by Judge Randolph D. Moss on 9/8/2017. (lcckk1) (Entered: 09/08/2017)

12/12/2017 28

Consent MOTION for Leave to File Amended Complaint by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Amended Complaint, # 2 Summons for General Services Administration, # 3 Summons for Timothy Horne, # 4 Summons for M. Virginia Wills, # 5 Text of Proposed Order)(Ho, Dale) (Entered: 12/12/2017)

01/03/2018

MINUTE ORDER: The Court has received Plaintiffs' 28

Consent Motion for Leave to File an Amended Complaint. In light of Plaintiffs' representation that Defendants have consented, the Court shall GRANT Plaintiffs' motion pursuant to Federal Rule of Civil Procedure 15(a)(2). The Clerk of the Court shall file the

Amended Complaint attached to Plaintiffs' 28 Motion under a separate docket entry. With Plaintiffs' consent, the Court shall continue, with respect to the Amended Complaint, the stay of Defendants' obligation to answer or otherwise respond established

by the Court's 27 Order. Signed by Judge Colleen KollarKotelly on January 3, 2018. (lcckk1) (Entered: 01/03/2018)

01/03/2018

29 NOTICE of Executive Order by MICHAEL R. PENCE, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, DONALD J. TRUMP (Attachments: # 1 Exhibit Executive Order)(Borson, Joseph) (Entered: 01/03/2018)

01/03/2018 30

AMENDED COMPLAINT against MICHAEL R. PENCE, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, DONALD J. TRUMP, TIMOTHY HORNE, M. VIRGINIA WILLS, GENERAL SERVICES ADMINISTRATION filed by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION.(znmw) (Entered: 01/04/2018)

01/04/2018

31 SUMMONS (3) Issued Electronically as to GENERAL SERVICES ADMINISTRATION, TIMOTHY HORNE, M. VIRGINIA WILLS. (znmw) (Entered: 01/04/2018)

01/17/2018

32 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. GENERAL SERVICES ADMINISTRATION served on 1/10/2018 (Ho, Dale) (Entered: 01/17/2018)

01/17/2018

33 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TIMOTHY HORNE served on 1/10/2018 (Ho, Dale) (Entered: 01/17/2018)

01/17/2018

34 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. M. VIRGINIA WILLS served on 1/11/2018 (Ho, Dale) (Entered: 01/17/2018)

06/28/2018

MINUTE ORDER: In light of the Court's Memorandum Opinion and Order in Lawyers' Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity, No. 17-cv1354 (CKK) (D.D.C. June 28, 2018), ECF No. 43 , the Court shall lift the stay of Defendants' obligation to answer or otherwise

respond to the 30 Amended Complaint in this matter. See Order, ECF No. 27 (imposing stay of obligation as to 1

06/29/2018 07/24/2018 07/24/2018
07/24/2018

Complaint pending Court's evaluation of certain materials in Lawyers' Committee); Min. Order of Jan. 3, 2018 (continuing
stay as to 30 Amended Complaint). Defendants shall answer or
otherwise respond to the 30 Amended Complaint by AUGUST 6, 2018. Signed by Judge Colleen Kollar-Kotelly on June 28, 2018. (lcckk1) (Entered: 06/28/2018)
Set/Reset Deadlines: Answer or Response to Amended Complaint due by 8/6/2018. (kt) (Entered: 06/29/2018)
35 Unopposed MOTION for Extension of Time to File Motion to Dismiss Amended Complaint by GENERAL SERVICES ADMINISTRATION, TIMOTHY HORNE, MICHAEL R. PENCE, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, DONALD J. TRUMP, M. VIRGINIA WILLS (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 07/24/2018)
MINUTE ORDER: The Court has received Defendants' 35 Unopposed Motion for an Extension of Time to File Their Motion to Dismiss. Defendants seek additional time so that "the parties can continue to discuss how the release of documents in a related case pending before this Court, Dunlap v. Presidential Advisory Commission on Election Integrity ('Dunlap'), No. 17-cv2361 (CKK), may narrow or eliminate the issues outstanding in the present litigation." With Plaintiffs' consent, the Court GRANTS Defendants' 35 Unopposed Motion, for good cause shown. Defendants shall file their Motion to Dismiss by SEPTEMBER 5, 2018. Now that Defendants have indicated that they will file a motion to dismiss, rather than an answer, in response to Plaintiffs' 30
Amended Complaint, the Court also shall set deadlines for further briefing. Plaintiffs shall respond to the Motion to Dismiss by SEPTEMBER 19, 2018. Defendants' reply, if any, shall be due by SEPTEMBER 26, 2018. Signed by Judge Colleen Kollar-Kotelly on July 24, 2018. (lcckk1) (Entered: 07/24/2018)
Set/Reset Deadlines: Defendants' Motion to Dismiss due by 9/5/2018. Response due by 9/19/2018. Reply due by 9/26/2018. (dot) (Entered: 07/25/2018)

07/25/2018 09/05/2018 09/12/2018 09/17/2018
07/20/2020 07/22/2020

Set/Reset Deadlines: Defendants shall file their Motion to Dismiss by 9/5/2018; Plaintiffs shall respond to the Motion to Dismiss by 9/19/2018; Defendants' reply, if any, shall be due by 9/26/2018. (kt) (Entered: 07/25/2018)
36 MOTION to Dismiss by GENERAL SERVICES ADMINISTRATION, TIMOTHY HORNE, MICHAEL R. PENCE, PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, DONALD J. TRUMP, M. VIRGINIA WILLS (Attachments: # 1 Memorandum in Support, # 2 Appendix, # 3 Text of Proposed Order)(Wolfe, Kristina) (Entered: 09/05/2018)
37 Unopposed MOTION to Stay Proceedings and Hold Case in Abeyance by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Ho, Dale). Added MOTION to Hold in Abeyance on 9/18/2018 (ztd). (Entered: 09/12/2018)
MINUTE ORDER: The Court has received Plaintiffs' 37 Unopposed Motion to Stay Proceedings and Hold Case in Abeyance. Plaintiffs indicate that developments in similar case, Dunlap v. Presidential Advisory Commission on Election Integrity, Civil Action No. 17-2361, may moot, or otherwise cause them to voluntarily dismiss, this case. Accordingly, Plaintiffs seek a stay of this case pending the resolution of Dunlap, including any appellate proceedings. With the consent of Defendants, and in the interest of judicial economy, the Court shall GRANT Plaintiffs' 37 Unopposed Motion. The Court shall hereby STAY proceedings in this case, including the deadline for Plaintiffs' response to Defendants' 36 Motion to Dismiss, pending the resolution of Dunlap, including any appellate proceedings. Within thirty days of such resolution of Dunlap or at such other time as the Court may order, the parties shall submit a Joint Status Report indicating how they intend to proceed. Signed by Judge Colleen Kollar-Kotelly on September 17, 2018. (lcckk1) (Entered: 09/17/2018)
38 NOTICE of Voluntary Dismissal by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION (Attachments: # 1 Text of Proposed Order)(Ho, Dale) (Entered: 07/20/2020)
39 ORDER dismissing case without prejudice and denying 36 Defendants' Motion to Dismiss as moot. See Order for

details. Signed by Judge Colleen Kollar-Kotelly on July 22, 2020. (lccck1) (Entered: 07/22/2020)

PACER Service Center Transaction Receipt

04/05/2021 16:39:17

PACER Login:

CRClearinghouse Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 9

Cost:

1:17-cv-01351CKK
0.90

 
 Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

AMERICAN CIVIL LIBERTIES UNION, Inc., )

AMERICAN CIVIL LIBERTIES UNION

)

FOUNDATION, Inc.,

)

125 Broad Street, 18th Floor

)

New York, NY 10004

)

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-01351 (CKK)

)

DONALD TRUMP, in his official capacity

)

as President of the United States,

)

1600 Pennsylvania Avenue NW

)

Washington, DC 20500,

)

)

MICHAEL PENCE, in his official capacity

)

as Vice President of the United States

)

and chair of the Presidential Advisory

)

Commission on Election Integrity,

)

Eisenhower Executive Office Building )

1650 Pennsylvania Avenue NW

)

Washington, DC 20502,

)

)

PRESIDENTIAL ADVISORY

)

COMMISSION ON ELECTION INTEGRITY, )

an advisory committee commissioned

)

by President Donald Trump,

)

Eisenhower Executive Office Building )

1650 Pennsylvania Avenue NW

)

Washington, DC 20502,

)

)

TIMOTHY HORNE, in his official capacity

)

as Acting Administrator of the General

)

Services Administration,

)

1800 F Street, NW

)

Washington, DC, 20405,

)

)

caption continued on next page

)

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 2 of 59

M. VIRGINIA WILLS, in her official capacity )

as Committee Management Officer of the

)

Presidential Advisory Commission on

)

Election Integrity,

)

1800 F Street, NW

)

Washington, DC, 20405,

)

)

GENERAL SERVICES ADMINISTRATION, )

1800 F Street, NW

)

Washington, DC, 20405,

)

)

Defendants.

)

__________________________________________)

AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF

Plaintiffs American Civil Liberties Union and American Civil Liberties Union

Foundation (together, the “ACLU”) bring this action against Donald Trump, in his official

capacity as President of the United States (“President Trump”), Michael Pence, in his official

capacity as Vice President of the United States and Chair of the Presidential Advisory

Commission on Election Integrity (“Vice President Pence”), the Presidential Advisory

Commission on Election Integrity (“Pence-Kobach Commission”), Timothy Horne, in his

official capacity as Acting Administrator of the General Services Administration, M. Virginia

Wills, in her official capacity as Committee Management Officer (“CMO”) of the Presidential

Advisory Commission on Election Integrity, and the General Services Administration (“GSA”),

a federal agency (collectively, “Defendants”), seeking declaratory and injunctive relief pursuant

to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 and because Defendants are acting

ultra vires, and in the alternative, relief in the nature of mandamus compelling Defendants to

comply with the nondiscretionary requirements of the Federal Advisory Committee Act

(“FACA”), 5 U.S.C. app. 2 §§ 1-16, and a declaration that Defendants have violated FACA.

2

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 3 of 59
Defendants have violated FACA in two respects. First, Defendants have already violated, and absent relief, will continue to violate the non-discretionary transparency and public access requirements of § 10 of FACA, 5 U.S.C. app. 2 § 10. The Pence-Kobach Commission held its first meeting without public notice; without making that meeting open to the public; and without timely notice in the Federal Register, id. § 10(a). It has also failed to make all of its “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the Pence-Kobach Commission “available for public inspection,” id. § 10(b). The second meeting of the PenceKobach Commission was held in a building generally inaccessible to the public, and only a limited subset of the documents already relied upon by the Commission have been made available to the public, contrary to the earlier representations by the Commission’s Designated Federal Officer that all documents prepared for the second meeting would be posted on the Commission’s hastily created website prior to that meeting.
Second, Defendants have violated requirements under § 5 of FACA, 5 U.S.C. app. 2 § 5, that an advisory committee’s membership be “fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” id. § 5(b)(2); and that “appropriate provisions” be made “to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment[,]” id. § 5(b)(3). The Pence-Kobach Commission’s stated purpose is to “study the registration and voting processes used in Federal elections” and “submit a report to the President” on related “laws, rules, policies, activities, strategies, and practices.” Exec. Order No. 13,799, § 3, 82 Fed. Reg. 22389 (May 11, 2017). But, in fact, the Commission was
3

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 4 of 59
established for the purpose of providing a veneer of legitimacy to President Trump’s false claim that he won the popular vote in the 2016 election—once millions of supposedly illegal votes are subtracted from the count. That purpose is evident in the composition of the Commission, which is stacked with individuals who have endorsed the President’s false statements about the popular vote, and the fact that no provisions whatsoever have been made to insulate the Commission’s advice and recommendations from inappropriate influence by the person who appointed the Commission’s members—i.e., President Trump himself—or from particular special interests.
Defendants have also violated the APA both by acting arbitrarily and outside the legal authority of the Commission, and through the various failures to comply with FACA, which all constitute final agency action. Likewise, apart from the statutory framework of the APA, each authority of the government can act only as provided by the Constitution or to the extent Congress has prescribed their “power to act and how they are to act.” City of Arlington v. F.C.C., 569 U.S. 290, 297 (2013). Any other exercise of authority is void as ultra vires. By conducting activities outside the scope of authority provided for in the Executive Order and Commission Charter, and by failing to comply with the limitations of FACA, Defendants have acted ultra vires.
THE PARTIES 1. Plaintiff American Civil Liberties Union is a 501(c)(4) non-profit, nationwide, non-partisan membership organization with approximately 1.6 million members, many of whom are registered voters. The ACLU is dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civil rights laws, including laws protecting access to the right to vote.
4

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 5 of 59
2. Plaintiff American Civil Liberties Union Foundation is a 501(c)(3) non-profit, nationwide, non-partisan organization with nearly 300 staff attorneys, thousands of volunteer attorneys, and offices throughout the nation. Since 1965, the ACLU, through its Voting Rights Project, has litigated hundreds of voting rights cases and has a direct interest in ensuring that all eligible citizens are able to access the franchise and are not removed from voter rolls, and in empowering those targeted by vote suppression. The ACLU regularly litigates cases in which government officials attempt to limit access to the franchise and keep eligible voters off the registration rolls, and therefore has a direct interest in the purported purpose of the Presidential Advisory Commission on Election Integrity (“Pence-Kobach Commission”).
3. Defendant Donald Trump is the President of the United States. He is sued in his official capacity. In that capacity, he issued Executive Order 13,799 of May 11, 2017, establishing the Pence-Kobach Commission, and appoints the members of the Commission.
4. Defendant Michael Pence is the Vice President of the United States. He is sued in his official capacity. In that capacity, Vice President Pence is the chair of the Pence-Kobach Commission. Exec. Order No. 13,799, § 2.
5. Defendant Presidential Advisory Commission on Election Integrity (“PenceKobach Commission”) was established by President Trump pursuant to Executive Order 13,799, and is a presidential advisory committee. Exec. Order No. 13,799.
6. Defendant Timothy Horne is the Acting Administrator of the General Services Administration (“GSA”). He is sued in his official capacity. In that capacity, under the Executive Order creating the Pence-Kobach Commission, he performs all of the functions of the President under FACA except those of § 6. Exec. Order No. 13,799, § 7(c). As head of the
5

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 6 of 59
GSA, Administrator Horne designated both the Committee Management Officer and the Designated Federal Officer of the Pence-Kobach Commission.
7. Defendant M. Virginia Wills is the Committee Management Officer (“CMO”) of the Pence-Kobach Commission and for all other advisory committees housed in the GSA.
8. Defendant General Services Administration (“GSA”) is a federal agency charged with providing the Pence-Kobach Commission “with such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission.” Exec. Order No. 13,799, § 7(a). The Commission’s Designated Federal Officer has represented that the Commission’s documents will be housed for public inspection at the GSA. Kossack Decl., ¶ 10, ECF No. 16-1. The charter of the Pence-Kobach Commission designates the GSA as the “Agency Responsible for Providing Support,” and that the GSA “shall provide the Commission with such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission . . . on a reimbursable basis.” Charter, Presidential Advisory Comm’n on Election Integrity ¶ 6, available at https://www.facadatabase.gov/download.aspx?fn=Charters/2612_2017.06.23_CharterPresidential%20Commission%20on%20Election%20Integrity_(2017-06-23-06-32-07).docx [hereinafter Charter]. The GSA filed the Charter of the Pence-Kobach Commission and published each of the Commission’s five notices in the Federal Register.
JURISDICTION AND VENUE 9. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361 and 5 U.S.C. §§ 701-706. Plaintiffs also seek relief pursuant to 28 U.S.C. §§ 2201 and 2202. 10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(e).
6

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 7 of 59
FACTS I. Statutory and Regulatory Framework
11. The Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2 §§ 1-16, was enacted because of the congressional concern with the number and utility of advisory committees. Congress found, among other things, that committees “should be established only when they are determined to be essential” and that “Congress and the public” should be kept abreast of their activities. 5 U.S.C. app. 2 § 2(b). “FACA’s principal purpose was to establish procedures aimed at enhancing public accountability of federal advisory committees.” Ctr. for Law & Educ. v. U.S. Dep’t of Educ., 209 F. Supp. 2d 102, 113 (D.D.C. 2002), aff’d, 396 F.3d 1152 (D.C. Cir. 2005); see also Food Chem. News, Inc. v. Davis, 378 F. Supp. 1048, 1051 (D.D.C. 1974) (purpose of FACA is “to control the advisory committee process and to open to public scrutiny the manner in which government agencies obtain advice from private individuals”).
12. FACA applies to “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . established or utilized by the President . . . in the interest of obtaining advice or recommendations for the President,” denominating such groups as “advisory committees.” 5 U.S.C. app. 2 § 3(2).
13. Only those committees that are “composed wholly of full-time, or permanent parttime, officers or employees of the Federal Government” or “created by the National Academy of Sciences or the National Academy of Public Administration” fall outside the definition of “advisory committee” under the Act. 5 U.S.C. app. 2 § 3(2). And all of the provisions of FACA apply to advisory committees except when an “Act of Congress establishing any such advisory committee specifically provides otherwise.” 5 U.S.C. app. 2 § 4(a).
7

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 8 of 59
14. FACA requires that in establishing an advisory committee, the President “shall” follow the guidelines of the statute, 5 U.S.C. app. 2 § 5(c), including that the directive establishing the advisory committee must, among other things, “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee” and “contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.” 5 U.S.C. app. 2 § 5(b)(2)-(3).
15. The implementing regulations require each advisory committee to have a plan to attain fairly balanced membership. The plan must “ensure that, in the selection of members for the advisory committee, the agency will consider a cross-section of those directly affected, interested, and qualified, as appropriate to the nature and functions of the advisory committee. Advisory committees requiring technical expertise should include persons with demonstrated professional or personal qualifications and experience relevant to the functions and tasks to be performed.” 41 C.F.R. § 102-3.60(b)(3).
16. FACA provides that the “head of each agency which has an advisory committee shall designate an Advisory Committee Management Officer who shall— (1) exercise control and supervision over the establishment, procedures, and accomplishments of advisory committees established by that agency; (2) assemble and maintain the reports, records, and other papers of any such committee during its existence; and (3) carry out, on behalf of that agency, the provisions of section 552 of title 5, United States Code, with respect to such reports, records, and other papers.” 5 U.S.C. app. 2 § 8(b).
8

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 9 of 59
17. In addition to the duties specified in 5 U.S.C. app. 2 § 8(b), the CMO “will carry out all responsibilities delegated by the agency head” and “ensure that sections 10(b), 12(a), and 13 of [FACA] are implemented by the agency to provide for appropriate recordkeeping.” 41 C.F.R. § 102-3.115.
18. The charter of each advisory committee must be filed by the “the Committee Management Officer (CMO) designated in accordance with section 8(b) of the Act, or . . . another agency official designated by the agency head.” 41 C.F.R. § 102-3.70.
19. Each advisory committee has a Designated Federal Officer (“DFO”) that must be designated by the agency head or “in the case of an independent Presidential advisory committee, the Secretariat.” 41 C.F.R. § 102-3.120.
20. The agency head that “establishes or utilizes one or more advisory committees” must designate both the CMO and the DFO. 41 C.F.R. § 102-3.105.
21. FACA further provides that “[n]o advisory committee shall meet or take any action until an advisory committee charter has been filed.” 5 U.S.C. app. 2 § 9(c).
22. FACA demands transparency in the procedures and meetings of advisory committees. All advisory committee meetings must be open to the public and must be timely noticed in the Federal Register. 5 U.S.C. app. 2 § 10(a)(1)-(2). Interested members of the public must “be permitted to attend, appear before, or file statements with any advisory committee,” subject only to “reasonable” regulations set by the Administrator of General Services. Id. § 10(a)(3). Although portions of meetings may be closed where the President determines that closure is provided for pursuant to 5 U.S.C. § 552b(c) (the federal Open Meetings statute), any such determination must be made in writing and set forth the reasons for the conclusion. 5 U.S.C. app. 2 § 10(d).
9

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 10 of 59
23. Advisory committee meetings must be noticed in the Federal Register at least fifteen days before the meeting is to be held. 41 C.F.R. § 102-3.150(a).
24. Each advisory committee meeting must be “held at a reasonable time and in a manner or place reasonably accessible to the public,” and in a place sufficient to accommodate “a reasonable number of interested members of the public.” 41 C.F.R. § 102-3.140(a)-(b).
25. If an advisory committee meeting is held via teleconference, videoconference, or other electronic medium, it still must be made accessible to the public. 41 C.F.R. § 102-3.140(e).
26. Subject to the provisions of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports.” 5 U.S.C. app. 2 § 10(b).
27. FACA mandates that “[d]etailed minutes of each meeting of each advisory committee shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the advisory committee. The accuracy of all minutes shall be certified to by the chairman of the advisory committee.” 5 U.S.C. app. 2 § 10(c).
28. Advisory committees must make available copies of transcripts of advisory committee meetings to “any person” at only the “actual cost of duplication.” 5 U.S.C. app. 2 § 11(a).
29. Each of the requirements of FACA is mandatory on the appointing authority, in this case, President Trump, and on the advisory committee itself.
10

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 11 of 59
30. The Administrative Procedure Act governs agency action, defining “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency,” with a number of exceptions not relevant here. 5 U.S.C. § 701(b). II. The Creation of the Pence-Kobach Commission
A. Events Leading to the Creation of the Pence-Kobach Commission 31. Following the 2016 Presidential Election, the official results of the popular vote
indicated that 65,853,516 votes were cast for Democratic nominee, Hillary Rodham Clinton, and 62,984,825 votes were cast for Republican nominee, Donald Trump, and the official results of the Electoral College indicated that 227 Electoral College votes were cast for Democratic nominee Hillary Rodham Clinton, and 304 Electoral College votes were cast for Republican nominee Donald Trump. Federal Election Commission (“FEC”), Official 2016 Presidential General Election Results (Jan. 30, 2017), available at https://transition.fec.gov/pubrec/ fe2016/2016presgeresults.pdf.
32. On November 20, 2016, President Elect Trump met with Kansas Secretary of State Kris Kobach, now-Vice Chair of the Pence-Kobach Commission. Outside that meeting, now-Vice Chair Kobach was photographed by the Associated Press with a document that appeared to reference proposed amendments to the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. §§ 20501-511. See, e.g., Peter Hancock, Kobach Ordered To Turn Over Document He Used in Meeting with Trump, Lawrence J.-World (Apr. 5, 2017), http://www2.ljworld.com/news/2017/apr/05/kobach-ordered-turn-over-document-he-usedmeeting-/; see also Order, Fish v. Kobach, No. 16-cv-2105-JAR-JPO (D. Kan. Apr. 17, 2017), ECF No. 320; Order, Fish v. Kobach, No. 16-cv-2105-JAR-JPO (D. Kan. June 23, 2017), ECF No. 355.
11

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 12 of 59
33. The documents laid out specific additions and deletions to the NVRA. Ex.EE, Fish v. Kobach, No. 16-cv-2105-JAR-JPO (D. Kan. Aug. 30, 2017), ECF No. 396-3; Exhibit U, Fish v. Kobach, No. 16-cv-2105-JAR-JPO (D. Kan. July 24, 2017), ECF No. 373-3.
34. In attempting to prevent the public release of these documents in July 2017, Vice Chair Kobach cited his role on the Pence-Kobach Commission, stating that the release of the documents “would undermine Secretary Kobach’s interest in fulfilling his appointed duty and responsibilities on the Presidential Election Commission which include being able to advise the President privately on matters within the purview of the Commission.” Def.’s Resp. to Pls.’ Mot. to Unseal at 11, Fish v. Kobach, No. 16-cv-2105-JAR-JPO (D. Kan. July 28, 2017), ECF No. 376. Now-Vice Chair Kobach, however, proposed these amendments to the NVRA months before the Commission’s creation, suggesting that as Vice Chair he had already determined what one recommendation of the Pence-Kobach Commission would be, prior to any study or deliberation.
35. 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.” See Donald Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 12:30 PM), https://twitter.com/realDonaldTrump/status/802972944532209664.
36. On November 30, 2016, now-Vice Chair Kobach stated, “I think the presidentelect is absolutely correct when he says the number of illegal votes cast exceeds the popular vote margin between him and Hillary Clinton at this point.” Hunter Woodall, Kris Kobach Agrees with Donald Trump that ‘Millions’ Voted Illegally But Offers No Evidence, Kan. City Star (Nov. 30, 2016), http://www.kansascity.com/news/politics-government/article117957143.html [hereinafter Woodall, Kris Kobach Agrees with Donald Trump].
12

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 13 of 59
37. On December 4, 2016, in response to President Trump’s groundless claims concerning the popular vote, Vice President Pence stated, “I don’t know that that is a false statement,” and characterized President Trump as “refreshing.” ‘This Week’ Transcript: Vice President-Elect Mike Pence & Gen. David Petraeus, ABC News (Dec. 4, 2016), http://abcnews.go.com/Politics/week-transcript-vice-president-elect-mike-pencegen/story?id=43952176.
38. President Trump has continued to assert, contrary to all available factual evidence and the findings of the FEC, that he won the popular vote. See, e.g., Charles Ventura, Trump Revives False Claim That Illegal Ballots Cost Him Popular Vote, USA Today (Jan. 23, 2017), https://www.usatoday.com/story/news/politics/onpolitics/2017/01/23/president-trump-illegalballots-popular-vote-hillary-clinton/96976246/; Aaron Blake, Donald Trump Claims None of Those 3 to 5 Million Illegal Votes Were Cast for Him. Zero., Wash. Post (Jan. 26, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/01/25/donald-trump-claims-none-ofthose-3-to-5-million-illegal-votes-were-cast-for-him-zero/?tid=a_inl&utm_term=.1e862115ce52.
39. In a meeting with congressional leaders on January 24, 2017, President Trump repeated his claim that he would have won the popular vote if not for millions of votes cast by illegal voters. See The Latest: Trump Repeats Unproven Claim of Illegal Votes, Associated Press (Jan. 24, 2017), https://www.apnews.com/2987214f67da4b2d8900bc995e864912.
40. In the early morning hours of the following day, President Trump tweeted, “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!” Donald Trump (@realDonaldTrump), Twitter (Jan. 25, 2017, 7:10 AM);
13

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 14 of 59

https://twitter.com/realDonaldTrump/status/824227824903090176;

Donald

Trump

(@realDonaldTrump),

Twitter

(Jan.

25,

2017,

7:13

AM),

https://twitter.com/realdonaldtrump/status/824228768227217408?lang=en.

41. That same day, in an ABC News interview, in response to questions regarding his

claims that he would have won the popular vote, President Trump stated, “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.” Transcript: ABC News Anchor Interviews President Trump, ABC News

(Jan. 25, 2017), http://abcnews.go.com/Politics/transcript-abc-news-anchor-david-muir-

interviews-president/story?id=45047602.

42. However, President Trump’s own legal team argued that “[a]ll available evidence

suggests that the 2016 general election was not tainted by fraud or mistake.” Donald J. Trump

and Donald J. Trump for President, Inc.’s Objs. to Dr. Jill Stein’s Recount Pet. at 2, In re Pet. for

Recount for the Office of President of the United States of America (Mich. Bd. of State

Canvassers Dec. 1, 2016), available at https://www.michigan.gov/documents/sos/

Objection_to_Recount_Petition_544089_7.pdf.

43. Vice President Pence attended and participated in the January 24 meeting with

congressional leaders at which President Trump asserted he won the popular vote but for illegal

voters. See The Latest: Trump Repeats Unproven Claim of Illegal Votes, Associated Press (Jan.

24, 2017), https://www.apnews.com/2987214f67da4b2d8900bc995e864912.

44. On or about January 26, 2017, at an annual Republican policy retreat, Vice

President Pence reportedly reaffirmed, “the concern that you have, I have, the [P]resident

certainly has about people being registered in multiple states.” Mike DeBonis & Sari Horwitz,

14

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 15 of 59
In Private Meeting, Pence Vows ‘Full Evaluation of Voting Rolls’ Over Claims of Fraud, Wash. Post (Jan. 27, 2017), https://www.washingtonpost.com/powerpost/in-private-meeting-pencevows-fullevaluation-of-voting-rolls-over-claims-of-voting-fraud/2017/01/27/1c1fa1de-e49a11e6-a547-5fb9411d332c_story.html?utm_term=.4a7ec39da956.
45. On February 9, 2017, at a meeting with ten Senators on the Supreme Court nomination, President Trump asserted that he and former-Senator Kelly Ayotte would both have won New Hampshire but for “‘thousands’ of people who were ‘brought in on buses’ from neighboring Massachusetts to ‘illegally’ vote in New Hampshire.” Eli Stokols, Trump Brings up Vote Fraud Again, This Time in Meeting with Senators, Politico (Feb. 10, 2017), http://www.politico.com/story/2017/02/trump-voter-fraud-senators-meeting-234909. No factual evidence supports that assertion.
46. President Trump continued to assert that he would be “proved right” about his claim that millions of people voted illegally. Ali Vitali, Peter Alexander, & Kelly O’Donnell, Trump Establishes Voter Fraud Commission, NBC News (May 11, 2017), https://www.nbcnews.com/politics/white-house/trump-establish-vote-fraud-commissionn757796.
B. Composition of the Pence-Kobach Commission 47. On May 11, 2017, President Trump issued Executive Order 13,799, establishing
the Pence-Kobach Commission. The Executive Order provides that the Commission would be chaired by the Vice President, be composed of not more than fifteen additional members selected by the President, and that the Vice President may select a vice chair from among the other members. Exec. Order No. 13,799, § 2.
15

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 16 of 59

48. The purported “[m]ission” of the Pence-Kobach Commission is to “study the

registration and voting processes used in Federal elections.” Exec. Order No. 13,799, § 3. The

Commission is to “submit a report to the President that identifies . . . those laws, rules, policies,

activities, strategies, and practices that enhance the American people’s confidence in the integrity

of the voting processes used in Federal elections; . . . those laws, rules, policies, activities,

strategies, and practices that undermine the American people’s confidence in the integrity of the

voting processes used in Federal elections; and . . . those vulnerabilities in voting systems and

practices used for Federal elections that could lead to improper voter registrations and improper

voting, including fraudulent voter registrations and fraudulent voting.” Id.

49. Vice Chair Kobach has stated that the Commission’s goal is to “for the first time,

have a nationwide fact-finding effort” focused on assessing “evidence” of “different forms of

voter fraud across the country.” Transcript: Trump Forms Voter Fraud Commission, CNN (May

15, 2017), http://transcripts.cnn.com/TRANSCRIPTS/1705/15/nday.06.html.

50. Defendants have repeatedly touted the Pence-Kobach Commission as

“bipartisan.” Press Release, Office of the Press Secretary, President Announces Formation of

Bipartisan Presidential Commission on Election Integrity (May 11, 2017),

https://www.whitehouse.gov/the-press-office/2017/05/11/president-announces-formation-

bipartisan-presidential-commission; Madeline Conway, Kris Kobach Defends Elections

Commission

Voter

Data

Request,

Politico

(July

5,

2017),

http://www.politico.com/story/2017/07/05/kobach-states-voter-data-fraud-240241 (quoting Vice

Chair Kobach defending the broad data request touting “this bipartisan commission”).

51. The Executive Order does not contain any provisions that “require the

membership of the advisory committee to be fairly balanced in terms of the points of view

16

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 17 of 59
represented and the functions to be performed by the advisory committee” or to “assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority,” 5 U.S.C. app. 2 § 5(b)(2)-(3), in this case, President Trump. See Exec. Order No. 13,799.
52. On June 23, 2017, the GSA filed the charter of the Pence-Kobach Commission, See Kossack Decl. ¶ 2, Ex. A, ECF No. 16-1. The filing of an advisory committee charter is a power designated to “the Committee Management Officer (CMO) designated in accordance with section 8(b) of the Act, or . . . another agency official designated by the agency head.” 41 C.F.R. § 102-3.70.
53. Like the Executive Order, the charter of the Pence-Kobach Commission does not contain any provisions that “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee” or to “assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority,” 5 U.S.C. app. 2 § 5(b)(2)-(3), in this case, President Trump. See Charter.
54. Also on May 11, 2017, President Trump named Secretary Kobach as Vice Chair of the Commission. Press Release, Office of the Press Secretary, President Announces Formation of Bipartisan Presidential Commission on Election Integrity (May 11, 2017), available at https://www.whitehouse.gov/the-press-office/2017/05/11/president-announcesformation-bipartisan-presidential-commission [hereinafter “Executive Order Release”].
55. Upon the issuance of the Executive Order, President Trump also named five additional members of the Pence-Kobach Commission: Connie Lawson, Secretary of State of Indiana; Bill Gardner, Secretary of State of New Hampshire; Matthew Dunlap, Secretary of State
17

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 18 of 59
of Maine; Ken Blackwell, Former Secretary of State of Ohio; and Christy McCormick, Commissioner, Election Assistance Commission (“EAC”). See Executive Order Release.
56. At least four out of these six initial appointees to the Commission have a record of making exaggerated and/or baseless claims about voter fraud, and/or have implemented or supported policies that have unlawfully disenfranchised voters.
57. Vice Chair Kobach has repeatedly made exaggerated claims about non-citizen voting. The United States Court of Appeals for the Tenth Circuit, in a decision finding that Secretary Kobach has engaged in the “mass denial of a fundamental constitutional right,” because he disenfranchised 18,000 motor-voter applicants in Kansas, found that Secretary Kobach’s assertions about widespread non-citizen voting were “pure speculation.” Fish v. Kobach, 840 F.3d 710, 755 (10th Cir. 2016). In the same case, Secretary Kobach was sanctioned by the magistrate judge for “deceptive conduct and lack of candor,” and for making “patently misleading representations to the court” about the document that he carried into his November 20, 2016 meeting with President-elect Trump. Fish v. Kobach, No. 16-cv-2105-JAR, 2017 WL 2719427, at *2-*3, *5 (D. Kan. June 23, 2017); see also Fish v. Kobach, No. 16-cv-2105-JAR, slip op. at 8 n.27 (D. Kan. July 25, 2017), ECF No. 374 (affirming magistrate judge’s grant of sanctions, noting that the representations at issue were not the only “statements made or positions taken by Secretary Kobach that have called his credibility into question,” and collecting examples).
58. When recently asked about his previous statements about Donald Trump winning the popular vote and the absence of evidence to support this claim, Vice Chair Kobach replied, “I guess it all depends on what you define as evidence.” “Voting Commissioner Kris Kobach Defends U.S. Request For Voter Information,” All Things Considered, Nat’l Pub. Radio (June
18

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 19 of 59
30, 2017), http://www.npr.org/2017/06/30/535059231/voting-commissioner-kris-kobachdefends-u-s-request-for-voter-information.
59. Like Secretary Kobach, Commission member Ken Blackwell has made unfounded assertions about noncitizens voting. In response to President Trump’s claims that he had won the popular vote but for illegal votes, Mr. Blackwell penned a commentary asserting that Secretary Clinton received over 800,000 illegal votes from non-citizens, and based this claim on the work of Old Dominion University professor Jesse Richman. Ken Blackwell, Election Integrity Can’t Wait, The Daily Caller (Feb. 7, 2017), http://dailycaller.com/ 2017/02/07/electoral-integrity-cant-wait/. Professor Richman, however, disclaimed this use of his research, expressly stating that he has not done a study of the 2016 election. See Jesse Richman, “I Do Not Support the Washington Times Piece” (Jan. 27, 2017), https://fs.wp.odu.edu/jrichman/2017/01/27/i-do-not-support-the-washington-times-piece/. Professor Richman has also expressly written, “My study DOES NOT support Trump’s claim that millions of non-citizens voted in the 2016 election.” Jesse Richman, “Why I Would Sign the ‘Open Letter’ If It Were True” (March 10, 2017), https://fs.wp.odu.edu/jrichman/2017/03/10/ why-i-would-sign-the-open-letter-if-it-were-true/.
60. Like Secretary Kobach, Mr. Blackwell has unlawfully disenfranchised voters. As Secretary of State of Ohio, Mr. Blackwell announced on September 7, 2004, less than a month before the voter registration deadline for the 2004 general election, that voter registration forms would be processed only if they were printed on eighty-pound unwaxed white paper stock, specifying that complete voter registration forms from eligible voters that were printed on less heavy-weight paper would not be processed. See Ohio Secretary of State Directive, No. 200431, Section II (Sept. 7, 2004). The directive was later reversed. Regarding that same election,
19

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 20 of 59
the Sixth Circuit Court of Appeals determined that another Directive from Mr. Blackwell violated the Help America Vote Act, denying provisional ballots to individuals clearly entitled to cast them under the law. Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004).
61. Commission member Gardner has a similar record. Secretary Gardner has recently pushed for tightening access to the polls in New Hampshire, saying that the state has “drive-by voting.” See Associated Press, N.H. Pub. Radio (Nov. 26, 2016), http://nhpr.org/post/republicans-looking-tighten-nh-election-laws#stream/0.
62. Like Secretary Kobach, Secretary Gardner has been found by a court to have unlawfully disenfranchised voters in his State. The New Hampshire Supreme Court found that Gardner promulgated a voter registration form that was “confusing and inaccurate,” and “could cause an otherwise qualified voter not to register to vote in New Hampshire.” Guare v. New Hampshire, 167 N.H. 658, 665, 117 A.3d 731, 738 (2015). The Court concluded that, “as a matter of law, the burden it imposes upon the fundamental right to vote is unreasonable.” Id.
63. Commission member McCormick has a similar record of supporting policies and practices that have disenfranchised voters. In litigation involving Vice Chair Kobach’s efforts to require documentary proof of citizenship from individuals registering to vote with the federal voter registration form, EAC Commissioner McCormick attempted to reject the Department of Justice as counsel for the EAC and retain her own personal counsel, in order to file memoranda and declarations in support of Secretary Kobach’s position in the case. See Docket, League of Women Voters v. Newby, No. 16-cv-236-RJL (D.D.C.). The D.C. Circuit later ruled that the documentation requirements favored by Secretary Kobach and Commissioner McCormick created “a substantial risk that citizens will be disenfranchised in the present federal election
20

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 21 of 59
cycle[,]” and will “make it substantially more difficult for groups like the League [of Women Voters] to register otherwise qualified voters.” League of Women Voters v. Newby, 838 F.3d 1, 12-13 (D.C. Cir. 2016).
64. On June 21, 2017, President Trump named three additional Commission members: Luis Borunda, David K. Dunn, and Mark Rhodes. Press Release, Office of the Press Secretary, President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts (June 21, 2017), available at https://www.whitehouse.gov/the-pressoffice/2017/06/21/president-donald-j-trump-announces-intent-nominate-personnel-key. Two of these appointees have no experience with election administration.
65. Mark Rhodes is the county clerk of Wood County, West Virginia, a county with 56,105 registered voters. See W.V. Secretary of State, Voter Registration Totals, http://www.sos.wv.gov/elections/VoterRegistration/Pages/Voter_Registration.aspx (last visited July 6, 2017). Upon his appointment, Clerk Rhodes stated that he was not sure why he was appointed to the Pence-Kobach Commission, and that he thought that West Virginia’s Republican Secretary of State recommended him because Vice President Pence and Vice Chair Kobach were looking for a Democratic county clerk, and “there’s not a whole lot of those in West Virginia.” Kira Lerner, The White House’s Voter Fraud Commission Is Starting To Take Shape, Think Progress (June 22, 2017), https://thinkprogress.org/fraud-commission-rhodesbf8cd04daec4.
66. David K. Dunn was previously a member of the Arkansas House of Representatives. He did not have any experience in administering elections. Capitol Partners, http://www.capitolpartners.co/partners/ (last visited July 6, 2017). Upon his appointment, Mr. Dunn stated, “I don’t know why this has fallen on my shoulders . . . I’m just a very small old
21

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 22 of 59
country boy from Arkansas in this bigger commission with Vice President Pence, and I’m just going to do the best I can, to be honest.” Arkansas’s Republican Secretary of State recommended him to the Commission. Sam Levine, Some of Trump’s New Election Investigators Don’t Seem To Have Much Election Experience, Huffington Post (June 22, 2017), available at http://www.huffingtonpost.com/entry/trump-voter-fraud-commission_us_594c1068e 4b01cdedf01e75e?3pa. On October 16, 2017, Commissioner Dunn passed away.
67. Luis Borunda is the Deputy Secretary of State of Maryland, a position that has no elections-related responsibilities. On July 3, 2017, Deputy Secretary Borunda resigned from the Pence-Kobach Commission. See Luke Broadwater, Maryland Official Resigns from Trump Voter Fraud Panel, Balt. Sun (July 3, 2017), http://www.baltimoresun.com/news/maryland/politics/bsmd-borunda-resigns-trump-20170703-story,amp.html.
68. On June 29, 2017, President Trump named Hans A. von Spakovsky as a member of the Pence-Kobach Commission. Press Release, Office of the Press Secretary, President Donald J. Trump Announces Key Additions to his Administration (June 29, 2017), available at https://www.whitehouse.gov/the-press-office/2017/06/29/president-donald-j-trump-announceskey-additions-his-administration.
69. Mr. von Spakovsky has a long history of making baseless claims about voter fraud. See, e.g., Jane Mayer, The Voter-Fraud Myth, The New Yorker (Oct. 29-Nov. 5, 2012), http://www.newyorker.com/magazine/2012/10/29/the-voter-fraud-myth; Richard L. Hasen, The Voting Wars 62-64, 129 (Yale Univ. Press 2012). In response to President Trump’s baseless claims that he had won the popular vote but for illegal votes, Mr. von Spakovsky wrote, “there is a real chance that significant numbers of noncitizens and others are indeed voting illegally.”
22

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 23 of 59
Hans A. von Spakovsky & John Fund, Do Illegal Votes Decide Elections?, Wall St. J. (Nov. 30, 2016), https://www.wsj.com/articles/do-illegal-votes-decide-elections-1480551000.
70. In the investigation report of the Office of the Inspector General of the EAC regarding reports on voter fraud, former Chair of the EAC Paul DeGregorio stated that “too many of [von Spakovsky’s] decisions are clouded by his partisan thinking” and reported that “von Spakovsky thought DeGregorio should use his position (on the EAC commission) to advance the Republican party’s agenda.” U.S. Elec. Assistance Comm’n Office of Inspector Gen., Report of Investigation: Preparation of the Voter Fraud and Voter Intimidation Report 17 (March 2008), https://www.eac.gov/assets/1/1/EAC%20Inspector%20General%20Report %20on%20the%20Preparation%20of%20the%20Voter%20Fraud%20and%20Voter% 20Intimidation.pdf.
71. On July 10, 2017, President Trump named J. Christian Adams and Judge Alan Lamar King as members of the Pence-Kobach Commission. Press Release, Office of the Press Secretary, President Donald J. Trump Announces Key Additions to his Administration (July 10, 2017), available at https://www.whitehouse.gov/the-press-office/2017/07/10/president-donald-jtrump-announces-key-additions-his-administration.
72. Mr. Adams, President and General Counsel of the Public Interest Legal Foundation (“PILF”), an organization that promotes and defends laws and policies that restricts access to the polls, has a long history of promoting restrictive voting laws and making baseless claims about voter fraud. See, e.g., Pema Levy, Lawyer Behind Nationwide Voter Purge Effort Named to Trump Election Commission, Mother Jones (July 11, 2017), http://www.motherjones.com/politics/2017/07/lawyer-behind-nationwide-voter-purge-effortnamed-to-trump-election-commission/. Mr. Adams, too, has publicly affirmed President
23

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 24 of 59
Trump’s claims that he won the popular vote but for illegal votes. J. Christian Adams, Trump Destroys Elites’ Assumptions: Autopsy of the 2012 ‘GOP Autopsy’, PJ Media (Nov. 9, 2016), https://pjmedia.com/jchristianadams/2016/11/09/trump-destroys-elite-assumptions-autopsy-ofthe-gop-autopsy/3/. On December 7, 2017, Mr. Adams stated, “we hear a lot about foreign influence. Well, I can tell you the greatest foreign influence in our elections are aliens who are getting on the rolls and aliens who are voting,” and reportedly urged states to enact citizenship verification requirements when people register to vote, Sam Levine, 3 Members of Trump Panel Warn of Voter Fraud to Influential Conservative Group, Huffington Post (Dec. 7, 2017), https://www.huffingtonpost.com/entry/trump-voter-fraud-commission-alec_us_ 5a29bfbde4b069ec48abff48 [hereinafter Levine, 3 Members], mirroring Vice Chair Kobach’s proposed amendment to the NVRA.
73. Commissioners von Spakovsky, Adams, and Blackwell are all members of the policy board of the American Civil Rights Union (“ACRU”), a group that has advocated for aggressive purges of registered voters from the rolls. Commissioners von Spakovsky and Adams are both members of the Board of Directors of PILF. In a recent decision, the United States Court of Appeals for the Third Circuit rejected an attempt by ACRU, represented by PILF, to force the City of Philadelphia to engage in more aggressive purges of its voter rolls, stating that ACRU’s arguments were “exactly the kind of statutory contortion that led the District Court to respond to the ACRU’s arguments by threatening to impose sanctions for blatant misrepresentation of the [NVRA],” Am. Civil Rights Union v. Phila. City Comm’rs, 872 F.3d 175, 184 (3d Cir. 2017), and that “[i]t is the ACRU’s interpretation of the NVRA, not the Commissioners’, that most threatens the goals of the statute and the integrity of the vote,” id. at 187.
24

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 25 of 59
74. Judge King is a Judge of Probate for the probate court of Jefferson County, Alabama, and in that role, chief election official for the county. Like Commission members Rhodes and Dunn, Judge King was recommended for appointment by his state’s Republican Secretary of State. See Leada Gore, Trump Appoints Alabama Probate Judge, a Democrat, to Controversial Election Commission, AL.com (July 11, 2017), http://www.al.com/news/index.ssf/ 2017/07/alabama_probate_judge_named_to.html.
C. Offices and Logistics of the Pence-Kobach Commission 75. The office location and address of the Pence-Kobach Commission has not been
made public. 76. The Pence-Kobach Commission’s DFO Andrew Kossack is an Associate Counsel
in the Office of the Vice President, which is an office within the Executive Office of the President. The offices of the Office of the Vice President are primarily located within the Eisenhower Executive Office Building (“EEOB”).
77. The EEOB is not generally open to members of the public. In order to enter the EEOB, a visitor must have a set meeting with a particular person in the building, who must enter the full name, Social Security Number, date of birth, citizenship status, country of birth, gender, and city and state of residence of each visitor into the White House Worker and Visitor Entry System (“WAVES”), maintained by the United States Secret Service, for review and approval prior to entry.
78. The Pence-Kobach Commission’s Committee Management Officer is an employee of the GSA.
79. The names of the staff of the Pence-Kobach Commission have not been made public. The Commission was reported to be staffed by employees of the Executive Office of the
25

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 26 of 59
President. See Dave Boyer, Voter Fraud and Suppression Commission to Meet in July, Wash. Times (June 27, 2017), http://www.washingtontimes.com/news/2017/jun/27/voter-fraud-andsuppression-commission-to-meet-in-/ [hereinafter Boyer, Voter Fraud and Suppression]. The Charter of the Pence-Kobach Commission indicates that it is staffed by the GSA. Charter ¶ 6.
80. On July 1, 2017, a reporter for ProPublica requested for, the fifth time, a full list of staff working for the Commission. On information and belief, she has still not received a response.
81. The Charter of the Pence-Kobach Commission indicated that there would be three full-time equivalent employees working for the Commission throughout its duration. Charter ¶ 7. Vice Chair Kobach stated that the Commission’s staff would be “substantial,” indicating that the Commission had full-time staff and people “detailed to work for the commission from other agencies.” Sam Levine, Watchdog Groups Sure for Documents on Trump Voter Fraud Probe, Huffington Post (Aug. 22, 2017), http://www.huffingtonpost.com/entry/trump-voterfraudprobe_us_599c4ae9e4b04c532f448f59.
82. On October 13, 2017, a researcher for the Pence-Kobach Commission was arrested on child pornography charges after such materials were found on his cell phone. John Wagner, Trump Voter Fraud Commission Researcher Arrested on Child Pornography Charges, Wash. Post. (Oct. 14, 2017), https://www.washingtonpost.com/news/postpolitics/wp/2017/10/14/trump-voter-fraud-commission-researcher-arrested-on-childpornography-charges/?utm_term=.6d88768a8bcb. Even the existence of this staffer was not known to the public or to certain Commissioners until reports of the arrest became public. See Letter from Matthew Dunlap, Commissioner and Maine Secretary of State, to Andrew Kossack,
26

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 27 of 59
Designated Federal Officer, at 2 (Oct. 17, 2017), available at https://www.documentcloud.org/ documents/4111815-PACEI-10-17-17.html [hereinafter Dunlap Letter].
83. Pence-Kobach Commission DFO Kossack has stated under penalty of perjury that the Commission’s documents would be made available for public inspection within the GSA. Kossack Decl. ¶ 10, ECF No. 16-1. The location of the office has not been made public.
84. One of the Commission documents related to July 19, 2017 meeting, was labeled as “copyrighted material,” that would be “available for inspection by contacting gsa.cmo1@gsa.gov.” See Presidential Advisory Comm’n on Election Integrity Resources, https://www.whitehouse.gov/presidential-advisory-commission-election-integrity-resources (last visited Dec. 12, 2017).
85. The address gsa.cmo1@gsa.gov is the e-mail address for Ms. Wills, an employee of the GSA and the Pence-Kobach Commission’s CMO. III. Activities of the Pence-Kobach Commission
86. On June 28, 2017, Vice President Pence, as Chair of the Pence-Kobach Commission, held a telephonic meeting with the members of the Commission. See Press Release, Office of the Vice President, Readout of the Vice President’s Call with the Presidential Advisory Commission on Election Integrity (June 28, 2017), available at https://www.whitehouse.gov/the-press-office/2017/06/28/readout-vice-presidents-callpresidential-advisory-commission-election [hereinafter Pence Release].
87. The meeting lasted for ninety minutes. See John DiStaso, NH Primary Source: Gardner Says Trump Election Integrity Commission Call “Couldn’t Have Been Better”, WMUR 9 ABC (June 29, 2017), http://www.wmur.com/article/gardner-says-trump-election-integritycommission-call-couldnt-have-been-better/10237642.
27

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 28 of 59
88. This meeting of the Pence-Kobach Commission was not noticed in the Federal Register nor was it held open to the public. Upon information and belief, the agenda for the June 28 meeting was not made available for public inspection and copying, nor were any of the documents provided to the members in relation to the meeting. The meeting was therefore unlawful.
89. The June 28 meeting was not merely an administrative or preparatory meeting conducted solely to prepare for a future advisory committee meeting, to draft a position paper, or to discuss merely administrative matters.
90. During this unlawful telephonic meeting, Vice Chair Kobach told the members of the Commission that he was sending a letter “to the 50 states and District of Columbia on behalf of the Commission requesting publicly-available data from state voter rolls and feedback on how to improve election integrity.” Pence Release.
91. During this unlawful meeting, the members of the Pence-Kobach Commission deliberated substantive matters, including the unprecedented decision to aggregate the personal data of every registered voter in the United States for the purpose of identifying potential double registrants or other ineligible registrants. See Celeste Katz, Trump Election Integrity Commission Member: ‘We Should Have Predicted’ the Backlash, Mic (July 5, 2017), https://mic.com/articles/181510/trump-election-integrity-commission-member-we-should-havepredicted-the-backlash#.FJyGiAIZO.
92. The minutes and transcript of the June 28 meeting have not been made public. 93. On June 13, 2017, Vice Chair Kobach, along with DFO Kossack and other members of the Office of the Vice President, communicated with now-Commissioners von Spakovsky and Adams regarding the June 28, 2017 telephonic meeting, weeks before either
28

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 29 of 59
now-Commissioners von Spakovsky and Adams were appointed to the Pence-Kobach Commission. Vaughn Index, Entry 360, at 21, Lawyers’ Comm. for Civil Rights Under Law v. Presidential Advisory Comm’n on Election Integrity, No. 17-cv-1354 (D.D.C. Sept. 29, 2017), ECF No. 33-3.
94. Subsequent to the unlawful meeting, Commission member Secretary Dunlap reported that during the meeting, in regard to sending such letters to the states, he had advised the Commission, “to be careful how you go at this because election officials are very sensitive guardians of this information, so you want to make sure you’re asking for it, not demanding it, and that it really should only cover the information that is publicly available in your state.” Sam Levine, Trump Voter Fraud Commission Was Cautioned About Seeking Sensitive Voter Information, Huffington Post (July 5, 2017), http://www.huffingtonpost.com/entry/trump-voterfraud-commission_us_595d511fe4b02e9bdb0a073d [hereinafter Levine, Commission Was Cautioned].
95. At the unlawful meeting, the Commission reportedly deliberated and concluded that they did not need to review the language of the letters to the states because only Vice Chair Kobach would sign them. Levine, Commission Was Cautioned; see also Tal Kopan, PenceKobach Voting Commission Alarms States with Info Request, CNN (July 1, 2017), http://www.cnn.com/2017/06/30/politics/kris-kobach-voter-commission-rolls/index.html (citing statements from Commission member, Secretary Dunlap of Maine, and spokesperson for Vice President Pence, Marc Lotter).
96. Subsequent to the Commission’s determination that the Commissioners did not need to review Vice Chair Kobach’s letter, on June 28, 2017, Vice Chair Kobach sent a letter to the Secretary of State of each of the fifty states and to the District of Columbia requesting
29

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 30 of 59
submission via e-mail or FTP site by July 14, 2017, of voter roll data, including “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.” See, e.g., Letter from Kris Kobach to Elaine Marshall, North Carolina Secretary of State (June 28, 2017), https://assets.documentcloud.org/documents/3881856/Correspondence-PEIC-Letter-to-NorthCarolina.pdf; see also Pence Release; Brandon Carter, Trump Election Panel Asks All 50 States for Voter Roll Data, The Hill (June 29, 2017), http://thehill.com/homenews/ administration/340117-trump-election-integrity-commission-requests-years-of-voter-data-from.
97. Vice Chair Kobach communicated with now-Commissioners von Spakovsky and Adams regarding the letters to the states regarding data collection in multiple e-mails on June 21, 22, 23, 26, and 27, 2017, prior to the appointment of either von Spakovsky or Adams to the Commission and prior to discussing the letter with the actual members of the Commission during the June 28, 2017 telephonic meeting. Vaughn Index, Entry 367, at 21; id. Entry 373, at 22. Some of these communications occurred before the Pence-Kobach Commission charter was filed.
98. Commissioner Dunlap further stated that during the unlawful meeting, Vice Chair Kobach did not indicate that the letter to the states had already been drafted nor did Vice Chair Kobach indicate that now-Commissioners von Spakovsky and Adams had been involved in the plan to request data. Jessica Huseman, Who’s Really in Charge of the Voting Fraud
30

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 31 of 59

Commission?, ProPublica (Oct. 5, 2017), https://www.propublica.org/article/whos-really-in-

charge-of-the-voting-fraud-commission.

99. Vice Chair Kobach has further represented that he expects that “every

investigation” the Commission conducts will require voter roll data. He also contemplated

witnesses testifying about particular individuals’ voting history and the need “to confirm” such

voter history through the voter roll data. Kris W. Kobach, Why States Need to Assist the

Presidential Commission on Election Integrity, Breitbart (July 3, 2017),

http://www.breitbart.com/biggovernment/2017/07/03/kobach-why-states-need-to-assist-the-

presidential-commissionon-election-integrity/. On information and belief, Vice Chair Kobach

did not discuss such potential activities of the Pence-Kobach Commission with all of the other

Commissioners, nor suggest to them that the Commission would undertake investigations of

particular individuals when describing the request for voter roll data.

100. Such investigations of particular individuals are not “solely advisory,” as

permitted under FACA and provided for in the Executive Order permitting the establishment of

the Pence-Kobach Commission. Exec. Order 13,799, § 3; 5 U.S.C. app. 2 § 9(b).

101. Underscoring the need for public oversight, Vice Chair Kobach’s request was of

such public concern that officials in 48 states had partially or fully refused to comply with the

request, see Ari Berman, Suppression Plans are Backfiring Badly, The Nation (July 5, 2017),

https://www.thenation.com/article/the-trump-administrations-voter-suppression-plans-are-

backfiring-badly/, and individuals have sought to cancel their registration for fear of how the

Commission will handle personal data, see Corey Hutchins, In Colorado, ‘Confusion,’

‘Hysteria,’ and Voters Unregistering at Some Local Election Offices, Colo. Indep. (July 7,

2017),

http://www.coloradoindependent.com/166227/colorado-voting-trump-unregister-

31

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 32 of 59
confidential; Jesse Paul, No Evidence 5,000 Colorado Voters Who Unregistered Were Ineligible to Vote, Secretary of State Says, Denver Post (July 27, 2017), http://www.denverpost.com/ 2017/07/27/colorado-voters-deregistration-trump-administration/.
102. Cybersecurity experts have described the Commission’s plans to aggregate this data as a “gold mine” for hackers. Eric Geller & Corey Bennett, Trump Voter-Fraud Panel’s Data Request a Gold Mine for Hackers, Experts Warn, Politico (July 1, 2017), http://www.politico.com/story/2017/07/01/trump-voter-fraud-panel-hackers-240168. Michael Chertoff, the former Secretary of Homeland Security under President George W. Bush, has written an op-ed titled “Trump’s Voter Data Request Poses an Unnoticed Danger,” noting that “whatever the political, legal and constitutional issues raised by this data request, one issue has barely been part of the public discussion: national security.” Michael Chertoff, Trump’s Voter Data Request Poses an Unnoticed Danger, Wash. Post (July 5, 2017), https://www.washingtonpost.com/opinions/trumps-voter-data-request-poses-an-unnoticeddanger--to-national-security/2017/07/05/470efce0-60c9-11e7-8adc-fea80e32bf47_story.html? utm_term=.47ed19183852. In an amicus brief filed on behalf of the plaintiffs in Common Cause v. Presidential Advisory Commission on Election Integrity, former national security and technology officials, including James R Clapper, Jr., the former Director of National Intelligence, warned that “[a] large database aggregating [personal identifying information] of millions of American voters in one place, as the Commission has compiled and continues to compile, would constitute a treasure trove for malicious actors,” and that “the Commission’s maintenance of this database could enable malicious actors to inflict significant harms on the nation’s electoral process as well as on individual voters.” Br. of Former Nat’l Security & Technology Officials as Amici Curiae Supporting Pls.’ Mem. in Opp. to Defs.’ Mot. to Dismiss
32

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 33 of 59
at 3-4, Common Cause v. Presidential Advisory Comm’n on Election Integrity, No. 17-cv-1398 (RCL) (D.D.C. Dec. 5, 2017), ECF No. 38-1. Upon information and belief, security, privacy, and data protection issues were not meaningfully considered by the Commission in making the unprecedented decision to request personal voter data from the states.
103. Upon information and belief, none of the members of the Pence-Kobach Commission have expertise in cybersecurity, privacy, and/or data protection.
104. The Pence-Kobach Commission initially intended to use the Department of Defense’s Safe Access File Exchange (“SAFE”) system to collect and store voter data from the states. Kobach Decl. ¶ 5, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 17-cv-1320 (CKK) (D.D.C. July 5, 2017), ECF No. 8-1 (“First Kobach Decl.”). Just five days later, seemingly in response to the Department of Defense being added as a defendant in that matter, Vice Chair Kobach submitted a new declaration stating that the PenceKobach Commission no longer intended to use the SAFE system and instead would “repurpos[e]” an existing system within the White House to collect and store the voter data. Third Kobach Decl. ¶ 1, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 17-cv-1320 (CKK) (D.D.C. July 10, 2017), ECF No. 24-1. The only explanation provided to the court was that the change was made “[i]n order not to impact the ability of other customers to use the [SAFE] site.”
105. On July 5, 2017, the July 19, 2017 in-person meeting of the Pence-Kobach Commission was noticed in the Federal Register, 14 days prior to the scheduled meeting. The Presidential Commission on Election Integrity (PCEI); Upcoming Public Advisory Meeting, 82 Fed. Reg. 31063 (July 5, 2017) [hereinafter Meeting Notice].
33

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 34 of 59
106. The notice stated that the meeting would be held in the EEOB and would be available to the public only through an internet livestream. Meeting Notice, 82 Fed. Reg. 31063.
107. Notwithstanding the fact that the Commission had not yet had a lawful public meeting, its work had already begun. On July 5, 2017, Vice Chair Kobach publicly declared under penalty of perjury that “information [had been] provided to [him] in [his] official capacity as Vice Chair of the Commission.” First Kobach Decl. ¶ 2. Vice Chair Kobach did not identify what information contained in his declaration was provided to him in his capacity as Vice Chair, nor did he identify who provided the information, or in what form.
108. On July 6, 2017, Vice Chair Kobach communicated with Commissioner von Spakovsky and now-Commissioner Adams regarding the availability of data from the various states prior to now-Commissioner Adams’ appointment to the Commission and without including any other Commissioners, or on information and belief, without advising the other Commissioners regarding this communication or sharing its substance. Vaughn Index, Entry 418, at 24.
109. A spokesperson for Vice President Pence, Marc Lotter, stated, on July 5, 2017, that the Pence-Kobach Commission had already formulated plans for the voter data that it is collecting, explaining that the Commission intended to check the information contained in state voter rolls against data housed in various federal databases to identify supposedly ineligible registrants. That determination was made before any lawful meetings of the Pence-Kobach Commission had been held. Jessica Huseman, Election Experts See Flaws in Trump Voter Commission’s Plan to Smoke Out Fraud, ProPublica (July 6, 2017), https://www.propublica.org/ article/election-experts-see-flaws-trump-voter-commissions-plan-to-smoke-out-fraud [hereinafter Huseman, Election Experts]. Mr. Lotter would not specify which federal databases
34

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 35 of 59
the Commission intended to use, but public reports from June 27, 2017 indicated that the Commission intended to compare state voter roll data against the federal database of noncitizens, which would lead to numerous false positive matches. Id. (citing Boyer, Voter Fraud and Suppression).
110. Commission DFO Kossack has communicated with the Department of Justice and the Social Security Administration regarding data collection. See, e.g., Vaughn Index, Entries 747, 748, at 39.
111. Election administration experts have stated that running such a comparison is certain to lead to numerous false positives due to minor inaccuracies on the voter rolls, inconsistencies in data collection and formatting, and the reality of common names and birthdays. See Huseman, Election Experts; Maggie Koerth-Baker, Trump’s Voter Fraud Commission is Facing a Tough Data Challenge, FiveThirtyEight, July 7, 2017, https://fivethirtyeight.com/features/trumps-voter-fraud-commission-is-facing-a-tough-datachallenge/.
112. Indeed, Secretary Kobach currently operates an “Interstate Crosscheck” system, which he touted at the July 19 meeting of the Pence-Kobach Commission, which purports to compare voter registration files in multiple states to search for double voters. But a team of researchers from Stanford, Harvard, the University of Pennsylvania, and Microsoft concluded that, if Secretary Kobach’s Crosscheck system were used for voter list maintenance in one state (Iowa), 99.5% of the purported matches would be false positives, such that “200 legitimate voters may be impeded from voting for every double vote stopped.” See Sharad Goel et al., One Person, One Vote: Estimating the Prevalence of Double Voting in U.S. Presidential Elections, (Oct. 24, 2017), https://5harad.com/papers/1p1v.pdf. Upon information and belief, these issues
35

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 36 of 59
were not considered by the Commission. Without the requisite transparency about the Commission’s activities in this area, among others, there is no way for the public have meaningful oversight and assess the Commission’s recommendations.
113. On December 7, 2017, Commissioner von Spakovsky also touted the Kobach Crosscheck system, and urged states to compare their voter rolls against federal databases to identify non-citizens. Levine, 3 Members.
114. Underscoring the information security concerns that accompany aggregating voter information at the national level, documents released through state freedom of information law requests revealed multiple security weaknesses in Vice Chair Kobach’s Crosscheck system. Crosscheck’s files are hosted on an insecure server, “usernames and passwords were regularly shared by email, making them vulnerable to snooping,” and the passwords were too simplistic and not changed regularly. See Jessica Huseman & Derek Willis, The Voter Fraud Commission Wants Your—but Experts Say They Can’t Keep It Safe,” ProPublica (Oct. 23, 2017), https://www.propublica.org/article/crosscheck-the-voter-fraud-commission-wants-your-datakeep-it-safe; see also Interstate Crosscheck FOIA Documents, Indivisible Chicago, https://www.indivisiblechicago.com/crosscheck-documents (last visited Dec. 11, 2017) (housing underlying documents obtained via state freedom of information law).
115. On July 5, 2017, Plaintiffs requested that the Pence-Kobach Commission produce or make available for public inspection and copying all materials “which were made available to or prepared for or by” the Commission. Plaintiffs requested a reply to their letter by July 14, 2017. As of the date of this Amended Complaint, Plaintiffs still have not received a response to their letter.
36

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 37 of 59
116. On July 13, 2017, the Pence-Kobach Commission hastily posted a Commission webpage on the White House “Blog.” The White House, Presidential Advisory Commission on Election Integrity, The White House Blog (July 13, 2017 10:15 AM) https://www.whitehouse.gov/blog/2017/07/13/presidential-advisory-commission-electionintegrity.
117. On July 19, 2017, the Pence-Kobach Commission held an in-person meeting. The public was barred from attending this meeting in-person and was only allowed to view the meeting via livestream, which was subject to technical difficulties throughout, thus effectively closing portions of the meeting. Vice Chair Kobach posted a message on his Facebook page acknowledging the disruption of the livestream. See Mem. in Supp. of Pl.’s Mot. for a Status Conf. et al. at 9-10, Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory Comm’n on Election Integrity, No. 17-cv-1354-CKK (D.D.C. July 21, 2017), ECF No. 21-1.
118. During the July 19, 2017 meeting, the Commission adopted Bylaws that, among other things, provided “The Designated Federal Officer (“DFO”) will be a full-time officer or employee of the Federal Government appointed by the GSA Administrator, pursuant to 41 CFR § 102-3.105 and in consultation with the Chair of the Commission.” Bylaws § III(D), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/pacei-bylaws_final.PDF.
119. On July 26, 2017, Vice Chair Kobach again sent letters to each of the states and the District of Columbia, this time seeking “publicly available voter registration records.” See, e.g., Letter from Kris Kobach to Hon. John Merrill, Ala. Sec’y of State (July 26, 2017), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/letter-vice-chair-kris-kobach07262017.pdf. In this letter, Vice Chair Kobach stated that “[t]he only information that will be
37

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 38 of 59
made public are statistical conclusions drawn from the data, other general observations that may be drawn from the data, and any correspondence that you may send to the Commission.” Id.
120. This second request for voter data was not discussed at the July 19, 2017 meeting of the Pence-Kobach Commission nor in discussions among the Commissioners thereafter. Regarding this request, Commissioner Dunlap stated, “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.” Press Release, Me. Sec’y of State, Secretary Dunlap Reviewing Elections Commission’s Second Request for Voter Data (July 27, 2017), http://www.maine.gov/sos/news/2017/electioncommission2.html.
121. Commissioner Lawson also acknowledged that she does not know how the Commission plans to use the data requested from the states. Tony Cook & 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-lawsoncould-check-trump-voterfraudcommission/442250001/.
122. The full scope of the Pence-Kobach Commission’s documents “made available to” or “provided for or by” the Commission were not publicly posted prior to the July 19 meeting. And many other documents “made available to” or “provided for or by” the Commission have still not been made available for public inspection.
123. Following the July 19, 2017 meeting, Commissioners Rhodes, Dunn, and Dunlap reported that they had not been receiving any information from the Commission other than the date of the September 12, 2017 meeting. Kira Lerner, Democrats on Trump’s Voting Commission Iced Out Since First Meeting, Think Progress (Aug. 22, 2017), https://thinkprogress.org/democrats-voting-commission-ceec3ea98a33/.
38

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 39 of 59
124. On August 25, 2017, the GSA published the notice announcing a September 12, 2017 meeting of the Pence-Kobach Commission. 82 Fed. Reg. 40,581, 40,582 (Aug. 25, 2017). The meeting notice stated that written comments “pertaining to a particular meeting should be submitted at least five (5) days prior to a specific meeting.” Id.
125. The Commission did not ensure that all documents “made available to” or “provided for or by” the Commission would be posted sufficiently in advance of this deadline for comments. Oral comments from the public were not permitted at the September 12, 2017 meeting.
126. Defendants continue to disclaim that the Pence-Kobach Commission is subject to FACA. Mem. in Opp. to Pl.’s Emergency Mot. for a TRO at 12, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 17-cv-1320 (CKK) (D.D.C. July 5, 2017), ECF No. 8; see also Kossack Decl. ¶ 2, ECF No. 16-1 (“The Commission is voluntarily complying with the provisions of [FACA].”) (emphasis added).
127. On September 7, 2017, Vice Chair Kobach published a column on the alt-right “news” site, Breitbart, claiming that “facts” demonstrated that illegal votes determined the 2016 New Hampshire Senate election and “perhaps” the state’s four electoral votes. Kris W. Kobach, Exclusive – Kobach: It Appears That Out-of-State Voters Changed the Outcome of the New Hampshire U.S. Senate Race, Breitbart (Sept. 7, 2017), http://www.breitbart.com/biggovernment/2017/09/07/exclusive-kobach-out-of-state-voters-changed-outcome-new-hampshiresenate-race/. The article misstated the law of New Hampshire to conclude that the votes were cast illegally. The article appears on the Pence-Kobach Commission’s website. Presidential Advisory Comm’n on Election Integrity Resources, https://www.whitehouse.gov/sites/
39

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 40 of 59
whitehouse.gov/files/docs/Kobach-It-Appears-Out-of-State-Voters-Changed-Outcome.pdf (last visited Dec. 11, 2017).
128. On September 12, 2017, during the meeting of the Pence-Kobach Commission, Commissioner Gardner, the Secretary of State of New Hampshire, confirmed that the votes referenced by Vice Chair Kobach were valid. During this meeting, Vice Chair Kobach still touted this information as proof of illegal votes, though later admitted that his claims in the Breitbart article “may have been imprecise.” Ben Kamisar, Kobach Defends Controversial Breitbart Column on NH Voter Fraud, The Hill (Sept. 12, 2017), http://thehill.com/homenews/ administration/350270-kobach-defends-controversial-breitbart-column-on-nh-voter-fraud.
129. On September 14, 2017, a member of the public e-mailed Vice Chair Kobach, and the ACRU Policy Board Commissioners, von Spakovsky, Blackwell, and Adams, regarding Vice Chair Kobach’s unfounded claim of illegal votes in New Hampshire. On information and belief, this information was not shared with the other Commissioners. Vaughn Index, Entry 496, at 28.
130. At the September 12, 2017 meeting of the Pence-Kobach Commission, Commissioner von Spakovsky served as both a member of the Commission and a panelist presenting to the Commission. Agenda, Second [sic] Meeting of the Presidential Advisory Commission on Election Integrity, Sept. 12, 2017, available at https://www.whitehouse.gov/ sites/whitehouse.gov/files/docs/pacei-updated-meeting-agenda-09122017.pdf.
131. At the same time, other Commissioners had no input regarding the topics the meeting would address or who would be invited to present. See Complaint ¶ 51, Dunlap v. Presidential Advisory Comm’n on Election Integrity, 17-cv-2361 (D.D.C. Nov. 9, 2017), ECF No. 1.
40

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 41 of 59
132. Commissioner King was not present at the September 12, 2017 meeting because
of a scheduling conflict. He had told the Commission that the date did not work for his schedule
prior to the date of the meeting being set. Deborah Barfield Berry, Trump’s Voter Fraud
Commission Appears to Have Gone Dark, USA Today (Nov. 3, 2017),
https://www.usatoday.com/story/news/politics/2017/11/03/trump-voter-fraud-election-
commission-appears-have-gone-dark/827628001/.
133. The minutes and transcript of the September 12, 2017 meeting have not been
made public.
134. Also on September 12, 2017, documents released by the Department of Justice in
response to a FOIA request showed that on February 22, 2017, someone from the Institute for
Constitutional Government at The Heritage Foundation, where Commissioner von Spakovsky is
a senior fellow, wrote to the DOJ regarding the yet unestablished Commission, saying that an
individual whose name was redacted
got a very disturbing phone call about the voter fraud commission that Vice President Pence is heading. We are told that the members of this commission are to be named on Tuesday. We’re also hearing that they are going to make this bipartisan and include Democrats. There isn’t a single Democratic official that will do anything other than obstruct any investigation of voter fraud and issue constant public announcements criticizing the commission and what it is doing, making claims that it is engaged in voter suppression. That decision alone shows how little the WHouse understands about this issue.
There are only a handful of real experts on the conservative side on this issue and not a single one of them . . . have been called other than Kris Kobach, Secretary of State of Kansas. And we are told that some consider him too “controversial” to be on the commission If they are picking mainstream Republican officials and/or academics to man this commission it will be an abject failure because there aren’t any that know anything about this or who have paid any attention to this issue over the years.
[Redacted] are concerned that this commission is being organized in a way that will guarantee failure. We are astonished that no one in the WH has even bothered to consult with [redacted] despite the fact that the three of us have written more
41

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 42 of 59
on the voter fraud issue than anyone in the country on our side of the political aisle. I think you know from the white paper we sent you that based on our experience we have thought long and hard about what needs to be done. Letter: Response to FOIA Request on Voter Fraud, Campaign Legal Center (Sept. 12, 2017), http://www.campaignlegalcenter.org/document/letter-response-foia-request-voter-fraud. 135. Commissioner von Spakovsky denied sending this e-mail. ProPublica, Von Spakovsky, https://soundcloud.com/propublica/von-spakovsky (last visited Dec. 11, 2017). 136. Shortly thereafter, a spokesperson for the Heritage Foundation confirmed that Commissioner von Spakovsky had indeed sent the e-mail. Dell Cameron, Jeff Sessions Was Lobbied to Exclude Democrats from Trump’s Election Fraud Panel [Updated], Gizmodo (Sept. 12, 2017), https://gizmodo.com/jeff-sessions-was-lobbied-to-exclude-democrats-from-tru1804006784. 137. On information and belief, the “white paper” referenced in the e-mail and the related communications have not been made available to the public as part of the Pence-Kobach Commission’s documents. 138. Following the September 12, 2017 meeting, multiple Commissioners have indicated that they have been kept in the dark about the activities of the Pence-Kobach Commission. 139. Commissioner King has reportedly stated that the Commission should disclose its activities and future plans or else disband. Based on his experience with the Commission thus far, he said, “It wouldn’t surprise me if this whole commission was set up and they had an end result in mind when this commission was first originated.” Sam Levine, Trump Voter Fraud Commissioner Says Panel Should be More Transparent or Disband, Huffington Post (Oct. 24,
42

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 43 of 59

2017),

https://www.huffingtonpost.com/entry/trump-voter-fraud-probe-alan-king_us_

59ef8424e4b0b7e632655fb5.

140. Commissioner Dunlap also affirmed that he had no communication with the

Commission since the September 12, 2017 meeting. Id.

141. Commissioner Dunlap described the Pence-Kobach Commission as having a

“clear” imbalance of power, saying, “Von Spakovsky has a profound influence on this

commission. . . . I never expected to be at the head of the table, but I’m not even sure I’m sitting

at the table[,]” and questioned whether the work of the Commission was being led by Vice

President Pence or by Commissioner von Spakovsky “working in the shadows.” Jessica

Huseman, Who’s Really in Charge of the Voting Fraud Commission, Pro Publica (Oct. 5, 2017),

https://www.propublica.org/article/whos-really-in-charge-of-the-voting-fraud-commission.

142. On October 17, 2017, Commissioner Dunlap wrote a letter to DFO Kossack

stating that it was “clear that there is information about this commission being created and shared

among a number of parties, though apparently not universally,” and requesting that all of the

Commission’s materials be shared with him in his role as a Commissioner. Dunlap Letter at 1.

He wrote that he had “received utterly no information or updates from Commission staff or

leadership about ongoing active research, inquiries for research requests, documents for

consideration during future meetings, or indeed any information about whether or not the Chair

has plans for convening another meeting. Id.

143. In response, DFO Kossack stated that he was “consulting with counsel regarding

a response to [Dunlap’s] request to ensure any response accords with all applicable law.”

Dunlap Decl. ¶ 13; Ex. 4, Dunlap v. Presidential Advisory Comm’n on Election Integrity, 17-cv-

2361 (D.D.C. Nov. 16, 2017), ECF Nos. 7-1; 7-5.

43

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 44 of 59
144. Vice Chair Kobach responded to Commissioner Dunlap’s letter in the press saying, “I’m not aware of any information or discussions or exchange of materials from commission members that would exclude” Commissioner Dunlap. Ellis Kim, What’s Become of Trump’s Voter Fraud Commission? Even Some of Its Members Aren’t Sure, PBS News Hour (Oct. 24, 2017), https://www.pbs.org/newshour/politics/whats-become-of-trumps-voter-fraudcommission-even-some-of-its-members-arent-sure.
145. However, the index of documents filed in Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity shows multiple e-mails between Vice Chair Kobach and Commissioners von Spakovsky and Adams, even before either man had been appointed to the Commission, that were never shared with Commissioner Dunlap or others. See, e.g., Vaughn Index, Entries 357, 360, 361, 363, 367, 373, 379, 418, 496, at 21-28.
146. On October 19, 2017, the Minnesota Voters Alliance announced that it was invited to speak at a December 2017 meeting of the Pence-Kobach Commission. E-mail from Secretary and Commissioner Dunlap, to DFO Andrew Kossack, at 2 (Oct. 25, 2017), available at https://www.documentcloud.org/documents/4177963-Dunlap-Email-2.html (attaching e-mail from Minnesota Voters Alliance) [hereinafter Dunlap E-mail].
147. At least some Commissioners were unaware that there was a meeting planned for December and did not know who invited the Minnesota Voters Alliance or what the organization was expected to testify regarding. Dunlap E-mail at 1.
148. Only after several weeks and a desire to extend a court briefing deadline, did lawyers for the Pence-Kobach Commission assert that it was “unlikely” that there would be a meeting in December. Josh Gerstein, Judge: Trump Voter Fraud Commission on Ice Till Next Year, Politico (Nov. 20, 2017), https://www.politico.com/story/2017/11/20/trump-voter-fraud-
44

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 45 of 59
commission-judge-252132. On December 1, 2017, DFO Kossack affirmed that “there will be no meeting in December 2017.” Kossack Decl. ¶ 14, Dunlap v. Presidential Advisory Comm’n on Election Integrity, 17-cv-2361 (D.D.C. Nov. 9, 2017), ECF No. 30-3.
149. On November 9, 2017, after being blocked from the Pence-Kobach Commission’s internal communications and materials, Commissioner Dunlap sued the Pence-Kobach Commission and others in order to access the Commission’s information and in order to validate his rights of participation on the Commission. Compl., Dunlap v. Presidential Advisory Comm’n on Election Integrity, 17-cv-2361 (D.D.C. Nov. 9, 2017), ECF No. 1.
150. Following the filing of Commissioner Dunlap’s Complaint, Commissioner Adams tweeted, “Seems like @HvonSpakovsky was onto something:” and attaching a link to a news article regarding Commissioner Dunlap’s Complaint, J. Christian Adams (@ElectionLawCtr), Twitter (Nov. 9, 2017 10:58 AM), https://twitter.com/ElectionLawCtr/status/ 928652951614382080, an apparent reference to Commissioner von Spakovsky’s February 22, 2017 e-mail insisting that no Democrats or mainstream Republicans should be included on the Commission.
151. On November 20, 2017, Commissioners von Spakovsky and Adams doubled down on their attacks of Commissioner Dunlap and his request for information regarding the Pence-Kobach Commission’s activities, penning an op-ed accusing Commissioner Dunlap of “lying” in court filings. Hans von Spakovsky & J. Christian Adams, One Democrat on Trump’s Electoral Integrity Commission Is Misleading the Public with Complaints About Its Work, Wash. Examiner (Nov. 20, 2017), http://www.washingtonexaminer.com/one-democrat-on-trumpselectoral-integrity-commission-is-misleading-the-public-with-complaints-about-itswork/article/2641268.
45

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 46 of 59
CLAIMS FOR RELIEF 152. District courts have “jurisdiction under the APA to review final agency actions for which there is no other adequate remedy,” including failure to comply with FACA. Ctr. for Biological Diversity v. Tidwell, 239 F. Supp. 213, 221 (D.D.C. 2017). 153. District courts have the authority to review agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2). Federal courts also have non-statutory jurisdiction to review ultra vires actions, as an inherent power of the courts “‘to reestablish the limits on [executive] authority.’” Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1173 (D.C. Cir. 2003) (quoting Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988)). 154. Where statutory duties are violated, courts may also act pursuant to the Declaratory Judgment Act, including as an alternative or in addition to granting mandamus relief, Citizens for Responsibility & Ethics in Wash. v. Cheney, 593 F. Supp. 2d 194, 222 (D.D.C. 2009). 155. District courts are authorized to issue relief in the nature of mandamus compelling federal officials to perform ministerial or nondiscretionary duties. 28 U.S.C. § 1361. Ministerial or nondiscretionary duties are those “so plainly prescribed as to be free from doubt and equivalent to a positive command.” Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218 (1930). 156. All of the duties mandated by FACA are “equivalent to a positive command,” each using the word “shall” to lay out a mandatory duty. Judicial Watch, Inc. v. Nat’l Energy
46

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 47 of 59
Policy Dev. Grp., 219 F. Supp. 2d 20, 43 (D.D.C. 2002) (“by virtue of the use of the word shall, Congress has made [the duty] nondiscretionary”).
First Claim for Relief (Violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, as to Defendants Pence-Kobach Commission, Administrator Horne, CMO Wills, and GSA) 157. Defendants have violated the APA by failing to comply with the open meeting provision of § 10(a) of FACA with respect to both the June 28 telephonic meeting and the July 19 in-person meeting. 158. Defendants have violated the APA by failing to make all documents “made available to” or “provided for or by” the Commission available for public inspection in violation of § 10(b) of FACA. 159. Defendants have violated the APA by failing to keep minutes of the June 28 and September 12 meetings of the Pence-Kobach Commission, in violation of § 10(c) of FACA , and by failing to make the minutes available for public inspection in violation of § 10(b) of FACA. 160. Defendants have violated the APA by failing to make transcripts of each of the meetings of the Pence-Kobach Commission, in violation of § 11 of FACA. 161. Defendants have violated the APA by taking action prior to the filing of the Pence-Kobach Commission Charter, in violation of § 9(c) of FACA. 162. Despite benefiting from the “political legitimacy” that comes with invoking an official advisory committee, Cummock v. Gore, 180 F.3d 282, 292 (D.C. Cir. 1999), Defendants have violated the APA by failing to make provisions to “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee” and to “assure that the advice and recommendations of
47

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 48 of 59
the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest,” in violation of § 5(b)(2)-(3) of FACA.
163. Each of these failures to comply with FACA’s requirements constitutes final agency action under the APA. 5 U.S.C. § 706.
Second Claim for Relief (Violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, as to Defendants Pence-Kobach Commission, Administrator Horne, CMO Wills, and GSA) 164. The Pence-Kobach Commission and those who carry out the activities of the Commission cannot act arbitrarily and capriciously and “are required to engage in reasoned decision making.” Michigan v. E.P.A., 135 S. Ct. 2699, 2706 (2015) (internal quotation marks omitted). 165. In making its unprecedented decision to aggregate the personal data of every registered voter in the United States for the purpose of identifying potential double registration and other ineligible registrants, Defendants failed to engage in reasoned decision making by failing to consider all the relevant factors and relying on improper considerations. 166. In addition, the Pence-Kobach Commission and those who carry out the activities of the Commission can only take action which is authorized under the Executive Order establishing the Commission and defined in the Commission’s Charter. 167. Defendants’ actions in undertaking an investigation of particular voters are in excess of the Pence-Kobach Commission’s legal authority. 168. Defendants’ operation of the Pence-Kobach Commission in a way that does not comply with each of the mandates of FACA is action in excess of legal authority. 169. In gathering information, including information regarding activity that is protected by the First Amendment, in order to investigate particular voters, and in failing to
48

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 49 of 59
comply with FACA, Defendants have acted in excess of statutory jurisdiction and authority and not in accordance with law, in violation of 5 U.S.C. § 706(2).
Third Claim for Relief (Non-Statutory Ultra Vires Claim) 170. The Pence-Kobach Commission was established as a “solely advisory” entity to “study the registration and voting processes used in Federal elections” and “submit a report to the President” on related “laws, rules, policies, activities, strategies, and practices.” Exec. Order No. 13,799, § 3. 171. Defendants’ actions in undertaking an investigation of particular voters are in excess of the Pence-Kobach Commission’s legal authority. 172. Defendants’ actions in collecting individual data about American voters without taking sufficient action to guard against privacy and security risks is in excess of the PenceKobach Commission’s legal authority. 173. As Defendants are acting without legal authorization, their actions are ultra vires.
Fourth Claim for Relief (For Declaratory Judgment, as provided for by 28 U.S.C. § 2201-02, that Defendants Are in Violation of FACA, 5 U.S.C. §§ 5, 9, 10, and 11) 174. All meetings of the Pence-Kobach Commission, including those conducted through an electronic medium, must be open to the public; by conducting a telephonic meeting on June 28, 2017, without public access, Defendants have violated § 10(a)(1), (3) of FACA. 175. All meetings of the Pence-Kobach Commission must be noticed in advance in the Federal Register; by conducting a telephonic meeting on June 28, 2017, without public access, Defendants have violated § 10(a)(2) of FACA. 176. By failing to create “[d]etailed minutes” of the June 28, 2017 and September 12, 2017 meetings of the Pence-Kobach Commission, Defendants have violated § 10(c) of FACA.
49

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 50 of 59
177. By failing to make available all “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the Pence-Kobach Commission—including those documents related to the June 28, 2017 telephonic meeting, related to the July 19, 2017 and September 12, 2017 meetings, made available to Vice Chair Kobach in his “official capacity as Vice-Chair of the Commission,” and all other Commission documents—to the public for “inspection and copying at a single location” within the office of the Commission, including by failing to make public the location of the office of the Pence-Kobach Commission and the methods by which the public can access the Commission’s documents, Defendants violate § 10(b) of FACA. To the extent the Commission office is contained within the Office of the Vice President, Defendants further violate § 10(b) of FACA by keeping the documents in an office largely closed to public access. To the extent the Commission office is contained in the GSA, as represented by the Designated Federal Officer, Defendants have still failed to make public the particular location of the office and methods by which the public can access the Commission’s documents.
178. By not permitting the public to physically access the July 19 meeting of the Pence-Kobach Commission, ensuring this is the case by holding the July 19 meeting of the Pence-Kobach Commission in a building that is closed to the public without advanced screening and notice of individual attendance, and by providing interrupted livestream access to the July 19 meeting, Defendants have violated § 10(a)(1) of FACA.
179. By appointing commissioners who have already publicly supported President Trump’s conclusion regarding purported illegal voting, demonstrating the Pence-Kobach Commission membership is predisposed to a particular conclusion without yet having done the work to study the issues as contemplated in the Executive Order, and purportedly balancing them
50

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 51 of 59
with members having little or no experience or knowledge about the subject matter, and who have never held similarly high political offices, President Trump has not “require[d] the membership of the advisory committee . . . be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” in violation of § 5(b)(2).
180. By failing to make any “appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment,” President Trump and the Pence Kobach Commission have violated § 5(b)(3) of FACA.
181. By undertaking substantive action, including devising the collection of voter data prior to the filing of the Pence-Kobach Commission charter, Defendants have violated § 9(c) of FACA.
182. By failing to make transcripts of each meeting of the Pence-Kobach Commission, including the June 28, July 19, and September 12 meetings, Defendants have violated § 11 of FACA.
183. Plaintiffs are entitled to a declaration under 28 U.S.C. § 2201 that the foregoing conduct violates FACA.
Fifth Claim for Relief (For Relief in the Nature of Mandamus, as provided for by 28 U.S.C. § 1361, Compelling Defendants Vice President Pence, the Pence-Kobach Commission,
Administrator Horne, CMO Wills, and the GSA to Comply with their Non-Discretionary Duties of Section 10 of FACA, 5 U.S.C. app. 2 § 10)
184. By holding a telephonic meeting of the Pence-Kobach Commission, without providing advance notice in the Federal Register, and by not holding the meeting open to the
51

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 52 of 59
public or providing an option for public comment, Defendants have failed to carry out the nondiscretionary openness requirements of § 10(a)(1)-(3) of FACA.
185. By failing to create “[d]etailed minutes” of the June 28, 2017 and September 12, 2017 meetings of the Pence-Kobach Commission, Defendants have failed to carry out the nondiscretionary openness requirements of § 10(c) of FACA.
186. By failing to make available all “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the Pence-Kobach Commission for the June 28, 2017, July 19, 2017, and September 12, 2017 meetings to the public for “inspection and copying at a single location” within the office of the Commission, including by failing to make public the location of the office of the Pence-Kobach Commission and the methods by which the public can access the Commission’s documents, Defendants have failed to carry out the non-discretionary openness requirements of § 10(b) of FACA. To the extent the Commission office is contained within the Office of the Vice President, Defendants further violate § 10(b) of FACA by keeping the documents in an office largely closed to public access. To the extent the Commission office is contained in the GSA, as represented by the Designated Federal Officer, Defendants have still failed to make public the particular location of the office and methods by which the public can access the Commission’s documents.
187. By failing to provide a transcript of the June 28, 2017 telephonic meeting, and the July 19, 2017 and September 12, 2017 meetings of the Pence-Kobach Commission at the cost of duplication, Defendants have failed to carry out the non-discretionary requirements of § 11(a) of FACA.
52

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 53 of 59
188. By failing to make available all “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the Pence-Kobach Commission since its inception, to the public for “inspection and copying at a single location” within the office of the Commission, including by failing to make public the location of the office of the Pence-Kobach Commission, and to the extent the Commission office is contained within the Office of the Vice President, by keeping the documents in an office largely closed to public access, Defendants have failed to carry out the non-discretionary openness requirements of § 10(b) of FACA.
189. By failing to make available the agenda and all documents made available to and/or prepared for or by the Pence-Kobach Commission members in advance of the July 19, 2017 and September 12, 2017 meetings to the public for inspection and copying, including by failing to make public the location of the office of the Pence-Kobach Commission and the methods by which the public can access the Commission’s documents, Defendants have failed to carry out the non-discretionary openness requirements of § 10(b) of FACA. To the extent the Commission office is contained within the Office of the Vice President, Defendants further violate § 10(b) of FACA by keeping the documents in an office largely closed to public access. To the extent the Commission office is contained in the GSA, as represented by the Designated Federal Officer, Defendants have still failed to make public the particular location of the office and methods by which the public can access the Commission’s documents.
190. By failing to make available all documents provided to Secretary Kobach in his “official capacity as Vice-Chair of the Commission,” see Kobach Declaration ¶ 2, to the public for “inspection and copying at a single location” within the office of the Commission,
53

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 54 of 59
Defendants have failed to carry out the non-discretionary openness requirements of § 10(b) of FACA.
191. By holding the July 19 meeting of the Pence-Kobach Commission in a building that is closed to the public without advanced screening, by not permitting the public to physically access the July 19 meeting of the Pence-Kobach Commission and by providing remote access that was inaccessible due to technical difficulties, Defendants have failed to carry out the nondiscretionary open meeting requirement of § 10(a)(1) of FACA.
Sixth Claim for Relief (For Relief in the Nature of Mandamus, as provided for by 28 U.S.C. § 1361,
Compelling Defendants to Comply with their Non-Discretionary Duties of Section 5 of FACA, 5 U.S.C. app. 2 § 5)
192. In stacking the Commission with individuals who have already publicly supported President Trump’s false statements regarding purported illegal voting, demonstrating the PenceKobach Commission membership is predisposed to a particular conclusion without yet having done the work to study the issues as contemplated in the Executive Order, and purportedly balancing them with members with little or no experience, President Trump has not “require[d] the membership of the advisory committee . . . be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” which is a nondiscretionary duty under FACA. 5 U.S.C. app. 2 § 5(b)(2).
193. In appointing Secretary of State Kobach, who publicly affirmed President Trump’s claims of voter fraud without evidence, as co-chair of the Commission, President Trump has not made “appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest” which is a non-discretionary duty under FACA. 5 U.S.C. app. 2 § 5(b)(3).
54

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 55 of 59
194. In appointing members von Spakovsky, Adams, Blackwell, Gardner, and McCormick, President Trump has not made “appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest,” which is a non-discretionary duty under FACA. 5 U.S.C. app. 2 § 5(b)(3). Commissioners von Spakovsky, Adams, and Blackwell have each publicly affirmed the existence of massive numbers of “illegal votes,” in line with the narrative of President Trump in the creation of the Pence-Kobach Commission. Commissioner Gardner has likewise made unfounded claims about illegal voting, and Commissioner McCormick has supported policies and practices that have disenfranchised voters.
195. By failing to make provisions to “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” and “to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or any special interest,” 5 U.S.C. app. 2 § 5(b)(2)-(3), Defendants have violated a non-discretionary duty under FACA.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: (1) Issue injunctive relief ordering Defendants
a. to make all records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by the Pence-Kobach Commission open for public inspection;
b. to hold all meetings of the Commission, including meetings conducted by telephone or other electronic medium, open to the public;
55

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 56 of 59
c. to cease all activities that have no reasoned basis and/or are not provided for in the Executive Order establishing the parameters under which the Pence-Kobach Commission can operate, including ceasing all activity aimed at investigating particular voters;
d. to make provisions to “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” and “to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or any special interest”; and
e. to cease all action by the Commission until it is properly constituted. (2) Grant relief in the nature of mandamus compelling Defendants to perform all
nondiscretionary duties required by FACA, including: a. holding all meetings of the Commission, including meetings conducted by
telephone or other electronic medium, open to the public. 5 U.S.C. app. 2 § 10(a)(1); b. publishing timely notice in the Federal Register of every meeting of the PenceKobach Commission. 5 U.S.C. app. 2 § 10(a)(2); c. keeping “[d]etailed minutes” of each meeting. 5 U.S.C. app. 2 § 10(c); d. requiring that “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by [the Pence-Kobach Commission] shall be available for public inspection and copying.” 5 U.S.C. app. 2 § 10(b);
56

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 57 of 59
e. requiring that Defendants “make available to any person, at actual cost of duplication, copies of transcripts” of each meeting and proceeding. 5 U.S.C. app. 2 § 11(a);
f. requiring “the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.” 5 U.S.C. app. 2 § 5(b)(2);
g. requiring that Defendants make “appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.” 5 U.S.C. app. 2 § 5(b)(3).
(3) Declare that the Defendants have violated §§ 5, 9, 10, 11 of FACA, including: a. that Defendants violated § 10(a)(1), (3) of FACA by holding the June 28, 2017 meeting of the Pence-Kobach Commission; b. that Defendants violated § 10(a)(2) of FACA by holding the June 28, 2017 meeting of the Pence-Kobach Commission without first publishing advance notice in the Federal Register; c. that Defendants violated § 10(c) of FACA by failing to create “detailed minutes” of the June 28, 2017 and September 12, 2017 meetings of the Pence-Kobach Commission; d. that Defendants violate § 10(b) of FACA by failing to make available all the Pence-Kobach Commission documents—including those documents related to the June 28, 2017 telephonic meeting, related to the July 19, 2017 and September 12,
57

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 58 of 59
2017 in-person meetings, made available to Vice Chair Kobach in his “official capacity as Vice-Chair of the Commission,” and all other Commission documents—to the public for “inspection and copying at a single location” within the office of the Commission, including by failing to make public the location of the office of the Pence-Kobach Commission and the methods by which the public can access the Commission’s documents, including, to the extent the Commission office is contained within the Office of the Vice President, by keeping the documents in an office largely closed to public access, and, to the extent the Commission office is contained in the GSA, by failing to make public the particular location of the office and methods by which the public can access the Commission’s documents; e. that Defendants violated § 10(a)(1) of FACA by not permitting the public to physically access the July 19 meeting of the Pence-Kobach Commission, and ensuring this is the case by holding the July 19 meeting of the Pence-Kobach Commission in a building that is closed to the public without advanced screening and notice of individual attendance, and by conducting a livestream which was not continuously available for public viewing; f. that Defendants have violated § 9(c) of FACA by taking action prior to the filing of the Pence-Kobach Commission Charter. g. that Defendants have violated § 5(b)(2) of FACA by failing to “require the membership of the advisory committee . . . be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee;” and
58

Case 1:17-cv-01351-CKK Document 30 Filed 01/03/18 Page 59 of 59
h. that Defendants have violated § 5(b)(3) of FACA by not making any provision “to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgment.
(4) Grant any other relief that the Court may deem just and proper.
Respectfully submitted,
/s/ Dale E. Ho Dale E. Ho (D.C. Bar No. NY0142) Theresa J. Lee** Sophia Lin Lakin** American Civil Liberties Union Foundation, Inc. 125 Broad Street, 18th Floor New York, NY 10004 Tel.: 212.549.2686 dho@aclu.org tlee@aclu.org slakin@aclu.org **pro hac vice Arthur B. Spitzer (D.C. Bar No. 235960) American Civil Liberties Union Foundation
of the District of Columbia 915 15th Street, NW, 2nd Floor Washington, DC 20005 Tel.: 202-457-0800 aspitzer@acludc.org
Dated: December 12, 2017
59