Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 1 of 24
CLOSED,JG,MEDIATION,REF_PTN
U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:17−cv−22568−MGC

Joyner et al v. Presidential Advisory Commission on Election Integrity et al Assigned to: Judge Marcia G. Cooke Referred to: Magistrate Judge Jonathan Goodman Cause: 05:0552 Right to Privacy Act
Plaintiff

Date Filed: 07/10/2017 Date Terminated: 05/30/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Arthenia L. Joyner

represented by Adam Michael Schachter Gelber Schachter & Greenberg, P.A. 1221 Brickell Ave. Suite 2010 Miami, FL 33131 (305) 728−0950 Email: aschachter@gsgpa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J Poterek The Burton Firm 2999 NE 191st Street Suite 805 Aventura, FL 33180 305−705−0888 Fax: 305−705−0008 Email: dpoterek@theburtonfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Freddy Funes Gelber Schachter & Greenberg, P.A. 1221 Brickell Avenue Suite 2010 Miami, FL 33131 305−728−0958 Fax: 305−728−0951 Email: ffunes@gsgpa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gerald Edward Greenberg Gelber Schachter & Greenberg, P.A. 1221 Brickell Avenue Suite 2010 Miami, FL 33131 305−728−0950 Fax: 305−728−0951 Email: ggreenberg@gsgpa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Kraft Pita Pita Weber Del Prado 9350 S Dixie Highway Suite 1200 Miami, FL 33156 305−670−2889 Fax: 305−670−6666 Email: spita@pwdlawfirm.com

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 2 of 24
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jarred Lee Reiling Gelber Schachter & Greenberg, P.A. 1221 Brickell Ave. Suite 2010 Miami, FL 33131 (305) 728−0950 Email: JReiling@gsgpa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason B. Blank Haber Blank, LLP 888 South Andrews Avenue Suite 201 Ft. Lauderdale, FL 33316 954−767−0300 Fax: 954−949−0510 Email: jblank@haberblank.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Scott Geller Greenspoon Marder, P.A. 100 W. Cypress Creek Road Suite 700 Fort Lauderdale, FL 33309 954−491−1120 Fax: 954−771−9264 Email: Joseph.Geller@gmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Scott Davis Larry S Davis PA 1926 Harrison Street Hollywood, FL 33020 954−927−4249 Fax: 927−1653 Email: larry@larrysdavislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc A Burton The Burton Firm 2875 N.E. 191st Street Suite 403 Aventura, FL 33180 (305)705−0888 Fax: (305) 705−0008 Email: mburton@theburtonfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael T. Davis Kuehne Davis Law, P.A. 100 S.E. 2nd Street, Suite 3550 Miami, FL 33131 3057895989 Email: mdavis@kuehnelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 3 of 24

Nancy Gbana Abudu American Civil Liberties Union of Florida 4500 Biscayne Blvd Suite 340 Miami, FL 33137 786−363−2700 Email: nabudu@aclufl.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shana Jill Korda Law Offices of Larry S. Davis 1926 Harrison Street Hollywood, FL 33020 954−927−4249 Fax: 954−927−1653 Email: shana@larrysdavislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benedict P. Kuehne Kuehne Davis Law, P.A. Miami Tower, Suite 3550 100 SE 2nd Street Miami, FL 33131−2154 305−789−5989 Fax: 305−789−5987 Email: ben.kuehne@kuehnelaw.com ATTORNEY TO BE NOTICED

Plaintiff Mike Suarez

represented by Adam Michael Schachter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J Poterek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Freddy Funes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gerald Edward Greenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Kraft Pita (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jarred Lee Reiling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason B. Blank (See above for address) LEAD ATTORNEY

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 4 of 24

ATTORNEY TO BE NOTICED

Joseph Scott Geller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Scott Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc A Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Gbana Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shana Jill Korda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benedict P. Kuehne (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joshua Simmons

represented by Adam Michael Schachter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J Poterek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Freddy Funes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gerald Edward Greenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Kraft Pita (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jarred Lee Reiling (See above for address)

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 5 of 24

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason B. Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Scott Geller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Scott Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc A Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Gbana Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shana Jill Korda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benedict P. Kuehne (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brenda Shapiro

represented by Adam Michael Schachter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J Poterek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Freddy Funes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gerald Edward Greenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Kraft Pita

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 6 of 24

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jarred Lee Reiling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason B. Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Scott Geller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Scott Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc A Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Gbana Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shana Jill Korda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benedict P. Kuehne (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Luis Meurice

represented by Adam Michael Schachter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J Poterek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Freddy Funes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 7 of 24

Gerald Edward Greenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Howard Kraft Pita (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jarred Lee Reiling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason B. Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Scott Geller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Scott Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc A Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Gbana Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shana Jill Korda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benedict P. Kuehne (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
The American Civil Liberties Union of Florida, Inc

represented by Adam Michael Schachter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J Poterek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 8 of 24

Plaintiff Florida Immigrant Coalition, Inc.

Freddy Funes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerald Edward Greenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Kraft Pita (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jarred Lee Reiling (See above for address) TERMINATED: 04/23/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason B. Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Scott Geller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Scott Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc A Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael T. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Gbana Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shana Jill Korda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benedict P. Kuehne (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Michael Schachter (See above for address)

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 9 of 24
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel J Poterek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Freddy Funes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerald Edward Greenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Howard Kraft Pita (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jarred Lee Reiling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason B. Blank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Scott Geller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Scott Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marc A Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael T. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Gbana Abudu (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shana Jill Korda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benedict P. Kuehne (See above for address)

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 10 of 24 ATTORNEY TO BE NOTICED

V. Defendant Presidential Advisory Commission on Election Integrity
Defendant Michael Pence in his official capacity as Chair of the Presidential Advisory Commision on Election Integrity
Defendant

represented by Joseph Evan Borson US Department of Justice Civil Division, Federal Programs Branch PO Box 883 Washington, DC 20044 202−514−1944 Email: joseph.borson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Jane Shapiro U.S. Department of Justice PO Box 883 Washington, DC 20044 202−514−5302 Email: elizabeth.shapiro@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristina Ana Wolfe U.S. Department of Justice PO Box 883 Washington, DC 20044 202−353−4519 Email: kristina.wolfe@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Federighi United States Department of Justice Civil Division P.O. Box 883 Washington, DC 20044 202−514−1903 Email: carol.federighi@usdoj.gov ATTORNEY TO BE NOTICED
represented by Joseph Evan Borson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Jane Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristina Ana Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Federighi (See above for address) ATTORNEY TO BE NOTICED

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 11 of 24

Kris Kobach in his official capacity as Vice Chair of the Presidential Advisory Commision on Election Integrity

represented by Elizabeth Jane Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

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

Defendant
Executive Office of the President of the United States

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

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

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

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

Defendant
Executive Office of the Vice President of the United States

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

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

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

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

Defendant
Tim Horne in his official capacity as Administrator of the General Services Administration

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

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 12 of 24

Defendant Mick Mulvaney in his official capacity as Director, Office of Management and Budget
Defendant Ken Detzner in his official capacity as Florida Secretary of State
Defendant

Elizabeth Jane Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristina Ana Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Federighi (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph Evan Borson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Jane Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristina Ana Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol Federighi (See above for address) ATTORNEY TO BE NOTICED
represented by David Andrew Fugett Florida Department of State Office of the General Counsel R.A. Building, Suite 100 500 South Bronough Street Tallahassee, FL 32305−0250 (850)245−6536 Fax: (850)245−6127 Email: david.fugett@dos.myflorida.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristina Ana Wolfe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Jordan Jones Florida Department of State 500 South Bronough Street Tallahassee, FL 32399−0250 (850) 245−6536 Email: jordan.jones@dos.myflorida.com ATTORNEY TO BE NOTICED

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 13 of 24
Robert A. Dulberg Salmon & Dulberg Dispute Resolution Biscayne Building 19 W Flagler Street Suite 620 Miami, FL 33130

Date Filed 07/10/2017
07/10/2017 07/11/2017 07/13/2017 07/13/2017
07/13/2017

# Docket Text
1 COMPLAINT for Injunctive and Declaratory Relief, With Request for Expedited Treatment against All Defendants. Filing fees $ 400.00 receipt number 113C−9875226, filed by ACLU of Florida, Joshua Simmons, Florida Immigrant Coalition, Inc., Mike Suarez, Arthenia L. Joyner, Brenda Shapiro, Luis Meurice. (Attachments: # 1 Exhibit Exhibits to Complaint, # 2 Summon(s) Presidential Advisory Commission on Election Integrity, # 3 Summon(s) Michael Pence, Chair, Presidential Advisory Commission on Election Integrity, # 4 Summon(s) Kris Kobach, Vice Chair, Presidential Advisory Commission on Election Integrity, # 5 Summon(s) Executive Office of the President, # 6 Summon(s) Executive Office of the Vice President, # 7 Summon(s) Tim Horne, General Services Adminsitration, # 8 Summon(s) Mick Mulvaney, Office of Management & Budget, # 9 Summon(s) Ken Detzner, Florida Secretary of State, # 10 Civil Cover Sheet Civil Cover Sheet)(Kuehne, Benedict) (Entered: 07/10/2017)
2 Clerks Notice of Judge Assignment to Judge Marcia G. Cooke.
Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Jonathan Goodman is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (rms1) (Entered: 07/11/2017)
3 Summons Issued as to Ken Detzner, Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity (rms1) (Entered: 07/11/2017)
4 Plaintiff's MOTION for Temporary Restraining Order With Incorporated Memorandum of Law ( Responses due by 7/27/2017), Plaintiff's MOTION to Expedite Consideration of Motion for Temporary Restraining Order by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. (Attachments: # 1 Exhibit Compilation of Exhibits for Motion TRO, # 2 Text of Proposed Order Order on Motion for TRO)(Kuehne, Benedict) (Entered: 07/13/2017)
5 NOTICE of Attorney Appearance by Joseph Evan Borson on behalf of Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Attorney Joseph Evan Borson added to party Executive Office of the President of the United States(pty:dft), Attorney Joseph Evan Borson added to party Executive Office of the Vice President of the United States(pty:dft), Attorney Joseph Evan Borson added to party Tim Horne(pty:dft), Attorney Joseph Evan Borson added to party Mick Mulvaney(pty:dft), Attorney Joseph Evan Borson added to party Michael Pence(pty:dft), Attorney Joseph Evan Borson added to party Presidential Advisory Commission on Election Integrity(pty:dft). (Borson, Joseph) (Entered: 07/13/2017)
6 Corrected MOTION for Temporary Restraining Order with Request for Expedited Treatment and Incorporated Memorandum of Law by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Responses due by 7/27/2017 (Attachments: # 1 Exhibit A − Executive Order, # 2 Exhibit B − Compilation of Statements, # 3 Exhibit C − Commission Charter, # 4 Exhibit D − Readout of the Vice President's Call with the Presidential Advisory Commission on Election Integrity, # 5 Exhibit E − Commission's June 28, 2017 Letter to the Florida Secretary of State, # 6 Exhibit F − Department of Justice's June 28, 2017 Letter, # 7 Exhibit G − Screenshot Non−Secure Data Transfer Website, # 8 Exhibit H − Breitbart Article by Vice Chair Kobach, # 9 Exhibit I − Florida Secretary of State's July 6, 2017 Letter to Vice Chair Kobach, # 10 Exhibit J − Affidavits, # 11 Exhibit K − July 19, 2017 Meeting Notice, # 12

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07/13/2017 07/13/2017 07/13/2017 07/13/2017 07/13/2017 07/13/2017
07/13/2017
07/14/2017
07/17/2017 07/17/2017 07/17/2017

Text of Proposed Order)(Burton, Marc) (Entered: 07/13/2017)
7 NOTICE of Attorney Appearance by Gerald Edward Greenberg on behalf of The American Civil Liberties Union of Florida, Inc (Greenberg, Gerald) (Entered: 07/13/2017)
8 NOTICE of Attorney Appearance by Adam Michael Schachter on behalf of The American Civil Liberties Union of Florida, Inc (Schachter, Adam) (Entered: 07/13/2017)
9 NOTICE of Attorney Appearance by Freddy Funes on behalf of The American Civil Liberties Union of Florida, Inc (Funes, Freddy) (Entered: 07/13/2017)
10 NOTICE of Attorney Appearance by Jarred Lee Reiling on behalf of The American Civil Liberties Union of Florida, Inc (Reiling, Jarred) (Entered: 07/13/2017)
11 NOTICE of Attorney Appearance by Jason B. Blank on behalf of Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc (Blank, Jason) (Entered: 07/13/2017)
12 NOTICE by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity re 6 Corrected MOTION for Temporary Restraining Order with Request for Expedited Treatment and Incorporated Memorandum of Law Notice of Related Motions for TRO. Attorney Joseph Evan Borson added to party Kris Kobach(pty:dft). (Attachments: # 1 Exhibit) (Borson, Joseph) (Entered: 07/13/2017)
13 NOTICE by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity re 12 Notice (Other),, of Filing (Attachments: # 1 Exhibit Fed. Defs. Br., # 2 Exhibit Exhibts to Fed. Defs. Br.) (Borson, Joseph) (Entered: 07/13/2017)
14 NOTICE by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc re 12 Notice (Other),, 13 Notice (Other), of Response in Opposition to Federal Defendants' Notice of Related Motions for Temporary Restraining Order and Notice of Filing; and Plaintiffs' Notice of Filing D.C. Case Plaintiffs' Filings (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Burton, Marc) (Entered: 07/14/2017)
15 RESPONSE In Opposition (for image see DE#14) to 12 Notice (Other),, 13 Notice (Other), by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. (cqs) (Entered: 07/17/2017)
16 Clerks Notice to Filer re 14 Notice (Other),,. Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [de#15]. It is not necessary to refile this document. (cqs) (Entered: 07/17/2017)
17 ENDORSED ORDER TO SHOW CAUSE: This case is before me upon a review of the record. On July 13, 2017, Plaintiffs filed a 6 Corrected Motion for Temporary Restraining Order ("TRO") with Request for Expedited Treatment. That same day, Federal Defendants filed a 12 Notice of Related Motions for TRO, requesting this Court await the forthcoming decision on the related motions and provide the Federal Defendants an opportunity to fully respond to Plaintiffs' arguments in this case. On July 14, 2017, Plaintiffs filed a 14 Response in Opposition to Federal Defendants' Notice of Related Motions for TRO, objecting to the Federal Defendants' Notice and again requesting expedited treatment. Defendant Ken Detzner, sued in his official capacity as Florida Secretary of State, has not yet made an appearance in this case. I find that Plaintiffs have not fully complied with Federal Rule of Civil Procedure 65(b)(1) to allow for the issuance of a TRO without notice. Specifically, Plaintiffs have not alleged specifics facts in an affidavit that clearly show that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition. Fed. R. Civ. P. 65(b)(1)(a). Accordingly, it is hereby ORDERED and ADJUDGED that Plaintiffs shall demonstrate compliance with Federal Rule of Civil Procedure 65(b)(1) by 5:00 p.m. on July 17, 2017, or shall otherwise show cause as to why Plaintiffs' 6 Corrected Motion for TRO should

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07/17/2017 07/17/2017 07/17/2017
07/17/2017 07/17/2017 07/17/2017 07/17/2017 07/17/2017
07/18/2017

not be handled in due course or treated as a motion for preliminary injunction. Signed by Judge Marcia G. Cooke on 7/17/2017. (ase) (Entered: 07/17/2017)
18 SUMMONS (Affidavit) Returned Executed on 1 Complaint,,, with a 21 day response/answer filing deadline by The American Civil Liberties Union of Florida, Inc, Joshua Simmons, Florida Immigrant Coalition, Inc., Mike Suarez, Arthenia L. Joyner, Brenda Shapiro, Luis Meurice. Ken Detzner served on 7/17/2017, answer due 8/7/2017. (Kuehne, Benedict) (Entered: 07/17/2017)
19 ENDORSED ORDER Setting Status Conference: Counsel for the Parties are directed to appear for a Status Conference set for July 18, 2017 at 1:30 PM in Miami Division before Judge Marcia G. Cooke. Signed by Judge Marcia G. Cooke on 7/17/2017. (ase) (Entered: 07/17/2017)
20 NOTICE of Attorney Appearance by Carol Federighi on behalf of Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Attorney Carol Federighi added to party Executive Office of the President of the United States(pty:dft), Attorney Carol Federighi added to party Executive Office of the Vice President of the United States(pty:dft), Attorney Carol Federighi added to party Tim Horne(pty:dft), Attorney Carol Federighi added to party Kris Kobach(pty:dft), Attorney Carol Federighi added to party Mick Mulvaney(pty:dft), Attorney Carol Federighi added to party Michael Pence(pty:dft), Attorney Carol Federighi added to party Presidential Advisory Commission on Election Integrity(pty:dft). (Federighi, Carol) (Entered: 07/17/2017)
21 RESPONSE TO ORDER TO SHOW CAUSE re 17 Order to Show Cause,,,,,, by The American Civil Liberties Union of Florida, Inc, Joshua Simmons, Florida Immigrant Coalition, Inc., Mike Suarez, Arthenia L. Joyner, Brenda Shapiro, Luis Meurice. (Attachments: # 1 Exhibit Exhibt 1 − Notification Emails)(Kuehne, Benedict) (Entered: 07/17/2017)
22 NOTICE by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc re 21 Response to Order to Show Cause, 6 Corrected MOTION for Temporary Restraining Order with Request for Expedited Treatment and Incorporated Memorandum of Law, 17 Order to Show Cause,,,,,, of Supplemental Declarations Supporting Motion for TRO (Kuehne, Benedict) (Entered: 07/17/2017)
23 Plaintiffs' Verified Motion for Leave to File/Accept Response to Order to Show Cause for Motion for Temporary Restraining Order ("TRO") and Request for Expedited Treatment, as Timely Filed by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Responses due by 7/31/2017 (Attachments: # 1 Text of Proposed Order)(Kuehne, Benedict) Modified Relief on 7/18/2017 (ls). (Entered: 07/17/2017)
24 NOTICE of Attorney Appearance by David Andrew Fugett on behalf of Ken Detzner. Attorney David Andrew Fugett added to party Ken Detzner(pty:dft). (Fugett, David) (Entered: 07/17/2017)
25 NOTICE by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc re 21 Response to Order to Show Cause, 23 Plaintiff's MOTION for Extension of Time Accept Response (ECF 21) as Timely Filed re 21 Response to Order to Show Cause,, 22 Notice (Other), 14 Notice (Other),, 1 Complaint,,, 6 Corrected MOTION for Temporary Restraining Order with Request for Expedited Treatment and Incorporated Memorandum of Law of Filing Service Emails to Counsel for Florida Secretary of State (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Burton, Marc) (Entered: 07/17/2017)
26 Clerks Notice to Filer re 23 Plaintiff's MOTION for Extension of Time Accept Response (ECF 21) as Timely Filed re 21 Response to Order to Show Cause,. Wrong Motion Relief(s) Selected; ERROR − The Filer selected the wrong motion relief(s) when docketing the motion. The correction was made by the Clerk. It is not necessary to refile this document but future motions filed must include applicable reliefs. (ls) (Entered: 07/18/2017)

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 16 of 24

07/18/2017 07/18/2017
07/18/2017 07/19/2017 07/20/2017 07/20/2017 07/20/2017 07/20/2017 08/04/2017 08/04/2017 08/04/2017 08/14/2017 08/14/2017

27 ENDORSED ORDER granting Plaintiffs' 23 Motion to Accept Plaintiffs' Response to Order to Show Cause as Timely Filed. Plaintiffs' 21 Response to Order to Show Cause shall be considered timely filed. Signed by Judge Marcia G. Cooke on 7/18/2017. (ase) (Entered: 07/18/2017)
28 NOTICE of Attorney Appearance by Elizabeth Jane Shapiro on behalf of Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Attorney Elizabeth Jane Shapiro added to party Executive Office of the President of the United States(pty:dft), Attorney Elizabeth Jane Shapiro added to party Executive Office of the Vice President of the United States(pty:dft), Attorney Elizabeth Jane Shapiro added to party Tim Horne(pty:dft), Attorney Elizabeth Jane Shapiro added to party Kris Kobach(pty:dft), Attorney Elizabeth Jane Shapiro added to party Mick Mulvaney(pty:dft), Attorney Elizabeth Jane Shapiro added to party Michael Pence(pty:dft), Attorney Elizabeth Jane Shapiro added to party Presidential Advisory Commission on Election Integrity(pty:dft). (Shapiro, Elizabeth) (Entered: 07/18/2017)
30 PAPERLESS Minute Entry for proceedings held before Judge Marcia G. Cooke: Status Conference held on 7/18/2017. Attorney Appearances: David Andrew Fugett, Joseph Evan Borson, Benedict P. Kuehne, Daniel J Poterek, Freddy Funes. Court Reporter: Tammy Nestor, 954−769−5488 / Tammy_Nestor@flsd.uscourts.gov. (im) (Entered: 07/19/2017)
29 NOTICE of Attorney Appearance by William Jordan Jones on behalf of Ken Detzner. Attorney William Jordan Jones added to party Ken Detzner(pty:dft). (Jones, William) (Entered: 07/19/2017)
31 ORDER ON PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDERdenying as moot 4 Motion for Temporary Restraining Order; denying as moot 4 Motion to Expedite; denying without prejudice at this time 6 Motion for Temporary Restraining Order. Signed by Judge Marcia G. Cooke on 7/20/2017. (tm) (Entered: 07/20/2017)
32 ORDER REFERRING CASE to Magistrate Judge Jonathan Goodman for Pretrial Non−Dispositive Matters Signed by Judge Marcia G. Cooke on 7/20/2017. (tm) (Entered: 07/20/2017)
33 Order Requiring Joint Scheduling Report Signed by Judge Marcia G. Cooke on 7/20/2017. (tm) (Entered: 07/20/2017)
34 Notice of Court Practice re Joint Motions Signed by Judge Marcia G. Cooke on 7/20/2017. (tm) (Entered: 07/20/2017)
35 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 1 Complaint by Ken Detzner. (Fugett, David) Modified Link on 8/4/2017 (ls). (Entered: 08/04/2017)
36 Clerks Notice to Filer re 35 MOTION for Extension of Time to File Response/Reply/Answer . Document Not Linked; ERROR − The filed document was not linked to the related docket entry. The correction was made by the Clerk. It is not necessary to refile this document. (ls) (Entered: 08/04/2017)
37 ENDORSED ORDER granting Defendant Detzner's 35 Unopposed Motion for Extension of Time. Defendant Detzner shall respond to Plaintiffs' 1 Complaint on or before August 14, 2017. Signed by Judge Marcia G. Cooke on 8/4/2017. (ase) (Entered: 08/04/2017)
38 MOTION TO DISMISS 1 Complaint,,, FOR FAILURE TO STATE A CLAIM by Ken Detzner. Responses due by 8/28/2017 (Attachments: # 1 Exhibit)(Fugett, David) (Entered: 08/14/2017)
39 Joint MOTION for Extension of Time to File Joint Scheduling Report Following Responsive Pleading by Federal Defendants re 33 Order Requiring Joint Scheduling Report by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Responses due by 8/28/2017 (Attachments: # 1 Text of Proposed Order Granting Extension of Time)(Kuehne, Benedict) (Entered: 08/14/2017)

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 17 of 24

08/16/2017 08/25/2017 08/25/2017 09/18/2017 09/20/2017 09/22/2017
09/29/2017
09/29/2017 09/29/2017

40 ENDORSED ORDER granting the Parties' 39 Joint Motion to Reschedule Joint Scheduling Report. The Parties shall file their Joint Scheduling Report on or before September 21, 2017. Signed by Judge Marcia G. Cooke on 8/16/2017. (ase) (Entered: 08/16/2017)
41 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 38 MOTION TO DISMISS 1 Complaint,,, FOR FAILURE TO STATE A CLAIM by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. (Attachments: # 1 Text of Proposed Order Ex. 1 − Proposed Order Granting Motion for Extension of Time)(Funes, Freddy) (Entered: 08/25/2017)
42 ENDORSED ORDER granting 41 Plaintiffs' Unopposed Motion for Extension of Time. Plaintiffs shall file their response to Defendant Detzner's 38 Motion to Dismiss on or before September 8, 2017. Signed by Judge Marcia G. Cooke on 8/25/2017. (ase) (Entered: 08/25/2017)
43 RESPONSE to Motion re 38 MOTION TO DISMISS 1 Complaint,,, FOR FAILURE TO STATE A CLAIM filed by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Replies due by 9/25/2017. (Greenberg, Gerald) (Entered: 09/18/2017)
44 Joint MOTION to Stay re 33 Order Requiring Joint Scheduling Report, 40 Order on Motion for Extension of Time for 21 Days Following Ruling on Motions to Dismiss by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Responses due by 10/4/2017 (Attachments: # 1 Text of Proposed Order Order Granting Stay of Joint Scheduling Report)(Kuehne, Benedict) (Entered: 09/20/2017)
45 ENDORSED ORDER denying the Parties' 44 Joint Motion to Stay Filing of Joint Scheduling Report. A district court has broad discretion in determining whether a stay is appropriate. Clinton v. Jones, 520 U.S. 681, 706 (1997). A stay in this case at this time would not conserve judicial resources. In the event that I do not grant the Defendants' motions to dismiss, this action will be significantly behind schedule. The Parties must still file a Joint Scheduling Report while briefing on the motions is completed and while the Court considers and disposes of those motions. The Parties shall file their Joint Scheduling Report on or before September 29, 2017. Signed by Judge Marcia G. Cooke on 9/22/2017. (ase) (Entered: 09/22/2017)
46 NOTICE of Attorney Appearance by Kristina Ana Wolfe on behalf of Ken Detzner, Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Attorney Kristina Ana Wolfe added to party Ken Detzner(pty:dft), Attorney Kristina Ana Wolfe added to party Executive Office of the President of the United States(pty:dft), Attorney Kristina Ana Wolfe added to party Executive Office of the Vice President of the United States(pty:dft), Attorney Kristina Ana Wolfe added to party Tim Horne(pty:dft), Attorney Kristina Ana Wolfe added to party Kris Kobach(pty:dft), Attorney Kristina Ana Wolfe added to party Mick Mulvaney(pty:dft), Attorney Kristina Ana Wolfe added to party Michael Pence(pty:dft), Attorney Kristina Ana Wolfe added to party Presidential Advisory Commission on Election Integrity(pty:dft). (Wolfe, Kristina) (Entered: 09/29/2017)
47 Joint SCHEDULING REPORT − Rule 16.1 by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc (Attachments: # 1 Exhibit Attachment A: Pretrial Deadlines, Pretrial COnference, and Trial Date, # 2 Exhibit Election to Jurisdiction by U.S. Magistrate Judge, # 3 Text of Proposed Order Joint Proposed Scheduling Order)(Kuehne, Benedict) (Entered: 09/29/2017)
48 Corrected SCHEDULING REPORT − Rule 16.1 by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc (Attachments: # 1 Exhibit Attachment A: Pretrial Deadlines, # 2 Exhibit Attachment C: Election to Jurisdiction, # 3 Text of Proposed Order Proposed Joint Scheduling Order)(Kuehne, Benedict) (Entered: 09/29/2017)

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 18 of 24

10/03/2017 10/11/2017 10/12/2017 10/16/2017

49 NOTICE by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc re 48 SCHEDULING REPORT − Rule 26(f)/16.1, Updated Exhibit C (Attachments: # 1 Exhibit Attachment C to Joint Scheduling Report − Election to Magistrate Jurisdiction) (Kuehne, Benedict) (Entered: 10/03/2017)
50 Unopposed MOTION for Leave to File Excess Pages by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. (Attachments: # 1 Text of Proposed Order)(Wolfe, Kristina) (Entered: 10/11/2017)
51 ENDORSED ORDER granting Federal Defendants' 50 Unopposed Motion for Leave to File Excess Pages. The Federal Defendants may submit a memorandum of law in support of their motion to dismiss that includes no more than thirty−five (35) substantive pages. The Federal Defendants may submit a reply memorandum in further support of their motion to dismiss that includes no more than twenty−five (25) pages. Signed by Judge Marcia G. Cooke on 10/12/2017. (ase) (Entered: 10/12/2017)
52 ORDER SETTING CIVIL TRIAL DATE AND PRETRIAL DEADLINES: ( Bench Trial set for 8/20/2018 09:30 AM in Miami Division before Judge Marcia G. Cooke., Calendar Call set for 8/15/2018 03:00 PM in Miami Division before Judge Marcia G. Cooke., Amended Pleadings due by 12/8/2017., Expert Discovery due by 4/20/2018., Fact Discovery due by 3/9/2018., Joinder of Parties due by 12/8/2017., Final proposed jury instructions and verdict form Deadline 8/10/2018., In Limine Motions due by 7/13/2018., Dispositive Motions due by 3/16/2018., Daubert and Markman Motions due by 4/27/2018., Pretrial Stipulation due by 7/13/2018.), ORDER REFERRING CASE to Mediation. Mediation Deadline 5/4/2018. Signed by Judge Marcia G. Cooke on 10/16/2017. (tm)

10/20/2017
10/31/2017 11/01/2017 11/02/2017 11/03/2017
11/13/2017

Pattern Jury Instruction Builder − To access the latest, up to date changes to the 11th Circuit Pattern Jury Instructions go to https://pji.ca11.uscourts.gov or click here. (Entered: 10/16/2017)
53 MOTION to Dismiss for Lack of Jurisdiction 1 Complaint,,, , MOTION TO DISMISS 1 Complaint,,, FOR FAILURE TO STATE A CLAIM ( Responses due by 11/3/2017) by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. (Attachments: # 1 Text of Proposed Order)(Wolfe, Kristina) (Entered: 10/20/2017)
54 Statement of: Defendants Re Designation of Mediator by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity re 52 Scheduling Order, Order Referring Case to Mediation,,,,,,,, (Federighi, Carol) (Entered: 10/31/2017)
55 NOTICE of Mediator Selection. Added Robert A. Dulberg, Robert A. Dulberg. (Kuehne, Benedict) (Entered: 11/01/2017)
56 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 53 MOTION to Dismiss for Lack of Jurisdiction 1 Complaint,,, MOTION TO DISMISS 1 Complaint,,, FOR FAILURE TO STATE A CLAIM by Arthenia L. Joyner. (Attachments: # 1 Text of Proposed Order Proposed Order)(Pita, Howard) (Entered: 11/02/2017)
57 ENDORSED ORDER granting Plaintiff's 56 Unopposed Motion for Extension of Time. Plaintiff shall respond to Federal Defendants' 53 Motion to Dismiss on or before November 13, 2017. Federal Defendants' shall file their reply in support of their 53 Motion to Dismiss on or before December 1, 2017. No further extensions of time will be granted absent extraordinary circumstances. Signed by Judge Marcia G. Cooke on 11/3/2017. (ase) (Entered: 11/03/2017)
58 RESPONSE in Opposition re 53 MOTION to Dismiss for Lack of Jurisdiction 1 Complaint,,, MOTION TO DISMISS 1 Complaint,,, FOR FAILURE TO STATE A CLAIM filed by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 19 of 24

12/01/2017 12/04/2017 12/09/2017
12/09/2017 12/11/2017
12/29/2017 12/29/2017 01/03/2018 01/03/2018 01/03/2018 01/05/2018

Florida, Inc. Replies due by 11/20/2017. (Kuehne, Benedict) (Entered: 11/13/2017)
59 REPLY to Response to Motion re 53 MOTION to Dismiss for Lack of Jurisdiction 1 Complaint,,, MOTION TO DISMISS 1 Complaint,,, FOR FAILURE TO STATE A CLAIM filed by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. (Wolfe, Kristina) (Entered: 12/01/2017)
60 MOTION for Protective Order to Stay Discovery by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Federighi, Carol) (Entered: 12/04/2017)
61 Unopposed MOTION to Amend/Correct 1 Complaint,,, with Motion to File Amendment One Day Out−of−Time by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Responses due by 12/27/2017 (Attachments: # 1 Text of Proposed Order Order on Unopposed Motion to Amend Complaint, # 2 Exhibit Amended Complaint, # 3 Exhibit Exhibits to Amended Complaint)(Kuehne, Benedict) (Entered: 12/09/2017)
62 NOTICE by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc re 61 Unopposed MOTION to Amend/Correct 1 Complaint,,, with Motion to File Amendment One Day Out−of−Time Corrected Proposed Order (Attachments: # 1 Text of Proposed Order Order Granting Motion to Amend Complaint and Setting Scheduling for Response) (Kuehne, Benedict) (Entered: 12/09/2017)
63 ENDORSED ORDER granting in part and denying in part 61 Plaintiffs' Unopposed Motion to Amend Complaint and Setting Scheduling for Defendants' Responses. The Amended Complaint attached to Plaintiffs' 61 Motion shall be separately filed and served forthwith. The Defendants' responses to the Amended Complaint shall be due on or before January 19, 2018. Additionally, the time for Defendants' to respond and object to the pending discovery served by Plaintiffs is January 19, 2018. Signed by Judge Marcia G. Cooke on 12/11/2017. (ase) (Entered: 12/11/2017)
64 ENDORSED ORDER Directing Compliance with Order. On December 11, 2017, this Court ordered Plaintiffs to file and serve their Amended Complaint "forthwith." To date, Plaintiffs have, at a minimum, failed to file their Amended Complaint. Plaintiffs are therefore directed to file and serve their Amended Complaint on or before January 3, 2018. Failure to do so may result in sanctions. Signed by Judge Marcia G. Cooke on 12/29/2017. (ase) (Entered: 12/29/2017)
65 First AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF against All Defendants filed in response to Order Granting Motion for Leave, filed by The American Civil Liberties Union of Florida, Inc, Joshua Simmons, Florida Immigrant Coalition, Inc., Mike Suarez, Arthenia L. Joyner, Brenda Shapiro, Luis Meurice. (Attachments: # 1 Exhibit Exhibits to Amended COmplaint)(Kuehne, Benedict) (Entered: 12/29/2017)
66 ENDORSED ORDER denying as moot Defendant Ken Detzner's 38 Motion to Dismiss for Failure to State a Claim in light of Plaintiffs' 65 Amended Complaint. Signed by Judge Marcia G. Cooke on 1/3/2018. (ase) (Entered: 01/03/2018)
67 ENDORSED ORDER denying as moot Federal Defendants' 53 Motion to Dismiss in light of Plaintiffs' 65 Amended Complaint. Signed by Judge Marcia G. Cooke on 1/3/2018. (ase) (Entered: 01/03/2018)
68 NOTICE by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity of Executive Order (Federighi, Carol) (Entered: 01/03/2018)
69 Plaintiff's EMERGENCY MOTION with Certification of Emergency attached by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 20 of 24

01/08/2018 01/08/2018 01/09/2018 01/09/2018 01/10/2018
01/10/2018
01/11/2018 01/11/2018

Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Responses due by 1/19/2018 (Attachments: # 1 Certification Certification of Emergency, # 2 Exhibit "A" − Kris Kobach Email to Gene Hamilton, # 3 Exhibit "B" − Kris Kobach Draft Amendments to NVRA, # 4 Exhibit "C" − Kris Kobach Strategic Plan for Department of Homeland Security, # 5 Exhibit "D" − First Executive Order, # 6 Exhibit "E" − Commission Charter, # 7 Exhibit "F" − Readout of Call with Vice President, # 8 Exhibit "G" − Declaration of Matthew Dunlap, # 9 Exhibit "H" − June 28, 2017 Letter from Presidential Advisory Commission on Election Integrity to Florida Secretary of State, # 10 Exhibit "I" − Screenshot of Unsecure Website, # 11 Exhibit "J" − Declaration of Kris Kobach, # 12 Exhibit "K" − Declaration of Andrew Kossack, # 13 Exhibit "L" − Memorandum Opinion in Dunlap v. Presidential Advisory Commission on Election Integrity, # 14 Exhibit "M" − White House Press Release, # 15 Exhibit "N" − Breitbart Article, # 16 Exhibit "O" − Associated Press / U.S. News Article, # 17 Exhibit "P" − Politico Article, # 18 Exhibit "Q" − New York Times Article, # 19 Exhibit "R" − Plaintiff Affidavits, # 20 Exhibit "S" − Composite of Tweets by President Trump, # 21 Exhibit "T" − July 6, 2017 Letter from Florida Secretary of State to Presidential Advisory Commission on Election Integrity, # 22 Exhibit "U" − Declaration of Charles C. Herndon, # 23 Text of Proposed Order)(Burton, Marc) (Entered: 01/05/2018)
70 ENDORSED ORDER REFERRING MOTION. Plaintiffs' 69 Emergency Motion for Temporary Restraining Order and Preliminary Injunction is referred to the Honorable Jonathan Goodman. Signed by Judge Marcia G. Cooke on 1/8/2018. (ase) (Entered: 01/08/2018)
71 ORDER Requiring Expedited Briefing on Plaintiffs' Emergency Motion. Signed by Magistrate Judge Jonathan Goodman on 1/8/2018. (jf00) (Entered: 01/08/2018)
72 Unopposed MOTION for Leave to File Excess Pages in Opposition to Plaintiffs' Emergency Motion by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. (Attachments: # 1 Text of Proposed Order)(Wolfe, Kristina) (Entered: 01/09/2018)
73 Unopposed MOTION for Leave to File Excess Pages in Support of Motion to Dismiss Amended Complaint by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. (Attachments: # 1 Text of Proposed Order)(Wolfe, Kristina) (Entered: 01/09/2018)
74 ENDORSED ORDER granting Federal Defendants' 73 Unopposed Motion for Leave to File Excess Pages. The Federal Defendants may submit a memorandum of law in support of their motion to dismiss that includes no more than forty (40) substantive pages. The Federal Defendants may submit a reply memorandum in further support of their motion to dismiss that includes no more than thirty (30) pages. Signed by Judge Marcia G. Cooke on 1/10/2018. (ase) (Entered: 01/10/2018)
75 ENDORSED ORDER granting 72 the Federal Defendants' motion for leave to file excess pages. The Federal Defendants may submit a memorandum in opposition to Plaintiffs' emergency motion for a temporary restraining order and for a preliminary injunction 69 that includes no more than 35 double−spaced pages (excluding certificate of service and signatures). Signed by Magistrate Judge Jonathan Goodman on 1/10/2018. (jf00) (Entered: 01/10/2018)
76 MOTION to Amend/Correct 71 Order dated January 8, 2018 by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Responses due by 1/25/2018 (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Wolfe, Kristina) (Entered: 01/11/2018)
77 ENDORSED ORDER requiring Plaintiffs to respond to the Federal Defendants' Motion to Amend 76 by January 12, 2018. The response is limited to 2 double−spaced pages (excluding signatures and the certificate of service). No reply is permitted absent further court order. Signed by Magistrate Judge Jonathan Goodman on 1/11/2018. (jf00) (Entered: 01/11/2018)

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 21 of 24

01/12/2018 01/12/2018 01/12/2018
01/12/2018 01/16/2018 01/18/2018 01/18/2018

78 RESPONSE in Opposition re 76 MOTION to Amend/Correct 71 Order dated January 8, 2018 filed by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Replies due by 1/19/2018. (Attachments: # 1 Exhibit "A" − Andrew Kossack Email, Dated 1/3/18)(Burton, Marc) (Entered: 01/12/2018)
79 RESPONSE in Opposition re 69 Plaintiff's EMERGENCY MOTION with Certification of Emergency attached filed by Ken Detzner. Replies due by 1/19/2018. (Fugett, David) (Entered: 01/12/2018)
80 ENDORSED ORDER denying 76 the Federal Defendants' Motion to Amend/Correct the Undersigned's January 8, 2018 Order. However, the Undersigned slightly modifies the briefing deadline in recognition of the fact that Monday, January 15, 2018 is an official federal holiday and the Court is closed. Therefore, the response from the Federal Defendants −− the State Defendants already filed their response today, early, before the initial deadline expired −− to the emergency motion for a temporary restraining order will now be due on Tuesday, January 16, 2018, and Plaintiffs' optional reply will be due on Friday, January 19, 2018. Signed by Magistrate Judge Jonathan Goodman on 1/12/2018. (jf00) (Entered: 01/12/2018)
81 APPEAL of Magistrate Judge 80 Order on Motion to Amend/Correct,, to District Court (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Wolfe, Kristina) (Entered: 01/12/2018)
82 RESPONSE in Opposition re 69 Plaintiff's EMERGENCY MOTION with Certification of Emergency attached filed by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Replies due by 1/23/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Wolfe, Kristina) (Entered: 01/16/2018)
83 ORDER ON FEDERAL DEFENDANTS' APPEAL OF MAGISTRATE JUDGE'S ORDER granting in part and denying in part 79 Response in Opposition to Motion filed by Ken Detzner Signed by Judge Marcia G. Cooke on 1/18/2018. (tm) (Entered: 01/18/2018)
84 ORDER re 83 Order, 76 MOTION to Amend/Correct 71 Order dated January 8, 2018 filed by Tim Horne, Executive Office of the Vice President of the United States, Presidential Advisory Commission on Election Integrity, Mick Mulvaney, Executive Office of the President of the United States, Michael Pence, 79 Response in Opposition to Motion filed by Ken Detzner, 78 Response in Opposition to Motion, filed by Mike Suarez, Florida Immigrant Coalition, Inc., Brenda Shapiro, The American Civil Liberties Union of Florida, Inc, Arthenia L. Joyner, Luis Meurice, Joshua Simmons, 82 Response in Opposition to Motion, filed by Tim Horne, Executive Office of the Vice President of the United States, Presidential Advisory Commission on Election Integrity, Mick Mulvaney, Executive Office of the President of the United States, Michael Pence, 69 Plaintiff's EMERGENCY MOTION with Certification of Emergency attached filed by Mike Suarez, Florida Immigrant Coalition, Inc., Brenda Shapiro, The American Civil Liberties Union of Florida, Inc, Arthenia L. Joyner, Luis Meurice, Joshua Simmons, 81 APPEAL of Magistrate Judge 80 Order on Motion to Amend/Correct,, to District Court , 80 Order on Motion to Amend/Correct,, 71 Order

This Order arises from Judge Cooke's Order on Federal Defendants' Appeal of Magistrate Judge's Order [ECF No. 83], which was entered earlier today. That Order requires the Federal Defendants to file an additional declaration (as opposed to a mere letter) because the Court deemed it "necessary to render an informed decision on Plaintiffs' Emergency Motion" for a TRO.

Given that ruling, the Undersigned wants to promote efficiency and prevent unnecessary briefing. Specifically, the Undersigned believes it makes sense to give Plaintiffs the opportunity to first review the required declaration before filing their reply in further support of the Emergency Motion for a TRO. If this schedule were not followed, then it is likely that Plaintiffs would request leave to file an additional sur−reply memorandum to address the declaration filed after their reply.

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 22 of 24

01/19/2018
01/19/2018 01/19/2018 01/20/2018 01/26/2018 01/31/2018 01/31/2018 01/31/2018 02/01/2018 02/01/2018

Therefore, the Federal Defendants shall file the declaration by January 26, 2018 and Plaintiffs shall file their reply by February 2, 2018. Signed by Magistrate Judge Jonathan Goodman on 1/18/2013. (JG) (Entered: 01/18/2018)
85 ORDER re 84 Order,,,,,,,,, regarding briefing.
When the Federal Defendants file their declaration on January 26, 2018, they shall also file an amended response to the emergency motion for a TRO. The amended submission will address the new points raised in the declaration. This will promote efficiency, lead to a more−comprehensive understanding of the Parties' positions and avoid the need for additional briefing.
This amended response is the one which Plaintiffs will address in their reply. Signed by Magistrate Judge Jonathan Goodman on 1/19/2018. (JG) (Entered: 01/19/2018)
86 Defendant's MOTION to Dismiss for Lack of Jurisdiction 65 Amended Complaint, or in the alternative, MOTION TO DISMISS 65 Amended Complaint, FOR FAILURE TO STATE A CLAIM ( Responses due by 2/2/2018) by Ken Detzner. (Fugett, David) (Entered: 01/19/2018)
87 MOTION TO DISMISS 65 Amended Complaint, FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction 65 Amended Complaint, ( Responses due by 2/2/2018) by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. (Attachments: # 1 Text of Proposed Order)(Borson, Joseph) (Entered: 01/19/2018)
88 SUPPLEMENT to 60 MOTION for Protective Order to Stay Discovery by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity (Borson, Joseph) (Entered: 01/20/2018)
89 RESPONSE in Opposition re 69 Plaintiff's EMERGENCY MOTION with Certification of Emergency attached (Amended Opposition) filed by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Replies due by 2/2/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Borson, Joseph) (Entered: 01/26/2018)
90 Agreed MOTION for Extension of Time for a seven (7) day extension through February 9, 2018 for Plaintiffs to file their responses to Defendants' motions to dismiss by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Responses due by 2/14/2018 (Attachments: # 1 Text of Proposed Order)(Blank, Jason) (Entered: 01/31/2018)
91 ENDORSED ORDER granting Plaintiffs' 90 Unopposed Motion for Extension of Time. Plaintiffs shall respond to Federal Defendants' 87 Motion to Dismiss and State Defendant's 86 Motion to Dismiss on or before February 9, 2018. Signed by Judge Marcia G. Cooke on 1/31/2018. (ase) (Entered: 01/31/2018)
92 Unopposed MOTION for clarification 91 Order on Motion for Extension of Time, by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Responses due by 2/14/2018 (Attachments: # 1 Text of Proposed Order)(Federighi, Carol) (Entered: 01/31/2018)
93 ENDORSED ORDER granting Federal Defendants' 92 Unopposed Motion for Clarification. The 91 Endorsed Order, entered January 31, 2018, did not grant Defendants' an extension of time to file replies to their respective 86 87 Motions to Dismiss. I will, however, also construe the instant 92 Motion for Clarification as a motion for extension of time and grant all Defendants until February 23, 2018 to file any reply briefs in support of their 86 87 Motions to Dismiss. Signed by Judge Marcia G. Cooke on 2/1/2018. (ase) (Entered: 02/01/2018)
94 ENDORSED ORDER granting Federal Defendants' 60 Motion for Protective Order. Given Plaintiffs' lack of response in opposition, as well as the dissolution of the

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02/02/2018 02/02/2018 02/06/2018 02/07/2018 02/09/2018
02/09/2018 02/13/2018 02/20/2018
02/23/2018 02/23/2018

Commission and the procedural posture of this case, discovery in this matter shall be stayed pending resolution of Defendants' 86 87 Motions to Dismiss, or further Order of this Court. Signed by Judge Marcia G. Cooke on 2/1/2018. (ase) (Entered: 02/01/2018)
95 REPLY to Response to Motion re 69 Plaintiff's EMERGENCY MOTION with Certification of Emergency attached (Omnibus) filed by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. (Attachments: # 1 Exhibit "A" − 1/5/18 Email from David Fugett to Skip Pita, # 2 Exhibit "B" − 1/12/18 Email from DOJ to Counsel for Matthew Dunlap)(Burton, Marc) (Entered: 02/02/2018)
96 Plaintiff's MOTION for Reconsideration by Arthenia L. Joyner. (Attachments: # 1 Text of Proposed Order)(Pita, Howard) (Entered: 02/02/2018)
97 REPORT AND RECOMMENDATIONS re 69 Plaintiffs' Emergency Motion for Temporary Restraining Order and Preliminary Injunction. Signed by Magistrate Judge Jonathan Goodman on 2/6/2018. (jf00) (Entered: 02/06/2018)
98 RESPONSE in Opposition re 96 Plaintiff's MOTION for Reconsideration filed by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Replies due by 2/14/2018. (Attachments: # 1 Exhibit A)(Borson, Joseph) (Entered: 02/07/2018)
99 RESPONSE to Motion re 86 Defendant's MOTION to Dismiss for Lack of Jurisdiction 65 Amended Complaint, or in the alternative MOTION TO DISMISS 65 Amended Complaint, FOR FAILURE TO STATE A CLAIM and Supporting Memorandum of Law filed by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Replies due by 2/16/2018. (Attachments: # 1 Exhibit 1 − Statement by the Press Secretary on the PACEI, # 2 Exhibit 2 − Trump Disbands Commission on Voter Fraud)(Greenberg, Gerald) (Entered: 02/09/2018)
100 RESPONSE to Motion re 87 MOTION TO DISMISS 65 Amended Complaint, FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction 65 Amended Complaint, filed by Florida Immigrant Coalition, Inc., Arthenia L. Joyner, Luis Meurice, Brenda Shapiro, Joshua Simmons, Mike Suarez, The American Civil Liberties Union of Florida, Inc. Replies due by 2/16/2018. (Burton, Marc) (Entered: 02/09/2018)
101 Plaintiff's OBJECTION of Magistrate Judge 97 REPORT AND RECOMMENDATIONS re 69 Plaintiff's EMERGENCY MOTION with Certification of Emergency attached filed by Mike Suarez, Florida Immigrant Coalition, Inc., Brenda Shapiro, The American Civil Liberties Union of Florida, Inc, to District Court and Alternative Motion to Compel Compliance with January 18, 2018 Order [ECF No. 83] (Burton, Marc) (Entered: 02/13/2018)
102 RESPONSE in Opposition re 101 Plaintiff's OBJECTION of Magistrate Judge 97 REPORT AND RECOMMENDATIONS re 69 Plaintiff's EMERGENCY MOTION with Certification of Emergency attached filed by Mike Suarez, Florida Immigrant Coalition, Inc., Brenda Shapiro filed by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. Replies due by 2/27/2018. (Borson, Joseph) (Entered: 02/20/2018)
103 REPLY to Response to Motion re 86 Defendant's MOTION to Dismiss for Lack of Jurisdiction 65 Amended Complaint, or in the alternative MOTION TO DISMISS 65 Amended Complaint, FOR FAILURE TO STATE A CLAIM filed by Ken Detzner. (Fugett, David) (Entered: 02/23/2018)
104 REPLY to Response to Motion re 87 MOTION TO DISMISS 65 Amended Complaint, FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction 65 Amended Complaint, filed by Executive Office of the President of the United States, Executive Office of the Vice President of the United States, Tim Horne, Kris Kobach, Mick Mulvaney, Michael Pence, Presidential Advisory Commission on Election Integrity. (Wolfe, Kristina) (Entered: 02/23/2018)

Case: 1:17-cv-22568 As of: 06/11/2018 03:16 PM EDT 24 of 24

03/19/2018 04/20/2018 04/23/2018 05/30/2018

105 ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 69 Emergency Motion/Certification of Emergency ; overruling 101 Appeal/Objection of Magistrate Judge Order to District Court Signed by Judge Marcia G. Cooke on 3/19/2018. (tm) (Entered: 03/19/2018)
106 MOTION to Withdraw as Attorney by Jarred L. Reiling. by The American Civil Liberties Union of Florida, Inc. Responses due by 5/4/2018 (Attachments: # 1 Text of Proposed Order to Withdraw JLR as Counsel)(Greenberg, Gerald) (Entered: 04/20/2018)
107 ENDORSED ORDER granting 106 the motion to withdraw Jarred L. Reiling as counsel for The American Civil Liberties Union of Florida, Inc. Signed by Magistrate Judge Jonathan Goodman on 4/23/2018. (jf00) (Entered: 04/23/2018)
108 OMNIBUS ORDER GRANTING MOTIONS TO DISMISS. Closing Case. Motions Terminated: 96 Plaintiff's MOTION for Reconsideration filed by Arthenia L. Joyner. Signed by Judge Marcia G. Cooke on 5/30/2018. (ase)

NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014−69. (Entered: 05/30/2018)

 
 Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 1 of 64
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. ____________________________
ARTHENIA JOYNER; MIKE SUAREZ; JOSHUA A. SIMMONS; BRENDA SHAPIRO; LUIS MEURICE; THE AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC.; FLORIDA IMMIGRANT COALITION, INC.,
Plaintiffs,
versus
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY; MICHAEL PENCE, in his official capacity as Chair of the Presidential Advisory Commission on Election Integrity; KRIS KOBACH, in his official capacity as Vice Chair of the Presidential Advisory Commission on Election Integrity; EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES; EXECUTIVE OFFICE OF THE VICE PRESIDENT OF THE UNITED STATES; TIM HORNE, in his official capacity as Administrator of the General Services Administration; MICK MULVANEY, in his official capacity as Director, Office of Management and Budget; KEN DETZNER, in his official capacity as Florida Secretary of State,
Defendants. _____________________________________________/
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, WITH REQUEST FOR EXPEDITED TREATMENT
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 2 of 64
I. PRELIMINARY STATEMENT 1. This action is brought on behalf of Florida voters and organizations involved and interested in the fair conduct of elections in Florida and elsewhere throughout the United States. This litigation challenges the legality of the actions of the Presidential Advisory Commission on Election Integrity and the legality of its directive requesting voter registration information of state-registered voters in Florida and throughout the United States. 2. This suit proceeds pursuant to the Administrative Procedure Act (“APA”) (5 U.S.C. §§ 551-706), the Federal Advisory Committee Act (“FACA”) (5 U.S.C. app. 2), the Paperwork Reduction Act (“PRA”) (44 U.S.C. § 3501), the Declaratory Judgment Act (28 U.S.C. § 2201, et seq.), and the United States Constitution, seeking injunctive and declaratory relief, and other appropriate relief to prevent the unauthorized collection of state voter information data and to prohibit the Florida Secretary of State and other similarly situated officials of other states from providing state voter data to the Presidential Advisory Commission on Election Integrity (the “Presidential Advisory Commission” or “Commission”) and any other person or entity acting
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 3 of 64
pursuant to the request or directives of the Presidential Advisory Commission.
3. At issue in this lawsuit is the request by the Presidential Advisory Commission to collect, aggregate, and potentially disseminate a massive volume of state-maintained voter information, including personal identification information and private data that citizens are required by law to furnish to state officials solely to pursue their First Amendment constitutional right to vote. The challenged requests made to state elections officials infringe voters’ First Amendment rights. The requests also constitute an unjustified invasion of privacy not authorized under the Constitution and laws of the United States or the individual states. The actions of the Presidential Advisory Commission have occurred in the absence of a required Privacy Impact Assessment. Importantly, the Presidential Advisory Commission’s request for voter information preceded any authorized meeting of the Commission.
II. JURISDICTION, STANDING, AND VENUE 4. This court has jurisdiction under its general federal question jurisdiction, 28 U.S.C. § 1331, and specific jurisdiction over claims arising under the Administrative Procedure Act, 5 U.S.C. §§ 702 & 704.
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 4 of 64
5. The Court has jurisdiction over claims for violations of the Paperwork Reduction Act. See Livestock Mktg. Ass’n v. U.S. Dep’t of Agriculture, 132 F. Supp. 2d 817, 831 (D.S.D. 2001); see also AlabamaTombigbee Rivers Coal. v. Dep’t of Interior, 26 F. 3d 1103 (11th Cir. 1994) (holding that “‘[a]bsent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction’” because it is inappropriate “to allow the government to use the product of a tainted procedure” in violation of federal statutes) (internal citation omitted)).
6. The Declaratory Judgment Act (28 U.S.C. § 2201) authorizes courts to issue declaratory judgments.
7. This court has personal jurisdiction over all defendants. 8. Plaintiffs have standing to commence this action under the Administrative Procedure Act (“APA”), which confers standing to any party adversely affected by government action. 5 U.S.C. § 702 (1988). 9. Plaintiffs also have standing pursuant to the Federal Advisory Committee Act (5 U.S.C. app. 2). Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1080–81 (11th Cir. 2002).
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 5 of 64
10. The Plaintiffs are authorized to seek compliance with the Separation of Powers. Id.
11. Plaintiffs have standing for a private cause of action for violation of the Paperwork Reduction Act of 1995, in that, “[t]he protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.” (emphasis added). 44 U.S.C. § 3512(b); see also Livestock Mktg. Ass’n, 132 F. Supp. 2d at 831 (holding that there is a private right of action under the Paperwork Reduction Act because the court “[could] not imagine language that would be more expansive.”).
12. Plaintiffs’ privacy interests are also adversely affected by the federal government action that is the subject of this complaint.
13. Venue is proper in the Southern District of Florida under 5 U.S.C. § 703 and 28 U.S.C. § 1391 as a place where the challenged conduct is occurring with respect to Florida voters.
14. All conditions precedent to bringing this action have occurred, have been waived, or would be a useless act and are accordingly waived.
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 6 of 64
III. PARTIES 15. Plaintiff Senator Arthenia Joyner (retired), is a resident and voter of Hillsborough County, Florida, and a member in good standing of The Florida Bar. She sues in her individual capacity. Senator Joyner formerly served as a member of the Florida House of Representatives, representing the 59th House District from 2000 through 2006, and as a member of the Florida Senate representing the 19th Senate District from 2006 through 2016. As a member of the Florida Senate from 2014 through 2016, Senator Joyner served as the Florida Senate Minority Leader. Senator Joyner has long been a passionate advocate for civil rights and justice during the entirety of her political and legal careers, and within her private life. Senator Joyner is concerned about the disclosure of private information and how such disclosures may violate the law and the civil rights of all people. She opposes the dissemination, collection, and potential distribution of her voter and identity information. 16. Plaintiff Councilman Mike Suarez, is a resident and voter of Hillsborough County, Florida. He sues in his individual capacity. Councilman Suarez represents District 1 in the Tampa (Florida) City
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 7 of 64
Council and is the immediate past Chair of the Tampa City Council, having served in that position from 2016 through 2017. Councilman Suarez is a third-generation Tampa resident who is concerned about the protection of personal voter and identification information and privacy rights for himself as a registered voter, and for his constituents throughout the City of Tampa. He opposes the dissemination, collection, and potential distribution of his voter and identity information.
17. Plaintiff Joshua A. Simmons is a resident and voter in Broward County, Florida, in the Southern District of Florida. He sues in his individual capacity. He opposes the dissemination, collection, and potential distribution of his voter and identity information.
18. Plaintiff Brenda Shapiro is a resident and voter in MiamiDade County, Florida, in the Southern District of Florida. She sues in her individual capacity. She is an active voter, a practicing attorney, and has been a leader in civic affairs in Miami, where she has served as Chair of both the City of Miami’s Community Relations Board and the City of Miami’s Civilian Investigative Panel. She is concerned about the circulation of her voting history and her personal information, and she is especially concerned about the misuse of that information. She
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 8 of 64
opposes the dissemination, collection, and potential distribution of her voter and identity information.
19. Plaintiff Luis Meurice is a resident and voter in Miami-Dade County, Florida, in the Southern District of Florida. He is a 38-year member of the International Longshoremen’s Association, its Florida Legislative Director, and President of ILA Local 2062. He is also District Vice President of South Florida AFL-CIO. He is active in Movimiento Democracia, a non-profit organization advocating for freedom and democracy for all people. He sues in his individual capacity. He opposes the dissemination, collection, and potential distribution of his voter and identity information.
20. Plaintiff The American Civil Liberties Union of Florida, Inc. (“ACLU of Florida” or “ACLU”) is a non-profit, §501(c)(3) membership organization. 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. Since 1965, the ACLU, through its Voting Rights Project, has litigated more than 300 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
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 9 of 64
rolls, and in empowering those targeted by vote suppression. The ACLU of Florida is a state affiliate of the national American Civil Liberties Union and is domiciled in the State of Florida, with its principal place of business in Miami-Dade County, Florida, within the Southern District of Florida. The ACLU of Florida has over 50,000 members and has litigated numerous cases, either through direct representation or as amicus curiae, to protect the fundamental right to vote.
21. Plaintiff Florida Immigrant Coalition, Inc. (“FLIC”) is a nonprofit membership organization and coalition of more than 65 membership organizations and over 100 allies. FLIC was founded in 1998 and formally incorporated in 2004. More than an organization, “FLIC” is a strategic multi-racial, intergenerational social movement working for the fair treatment of all people, including immigrants. FLIC is domiciled in the State of Florida, with its principal place of business in Miami-Dade County, Florida, within the Southern District of Florida. Its members are residents of Florida and elsewhere.
22. Defendant Presidential Advisory Commission is an advisory commission of the United States government within the meaning of the Federal Advisory Committee Act (5 U.S.C. app. 2 § 10). It is a
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 10 of 64
subcomponent of the Executive Office of the President of the United States. The Office of Management and Budget and the General Services Administration, along with the Presidential Advisory Commission are agencies or the equivalent thereof within the meaning of 44 U.S.C. § 3502 and the APA, 5 U.S.C. § 701.
23. Defendant Michael Pence is the Vice President of the United States and the Chair of the Presidential Advisory Commission. He is sued in his official capacity as Chair of the Presidential Advisory Commission.
24. Defendant Kris Kobach is the Secretary of State of Kansas, and the Vice Chair of the Presidential Advisory Commission. Vice Chair Kobach has a lengthy history of attempting to suppress the right to vote within his home state of Kansas. For example, in League of Women Voters of United States v. Newby, 838 F.3d 1, 13 (D.C. Cir. 2016), the U.S. Court of Appeals for the District of Columbia Circuit rejected Secretary Kobach’s arguments that proof of citizenship should be required when registering to vote because there is “precious little record evidence” that failure to present citizenship leads to fraudulent registration by non-citizens. Similarly, in Fish v. Kobach, 840 F.3d 710
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 11 of 64
(10th Cir. 2016), the U.S. Court of Appeals for the Tenth Circuit upheld the district court’s injunction against Secretary Kobach, requiring him to register voters whose voter registrations were rejected for failure to provide documentary proof of citizenship. The Tenth Circuit explained that Mr. Kobach’s actions and the Kansas statutory scheme amounted to a “mass denial of a fundamental constitutional right” for more than 18,000 voters. Moreover, the Tenth Circuit explained that Secretary Kobach’s “assertion that the ‘number of aliens on the voter rolls is likely to be in the hundreds, if not thousands’ is pure speculation.” Id. at 755. He is sued in his official capacity as Vice Chair of the Presidential Advisory Commission.
25. Defendant Executive Office of the President of the United States (“EOP”) is an agency within the meaning of 44 U.S.C. § 3502 and the APA, 5 U.S.C. § 701.
26. Defendant Office of the Vice President of the United States (“OVP”) is a subcomponent of EOP and constitutes an agency within the meaning of 44 U.S.C. § 3502 and the APA, 5 U.S.C. § 701.
27. Defendant Tim Horne is the Administrator of the U.S. General Services Administration (“GSA”), an agency within the
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 12 of 64
meaning of 44 U.S.C. § 3502 and the APA, 5 U.S.C. § 701. The GSA is charged with providing the Presidential Advisory Commission “such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission ....” (Exhibit A). Exec. Order. No. 13,799, 82 Fed. Reg. 22,389, 22,390 (May 11, 2017). He is sued in his official capacity.
28. Defendant Mick Mulvaney is the Director of the Office of Management and Budget (“OMB”), an office within the Executive Office of the President of the United States. The OMB Director reports to the President, Vice President, and the White House Chief of Staff. The OMB is tasked with promulgating the Federal Regulations to effectuate the mandates of the Paperwork Reduction Act. He is sued in his official capacity.
29. Defendant Ken Detzner is the Florida Secretary of State, charged with the statutory responsibilities of maintaining and securing Florida voter information. He is sued in his official capacity.
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 13 of 64
IV. FACTS The President and His Administration Propagate Baseless
Accusations About Widespread Voter Fraud 30. President Trump has a long history of propagating baseless conspiracy theories about voter fraud, ostensibly in order to suppress the right to vote. As a presidential candidate and now as President, Mr. Trump repeatedly, and baselessly, spoke about widespread voter fraud across the country, including supposed votes cast by dead people, people voting multiple times, people voting in multiple states, and, supposed votes cast by “illegal immigrants.”1 31. In August 2016, then-Candidate Trump told an audience that: The only way they can beat me, in my opinion, and I mean this 100 percent, is if in certain sections of the state, they cheat, OK . . . So I hope you people can sort of not just vote . . . (but also) go around and look and watch other polling places and make sure that it’s 100 percent fine. Sachelle Saunders, Donald Trump wants to fight voter fraud with observers, Orlando News 6 (August 17, 2017), http://www.clickorlando.com/news/politics/trumps-call-for-poll-
1 Attached as Exhibit B is a compilation of public statements by or on behalf of the President promoting the existence of voter fraud in connection with the 2016 election, despite no legitimate supportive facts or evidence.
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 14 of 64

observers-could-cause-trouble. Similarly, on October 1, 2017, then-

Candidate Trump told an audience to:

watch your polling booths because I hear too many stories about Pennsylvania, certain areas. . . . We can’t lose an election because of, you know what I’m talking about.

Robert Farley, Trump’s Bogus Voter Fraud Claims, FactCheck.org

(October 19, 2016), http://www.factcheck.org/2016/10/trumps-bogus-

voter-fraud-claims/. These are just two examples, of many, of Mr.

Trump encouraging people to go to polling sites to intimidate voters.

32. As another example, on October 17, 2016, then-Candidate

Trump stated:

They even want to try to rig the election at the polling booths. And believe me, there’s a lot going on. Do you ever hear these people? They say there’s nothing going on. People that have died 10 years ago are still voting. Illegal immigrants are voting. I mean, where are the street smarts of some of these politicians? … So many cities are corrupt, and voter fraud is very, very common.

Tribune news services, Trump wrongly insists voter fraud is ‘very, very

common,’

Chicago

Tribune

(Oct.

17,

2016),

http://www.chicagotribune.com/news/nationworld/politics/ct-donald-

trump-voter-fraud-20161017-story.html.

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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 15 of 64
33. On November 27, 2016, shortly after the election, the President-Elect continued his baseless accusations about voter fraud, claiming without evidence that he actually won the national popular vote if “illegal” votes were deducted from the total. The President-Elect 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. Donald J. Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 3:30 p.m.), https://twitter.com/realDonaldTrump/status/802972944532209 664. ABC News declared this statement “False,” because “Trump offered no proof to back up this claim, and ABC News, which monitored all 50 states for voting irregularities on election night, has found no evidence of widespread voter fraud.” 34. Soon after the inauguration, on January 25, 2017, 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!
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Donald J. Trump (@realDonaldTrump), Twitter (Jan. 25, 2017, 7:10 am), https://twitter.com/realDonaldTrump/status/824227824903090176; Donald J. Trump (@realDonaldTrump), Twitter (Jan. 25, 2017, 7:13 am), https://twitter.com/realDonaldTrump/status/824228768227217408.
35. With these tweets, the President stated his intention to create what would later become the Presidential Advisory Commission.
The Presidential Advisory Commission Attempts to Collect State Voter Information
36. The Presidential Advisory Commission was established by Executive Order No. 13,799 on May 11, 2017 (the “Executive Order”). 82 Fed. Reg. 22,389 (Exhibit A). Its Charter is attached as Exhibit C.
37. The Executive Order instructs the Presidential Advisory Commission to “study the registration and voting processes used in Federal elections.” (Exhibit A). 82 Fed. Reg. at 22,389. The Executive Order does not contain any authority to collect personal voter data, to initiate investigations, or to seek the disclosure of state voter data.
38. On June 28, 2017, the Vice Chair of the Commission initiated a process to collect detailed voter information, including personal identifying information, from all 50 States and the District of Columbia. This request had never occurred before, notwithstanding the
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 17 of 64
existence of the U.S. Election Assistance Commission created by the Help America Vote Act of 2002. 52 U.S.C. §§ 20921-20930.2
39. Prior to all of the Presidential Advisory Commission’s members being publicly named and sworn in, and before any duly noticed meetings, Vice Chair Kobach stated during a phone call with Presidential Advisory Commission members that “a letter w[ould] be sent today to the 50 States and District of Columbia on behalf of the Commission requesting publicly-available data from state voter rolls. . . .” (Exhibit D). 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).
40. According to the U.S. Census, state voter rolls include the names, addresses, and other personally identifiable information of as many as 157 million registered voters nationwide. U.S. Census Bureau, Voting and Registration in the Election of November 2016 at tbl. 4a
2 The U.S. Election Assistance Commission is empowered to conduct periodic studies of election administration including, among other things “[n]ationwide statistics and methods of identifying, deterring, and investigating voting fraud in elections for Federal office” and “[m]ethods of voter registration, maintaining secure and accurate lists of registered voters (including the establishment of a centralized, interactive, statewide voter registration list linked to relevant agencies and all polling sites), and ensuring that registered voters appear on the voter registration list at the appropriate polling site.” 52 U.S.C. § 20981.
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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 18 of 64

(May

2017),

https://www.census.gov/data/tables/time-

series/demo/voting-and-registration/p20-580.html.

41. Florida law makes certain voter information confidential and

exempt from disclosure under any circumstances. Social security

numbers, driver’s license numbers, and the source of voter registration

application cannot be released under any circumstances. § 97.0585,

Florida Statutes (2016). Additionally, other voter information is

confidential under certain circumstances. For instance, victims of

domestic violence and stalking who are participants in the Attorney

General’s Address Confidentiality Program are exempt from public

disclosure of voter registration information. § 97.0585(3). Also,

categories of high-risk professionals can be exempt from disclosure of

personal information including address, photograph, and date of birth.

42. The Florida Department of State, Division of Elections, is

required to redact all protected exempt information for any requests for

production of voter information.

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Case 1:17-cv-22568-MGC Document 1 Entered on FLSD Docket 07/10/2017 Page 19 of 64
43. One of the Vice Chair’s letters, dated June 28, 2017, was
sent to Florida Secretary of State Ken Detzner. (Exhibit E).3
44. These letters include a request for voter identifying
information, 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.” Id.
3 That same day of June 28, 2017, the U.S. Department of Justice sent a letter to every state covered by the National Voter Registration Act, 52 U.S.C. § 20501 (“NVRA”) seeking “all statutes, regulations, written guidance, internal policies, or database user manuals that set out the procedures” each state has relating to various programs including, among other things, removing voters from voter registration rolls. The letter also discusses coordination between “state voter registration lists with state agency records on felony status and death.” However, the DOJ letter does not appear to specifically request information about specific identifiable voters. A copy of the letter sent to Washington Secretary of State Kim Wyman is attached as Exhibit F and is believed to be representative of the letters to all states covered by the NVRA. Given the nearly identical timing and subject matter of the DOJ’s letter and the Presidential Advisory Commission’s letter, it appears that the Presidential Advisory Commission exists to obtain records that would be otherwise unavailable to the DOJ for the purpose of enacting policies and procedures to suppress the vote across the entire country.
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45. The Vice Chair’s letters also sought “[w]hat evidence or information [the state had] regarding instances of voter fraud or registration fraud” and “[w]hat convictions for election related crimes ha[d] occurred in [the] state since the November 2000 federal election.” (Exhibit E ).
46. According to the Presidential Advisory Commission, “any documents that are submitted to the full Commission w[ould] also be made available to the public.” (Exhibit E).
47. According to the letters, the states’ responses to the Presidential Advisory Commission are due by July 14, 2017. (Exhibit E).
48. The letter does not list a physical address for the Presidential Advisory Commission, leading some states, including Florida, to address the written response to the Vice Chair at his state government address in Topeka, Kansas. Withholding a physical address from the Commission’s correspondence leads to records being produced at a location other than the federally identified address of the Presidential Advisory Commission.
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49. The URL (https://safe.amrdec.army.mil/safe/Welcome.aspx) provided by the Presidential Advisory Commission for the transmission of voter registration data and information is a non-secure site, subjecting voters to having personal identifying information made available on the Internet and thus making them potential victims of identity theft. Visitors to this URL are informed that the “connection is not secure” and are warned about “your information . . . being stolen.” (Exhibit G). Florida Leads the Nation in Fraud and Identity Theft, Making it
Especially Imperative that Personal Voter Data be Secure 50. The procedures being employed by the Presidential Advisory
Commission and the other federal Defendants leave the Plaintiffs and, in the case of the organizational Plaintiffs, their members, open to fraud and identity theft.
51. Florida leads the country in complaints for fraud and identity theft, and has for more than a decade. Maria LaMagna, Residents of these states are most vulnerable to identity theft, Market Watch (July 9, 2017), http://www.marketwatch.com/story/residents-ofthese-states-are-most-vulnerable-to-identity-theft-2017-07-07; William E. Gibson & Donna Gehrke-White, Florida leads nation in fraud, ID
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theft, South Florida Sun-Sentinel (Mar. 3, 2015), http://www.sunsentinel.com/news/florida/fl-florida-leading-fraud-id-theft-20150303story.html. Additionally, among metropolitan areas across the United States, South Florida produces the most cases of fraud and identity theft. Id.
52. The federal Defendants’ actions will serve to further compound this problem if the states transmit the requested voter data to the Presidential Advisory Commission.
53. Florida officials stated, in response to media inquiries about possible data breaches during the 2016 election, that “‘Florida’s online elections databases and voting systems remained secure in 2016,” and Florida has “secured its databases and put in firewalls to protect information, and the state has ‘no indication that any unauthorized access occurred.’” Jeff Pegues, Election databases in several states were at risk during 2016 presidential campaign, CBS News (June 13, 2017), http://www.cbsnews.com/news/election-databases-in-several-stateswere-at-risk-during-2016-presidential-campaign/.
54. Florida is also in the process of implementing a new online voter registration platform. There has been considerable legislative
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debate about the platform’s implementation, specifically to address security concerns to protect the public. Amy Sherman, Is online voter registration more secure? Florida state senator says yes, Politifact (Jan. 23, 2015), http://www.politifact.com/florida/statements/2015/jan/23/jeffclemens/online-voter-registration-more-secure-florida-stat/.
55. Florida’s efforts to secure voter registration data and, therefore, its voters (including the Plaintiffs), from among other things, identity theft, will be undermined if personalized voter data is amassed and centralized into a non-secure federal database, as requested by the Presidential Advisory Commission.
Opposition by States to Presidential Advisory Commission’s Demand for Voter Identifying Information
56. At the present time, numerous state elections officials have publicly announced their intention to oppose the demand for personal voter data. Philip Bump & Christopher Ingraham, Trump Says States Are “Trying to Hide Things” from His Voter Fraud Commission. Here’s What They Actually Say, Wash. Post (July 1, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/07/01/trumpsays-states-are-trying-tohide-things-from-his-voter-fraud-commissionheres-what-they-actually-say/.
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57. California Secretary of State Alex Padilla announced his state would “not provide sensitive voter information to a committee that has already inaccurately passed judgment that millions of Californians voted illegally. California’s participation would only serve to legitimize the false and already debunked claims of massive voter fraud . . . .” Press Release, Secretary of State Alex Padilla Responds to Presidential Election Commission Request for Personal Data of California Voters (June 29, 2017), http://www.sos.ca.gov/administration/news-releasesand-advisories/2017-news-releases-and-advisories/secretary-state-alexpadilla-responds-presidential-election-commission-request-personaldata-california-voters/.
58. Kentucky Secretary of State Alison Lundergan Grimes stated that “Kentucky w[ould] not aid a commission that is at best a waste of taxpayer money and at worst an attempt to legitimize voter suppression efforts across the country.” Bradford Queen, Secretary Grimes Statement on Presidential Election Commission’s Request for Voters’ Personal Information, Kentucky (last accessed July 3, 2017) http://kentucky.gov/Pages/Activity-stream.aspx?n=SOS&prld=129.
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59. Virginia Governor Terry McAuliffe had “no intention of

honoring [the] request.” Terry McAuliffe, Governor McAuliffe Statement

on Request from Trump Elections Commission (June 29, 2017),

https://governor.virginia.gov/newsroom/newsarticle?articleid=20595.

60. Mississippi Secretary of State Delbert Hosemann said, of the

Vice Chair’s letter: “My reply would be: They can go jump in the Gulf of

Mexico, and Mississippi is a great state to launch from. Mississippi

residents should celebrate Independence Day and our state’s right to

protect the privacy of our citizens by conducting our own electoral

processes.” Tal Kopan, Pence-Kobach 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.

61. Despite several requests directed to the Florida Secretary of

State to determine the State of Florida’s position regarding the

Presidential Advisory Commission request, Florida’s Secretary of State

only on the evening of July 6, 2017, announced that Florida will comply

with the request by producing only publicly available information.

Associated Press, Florida to hand over some voting information to

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commission investigating voter fraud, Local 10 South Florida (July 6, 2017), https://www.local10.com/news/politics/florida-to-hand-over-somevoting-information-to-commission-investigating-voter-fraud. As of the time of this filing, Plaintiffs have no reason to believe the requested information has yet been provided to the Presidential Advisory Commission by the State of Florida. Nor is it clear exactly what voter information the State of Florida intends to transmit to the Commission. The Florida Secretary of State’s letter confirming Florida’s intention to produce voter information is attached as Exhibit H.
62. Public opposition to the Presidential Advisory Commission’s request is mounting. Voting technology professionals wrote state election officials to warn that “[t]here is no indication how the information will be used, who will have access to it, or what safeguards will be established.” Letter from EPIC to Nat’l Ass’n of State Sec’ys (July 3, 2017), https://epic.org/privacy/voting/pacei/Voter-Privacy-letterto-NASS-07032017.pdf.
63. After public opposition to the Presidential Advisory Commission’s request began to mount, the Vice Chair wrote an article for Breitbart News, in which he conceded that “information like the last
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four numbers of a voter’s social security number” is “private,” but that “[t]he Commission didn’t request that information. Thus, there is no threat that the Commission’s work might compromise anyone’s privacy.” Kris W. Kobach, Kobach: Why States Need to Assist the Presidential Commission on Election Integrity, Brietbart News (July 3, 2017), http://www.breitbart.com/big-government/2017/07/03/kobachwhy-states-need-to-assist-the-presidential-commission-on-electionintegrity/. (Exhibit I). To the contrary, the Vice Chair’s June 28, 2017 letter to the 50 States and the District of Columbia specifically requests, among other things, the “last four digits of social security number[s].” (Exhibit E).
64. The President also responded to the news that numerous states were objecting to the production of voter data to the Presidential Advisory Commission, tweeting:
Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide? Donald J. Trump (@realDonaldTrump), Twitter (July 1, 2017, 6:07am), https://twitter.com/realDonaldTrump/status/881137079958241280.
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Absence of Privacy Impact Assessment 65. Under the E-Government Act of 2002 (18 Pub. L. 107-347, 116 Stat. 2899 (codified as amended at 44 U.S.C. § 3501 note)), every agency “initiating a new collection of information that (I) will be collected, maintained, or disseminated using information technology; and (II) includes any information in an identifiable form permitting the physical or online contacting of a specific individual” is required to complete a Privacy Impact Assessment (“PIA”) before initiating such collection. 44 U.S.C. § 3501 note (“Privacy Impact Assessments”). 66. The agency must “(i) conduct a privacy impact assessment; (ii) ensure the review of the privacy impact assessment by the Chief Information Officer, or equivalent official, as determined by the head of the agency; and (iii) if practicable, after completion of the review under clause (ii), make the privacy impact assessment publicly available through the website of the agency, publication in the Federal Register, or other means.” Id. 67. The Presidential Advisory Commission is an agency subject to the E-Government Act because it is an “establishment in the
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executive branch of the Government,” a category that “includ[es] the Executive Office of the President.” 44 U.S.C. § 3502(1).
68. A Privacy Impact Assessment for a “new collection of information” must be “commensurate with the size of the information system being assessed, the sensitivity of information that is in an identifiable form in that system, and the risk of harm from unauthorized release of that information.” § 3501 note (“Privacy Impact Assessments”). The PIA must specifically address “(I) what information is to be collected; (II) why the information is being collected; (III) the intended use of the agency of the information; (IV) with whom the information will be shared; (V) what notice or opportunities for consent would be provided to individuals regarding what information is collected and how that information is shared; [and] (VI) how the information will be secured ....” Id.
69. Under FACA, “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by [an] advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the
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agency to which the advisory committee reports until the advisory committee ceases to exist.” 5 U.S.C. app. 2 § 10(b).
70. The Commission has not conducted a Privacy Impact Assessment for its collection of state voter data.
71. The Commission has not ensured review of a PIA by any Chief Information Officer or equivalent official.
72. The Commission has not published a PIA or made such an assessment available for public inspection.
73. The U.S. Congress has made no finding of a problem that would warrant creation of a nationwide voter database. There has been no congressional finding of a systemic and nationwide problem with voter registration files and voter history, including evidence of voter fraud, to justify the collection of state voter history and voter registration information by the federal government.
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COUNT I Violations of the Federal Advisory Committee Act,
5 U.S.C. App. 2, et seq. Against Presidential Advisory Commission, Pence, Kobach, Executive Office of the President, Executive Office of the Vice President, Horne, and Mulvaney 74. Plaintiffs restate and incorporate paragraphs 1-73. 75. The Executive Order specifically contemplates that the Presidential Advisory Commission is governed by the Federal Advisory Committee Act, 5 U.S.C. App. 2, et seq. (“FACA”). See Executive Order 82 Fed. Reg. 22,389 at § 7(c) (Exhibit A). The Presidential Advisory Commission’s Charter also states that the Commission “is established in accordance with . . . the Federal Advisory Committee Act[.]” (Exhibit C at ¶ 2). The first notice of any meeting of the Presidential Advisory Commission published in the Federal Register, which was published on July 5, 2017, also states that the Commission was “established in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. . . .” 82 Fed. Reg. 31,063 (Exhibit J) (the “First Meeting Notice”). 76. However, Defendant Presidential Advisory Commission and the other federal Defendants have failed to comply with numerous of the FACA’s clear requirements. Among other things, these Defendants
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(a) failed to properly notice and conduct meetings, (b) failed to provide opportunities for public participation and input, (c) failed to make its membership fully known, (d) failed to make documents available to the public, and (e) conducted unlawful business not authorized by the Executive Order or any statute prior to all of the Commission’s members being appointed and sworn in and without input or participation from the public or even most of the Commission’s members.
77. “Because FACA’s dictates emphasize the importance of openness and debate, the timing of such observation and comment is crucial to compliance with the statute. Public observation and comment must be contemporaneous to the advisory committee process itself. . . . If public commentary is limited to retrospective scrutiny, the Act is rendered meaningless.” See Alabama-Tombigbee Rivers Coal. v. Dep’t of Interior, 26 F.3d 1103, 1106 (11th Cir. 1994).
78. According to the Eleventh Circuit, “injunctive relief [is] the only vehicle that carries the sufficient remedial effect to ensure future compliance with FACA’s clear requirements.” Id. at 1107. It is the responsibility of the courts to see that the FACA is followed, even where
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there are only “minor transgressions” of the FACA and where “the subject matter is serious” and “the objective is worthy.” Id. at n.9. “Because the matters are so serious and of such great concern to so many with differing interests, it is absolutely necessary that the procedures established by Congress be followed to the letter.” Id.
79. “[T]o allow the government to use the product of a tainted procedure would circumvent the very policy that serves as the foundation of the Act.” Id.
80. First, the Presidential Advisory Commission and the other federal Defendants, including the Vice President and the Vice Chair on behalf of the Commission, began conducting official business prior to ever holding a meeting for which a notice was published in the Federal Register, prior to the appointment and swearing in of all of its members, and prior to any public participation or input being permitted.
81. The first meeting of the Commission for which a notice was published in the Federal Register is presently scheduled to take place on July 19, 2017. At that meeting, the Commission’s members will be sworn in.
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82. Yet, on June 28, 2017, the Vice Chair issued letters to the chief elections officials of all 50 States and the District of Columbia seeking personal information about every registered voter in the country, the effect of which would be to amass and centralize a federal voter database not authorized by the Executive Order or any statute, thereby indicating one or more earlier meetings of the Commission have taken place without any notice published in the Federal Register.
83. According to the 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), attached as Exhibit D, additional telephonic meetings, for which there was no notice published in the Federal Register, were unlawfully held. During the conference call with the Commission’s members, the Vice Chair told the other members about the letters he sent to the 50 States and the District of Columbia on behalf of the Commission requesting voter data.
84. Thus, the Vice President and the Vice Chair acted unilaterally on behalf of the Presidential Advisory Commission, without the consent or participation of the public or even the majority of the members of the Commission, in sending the letters seeking voter
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registration and personal information about every registered voter in the country, in violation of the FACA.
85. In fact, the Vice Chair’s June 28, 2017 letter to each of the 50 States and the District of Columbia, which is printed on Presidential Advisory Commission letterhead and which bears the Seal of the President of the United States, requests that each jurisdiction receiving the letter respond by July 14, 2017, which is prior even to the first meeting of the Commission for which notice was published in the Federal Register, which is scheduled for July 19, 2017.
86. Second, the Presidential Advisory Commission and the other federal Defendants have failed to name all of its members before it began conducting business, in violation of the FACA.
87. Pursuant to 5 U.S.C. App. 2 § 2(b)(5), “the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees.”
88. Yet, as of July 9, 2017, various news reports have indicated that 11 members of the Commission have been appointed, including the Vice President as Chair, and including the Vice Chair. News reports also indicate that one of the members has since resigned from the
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Commission, leaving the Commission with 10 members as of this date. Pursuant to the Executive Order, the Commission will have “no more
than 15 additional members” besides the Vice President, for a maximum possible total of 16 members. To date, it is unclear whether additional members have been or will be appointed to the Commission, bringing the total above 10. To date, the Commission’s members’
swearing-in ceremony has not yet taken place because it is noticed for July 19, 2017, even though the Commission has already begun conducting business in violation of the FACA.
89. Third, the Presidential Advisory Commission and the other
federal Defendants have failed to comply with the FACA’s requirements regarding advance notice of meetings.
90. Pursuant to 41 C.F.R. § 101-6.1015(b), a regulation implementing the FACA:
(b) Committee meetings. (1) The agency or an independent Presidential advisory committee shall publish at least 15 calendar days prior to an advisory committee meeting a notice in the FEDERAL REGISTER, which includes:
(i) The exact name of the advisory committee as chartered; (ii) The time, date, place, and purpose of the meeting; (iii) A summary of the agenda; and (iv) A statement whether all or part of the meeting is open to the public or closed, and if closed, the reasons why, citing
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the specific exemptions of the Government in the Sunshine Act (5 U.S.C. 552(b)) as the basis for closure.
(2) In exceptional circumstances, the agency or an independent Presidential advisory committee may give less than 15 days notice, provided that the reasons for doing so are included in the committee meeting notice published in the FEDERAL REGISTER. 91. The Presidential Advisory Commission and its affiliated federal Defendants have violated 41 C.F.R. § 101-6.1015(b) in multiple regards, by holding meetings that were not noticed in the Federal Register whatsoever and taking action based upon those un-noticed meetings, including:
a. Holding one or more meetings consisting solely of the Vice Chair and/or the Vice President (and possibly other members of the Trump administration, but not including the majority of the members of the Presidential Advisory Commission) that were not noticed in the Federal Register, which led to the Vice Chair sending out letters seeking voter information from all 50 States and the District of Columbia on June 28, 2017, all without the participation or input of the public or even the majority of the Commission’s members; and
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b. Holding one or more telephonic meetings that were not noticed in the Federal Register and that did not allow for public participation or input. 92. The meetings of the Commission referenced in the preceding paragraph violate 41 C.F.R. § 101-6.1015(b) for failing to provide any notice in the Federal Register whatsoever. 93. The Presidential Advisory Commission and its affiliated federal Defendants have also violated 41 C.F.R. § 101-6.1015(b) with regard to the first meeting for which a notice was published in the Federal Register, because the notice is legally deficient. 94. The first notice of any meeting of any kind of the Presidential Advisory Commission was published in the Federal Register on July 5, 2017, giving notice of an open meeting to take place on July 19, 2017. 82 Fed. Reg. 31,063 (Exhibit J) (the “First Meeting Notice”). Accordingly, even this First Meeting Notice violates 41 C.F.R. § 101-6.1015(b) in that it provides less than 15 days notice of the meeting and provides no reasons or exceptional circumstances for doing so, in violation of the FACA.
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95. Fourth, the Presidential Advisory Commission and the other federal Defendants have failed to comply with the FACA’s requirement that members of the public be permitted to attend the Commission’s open meetings in person.
96. Pursuant to 41 C.F.R. § 101-6.1021(b), a regulation implementing the FACA:
The agency head, or the chairperson of an independent Presidential advisory committee, shall ensure that— . . . (b) The meeting room size is sufficient to accommodate advisory committee members, committee or agency staff, and interested members of the public[.] 97. The Presidential Advisory Commission and its affiliated federal Defendants have violated 41 C.F.R. § 101-6.1021(b) with regard to its earlier un-noticed meetings in multiple regards, including by:
a. Holding one or more meetings of the Commission that were not noticed in the Federal Register, in which the meeting room was not sufficient to accommodate interested members of the public (and in which the majority of the Commission’s members were not even in attendance); and
b. Holding one or more telephonic meetings of the Commission that were not noticed in the Federal Register, in
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which the meeting room was necessarily not sufficient to accommodate interested members of the public because the meetings took place by telephone, and thus there was no meeting room. 98. The Presidential Advisory Commission and its affiliated federal Defendants have also violated 41 C.F.R. § 101-6.1021(b) with regard to the first meeting for which a notice was published in the Federal Register, because the notice is legally deficient. 99. The First Meeting Notice states that the meeting “will be open to the public through livestreaming on https://www.whitehouse.gov/live.” This indicates that interested members of the public will not be permitted to attend and observe the meeting in person, in violation of 41. C.F.R. § 101-6.1021(b). 100. Fifth, the Presidential Advisory Commission and the other federal Defendants, including the Vice President, have failed to comply with the FACA’s requirements to provide reasonable public participation in the Commission’s activities. 101. Pursuant to 41 C.F.R § 101-6.1011(b), a regulation implementing the FACA, “[t]he chairperson of an independent
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Presidential advisory committee shall comply with the Act and this subpart and shall: . . . (b) [f]ulfill the responsibilities of an agency head as specified in paragraphs (d), (h) and (j) of §101–6.1009 . . . .” 41 C.F.R. § 101-6.1009(h), referenced therein, provides that:
The head of each agency that uses one or more advisory committees shall ensure: . . . (h) The opportunity for reasonable public participation in advisory committee activities[.] 102. Thus, the Presidential Advisory Commission’s refusal to allow in-person attendance at its meetings, along with the Commission having taken action by, at a minimum, sending letters to all 50 States and the District of Columbia seeking voter data to amass and centralize a federal voter database, without any public participation or input, violates the Vice President’s obligations as the Chair of the Commission under the FACA to provide for reasonable public participation in the Commission’s activities. 103. The Vice President’s and Vice Chair’s unilateral actions on behalf of the Presidential Advisory Commission, without even the input of the majority of the Commission’s members, in seeking to collect voter data from all 50 States and the District of Columbia to amass and centralize a federal voter database without first (a) making known the
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final makeup of the Commission’s members, (b) holding any meetings for which notice(s) were published in the Federal Register, (c) swearing in the Commission’s members, or (d) providing any opportunity for public comment, participation, or input, necessarily violates the FACA because “[p]ublic observation and comment must be contemporaneous to the advisory committee process itself.” See Alabama-Tombigbee Rivers Coal., 26 F.3d at 1106.
104. Sixth, the Presidential Advisory Commission and the other federal Defendants have failed to make available for public inspection a privacy impact assessment for the collection of voter data.
105. Seventh, the Defendants have failed to comply with 5 U.S.C. app. 2 § 10(b), which provides 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 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.”
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106. As just one example, the Vice Chair’s June 28, 2017 letter to each of the 50 States and the District of Columbia, which is printed on Presidential Advisory Commission letterhead and which bears the Seal of the President of the United States, does not contain any physical address for the Commission. As a result, certain documents are being sent to the Vice Chair at his state government address in Topeka, Kansas, rather than at “a single location in the offices of the advisory committee” in Washington, D.C., as in the case of Florida Secretary of State Ken Detzner’s July 6, 2016 response to the Vice Chair attached hereto as Exhibit H. It is unclear whether the Vice Chair and the other Commission members have transmitted, and whether they will transmit, all records received by them individually or on behalf of the Commission to the Commission’s office for public record keeping purposes. Unless the Defendants are enjoined to comply with all laws, including those of the FACA pertaining to access to documents, Plaintiffs and the public at large will necessarily lack confidence that the Commission is operating with the requisite transparency and in the sunshine.
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107. Defendants may have committed additional violations of the FACA not presently known to the Plaintiffs, especially in light of the Defendants’ various violations of the FACA that have kept the public in the dark about the Presidential Advisory Commission’s conduct.
108. Plaintiffs are, individually and in their representative capacities, adversely affected and aggrieved by the Defendants’ actions and inaction.
109. Unless the Court declares the actions of the Presidential Advisory Commission, the Vice President, the Vice Chair, and the other federal Defendants to be illegal and enters an order or orders granting injunctive relief to require the Defendants to follow all legal requirements, Plaintiffs, individually and in their representative capacities, will be entered, without their prior knowledge or consent, into an unauthorized national database—the use of which has not been explained—controlled by the whims of the Commission’s directors, that is not authorized by any statute or even the Executive Order, and that is the product of numerous violations of the FACA.
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COUNT II Exceeding the Authority of the Executive Order Against Presidential Advisory Commission, Pence, Kobach, Executive Office of the President, Executive Office of the Vice President, Horne, and Mulvaney 110. Plaintiffs restate and incorporate paragraphs 1-73. 111. By Executive Order, the purported mission of the Presidential Advisory Commission is to “study the registration and voting processes used in Federal Elections.” The Presidential Advisory Commission is then to submit a report identifying laws and actions that “enhance” or “undermine” the American people’s confidence in voting systems used for federal elections. It is also supposed to identity and report vulnerabilities in voting systems and practices used for federal elections. 112. The Executive Order does not empower the Presidential Advisory Commission to amass and centralize a federal database of voters and then publicize it. 113. Through its letters to the 50 States and the District of Columbia, the Presidential Advisory Commission has breached and exceeded its authority under the Executive Order by, inter alia,
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(a) Seeking to amass and centralize a federal database of voters with personal and of voters that includes party affiliation, voting history, social security number, military history, criminal history, and address.
(b) Seeking to place this voter data on an unsecure or otherwise suspect server.
(c) Seeking to make the data that it obtains public. (d) Violating Section 5 of the Executive Order. That is, by creating a federal database, the Commission is duplicating the work of existing government entities, namely the States and the District of Columbia, as well as the independent commissions such as the Federal Election Commission and the U.S. Elections Assistance Commission. 114. Plaintiffs are, individually and in their representative capacities, adversely affected and aggrieved by Defendants’ actions and inaction.
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COUNT III Breaches and Violations of Constitutional
Separation of Powers and Article II Against Presidential Advisory Commission, Pence, Kobach, Executive Office of the President, Executive Office of the Vice President, Horne, and Mulvaney 115. Plaintiffs restate and incorporate paragraphs 1-73. 116. Pursuant to the U.S. Constitution, the powers of the three branches are separated. 117. The Framers of the Constitution placed Congress’s power in Article I. Executive power follows in Article II. 118. Under the U.S. Constitution, Congress is given the power to enforce and protect, through legislation, the right to vote and the election system. The U.S. Constitution gives no power to the Executive Branch concerning the election system or its integrity. Any power the Executive does have to enforce the right to vote or to protect the electoral process is its general enforcement power and its obligation to execute and enforce Congressional acts and laws – faithfully. 119. Under Article I, Congress is given the exclusive federal power to make laws and regulate elections: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be
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prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Art. I, § 4, U.S. Const.
120. Under the 14th, 15th, 19th, 24th, and 26th Amendments to the U.S. Constitution, the right to vote was secured for AfricanAmericans, women, 18-year olds, and poll taxes were eliminated. In each Amendment, Congress was given the power to enforce these rights with legislation. Each of these Amendments conclude with nearly identical language: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The Executive is not mentioned.
121. Using its Article I Powers, Congress has created the exclusive legal regime over the enforcement of elections and the right to vote, to safeguard the integrity of the voting systems, and to otherwise regulate the integrity of elections. Such legislation includes, inter alia: The Voting Rights Act of 1965; The National Voter Registration Act of 1993 (Motor Voter Law); and the Help America Vote Act of 2002. These laws are aimed at protecting election integrity and the right to vote. The U.S. Court of Appeals for the Eleventh Circuit explained that the
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Help America Vote Act “represents Congress’s attempt to strike a balance between promoting voter access to ballots on the one hand and preventing voter impersonation fraud on the other.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1168 (11th Cir. 2008).
122. The Executive Branch has limited, enumerated powers under Article II of the U.S. Constitution.
123. Nowhere in the Constitution or through Acts of Congress is the Executive granted or delegated any power to amass and centralize a national database of voters that includes party affiliation, voting history, social security numbers, military history, criminal history, address, or any other of the personal data the Presidential Advisory Commission requested.
124. To the extent the Executive has implied or express powers through the enforcement and execution of Congressional Acts – including its limited and delegated authority to establish sunshine, transparent, out-in-the-open commissions under FACA – nowhere does Congress or the Constitution contemplate that the Executive can amass and centralize a national voter database.
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125. The Commission’s acts here are unprecedented. 126. One of the Executive’s duties is that “he shall take care that the laws be faithfully executed.” The Executive – through the Presidential Advisory Commission – is not faithful to the execution of any law. Rather, the Executive is pursuing a widely disputed complaint that millions voted illegally in the 2016 election. 127. The creation and the activities of the Executive’s Presidential Advisory Commission unconstitutionally intrude into the Article I powers of Congress over the electoral system, its authority over the protection of the vote, and its authority over the integrity of the election system. The presidential creation of the Presidential Advisory Commission and its ongoing activities violate the separation of powers of the U.S. Constitution. 128. These actions have exceeded the scope of the Executive’s Article II powers and have otherwise breached Article II. 129. These transgressions of Separation of Powers principles as well as Article II limitations and duties include, inter alia, the following acts and omissions:
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a. Using the Presidential Advisory Commission to amass and centralize a federal database with personal and private information of voters.
b. Creating a commission that is not tied to any of the Executive’s enumerated Article II powers or to any congressional enactment or authorization.
c. Creating the Presidential Advisory Commission based on a myth of voter fraud and without any legitimate factual finding to support its purported mission.
d. Creating the Presidential Advisory Commission as a ruse to do what the Executive cannot otherwise do – amass and centralize a federal database with personal and private voter information.
e. Failing to faithfully execute any law through the creation of and workings of the Presidential Advisory Commission.
f. Failing to prevent the commission from exceeding its purported authority and purpose as set forth in Section 5 of the Executive Order. That is, by creating a federal
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database, the Presidential Advisory Commission is duplicating the work of existing government entities, namely the states and other existing, independent election commissions such as the U.S. Election Assistance Commission and Federal Election Commission.
g. Failing to prevent the Presidential Advisory Commission from exceeding its purported authority and purpose as set forth in the Executive Order. The Order does not direct the Presidential Advisory Commission to amass and centralize a federal database of voters’ personal and private information.
h. Failing to prevent the Presidential Advisory Commission from not disclosing its work materials and full membership as required under the Federal Advisory Committee Act, and to otherwise adhere to the FACA disclosure and sunshine requirements as more fully set forth in Count I.
i. Failing to prevent the commission from exceeding its purported authority and purpose as set forth in Section 5
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of the Executive Order. That is, by creating a commission whose goal, in the written word, is to protect voting integrity through study of the registration process and voting processes in Federal Elections, the Presidential Advisory Commission is duplicating the work of existing government entities, namely the states and other existing, independent election commissions such as the U.S. Election Assistance Commission and Federal Election Commission.
j. The creation and the activities of the Presidential Advisory Commission unconstitutionally intrude into the Article I powers of Congress over the electoral system, its authority over the protection of the vote, and its authority over the integrity of the election system. The Presidential Advisory Commission’s actions violate the separation of powers delineated in the U.S. Constitution.
k. Failing to faithfully execute FACA.
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COUNT IV Violation of The Paperwork Reduction Act,
44 U.S.C. § 3501, et seq. Against Presidential Advisory Commission, Pence, Kobach, Executive Office of the President, Executive Office of the Vice President, Horne, and Mulvaney 130. Plaintiffs restate and incorporate paragraphs 1-73. 131. The Paperwork Reduction Act of 1995 (“PRA”) was designed for multiple purposes, but most notably was intended to minimize the burden on the public and on state governments, to ensure the “greatest possible public benefit from and maximize the utility of information created, collected, maintained, used, shared and disseminated by or for the Federal Government.” 44 U.S.C. § 3501 (2017). 132. For purposes of the PRA, “the term ‘agency’ means any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency . . . .” 44 U.S.C. § 3502 (2017). The Presidential Advisory Commission is not otherwise specifically excluded. More particularly, the Executive Office of the
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President is specifically included as an agency bound by the requirements of the PRA.
133. Agencies, such as the Presidential Advisory Commission, when seeking information from more than 10 respondents, must receive approval from the Office of Management and Budget (“OMB”) prior to the collection of information.
134. The OMB is tasked with promulgating the Federal Regulations to effectuate the mandates of the PRA.
135. Prior to its collection of information directed at more than ten respondents, namely each of the 50 States and the District of
Columbia, the Presidential Advisory Commission must strictly comply with statutory prerequisites. See 44 U.S.C. § 3506 (2017).
136. This includes, in part, preparing for the Director of the OMB a review that identifies the plan for collection of information, inventory,
and control numbers for each item, and that: (iii) informs the person receiving the collection of
information of – (I) the reasons the information is being collected; (II) the way such information is to be used; (III) an estimate, to the extent practicable, of the burden
of the collection; (IV) whether responses to the collection of information
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(V) the fact that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.
44 U.S.C. § 3506(c)(1)(B)(iii).
137. The PRA also requires that the agency must “provide 60-day
notice in the Federal Register, and otherwise consult with members of
the public and affected agencies concerning each proposed collection of
information,” 44 U.S.C. § 3506(c)(2)(A), and to solicit comments from
the public in order to, in pertinent part:
(i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(ii) evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology[.]
Id.
138. Defendants’ have not complied with, nor have they
attempted to comply with, any of the required actions of the PRA.
139. Defendants’ collection of the information sought prior to
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abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).
140. The Commission is prohibited from collecting information unless in advance of the collection of information the agency has completed all prerequisites pursuant to the prior sections and other items set forth in 44 U.S.C. § 3507.
141. Plaintiffs are, individually and in their representative capacities, adversely affected and aggrieved by Defendants’ actions and inaction.
142. The only remedy that will grant full relief to Plaintiffs for these violations of the Paperwork Reduction Act is an order enjoining the Defendants to comply with the PRA prior to the collection of any information by the Presidential Advisory Commission.
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COUNT V
Violation of Florida Statute § 97.0585: Information Regarding Voters and Voter Registration Confidentiality
Against Presidential Advisory Commission and Detzner
143. Plaintiffs restate and incorporate paragraphs 1-73.
144. The Florida Constitution guarantees the right of privacy to
all persons, Art. I, § 23, Florida Constitution:
Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
145. Florida law provides for the confidentiality of certain voter
information and voting registration data in § 97.0585, Florida Statutes:
Public records exemption; information regarding voters and voter registration; confidentiality.—
(1) The following information held by an agency as defined in s. 119.011 is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution and may be used only for purposes of voter registration:
(a) All declinations to register to vote made pursuant to ss. 97.057 and 97.058.
(b) Information relating to the place where a person registered to vote or where a person updated a voter registration.
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(c) The social security number, driver license number, and Florida identification number of a voter registration applicant or voter.
(2) The signature of a voter registration applicant or a voter is exempt from the copying requirements of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(3) This section applies to information held by an agency before, on, or after the effective date of this exemption. 146. The Presidential Advisory Commission’s request for voter
identifying information includes information deemed confidential under Florida law.
147. The Florida Secretary of State is obligated by the Florida Constitution and laws to preserve and maintain the confidentiality of
exempt voter registration information. The Florida Secretary of State must be prohibited from disclosing the private, protected confidential information to the Presidential Advisory Commission. Minimally, the Florida Secretary of State must be enjoined to comply with the
requirements in Fla. Stat. § 119.07(1)(d) by redacting any private, protected confidential information to the Presidential Advisory Commission.
148. On July 6, 2017, Defendant Detzner issued a press
statement indicating he would comply with the Commission’s request
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for personal voter registration information from Florida's voter database. Defendant Detzner also stated that in doing so, he will comply with the restrictions set forth in § 97.0585 which prohibit the sharing of a voter’s social security number and Driver’s License number. To ensure Defendant Detzner complies with § 97.0585, and to prohibit the Commission from attempting to obtain that protected information from any other source, Plaintiffs seek an injunction pursuant to § 97.0585 to preclude disclosure of the social security numbers and Driver’s License numbers of Florida voters.
149. At the time of this filing, it is not known whether the Florida Secretary of State has already transmitted the voter data to the Commission, and if so whether he has transmitted only that information permitted to be disclosed under Florida constitutional and statutory provisions cited above, nor whether the transmission of data has been made using a secure method of transmission.
150. To the extent the Presidential Advisory Commission seeks disclosure of private voter information, the request for information is contrary to Florida law.
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151. Plaintiffs are, individually and in their representative capacities, adversely affected and aggrieved by Defendants’ actions and inaction.
REQUESTED RELIEF Plaintiffs request that this Court: A. Order expedited consideration; B. Declare that the Presidential Advisory Commission and its members have violated the FACA and enjoin the Presidential Advisory Commission and its members from conducting any business unless and until the FACA is fully complied with, and further enjoin all of the federal Defendants from utilizing the products of any materials or information obtained or produced in violation of the FACA; C. Declare and hold unlawful and set aside Defendants’ authority to collect personal voter data from the states; D. Order Defendants to halt collection of personal voter data; E. Order Defendants to securely delete and properly disgorge any personal voter data collected or subsequently received; F. Order Defendants to promptly conduct a privacy impact assessment prior to the collection of personal voter data;
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G. Declare that the Presidential Advisory Commission and its

members have violated the PRA and enjoin the Presidential Advisory

Commission and its members from conducting any business unless and

until the PRA is fully complied with, and further enjoin all of the

federal Defendants from utilizing the products of any materials or

information obtained or produced in violation of the PRA;

H. Order Defendant Florida Secretary of State to withhold

voter-identifying information from the Presidential Advisory

Commission;

I. Award costs and reasonable attorney's fees incurred in this

action; and

J. Grant such other relief as the Court may deem just and

proper.

Dated: July 10, 2017

Respectfully submitted,

S/ H.K. Skip Pita H.K. SKIP PITA Florida Bar No. 101974 PITA WEBER DEL PRADO 9350 S. Dixie Hwy., Suite 1200 Miami, FL 33156 Tel: (305) 670-2889 Fax: (305) 670-6666 spita@pwdlawfirm.com

S/ Jason B. Blank JASON B. BLANK Florida Bar No. 28826 HABER BLANK, LLP 888 S. Andrews Ave., Suite 201 Fort Lauderdale, FL 33316 Tel: (954) 767-0300 Fax: (954) 949-0510 eservice@haberblank.com jblank@haberblank.com

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S/ Benedict P. Kuehne BENEDICT P. KUEHNE Florida Bar No. 233293 MICHAEL T. DAVIS Florida Bar No. 63374 KUEHNE DAVIS LAW, P.A. 100 SE 2 Street, Suite 3550 Miami, FL 33131-154 Tel: (305) 789-5989 Fax: (305) 789-5987 ben.kuehne@kuehnelaw.com mdavis@kuehnelaw.com efiling@kuehnelaw.com

S/ Marc A. Burton MARC A. BURTON Florida Bar No. 95318 S/ Daniel J. Poterek DANIEL J. POTEREK Florida Bar No. 85204 THE BURTON FIRM, P.A. 2999 N.E. 191 Street, Suite 805 Miami, Florida 33180 Tel: (305) 705-0888 Fax: (305) 705-0008 mburton@theburtonfirm.com dpoterek@theburtonfirm.com pleadings@theburtonfirm.com

S/ Larry S. Davis LARRY S. DAVIS Florida Bar No. 437719 S/ Shana Korda SHANA KORDA Florida Bar No. 109504 LAW OFFICE OF LARRY S. DAVIS, P.A. 1926 Harrison Street Hollywood, FL 33020-5018 Tel: (954) 927.4249 Fax: (954) 927-1653 larry@larrysdavislaw.com shana@larrysdavislaw.com courtdocs@larrysdavislaw.com

S/ Freddy Funes FREDDY FUNES Florida Bar No. 87932 S/ Gerald Greenberg GERALD GREENBERG Florida Bar No. 440094 S/ Jarred L. Reiling JARRED L. REILING Florida Bar No. 93930 S/ Adam Schachter ADAM SCHACHTER Florida Bar No. 647101 GELBER SCHACHTER & GREENBERG, P.A. Cooperating Counsel American Civil Liberties Union Foundation of Florida 1221 Brickell Avenue, Suite 2010 Miami, FL 33131-3224 Tel: (305) 728-0950 Fax: (305) 728-0951 jreiling@gsgpa.com

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S/ Nancy G. Abudu NANCY G. ABUDU Florida Bar No. 111881 Legal Director AMERICAN CIVIL LIBERTIES UNION OF FLORIDA 4343 W. Flagler St., Suite 400 Miami, FL 33134 Tel: (786) 363-2707 Fax: (786) 363-1108 nabudu@aclufl.org

S/ Joseph S. Geller JOSEPH S. GELLER Florida Bar No. 292771 GREENSPOON MARDER, P.A. 200 E. Broward Blvd., Suite 1500 Fort Lauderdale, FL 33301-1874 Tel: (954) 491-1120 Fax: (954) 331-2037 joseph.geller@gmlaw.com

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EXHIBIT A

Case 1:17-cv-22568-MGC Document 1-1 Entered on FLSD Docket 07/10/2017 Page 2 of 40 22389

Federal Register Vol. 82, No. 93

Presidential Documents

Tuesday, May 16, 2017

Title 3—
The President

Executive Order 13799 of May 11, 2017
Establishment of Presidential Advisory Commission on Election Integrity

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote fair and honest Federal elections, it is hereby ordered as follows:
Section 1. Establishment. The Presidential Advisory Commission on Election Integrity (Commission) is hereby established.
Sec. 2. Membership. The Vice President shall chair the Commission, which shall be composed of not more than 15 additional members. The President shall appoint the additional members, who shall include individuals with knowledge and experience in elections, election management, election fraud detection, and voter integrity efforts, and any other individuals with knowledge or experience that the President determines to be of value to the Commission. The Vice President may select a Vice Chair of the Commission from among the members appointed by the President.
Sec. 3. Mission. The Commission shall, consistent with applicable law, study the registration and voting processes used in Federal elections. The Commission shall be solely advisory and shall submit a report to the President that identifies the following:
(a) 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;
(b) 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
(c) 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.
Sec. 4. Definitions. For purposes of this order:
(a) The term ‘‘improper voter registration’’ means any situation where an individual who does not possess the legal right to vote in a jurisdiction is included as an eligible voter on that jurisdiction’s voter list, regardless of the state of mind or intent of such individual.
(b) The term ‘‘improper voting’’ means the act of an individual casting a non-provisional ballot in a jurisdiction in which that individual is ineligible to vote, or the act of an individual casting a ballot in multiple jurisdictions, regardless of the state of mind or intent of that individual.
(c) The term ‘‘fraudulent voter registration’’ means any situation where an individual knowingly and intentionally takes steps to add ineligible individuals to voter lists.
(d) The term ‘‘fraudulent voting’’ means the act of casting a non-provisional ballot or multiple ballots with knowledge that casting the ballot or ballots is illegal.
Sec. 5. Administration. The Commission shall hold public meetings and engage with Federal, State, and local officials, and election law experts, as necessary, to carry out its mission. The Commission shall be informed by, and shall strive to avoid duplicating, the efforts of existing government entities. The Commission shall have staff to provide support for its functions.

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22390

Federal Register / Vol. 82, No. 93 / Tuesday, May 16, 2017 / Presidential Documents

Sec. 6. Termination. The Commission shall terminate 30 days after it submits its report to the President.
Sec. 7. General Provisions. (a) To the extent permitted by law, and subject to the availability of appropriations, the General Services Administration 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.
(b) Relevant executive departments and agencies shall endeavor to cooperate with the Commission.
(c) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (the ‘‘Act’’), may apply to the Commission, any functions of the President under that Act, except for those in section 6 of the Act, shall be performed by the Administrator of General Services.
(d) Members of the Commission shall serve without any additional compensation for their work on the Commission, but shall be allowed travel expenses, including per diem in lieu of subsistence, to the extent permitted by law for persons serving intermittently in the Government service (5 U.S.C. 5701–5707).
(e) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(f) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(g) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

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THE WHITE HOUSE, May 11, 2017.
[FR Doc. 2017–10003 Filed 5–15–17; 8:45 am] Billing code 3295–F7–P
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EXHIBIT B

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NON-EXHAUSTIVE COMPILATION OF STATEMENTS BY OR ON BEHALF OF THE PRESIDENT
CONCERNING VOTER FRAUD IN THE 2016 ELECTION
1. In August 2016, then-Candidate Trump told an audience that:
The only way they can beat me, in my opinion, and I mean this 100 percent, is if in certain sections of the state, they cheat, OK . . . So I hope you people can sort of not just vote . . . (but also) go around and look and watch other polling places and make sure that it’s 100 percent fine. Sachelle Saunders, Donald Trump wants to fight voter fraud with observers, Orlando News 6 (August 17, 2017), http://www.clickorlando.com/news/politics/trumps-call-for-poll-
observers-could-cause-trouble. Similarly, on October 1, 2017, thenCandidate Trump told an audience to:
watch your polling booths because I hear too many stories about Pennsylvania, certain areas. . . . We can’t lose an election because of, you know what I’m talking about.
Robert Farley, Trump’s Bogus Voter Fraud Claims, FactCheck.org (October 19, 2016), http://www.factcheck.org/2016/10/trumps-bogusvoter-fraud-claims/. These are just two examples, of many, of Mr. Trump encouraging people to go to polling sites to intimidate voters.
2. On October 17, 2016, then-Candidate Trump stated:
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They even want to try to rig the election at the polling booths. And believe me, there’s a lot going on. Do you ever hear these people? They say there’s nothing going on. People that have died 10 years ago are still voting. Illegal immigrants are voting. I mean, where are the street smarts of some of these politicians? … So many cities are corrupt, and voter fraud is very, very common.

Tribune news services, Trump wrongly insists voter fraud is ‘very, very

common,’

Chicago

Tribune

(Oct.

17,

2016),

http://www.chicagotribune.com/news/nationworld/politics/ct-donald-

trump-voter-fraud-20161017-story.html.

3. That same day (October 17, 2016), then-Candidate Trump

also tweeted, with no evidence:

Of course there is large scale voter fraud happening on and before election day. Why do Republican leaders deny what is going on? So naive!

Donald J. Trump (@realDonaldTrump), Twitter (Oct. 17, 2016,

8:33am), https://twitter.com/realDonaldTrump/status/787995025527

410688.

4. On October 19, 2016, now-Counselor to the President

Kellyanne Conway, during the presidential campaign, indicated that

she did not believe there would be voter fraud during the 2016 election,

stating: “Absent overwhelming evidence that there is, it would not be

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for me to say that there is[.]” “[W]hen pressed about specific instances of voter fraud, Conway appeared to suggest that the ‘rigged’ system was not meant to be taken literally, and was simply a rhetorical catch-all for what the campaign view[ed] as injustices in the American political system.” Conway added:
I think everyone is missing his larger point. . . . It is a rigged, corrupt system, whether you believe it’s rigged and corrupt at the polls or whether you believe it’s rigged and corrupt in that we have a $19 trillion debt and people who are there for years and years, if not decades. Maxwell Tani, Donald Trump's campaign manager said she doesn't believe there will be voter fraud, Business Insider (Oct. 19, 2017), http://www.businessinsider.com/kellyanne-conway-donaldtrumprigged-voter-fraud-2016-10. 5. On November 27, 2016, shortly after the election, the President-Elect continued his baseless accusations about voter fraud, claiming without evidence that he actually won the national popular vote if “illegal” votes were deducted from the total. The President-Elect 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.
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Donald J. Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 3:30pm), https://twitter.com/realDonaldTrump/status/802972944532 209664. ABC News declared this statement “False,” because “Trump offered no proof to back up this claim, and ABC News, which monitored all 50 states for voting irregularities on election night, has found no evidence of widespread voter fraud.” Lauren Pearle, Fact-Checking Trump's Claims About ‘Serious Voter Fraud,’ ABC News (Nov. 28, 2016), http://abcnews.go.com/Politics/fact-checking-trumps-claims-voterfraud/story?id=43820475.
6. That same day (November 27, 2016), the President-Elect also tweeted, without evidence, that:
Serious voter fraud in Virginia, New Hampshire and California - so why isn’t the media reporting on this? Serious bias - big problem! Donald J. Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 7:31pm), https://twitter.com/realDonaldTrump/status/803033642545 115140. ABC News declared this statement “False,” because “Trump offered no proof to back up this claim, and ABC News found no evidence of widespread voter fraud in those states.” Lauren Pearle, FactChecking Trump's Claims About ‘Serious Voter Fraud,’ ABC News (Nov.
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28, 2016), http://abcnews.go.com/Politics/fact-checking-trumps-claims-

voter-fraud/story?id=43820475.

7. On November 28, 2017, after another presidential candidate

had requested a statewide recount in Wisconsin after the election,

Spokesman for the Transition Team of the President-Elect, Jason

Miller, stated, with no evidence, that:

If this much attention and oxygen is going to be given to a completely obnoxious, throwaway fundraising scheme by someone like [the opposing presidential candidate], then there should be actual substantive looks at overall examples of voter fraud and illegal immigrants voting in recent years.

Brent Griffiths, Trump spokesman fails to back up Trump claim of voter

fraud,

Politico

(Nov.

28,

2016),

http://www.politico.com/story/2016/11/trump-voter-fraud-jason-miller-

231883. No evidence was provided in support of the assertions about

“voter fraud and illegal immigrants voting in recent years.”

8. On November 30, 2017, Kansas Secretary of State and now-

Vice Chair of the Presidential Advisory Commission on Election

Integrity, Kris Kobach, stated, despite all legitimate evidence to the

contrary, that:

Page 5 of 9

Case 1:17-cv-22568-MGC Document 1-1 Entered on FLSD Docket 07/10/2017 Page 10 of 40
I think the president-elect is absolutely correct when he says the number of illegal votes cast exceeds the popular vote margin . . . .
As reported by The Wichita Eagle, Secretary Kobach “had no tangible
evidence to support that statement.” Secretary Kobach explained that:
This is the problem with aliens voting and registering. There’s no way you can look at the voter rolls and say this one’s an alien, this one’s a citizen[.] . . . Once a person gets on a voter roll, you don’t have any way of easily identifying them as aliens, so you have to rely on post-election studies.
Bryan Lowry, Kobach backs Trump’s unsupported claim of millions
illegally voting, The Wichita Eagle (Nov. 30, 2016),
http://www.kansas.com/news/politics-
government/election/article117933098.html.
9. On December 2, 2016, now-Counselor to the President
Kellyanne Conway stated, on ABC’s “Good Morning America,” that:
the president-elect has been talking to different people including Kris Kobach, [secretary of state] of Kansas, about voting irregularities or the number of illegal votes that may have been cast, and I believe that he bases his information on that.
and
Well, [the President-Elect has] been receiving information about the irregularities and about the illegal votes, particularly from sources, officials like Kris Kobach as I
Page 6 of 9

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mentioned, but he is messaging to his supporters and to the rest of the country the way he feels. Emily Shapiro, Kellyanne Conway Dodges Question on Trump’s Claim That ‘Millions’ Voted Illegally, ABC News (Dec. 2, 2016), http://abcnews.go.com/Politics/kellyanne-conway-dodges-questiontrumps-claim-millions-voted/story?id=43924056. 10. Shortly after the inauguration, on or about January 23, 2017, the President claimed to members of Congress that people who are in the country illegally caused him to lose the popular vote by almost 3 million votes. When asked about the President’s statement, White House Press Secretary Sean Spicer stated that “It was a comment that he made on a long-standing belief,” and “He believes what he believes.” David Jackson, Spicer: Trump believes voter fraud claim despite lack of evidence, USA Today (Jan. 24, 2017), https://www.usatoday.com/story/news/politics/2017/01/24/donald-trumpsean-spicer-lindsey-graham/96994440/. 11. On January 25, 2017, the President 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....
Page 7 of 9

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even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!
Donald J. Trump (@realDonaldTrump), Twitter (Jan. 25, 2017, 7:10 am), https://twitter.com/realDonaldTrump/status/824227824903090176 ; Donald J. Trump (@realDonaldTrump), Twitter (Jan. 25, 2017, 7:13 am), https://twitter.com/realDonaldTrump/status/824228768227217408.
12. On January 26, 2017, Counselor to the President Kellyanne Conway previewed the new administration’s concern about voter fraud, stating about the President:
He knows there are dead people registered, there are illegal people registered, and he wants to get to the bottom of that without an election on the horizon. Usually, people get all exercised about electoral reform after something goes wrong or ballot integrity when we’re about to have an election. Transcript, Kellyanne Conway on Trump’s voter fraud claims, Mexico and the media, PBS NewsHour (Jan. 26, 2017),
http://www.pbs.org/newshour/bb/kellyanne-conway-trumps-voter-fraudclaims-mexico-media/. No evidence was provided.
13. Senior Advisor to the President Stephen Miller, claimed on February 12, 2017:
You have millions of people who are registered in two states or who are dead who are registered to vote. And you have 14
Page 8 of 9

Case 1:17-cv-22568-MGC Document 1-1 Entered on FLSD Docket 07/10/2017 Page 13 of 40
percent of noncitizens, according to academic research, at a minimum, are registered to vote, which is an astonishing statistic. Madeline Farber, White House's Stephen Miller Doubles Down on Voter Fraud Claim, But Gives No Evidence, TIME (Feb. 12, 2017), http://time.com/4668222/stephen-miller-voter-fraud-georgestephanopolos/; Associated Press, Fact check: Trump aide pushes false story of vote fraud, Honolulu Star Advertiser (Feb. 13, 2017), http://www.staradvertiser.com/2017/02/13/breaking-news/fact-checktrump-aide-pushes-false-story-of-vote-fraud/. This statement, too, has been universally rejected by elections professionals.
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EXHIBIT C

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CHARTER
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY
1. Committee’s Official Designation. Presidential Advisory Commission on Election Integrity (“Commission”).
2. Authority. The Commission is established in accordance with Executive Order 13799 of May 11, 2017, “Establishment of a Presidential Advisory Commission on Election Integrity,” (“Order”) and the provisions of the Federal Advisory Committee Act (“FACA”), as amended (5 U.S.C. App.).
3. Objectives and Scope of Activities. The Commission will, consistent with applicable law and the Order, study the registration and voting processes used in Federal elections. The Commission shall be solely advisory and shall submit a report to the President of the United States (“President”) that identifies the following:
a. 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;
b. those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of voting processes used in Federal elections; and
c. 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.
4. Description of Duties. The Commission will function solely as an advisory body.
5. Agency or Official to Whom the Committee Reports. The Commission shall provide its advice and recommendations to the President.
6. Agency Responsible for Providing Support. The General Services Administration (“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, to the extent permitted by law and on a reimbursable basis. However, the President’s designee will be responsible for fulfilling the requirements of subsection 6(b) of the FACA.
7. Estimated Annual Operating Costs and Staff Years. The estimated annual costs to operate the Commission are approximately $250,000 in FY2017 and approximately $250,000 in FY2018, as needed, including approximately three full-time equivalent employees (FTEs) over the duration of the Commission.
8. Designated Federal Officer. Pursuant to 41 CFR § 102-3.105 and in consultation with the chair of the Commission, the GSA Administrator shall appoint a full-time or part-time federal employee as the Commission’s Designated Federal Officer (“DFO”). The DFO will approve or

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call all Commission meetings, prepare or approve all meeting agendas, attend all Commission meetings and any subcommittee meetings, and adjourn any meeting when the DFO determines adjournment to be in the public interest. In the DFO’s discretion, the DFO may utilize other Federal employees as support staff to assist the DFO in fulfilling these responsibilities.
9. Estimated Number and Frequency of Meetings. Meetings shall occur as frequently as needed, called, and approved by the DFO. It is estimated the Commission will meet five times at a frequency of approximately 30-60 days between meetings, subject to members’ schedules and other considerations.
10. Duration and Termination. The Commission shall terminate no more than two (2) years from the date of the Executive Order establishing the Commission, unless extended by the President, or thirty (30) days after it presents its final report to the President, whichever occurs first.
11. Membership and Designation.
(a) The Vice President shall chair the Commission, which shall be composed of not more than fifteen (15) additional members.
(b) Members shall be appointed by the President of the United States and shall include individuals with knowledge and experience in elections, election management, election fraud detection, and voter integrity efforts, and any other individuals with knowledge or experience determined by the President to be of value to the Commission. Members of the Commission may include both regular Government Employees and Special Government Employees.
(c) The Vice President may select a Vice Chair from among those members appointed by the President, who may perform the duties of the chair if so directed by the Vice President. The Vice President may also select an executive director and any additional staff he determines necessary to support the Commission.
(d) Members of the Commission will serve without additional compensation. Travel expenses will be allowed, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government service (5 U.S.C. 5701-5707), consistent with the availability of funds.
12. Subcommittees. The Chair of the Commission, in consultation with the DFO, is authorized to create subcommittees as necessary to support the Commission’s work. Subcommittees may not incur costs or expenses without prior written approval of the Chair or the Chair’s designee and the DFO. Subcommittees must report directly to the Commission, and must not provide advice or work products directly to the President, or any other official or agency.
13. Recordkeeping. The records of the Commission and any subcommittees shall be maintained pursuant to the Presidential Records Act of 1978 and FACA.
14. Filing Date. The filing date of this charter is June 23, 2017.

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EXHIBIT D

7/7/201C7 ase 1:17-cv-22R5ea6d8ou-tMof GtheCVice DPreosicdeunmt's Ceanll tw1ith-t1he PrEesnidteentriael AddvoisnoryFCLomSmDissDionoocnkEelectti0on7I/n1te0gr/it2y 0| w1h7itehoPusea.ggove 18 of 40
the WHITE HOUSE
Í

From the Press O ice
Speeches & Remarks Press Brieﬁngs Statements & Releases Nominations & Appointments Presidential Actions Legislation Disclosures

The White House O ice of the Vice President
For Immediate Release

June 28, 2017

Readout of the Vice President's Call with the Presidential Advisory Commission on Election Integrity

This morning, Vice President Mike Pence held an organizational call with members of the Presidential Advisory Commission on Election Integrity. The Vice President reiterated President Trump’s charge to the commission with producing a set of recommendations to increase the American people's confidence in the integrity of our election systems.
"The integrity of the vote is a foundation of our democracy; this bipartisan commission will review ways to strengthen that integrity in order to protect and preserve the principle of one person, one vote,” the Vice President told commission members today.
The commission set July 19 as its first meeting, which will take place in Washington, D.C.

https://www.whitehouse.gov/the-press-ofﬁce/2017/06/28/readout-vice-presidents-call-presidential-advisory-commission-election

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7/7/201C7 ase 1:17-cv-22R5ea6d8ou-tMof GtheCVice DPreosicdeunmt's Ceanll tw1ith-t1he PrEesnidteentriael AddvoisnoryFCLomSmDissDionoocnkEelectti0on7I/n1te0gr/it2y 0| w1h7itehoPusea.ggove 19 of 40 Vice Chair of the Commission and Kansas Secretary of State Kris Kobach told members a letter will be sent today 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.
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HOME BRIEFING ROOM ISSUES THE ADMINISTRATION PARTICIPATE 1600 PENN
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EXHIBIT E

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June 28, 2017
The Honorable Ken Detzner Secretary of State R.A. Gray Bldg., 500 S. Bronough, Ste. 100 Tallahassee, FL 32399
Dear Secretary Detzner, I serve as the Vice Chair for the Presidential Advisory Commission on Election Integrity (“Commission”), which was formed pursuant to Executive Order 13799 of May 11, 2017. The Commission is charged with studying the registration and voting processes used in federal elections and submitting a report to the President of the United States that identifies laws, rules, policies, activities, strategies, and practices that enhance or undermine the American people’s confidence in the integrity of federal elections processes. As the Commission begins it work, I invite you to contribute your views and recommendations throughout this process. In particular:
1. What changes, if any, to federal election laws would you recommend to enhance the integrity of federal elections?
2. How can the Commission support state and local election administrators with regard to information technology security and vulnerabilities?
3. What laws, policies, or other issues hinder your ability to ensure the integrity of elections you administer?
4. What evidence or information do you have regarding instances of voter fraud or registration fraud in your state?
5. What convictions for election-related crimes have occurred in your state since the November 2000 federal election?
6. What recommendations do you have for preventing voter intimidation or disenfranchisement?
7. What other issues do you believe the Commission should consider?
In addition, in order for the Commission to fully analyze vulnerabilities and issues related to voter registration and voting, I am requesting that you provide to the Commission the publiclyavailable voter roll data for Florida, including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number

Case 1:17-cv-22568-MGC Document 1-1 Entered on FLSD Docket 07/10/2017 Page 22 of 40
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.
You may submit your responses electronically to ElectionIntegrityStaff@ovp.eop.gov or by utilizing the Safe Access File Exchange (“SAFE”), which is a secure FTP site the federal government uses for transferring large data files. You can access the SAFE site at https://safe.amrdec.army.mil/safe/Welcome.aspx. We would appreciate a response by July 14, 2017. Please be aware that any documents that are submitted to the full Commission will also be made available to the public. If you have any questions, please contact Commission staff at the same email address.
On behalf of my fellow commissioners, I also want to acknowledge your important leadership role in administering the elections within your state and the importance of state-level authority in our federalist system. It is crucial for the Commission to consider your input as it collects data and identifies areas of opportunity to increase the integrity of our election systems.
I look forward to hearing from you and working with you in the months ahead.
Sincerely,
Kris W. Kobach Vice Chair Presidential Advisory Commission on Election Integrity

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EXHIBIT F

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EXHIBIT G

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EXHIBIT H

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EXHIBIT I

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart

7/9/17, 5(40 PM

Kobach: Why States Need to Assist the Presidential Commission on Election Integrity
by Kris W. Kobach3 Jul 20175,685

Irfan Khan/Los Angeles Times via Getty Images
Last Thursday, the Presidential Commission on Election Integrity officially asked each state’s chief election official for a copy of their state’s publicly-available voter information, in order to better investigate voter fraud

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart

7/9/17, 5(40 PM

across the nation. I’m the Vice Chair of that Commission, and the letter went out under my signature.

Immediately thereafter, several prominent Democrats declared that they would not comply with this request. California Secretary of State Alex Padilla stated, “California’s participation would only serve to legitimize the false and already debunked claims of massive voter fraud made by the President, the Vice President, and Mr. Kobach.”

Similarly, Virginia Governor Terry McAuliffe fumed, “I have no intention of honoring this request. Virginia conducts fair, honest, and democratic elections, and there is no evidence of significant voter fraud in Virginia.”

Governor McAuliffe’s declaration was particularly amusing, because only three days earlier In Virginia, a college student had been convicted of fraudulently registering 18 dead people. Evidently, there’s plenty of voter fraud in Virginia. Apparently, McAuliffe is ignorant of what’s going on in his own state.

The hyperventilating on the Left about this request is particularly strange since the Commission only requested information that is already publicly available. Any person on the street can walk into a county election office and obtain a publicly-available copy of that state’s voter rolls—which usually includes voter name, address, date of birth, and the recent elections in which the voter participated. During any campaign season, there are literally hundreds of candidates and campaign workers in every state who possess these same voter rolls. Voter rolls are also frequently obtained by journalists seeking to do election-related research.

Although private information like the last four numbers of a voter’s social security number is sometimes included in a state’s voter database, that information is usually not publicly available. The Commission didn’t request

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart

7/9/17, 5(40 PM

that information. Thus, there is no threat that the Commission’s work might compromise anyone’s privacy.

The Commission’s primary objectives include measuring the amount of voter fraud and improper voter registration in the country. The voter rolls are the obvious starting point for the Commission’s work.

Indeed just about every investigation that the Commission undertakes will require a copy of the publicly-available voter rolls for its work to be meaningful. For example, if a witness testifies before the Commission that a certain person voted fraudulently in a given state, the Commission needs to confirm that such a person even exists on the voter rolls and actually cast a ballot in the relevant election.

On a larger scale, the Commission is likely to look at the phenomenon of people registering and/or voting the names of the dead. As the recent Virginia conviction illustrates, this is very much a real problem.

Last year, the Pew Center on the States estimated that more than 1.8 million deceased individuals are still registered to vote. And Pew conceded that their estimate was likely on the low side. The Commission could determine the exact number (rather than relying on an estimate) by running the states’ voter rolls against federal and state databases containing the names of deceased individuals.

More importantly, the Commission could answer the question of how many of those deceased individuals were recorded as actually casting a vote in the 2016 election. The number may be large, or it may be small. But the American people deserve to know what it is, either way.

Another important question is how many aliens are illegally registered to vote in the United States. And of those who are registered, how many have actually

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart
voted?

7/9/17, 5(40 PM

During the Obama Administration, the federal government declined state requests to compare state voter rolls to federal databases of known (legal) aliens residing in the United States. But now the Commission may be able to finally conduct that research. If the same person appears on a state’s voter rolls with the indication that he cast a ballot in 2016, and he also appears on the federal government’s list of aliens living in the United States, then there is evidence that an alien has likely voted.

That research has never been done before. Many people would like to see just how big this problem is. The consequences are certainly important. Every time an alien votes, it effectively cancels out the vote of a United States citizen.

In my own state of Kansas, one academic expert has estimated that the number of aliens on the voter rolls may exceed 18,000. In a state such as California, that number is likely to be much, much larger. Is that why the California Secretary of State doesn’t want the Commission to look at his state’s voter rolls?

Finally, some of these opponents of the Commission have suggested that by studying the problem of voter fraud, the Commission will end up suppressing voter turnout in future elections. That is a truly baseless argument. How in the world can studying these statistics and providing information to the American public discourage someone from voting?

The Commission’s work is an exercise in transparent government, enhancing the public debate by providing important statistical information. The Commission’s report (which will not contain any voter’s names) won’t cause anyone to stay at home during the 2018 election. It might however, shine some light on voter fraud and encourage some fraudsters to reduce their

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart
activity.

7/9/17, 5(40 PM

Maintaining the integrity of American elections is essential to the health of our republic. It’s also crucial to giving voters confidence that elections will not be stolen.

The bottom line is that without these publicly-available copies of the voter rolls, the Commission will be unable to effectively measure the extent of voter fraud in America. Maybe that’s the real objective of the officials who are standing in the way.

Kris W. Kobach is the elected Secretary of State of Kansas. An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 executive amnesty. President Trump has named him Vice Chairman of the Presidential Commission on Election Integrity.

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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EXHIBIT J

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Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices

31063

subsidiary’s liabilities under applicable accounting standards. The Federal Reserve used information collected on the Capital and Asset Report for Foreign Banking Organizations (FR Y–7Q), the FR Y–9C and the FR XX–1 to calculate liabilities of these institutions.
The Board granted a request from one financial company to use an accounting standard or method of estimation other than GAAP to calculate liabilities. The requesting company is an insurance company that reports financial information under Statutory Accounting Principles (‘‘SAP’’). The Board approved a method of estimation for this company that is based on line items from SAP reports, with adjustments to reflect certain differences in accounting treatment between GAAP and SAP.
By order of the Board of Governors of the Federal Reserve System, acting through the Director of Supervision and Regulation under delegated authority, June 28, 2017.
Ann E. Misback,
Secretary of the Board.
[FR Doc. 2017–14011 Filed 7–3–17; 8:45 am]
BILLING CODE 6210–01–P
GENERAL SERVICES ADMINISTRATION
[Notice-MK–2017–01; Docket No. 2017– 0002; Sequence 11]
The Presidential Commission on Election Integrity (PCEI); Upcoming Public Advisory Meeting
AGENCY: Office of Government-wide Policy (OGP), General Services Administration (GSA).
ACTION: Meeting notice.
SUMMARY: The Presidential Advisory Commission on Election Integrity (Commission), a Federal Advisory Committee established in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App., and Executive Order 13799, (https:// www.federalregister.gov/documents/ 2017/05/16/2017-10003/establishmentof-presidential-advisory-commission-onelection-integrity) will hold its first meeting on Wednesday, July 19, 2017. This 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.
DATES: Meeting Date: 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.
ADDRESSES: The meeting will be held at the Eisenhower Executive Office Building, Room 350, located at 1650 Pennsylvania Avenue NW., Washington, DC 20502. It will be open to the public through livestreaming on https:// www.whitehouse.gov/live.
FOR FURTHER INFORMATION CONTACT: To obtain information about the Commission or to submit written comments for the Commission’s consideration, contact the Commission’s Designated Federal Officer, Andrew Kossack, via email at ElectionIntegrityStaff@ovp.eop.gov or telephone at 202–456–3794. Please note the Commission may post written comments publicly, including names and contact information, in accordance with the provisions of FACA. There will not be oral comments from the public at this initial meeting.
The Commission will provide individuals interested in providing oral comments the opportunity to do so at subsequent meetings. Requests to accommodate disabilities with respect to livestreaming or otherwise should also be sent to the email address listed above, preferably at least 10 days prior to the meeting to allow time for processing.
SUPPLEMENTARY INFORMATION: The Commission was established in accordance with E.O. 13799 of March 11, 2017, the Commission’s charter, and the provisions of FACA. The Commission will, consistent with applicable law and E.O. 13799, study the registration and voting processes used in Federal elections. The Commission shall be solely advisory and shall submit a report to the President of the United States that identifies the following:
a. 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;
b. those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of voting processes used in Federal elections; and
c. 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.

Dated: June 30, 2017.
Jeffrey A. Koses,
Director, Office of Acquisition Policy, Office of Government-wide Policy.
[FR Doc. 2017–14210 Filed 7–3–17; 8:45 am]
BILLING CODE 6820–61–P
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
[30Day–17–1146]
Agency Forms Undergoing Paperwork Reduction Act Review
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses; and (e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to omb@cdc.gov. Written comments and/or suggestions regarding the items contained in this notice should be directed to the Attention: CDC Desk Officer, Office of Management and Budget, Washington, DC 20503 or by fax to (202) 395–5806. Written comments should be received within 30 days of this notice.

sradovich on DSK3GMQ082PROD with NOTICES

VerDate Sep<11>2014 17:57 Jul 03, 2017 Jkt 241001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\05JYN1.SGM 05JYN1

 
 Case 1:17-cv-22568-MGC Document 65 Entered on FLSD Docket 12/29/2017 Page 1 of 65
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 17-22568-CIV-COOKE/GOODMAN
ARTHENIA JOYNER; MIKE SUAREZ; JOSHUA A. SIMMONS; BRENDA SHAPIRO; LUIS MEURICE; THE AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC.; FLORIDA IMMIGRANT COALITION, INC.,
Plaintiffs, vs.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY; MICHAEL PENCE, in his official capacity as Chair of the Presidential Advisory Commission on Election Integrity; KRIS KOBACH, in his official capacity as Vice Chair of the Presidential Advisory Commission on Election Integrity; EXECUTIVE OFFICE OF THE PRESIDENT OF THE UNITED STATES; EXECUTIVE OFFICE OF THE VICE PRESIDENT OF THE UNITED STATES; TIM HORNE, in his official capacity as Administrator of the General Services Administration; MICK MULVANEY, in his official capacity as Director, Office of Management and Budget; KEN DETZNER, in his official capacity as Florida Secretary of State,
Defendants. _______________________________________________/
AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
I. PRELIMINARY STATEMENT
1. This action is brought on behalf of Florida voters and organizations
involved and interested in the fair conduct of elections in Florida and elsewhere
throughout the United States. This litigation challenges the legality of the actions of
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the Presidential Advisory Commission on Election Integrity and the legality of its directive requesting and collecting voter registration information of state-registered voters in Florida and throughout the United States.
2. This suit proceeds pursuant to the Administrative Procedure Act (“APA”) (5 U.S.C. §§ 551-706), the Federal Advisory Committee Act (“FACA”) (5 U.S.C. app. 2), the Paperwork Reduction Act (“PRA”) (44 U.S.C. § 3501), the Declaratory Judgment Act (28 U.S.C. § 2201, et seq.), and the United States Constitution, seeking injunctive and declaratory relief, and other appropriate relief to prevent the unauthorized collection of state voter information data and to prohibit the Florida Secretary of State and other similarly situated officials of other states from providing state voter data to the Presidential Advisory Commission on Election Integrity (the “Presidential Advisory Commission” or “Commission”) and any other person or entity acting pursuant to the request or directives of the Presidential Advisory Commission.
3. At issue in this lawsuit is the request by the Presidential Advisory Commission to collect, aggregate, and potentially disseminate a massive volume of state-maintained voter information and voting history, including personal identification information and private data. Much of this information is gathered from citizens who are required by law to furnish the information to state officials solely to pursue their First Amendment constitutional right to vote. The challenged requests made to state elections officials infringe voters’ First Amendment rights. The requests also constitute an unjustified invasion of privacy not authorized under
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the Constitution and laws of the United States or the individual states. The actions of the Presidential Advisory Commission have occurred in the absence of a required Privacy Impact Assessment. Importantly, the Presidential Advisory Commission’s request for voter information preceded any authorized meeting of the Commission. The continued maintenance, access, and use of this information by the Presidential Advisory Commission, in secret and without authorization, constitutes a further infringement of the rights of Florida voters.
4. At issue in this lawsuit is the secrecy under which the Commission operates and the secrecy of its use of the voter data it has collected and continues to collect. The data collected includes Floridians’ individual voter history and election information. The data has been uploaded to a secretive “White House Computer System” to which only select members (not all members) of the Commission have been given access. Many states have uploaded the data to this computer system. The public has been shut out on what the Commission is doing with this data at the White House.
II. JURISDICTION, STANDING, AND VENUE 5. This court has jurisdiction under its general federal question jurisdiction, 28 U.S.C. § 1331, and specific jurisdiction over claims arising under the Administrative Procedure Act, 5 U.S.C. §§ 702 & 704. 6. The Court has jurisdiction over claims for violations of the Paperwork Reduction Act. See Livestock Mktg. Ass’n v. U.S. Dep’t of Agriculture, 132 F. Supp. 2d 817, 831 (D.S.D. 2001); see also Alabama-Tombigbee Rivers Coal. v. Dep’t of Interior,
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26 F. 3d 1103 (11th Cir. 1994) (holding that “‘[a]bsent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction’” because it is inappropriate “to allow the government to use the product of a tainted procedure” in violation of federal statutes) (internal citation omitted).
7. The Declaratory Judgment Act (28 U.S.C. § 2201) authorizes courts to issue declaratory judgments.
8. This court has personal jurisdiction over all defendants. 9. Plaintiffs have standing to commence this action under the Administrative Procedure Act (“APA”), which confers standing to any party adversely affected by government action. 5 U.S.C. § 702 (1988). 10. Plaintiffs also have standing pursuant to the Federal Advisory Committee Act (5 U.S.C. app. 2). Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1080–81 (11th Cir. 2002); Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 459 (1989). 11. Plaintiffs are authorized to seek compliance with the Separation of Powers. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring). See also Muller Optical Co. v. E.E.O.C., 743 F.2d 380, 386 (6th Cir. 1984) (“The President may not circumvent the constitution by attempting to legislate by Executive Order”); County of Santa Clara v. Trump, 2017 WL 1459081, at *21 (N.D. Cal. Apr. 25, 2017) (entering preliminary injunction as against executive order, where enforcement would invade Congress’s Article I power).
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12. Plaintiffs have standing for a private cause of action for violation of the Paperwork Reduction Act of 1995, in that, “[t]he protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.” (emphasis added). 44 U.S.C. § 3512(b); see Livestock Mktg. Ass’n, 132 F. Supp. 2d at 831 (holding that there is a private right of action under the Paperwork Reduction Act because the court “[could] not imagine language that would be more expansive.”).
13. Plaintiffs’ privacy interests are also adversely affected by the federal government action that is the subject of this complaint.
14. Venue is proper in the Southern District of Florida under 5 U.S.C. § 703 and 28 U.S.C. § 1391 as a place where the challenged conduct is occurring with respect to Florida voters.
15. All conditions precedent to bringing this action have occurred, have been waived, or would be a useless act and are accordingly waived.
III. PARTIES 16. Plaintiff Senator Arthenia Joyner (retired) is a resident and voter of Hillsborough County, Florida, and a member in good standing of The Florida Bar. She sues in her individual capacity. Senator Joyner formerly served as a member of the Florida House of Representatives, representing the 59th House District from 2000 through 2006, and as a member of the Florida Senate representing the 19th Senate District from 2006 through 2016. As a member of the Florida Senate from 2014 through 2016, Senator Joyner served as the Florida Senate Minority Leader. Senator Joyner has long been a passionate advocate for civil rights and justice during the
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entirety of her political and legal careers, and within her private life. Senator Joyner is concerned about the disclosure of private information and how such disclosures violate the law and the civil rights of all people. She opposes the dissemination, collection, and uploading of her voting history, voter data, and identity information on to a secretive White House computer system. She fears what is being done or what may be done with her data at the White House. She fears this White House computer system is unsecure, could be subject to hacking, and that her data may be disseminated to unknown entities for unknown purposes.
17. Plaintiff Councilman Mike Suarez, is a resident and voter of Hillsborough County, Florida. He sues in his individual capacity. Councilman Suarez represents District 1 in the Tampa City Council and is the immediate past Chair of the Tampa City Council, having served in that position from 2016 through 2017. Councilman Suarez is a third-generation Tampa resident who is concerned about the protection of personal voter and identification information and privacy rights for himself as a registered voter, and for his constituents throughout the City of Tampa. He is a Florida voter. He opposes the dissemination, collection, and uploading of his voting history, voter data, and identity information to a secretive White House computer system. He fears what is being done or what may be done with his data at the White House. He fears this White House computer system is unsecure, could be subject to hacking, and that his data may be disseminated to unknown entities for unknown purposes.
18. Plaintiff Joshua A. Simmons is a resident and voter in Broward County,
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Florida, in the Southern District of Florida. He sues in his individual capacity. He is a Florida voter. He opposes the dissemination, collection, and uploading of his voting history, voter data, and identity information on to a secretive White House computer system. He fears what is being done or what may be done with his data at the White House. He fears this White House computer system is unsecure, could be subject to hacking, and that his data may be disseminated to unknown entities for unknown purposes.
19. Plaintiff Brenda Shapiro is a resident and voter in Miami-Dade County, Florida, in the Southern District of Florida. She sues in her individual capacity. She is an active voter, a practicing attorney, and has been a leader in civic affairs in Miami, where she has served as Chair of both the City of Miami’s Community Relations Board and the City of Miami’s Civilian Investigative Panel. She is concerned about the circulation of her voting history and her personal information, and she is especially concerned about the misuse of that information. She opposes the dissemination, collection, and uploading of her voting history, her voter data, and identity information on to a secretive White House computer system. She fears what is being done or what may be done with her data at the White House. She fears this White House computer system is unsecure, could be subject to hacking, and that her data may be disseminated to unknown entities for unknown purposes.
20. Plaintiff Luis Meurice is a resident and voter in Miami-Dade County, Florida, in the Southern District of Florida. He is a 38-year member of the International Longshoremen’s Association, its Florida Legislative Director, and
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President of ILA Local 2062. He is also District Vice President of South Florida AFLCIO. He is active in Movimiento Democracia, a non-profit organization advocating for freedom and democracy for all people. He opposes the dissemination, collection, and uploading of his voting history, voter data, and identity information on to a secretive White House computer system. He fears what is being done or what may be done with his data at the White House. He fears this White House computer system is unsecure, could be subject to hacking, and that his data may be disseminated to unknown entities for unknown purposes.
21. Plaintiff The American Civil Liberties Union of Florida, Inc. (“ACLU of Florida” or “ACLU”) is a non-profit, §501(c)(3) membership organization. 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. Since 1965, the ACLU, through its Voting Rights Project, has litigated more than 300 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 of Florida has over 50,000 members and has litigated numerous cases, either through direct representation or as amicus curiae, to protect the fundamental right to vote. ACLU of Florida members include registered voters who vote in Florida. ACLU Florida members could sue in their own right for the actions complained of here. The interests that ACLU of Florida seeks to protect here are germane to the organization’s purpose. The claims asserted here and relief sought does not require the participation of individual members in the lawsuit.
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ACLU of Florida has dedicated resources to challenge Defendants, resources that could have been used elsewhere. ACLU of Florida is an historical champion of the right to vote. The ACLU of Florida is a state affiliate of the national American Civil Liberties Union and is domiciled in the State of Florida, with its principal place of business in Miami-Dade County, Florida, within the Southern District of Florida.
22. Plaintiff Florida Immigrant Coalition, Inc. (“FLIC”) is a non-profit membership organization and coalition of more than 65 membership organizations and over 100 allies. FLIC was founded in 1998 and formally incorporated in 2004. More than an organization, “FLIC” is a strategic multi-racial, intergenerational social movement working for the fair treatment of all people, including immigrants. FLIC promotes citizenship, the right to vote, and assists immigrants in becoming citizens along with that sacred right to vote. FLIC members include registered voters who vote in Florida. FLIC members could sue in their own right for the actions complained of here. The interests that FLIC seeks to protect here are germane to the organization’s purpose. The claims asserted here and relief sought does not require the participation of individual members in the lawsuit. FLIC has dedicated resources to challenge Defendants, resources that could have been used elsewhere. FLIC is domiciled in the State of Florida, with its principal place of business in Miami-Dade County, Florida, within the Southern District of Florida. Its members are residents of Florida and elsewhere.
23. Defendant Presidential Advisory Commission is an advisory commission of the United States government within the meaning of the Federal Advisory
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Committee Act (5 U.S.C. app. 2 § 10). It is a subcomponent of the Executive Office of the President of the United States. The Office of Management and Budget and the General Services Administration, along with the Presidential Advisory Commission are agencies or the equivalent thereof within the meaning of 44 U.S.C. § 3502 and the APA, 5 U.S.C. § 701.
24. Defendant Michael Pence is the Vice President of the United States and the Chair of the Presidential Advisory Commission. He is sued in his official capacity as Chair of the Presidential Advisory Commission.
25. Defendant Kris Kobach is the Secretary of State of Kansas, and the Vice Chair of the Presidential Advisory Commission. Vice Chair Kobach has a lengthy history of attempting to suppress the right to vote within his home state of Kansas. On the Kansas Secretary of State official website, Vice Chair Kobach proclaims that he was elected to stop voter fraud. State of Kansas, Office of the Secretary of State, http://www.kssos.org/about/about_news_biography.html. But, in League of Women Voters of United States v. Newby, 838 F.3d 1, 13 (D.C. Cir. 2016), the U.S. Court of Appeals for the District of Columbia Circuit rejected Secretary Kobach’s arguments that proof of citizenship should be required when registering to vote because there is “precious little record evidence” that failure to present citizenship leads to fraudulent registration by non-citizens. Similarly, in Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016), the U.S. Court of Appeals for the Tenth Circuit upheld the district court’s injunction against Secretary Kobach, requiring him to register voters whose voter registrations were rejected for failure to provide documentary proof of citizenship.
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The Tenth Circuit explained that Mr. Kobach’s actions and the Kansas statutory scheme amounted to a “mass denial of a fundamental constitutional right” for more than 18,000 voters. Moreover, the Tenth Circuit explained that Secretary Kobach’s “assertion that the ‘number of aliens on the voter rolls is likely to be in the hundreds, if not thousands’ is pure speculation.” Id. at 755. He is sued in his official capacity as Vice Chair of the Presidential Advisory Commission.
26. Defendant Executive Office of the President of the United States (“EOP”) is an agency within the meaning of 44 U.S.C. § 3502 and the APA, 5 U.S.C. § 701.
27. Defendant Office of the Vice President of the United States (“OVP”) is a subcomponent of EOP and constitutes an agency within the meaning of 44 U.S.C. § 3502 and the APA, 5 U.S.C. § 701.
28. Defendant Tim Horne is the Administrator of the U.S. General Services Administration (“GSA”), an agency within the meaning of 44 U.S.C. § 3502 and the APA, 5 U.S.C. § 701. The GSA is charged with providing the Presidential Advisory Commission “such administrative services, funds, facilities, staff, equipment, and other support services as may be necessary to carry out its mission ....” (Exhibit A). Exec. Order. No. 13,799, 82 Fed. Reg. 22,389, 22,390 (May 11, 2017). He is sued in his official capacity.
29. Defendant Mick Mulvaney is the Director of the Office of Management and Budget (“OMB”), an office within the Executive Office of the President of the United States. The OMB Director reports to the President, Vice President, and the
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White House Chief of Staff. The OMB is tasked with promulgating the Federal Regulations to effectuate the mandates of the Paperwork Reduction Act. He is sued in his official capacity.
30. Defendant Ken Detzner is the Florida Secretary of State, charged with the statutory responsibilities of maintaining and securing Florida voter information. He is sued in his official capacity.
IV. FACTS The President and His Administration Propagate Baseless Accusations
About Widespread Voter Fraud 31. President Trump has a long history of propagating baseless conspiracy theories about voter fraud, ostensibly in order to suppress the right to vote. As a presidential candidate and now as President, Mr. Trump repeatedly, and baselessly, spoke about widespread voter fraud across the country, including supposed votes cast by dead people, people voting multiple times, people voting in multiple states, and, supposed votes cast by “illegal immigrants.”1 32. In August 2016, then-Candidate Trump told an audience that: The only way they can beat me, in my opinion, and I mean this 100 percent, is if in certain sections of the state, they cheat, OK . . . So I hope you people can sort of not just vote . . . (but also) go around and look and watch other polling places and make sure that it’s 100 percent fine. Sachelle Saunders, Donald Trump wants to fight voter fraud with observers, Orlando News 6 (August 17, 2017), http://www.clickorlando.com/news/politics/trumps-call-for-
1 Attached as Exhibit B is a compilation of public statements by or on behalf of the President promoting the existence of voter fraud in connection with the 2016 election, despite no legitimate supportive facts or evidence.
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poll-observers-could-cause-trouble. Similarly, on October 1, 2017, then-Candidate

Trump told an audience to:

watch your polling booths because I hear too many stories about Pennsylvania, certain areas. . . . We can’t lose an election because of, you know what I’m talking about.

Robert Farley, Trump’s Bogus Voter Fraud Claims, FactCheck.org (October 19, 2016),

http://www.factcheck.org/2016/10/trumps-bogus-voter-fraud-claims/. These are just

two examples, of many, of Mr. Trump encouraging people to go to polling sites to

intimidate voters.

33. As another example, on October 17, 2016, then-Candidate Trump

stated:

They even want to try to rig the election at the polling booths. And believe me, there’s a lot going on. Do you ever hear these people? They say there’s nothing going on. People that have died 10 years ago are still voting. Illegal immigrants are voting. I mean, where are the street smarts of some of these politicians? … So many cities are corrupt, and voter fraud is very, very common.

Tribune news services, Trump wrongly insists voter fraud is ‘very, very common,’

Chicago

Tribune

(Oct.

17,

2016),

http://www.chicagotribune.com/news/nationworld/politics/ct-donald-trump-voter-

fraud-20161017-story.html.

34. On November 27, 2016, shortly after the election, the President-Elect

continued his baseless accusations about voter fraud, claiming without evidence that

he actually won the national popular vote if “illegal” votes were deducted from the

total. The President-Elect tweeted:

In addition to winning the Electoral College in a landslide, I won the

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popular vote if you deduct the millions of people who voted illegally.

Donald J. Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 3:30

p.m.), https://twitter.com/realDonaldTrump/status/802972944532209664. ABC

News declared this statement “False,” because “Trump offered no proof to back up

this claim, and ABC News, which monitored all 50 states for voting irregularities on

election night, has found no evidence of widespread voter fraud.” Lauren Pearle, Fact-

Checking Trump’s Claims About ‘Serious Voter Fraud,’ ABC News (Nov. 28, 2016),

http://abcnews.go.com/Politics/fact-checking-trumps-claims-voter-

fraud/story?id=43820475.

35. Soon after the inauguration, on January 25, 2017, 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 J. Trump (@realDonaldTrump), Twitter (Jan. 25, 2017, 7:10 am),

https://twitter.com/realDonaldTrump/status/824227824903090176; Donald J. Trump

(@realDonaldTrump),

Twitter

(Jan.

25,

2017,

7:13

am),

https://twitter.com/realDonaldTrump/status/824228768227217408.

36. With these tweets, the President stated his intention to create what

would later become the Presidential Advisory Commission.

The Presidential Advisory Commission Seeks to Collect State Voter Information – Including Florida’s

37. Under the Federal Advisory Committee Act (“FACA”), the Presidential

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Advisory Commission was established by Executive Order No. 13,799 on May 11, 2017 (the “Executive Order”). 82 Fed. Reg. 22,389 (Exhibit A). Its Charter is attached as Exhibit C.
38. The Executive Order instructs the Presidential Advisory Commission to “study the registration and voting processes used in Federal elections.” (Exhibit A). 82 Fed. Reg. at 22,389. The Executive Order does not contain any authority to amass a national voter database, collect personal voter data, to initiate investigations, or to seek the disclosure of state voter data. It says nothing about uploading voter’s data and information to a White House computer.
39. On June 23, 2017, the Commission filed its Charter – as FACA requires. The Charter says nothing about amassing a national voter database, collecting personal voter data, initiating investigations, or seeking the disclosure of state voter data. And like the Executive Order, it says nothing about uploading individuals’ voting history and data to a White House computer.
40. On June 28, 2017, the Vice Chair of the Commission – Kobach – initiated a process to collect detailed voter information, including personal identifying information, from all 50 States and the District of Columbia. This request had never occurred before, notwithstanding the existence of the U.S. Election Assistance Commission created by the Help America Vote Act of 2002. 52 U.S.C. §§ 2092120930.2
2 The U.S. Election Assistance Commission is empowered to conduct periodic studies of election administration including, among other things “[n]ationwide statistics and methods of identifying, deterring, and investigating voting fraud in elections for
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41. On June 28, 2017, prior to all Commission’s members being publicly named and sworn in, and before any duly noticed meetings, Vice Chair Kobach stated during a phone call with Commission members that “a letter w[ould] be sent today to the 50 States and District of Columbia on behalf of the Commission requesting publicly-available data from state voter rolls. . . .” (Exhibit D). 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).
42. The conference call—which took place mere hours before the letters were sent—was the first time Commission members were informed of the letters requesting voter information. The timing of this disclosure deprived commission members of the opportunity to consult with other members of the Commission or to formulate and express their views as to the legality or propriety of this action. See Complaint filed in Matthew Dunlap v. Presidential Advisory Commission on Election Integrity, 1:17-cv-02361-CKK at ¶ 44 (D.D.C. Nov. 9, 2017).
43. Similarly, the public had no meaningful opportunity to formulate and express their views as to the legality or propriety of this action.
44. According to the U.S. Census, state voter rolls include the names, addresses, and other personally identifiable information of as many as 157 million registered voters nationwide. U.S. Census Bureau, Voting and Registration in the
Federal office” and “[m]ethods of voter registration, maintaining secure and accurate lists of registered voters (including the establishment of a centralized, interactive, statewide voter registration list linked to relevant agencies and all polling sites), and ensuring that registered voters appear on the voter registration list at the appropriate polling site.” 52 U.S.C. § 20981.
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Election of November 2016 at tbl. 4a (May 2017), https://www.census.gov/data/tables/time-series/demo/voting-and-registration/p20580.html.
45. Florida law makes certain voter information confidential and exempt from disclosure under any circumstances. Social security numbers, driver’s license numbers, and the source of voter registration application cannot be released under any circumstances. § 97.0585, Florida Statutes (2016). Additionally, other voter information is confidential under certain circumstances. For instance, victims of domestic violence and stalking who are participants in the Attorney General’s Address Confidentiality Program are exempt from public disclosure of voter registration information. § 97.0585(3). Also, categories of high-risk professionals can be exempt from disclosure of personal information including address, photograph, and date of birth.
46. The Florida Department of State, Division of Elections, is required to redact all protected exempt information for any requests for production of voter information.
47. One of the Vice Chair’s hastily sent letters on June 28, 2017 was sent to Florida Secretary of State Ken Detzner. (Exhibit E).3
3 That same day of June 28, 2017, the U.S. Department of Justice sent a letter to every state covered by the National Voter Registration Act, 52 U.S.C. § 20501 (“NVRA”) seeking “all statutes, regulations, written guidance, internal policies, or database user manuals that set out the procedures” each state has relating to various programs including, among other things, removing voters from voter registration rolls. The letter also discusses coordination between “state voter registration lists with state agency records on felony status and death.” However, the DOJ letter does
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48. These letters include a request for voter identifying information, 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.” Id. 49. The Vice Chair’s letters also sought “[w]hat evidence or information [the
state had] regarding instances of voter fraud or registration fraud” and “[w]hat
convictions for election related crimes ha[d] occurred in [the] state since the November 2000 federal election.” (Exhibit E).
50. According to the Presidential Advisory Commission, “any documents that are submitted to the full Commission w[ould] also be made available to the
public.” (Exhibit E). 51. According to the letters, the states’ responses to the Presidential
Advisory Commission were due by July 14, 2017. (Exhibit E).4
not appear to specifically request information about specific identifiable voters. A copy of the letter sent to Washington Secretary of State Kim Wyman is attached as Exhibit F and is representative of the letters to all states covered by the NVRA. Given the nearly identical timing and subject matter of the DOJ’s letter and the Presidential Advisory Commission’s letter, it appears that the Presidential Advisory Commission exists to obtain records that would be otherwise unavailable to the DOJ for the purpose of enacting policies and procedures to suppress the vote across the entire country. 4 The URL provided by the Presidential Advisory Commission for the transmission of voter registration data and information at that time was a non-secure site, subjecting voters to having personal identifying information made available on the Internet and
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Opposition by States to Presidential Advisory Commission’s Demand for Voter Identifying Information

52. As of the date of this lawsuit was filed, at least 9 states refused to

provide any voter data. Other states issued no decision. Responses to the “Voter

Fraud” Commission’s Voter File Data Request, Brennan Center for Justice, NYU

School of Law. https://www.brennancenter.org/latest-updates-fraud-commission.

Philip Bump & Christopher Ingraham, Trump Says States Are “Trying to Hide

Things” from His Voter Fraud Commission. Here’s What They Actually Say, Wash.

Post

(July

1,

2017),

https://www.washingtonpost.com/news/wonk/wp/2017/07/01/trump-says-states-are-

trying-tohide-things-from-his-voter-fraud-commission-heres-what-they-actually-

say/.

53. California Secretary of State Alex Padilla announced his state would

“not provide sensitive voter information to a committee that has already inaccurately

passed judgment that millions of Californians voted illegally. California’s

participation would only serve to legitimize the false and already debunked claims of

massive voter fraud . . . .” Press Release, Secretary of State Alex Padilla Responds to

Presidential Election Commission Request for Personal Data of California Voters

(June 29, 2017), http://www.sos.ca.gov/administration/news-releases-and-

advisories/2017-news-releases-and-advisories/secretary-state-alex-padilla-responds-

thus making them potential victims of identity theft. Visitors to this URL were informed that the “connection is not secure” and are warned about “your information . . . being stolen.”
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presidential-election-commission-request-personal-data-california-voters/.

54. Kentucky Secretary of State Alison Lundergan Grimes stated that

“Kentucky w[ould] not aid a commission that is at best a waste of taxpayer money

and at worst an attempt to legitimize voter suppression efforts across the country.”

Bradford Queen, Secretary Grimes Statement on Presidential Election Commission’s

Request for Voters’ Personal Information, Kentucky (last accessed July 3, 2017)

http://kentucky.gov/Pages/Activity-stream.aspx?n=SOS&prld=129.

55. Outgoing Virginia Governor Terry McAuliffe had “no intention of

honoring [the] request.” Terry McAuliffe, Governor McAuliffe Statement on Request

from

Trump

Elections

Commission

(June

29,

2017),

https://governor.virginia.gov/newsroom/newsarticle?articleid=20595.

56. Mississippi Secretary of State Delbert Hosemann said, of the Vice

Chair’s first letter: “My reply would be: They can go jump in the Gulf of Mexico, and

Mississippi is a great state to launch from. Mississippi residents should celebrate

Independence Day and our state’s right to protect the privacy of our citizens by

conducting our own electoral processes.” Tal Kopan, Pence-Kobach 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.

57. Public opposition to the Presidential Advisory Commission’s requests

and actions is mounting. Voting technology professionals wrote state election officials

to warn that “[t]here is no indication how the information will be used, who will have

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access to it, or what safeguards will be established.” Letter from EPIC to Nat’l Ass’n of State Sec’ys (July 3, 2017), https://epic.org/privacy/voting/pacei/Voter-Privacyletter-to-NASS-07032017.pdf.
58. After public opposition to the Presidential Advisory Commission’s request began to mount, the Vice Chair wrote an article for Breitbart News, in which he conceded that “information like the last four numbers of a voter’s social security number” is “private,” but that “[t]he Commission didn’t request that information. Thus, there is no threat that the Commission’s work might compromise anyone’s privacy.” Kris W. Kobach, Kobach: Why States Need to Assist the Presidential Commission on Election Integrity, Brietbart News (July 3, 2017), http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-toassist-the-presidential-commission-on-election-integrity/. (Exhibit G). To the contrary, the Vice Chair’s June 28, 2017 letter to the 50 States and the District of Columbia specifically requests, among other things, the “last four digits of social security number[s].” (Exhibit E).
59. The President also responded to the news that numerous states were objecting to the production of voter data to the Presidential Advisory Commission, tweeting:
Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide? Donald J. Trump (@realDonaldTrump), Twitter (July 1, 2017, 6:07am), https://twitter.com/realDonaldTrump/status/881137079958241280.
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Effects on Florida and its Voters

60. Florida already has one of the highest rates of fraud and identity theft

in the country, making it imperative that its voters’ data be held secure.

61. Additionally, after intensive scrutiny into election security caused at

least in part by then-Candidate Trump’s repeated unfounded statements about voter

fraud, Florida officials stated, in response to media inquiries about possible data

breaches during the 2016 election, that “‘Florida’s online elections databases and

voting systems remained secure in 2016,” and Florida has “secured its databases and

put in firewalls to protect information, and the state has ‘no indication that any

unauthorized access occurred.’” Jeff Pegues, Election databases in several states were

at risk during 2016 presidential campaign, CBS News (June 13, 2017),

http://www.cbsnews.com/news/election-databases-in-several-states-were-at-risk-

during-2016-presidential-campaign/.

62. Florida is also in the process of implementing a new online voter

registration platform. There has been considerable legislative debate about the

platform’s implementation, specifically to address security concerns to protect the

public. Amy Sherman, Is online voter registration more secure? Florida state senator

says

yes,

Politifact

(Jan.

23,

2015),

http://www.politifact.com/florida/statements/2015/jan/23/jeff-clemens/online-voter-

registration-more-secure-florida-stat/.

63. Florida’s efforts to secure voter registration data and, therefore, its

voters (including the Plaintiffs), from among other things, identity theft, is now

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threated and undermined now that personalized voter data has been amassed and centralized on a White House computer, the security of which is an open question.
Florida Uploads Voter Data to a White House Computer 64. Two days after a hearing denying a preliminary injunction seeking to enjoin certain Commission activities on a related case in Washington, D.C., the Commission – on July 26, 2017 – met again, in secret and without public notice, and again without the full input and participation of all Commission members. That day, Vice Chair Kobach sent a second letter again asking States to upload voter data. This time, states were directed to “transmit the data to the White House computer system.” Like the first letter, the public had no opportunity whatsoever to comment contemporaneously. The specific letter to Florida Secretary of State Detzner is attached (Exhibit H). 65. Wasting no time, Florida Secretary of State Ken Detzner uploaded the data that very day to the White House computer. http://www.miamiherald.com/news/politicsgovernment/article164232182.html. 66. Secretary Detzner’s Disclosure remained subject to limitations under Florida law that this Court had in place since a July 20, 2017 ruling on Plaintiff’s Motion for Temporary Restraining Order. [DE 31]. The White House computer system was an unknown matter at the time of that hearing. That twist came along just six days later.
The Commission’s Public Meetings Say Nothing About its White House Database
67. To date, the Commission has held two public meetings, on July 19, 2017
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and September 12, 2017. The September 12 meeting took place after Vice Chair Kobach began rounding up voter data and directing that States upload it to a White House computer. At that meeting, there is nothing whatsoever on the Agenda about the White House computer system or what the Commission is doing with or intends to do with the voter data it has. (PACEI Agenda , September 12, 2017, Exhibit I). During that meeting, the subject was not even discussed. https://www.youtube.com/watch?v=gSXN-uq2Ju8.
Commission Member and Maine Secretary of State Matthew Dunlap Sounds the Alarm on the Secretive Nature of the Commission
68. Mathew Dunlap is the Maine Secretary of State. He is also a member of the Commission.
69. Secretary Dunlap has sounded the alarm on the secretive nature of the Commission. He has blown the whistle, exposing the corrupt nature of this Commission. The Secretary has called the Commission out for its hidden agenda, as well as the Commissions violations of the sunshine and transparency that FACA requires.
70. On November 9, 2017, Secretary Dunlap sued the very Commission on which he serves. See Matthew Dunlap v. Presidential Advisory Commission on Election Integrity, 1:17-cv-02361-CKK (D.D.C.).5
5 Secretary Dunlap’s Complaint cites to the instant lawsuit as one of several earlierfiled lawsuits “seeking to enjoin the Commission’s collection of data.” See Document Entry 1 at ¶ 45 in Matthew Dunlap v. Presidential Advisory Commission on Election Integrity, 1:17-cv-02361-CKK in the United States District Court for the District of Columbia.
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71. Secretary Dunlap’s revelations include, among other things: (a) The purported bi-partisanship of the Commission is a facade,
hiding the reality of the Commission’s actual work. (b) Secretary Dunlap has no access to the White House Computer
systems or its contents, and does not know what Vice Chair Kobach, the Vice President, other Commission members, and perhaps others at the White House are doing with the data.
(c) Dunlap and other Commission members have no idea what the purpose of the Commission’s voter database is and for what purpose its information has been gathered.
(d) The Commission has obstructed Dunlap and other Commission members from participating in the substantive process of the Commission’s work.
(e) Vice Chair Kobach’s letters asking States for voter data was a surprise to Dunlap and other Commission members who received the notification just hours before the letters were sent, leaving no time for consultation between members or any real opportunity to comment on it.
(f) The Commission blocked information access to Dunlap and other Commission members.
(g) Dunlap and other Commission members have been deprived of access to documents and information prepared by, viewed by, and obtained by other Commissioners.
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(h) Dunlap and other Commission members have been blocked from participating in the preparation of the Commission’s public meetings – including agenda preparation, selection of discussion topics, choosing participants for meetings, and selection of prepared testimony.
(i) The Commission has blocked Secretary’s Dunlap’s request for documents that FACA requires be shared with him, including communications among Commission members.
(j) The exclusion of Secretary Dunlap and other Commission members and the obstruction of providing documents violate FACA. See FACA, §10 (b), USCA App. 2; see also Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999).
(k) The Commission’s legitimacy, any findings it may purport to make, what the Commission does with the voter data on the White House computer are all compromised. This affects Plaintiffs. 72. The procedures employed by the Commission and the other federal Defendants leave the Plaintiffs and, in the case of the organizational Plaintiffs, their members, open to fraud and identity theft, and Plaintiffs have no knowledge over the aims of this Commission or the ultimate use of and disposition of their voter data on the White House Computer. 73. The federal Defendants’ ongoing actions further compound this problem now that Florida’s and other states’ voter data, have been uploaded to the White House. 74. It is well known that Vice Chair Kobach employs a deeply flawed
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computer program called “Crosscheck” that targets people with same names and labels them fraudulent voters.6
75. By secretly tinkering with the data behind closed White House doors, the Commission has up-ended FACA’s very soul of openness and transparency. Plaintiffs and the public have no idea what is behind being done with their data. Or for what purpose.
76. Plaintiffs and the public are deeply aggrieved by this and other secretive actions that the Commission has undertaken.
Absence of Privacy Impact Assessment 77. Under the E-Government Act of 2002 (18 Pub. L. 107-347, 116 Stat. 2899 (codified as amended at 44 U.S.C. § 3501 note)), every agency “initiating a new collection of information that (I) will be collected, maintained, or disseminated using information technology; and (II) includes any information in an identifiable form permitting the physical or online contacting of a specific individual” is required to complete a Privacy Impact Assessment (“PIA”) before initiating such collection. 44 U.S.C. § 3501 note (“Privacy Impact Assessments”). 78. The agency must “(i) conduct a privacy impact assessment; (ii) ensure the review of the privacy impact assessment by the Chief Information Officer, or
6 “The GOP’s Stealth War Against Voters” (describing the “Crosscheck” program, started by Kris Kobach), http://www.rollingstone.com/politics/features/the-gopsstealth-war-against-voters-w435890; see also The Washington Post, “This Anti-VoterFraud Program gets it Wrong Over 99% of the Time. The GOP Wants to Take it Nationwide.” https://www.washingtonpost.com/news/wonk/wp/2017/07/20/this-antivoter-fraud-program-gets-it-wrong-over-99-of-the-time-the-gop-wants-to-take-itnationwide/?utm_term=.5c8850ff66f5
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equivalent official, as determined by the head of the agency; and (iii) if practicable, after completion of the review under clause (ii), make the privacy impact assessment publicly available through the website of the agency, publication in the Federal Register, or other means.” Id.
79. The Presidential Advisory Commission is an agency subject to the EGovernment Act because it is an “establishment in the executive branch of the Government,” a category that “includ[es] the Executive Office of the President.” 44 U.S.C. § 3502(1).
80. A Privacy Impact Assessment for a “new collection of information” must be “commensurate with the size of the information system being assessed, the sensitivity of information that is in an identifiable form in that system, and the risk of harm from unauthorized release of that information.” § 3501 note (“Privacy Impact Assessments”). The PIA must specifically address “(I) what information is to be collected; (II) why the information is being collected; (III) the intended use of the agency of the information; (IV) with whom the information will be shared; (V) what notice or opportunities for consent would be provided to individuals regarding what information is collected and how that information is shared; [and] (VI) how the information will be secured ....” Id.
81. Under FACA, “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by [an] advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or
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the agency to which the advisory committee reports until the advisory committee ceases to exist.” 5 U.S.C. app. 2 § 10(b).
82. The Commission has not conducted a Privacy Impact Assessment for its collection of state voter data.
83. The Commission has not ensured review of a PIA by any Chief Information Officer or equivalent official.
84. The Commission has not published a PIA or made such an assessment available for public inspection. Current and Former National Security Officials Warn that Commission is
Exposing Voter Data to Cyber Hacking Threat 85. The U.S. Congress has made no finding of a problem that would warrant creation of a nationwide voter database. There has been no congressional finding of a systemic and nationwide problem with voter registration files and voter history, including evidence of voter fraud, to justify the collection of state voter history and voter registration information by the federal government. 86. Since the inception of the activities of the Presidential Advisory Commission, significant new information has been developed by the United States Congress identifying serious national security and cybersecurity implications of database breaches, and the coordination of intrusion efforts by foreign governments. Collected in the Amicus Brief of Former National Security and Technology Officials in Common Cause v. Presidential Advisory Commission on Election Integrity, U.S.D.C. Case No. 17-Cv-01398-RCL (D.D.C) (DE38-1), are warnings from current and former government security officials that Russia and other foreign adversaries
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have sought to intervene and will intervene in future United States elections, and that such behavior is likely to escalate. This Amicus Brief is attached as Exhibit J, and its contents, documents, and citations are incorporated in this Amended Complaint.
87. That Amicus Brief relates that Admiral Michael Rogers, director of the National Security Agency, recently testified before Congress that “[w]e have seen states seeking to shape the policies and attitudes of democratic peoples, and we are convinced such behavior will continue for as long as autocratic regimes believe they have more to gain than to lose by challenging their opponents in cyberspace.”
88. As the Amicus Brief explains, James Clapper, the former Director of National Intelligence, similarly testified that Russia is now “emboldened to continue” its election interference activities, “and to do so even more intensely.”
89. Members of Congress, too, have repeatedly expressed concerns about future election interference and the adequacy of existing measures to protect against further attacks, including potential tampering with voter registration systems.7
90. The former national security officials in the Amicus Brief described the likelihood of hostile nation-states attempting to breach the Presidential Advisory
7 See, e.g., Video Recording, Hrg. before the Senate Comm. on Homeland Security and Governmental Affairs (Sept. 27, 2017) at 01:41:45 – 01:42:33 (questions from Sen. Claire McCaskill to Elaine Duke, Acting Secretary of DHS, and Christopher Wray, Director of the FBI, concerning measures to prevent interference in future elections); id. at 01:49:55 – 01:50:22 (question from Sen. James Lankford expressing concerns about tampering with voter registration lists), available at https://www.cspan.org/video/?434411-1/senior-officials-testify-homelandsecuritythreats&start=6178.
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Commission’s database for espionage purposes not directly related to election interference. The Justice Department, in United States v. Dokuchaev, U.S.D.C. Case No. 3:17-cr-103, ECF No. 1 (N.D. Cal. Feb. 28, 2017), charged two officers belonging to the Russian Federal Security Service (as well as two other individuals) with orchestrating a massive breach of Yahoo’s networks and accessing information regarding more than 500 million Yahoo user accounts.17 The indictment alleges the conspirators used this information to target particular victims of interest to Russian intelligence as well as to orchestrate various scams.18 It has also been reported that other hacked files pertaining to American citizens are being used by foreign intelligence services, including in China and Russia, to assemble and cross-index databases that could be used to identify and even blackmail U.S. intelligence operatives.
91. Based in part on the testimony of these former national security officials who operated at the highest levels of the U.S. Government, the Amicus Brief details the serious compromise to privacy, national security, and voter information resulting from the Presidential Advisory Commission’s conduct. The Amicus Brief recognizes that the “stated mission of the Presidential Advisory Commission on Election Integrity is to ensure the integrity of our electoral systems. But given the advanced cyber threats posed by foreign adversaries, there is a serious risk that the Commission’s activities will ultimately make U.S. election systems more susceptible to compromise and abuse. The Commission has aggregated and continues to aggregate large volumes of data about American voters, including names, addresses,
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partial social security numbers, and voting history, into one centralized database stored, operated, and maintained by the White House. That database may be a compelling target for foreign adversaries seeking to interfere in future elections through a variety of means, as well as for cyber criminals and other malicious actors. Yet, despite this grave vulnerability, the Commission chose to move the database from a network administered by the Department of Defense to an ad hoc system built by White House personnel. Amici, who have a wealth of experience as national security and cybersecurity officials, have authored this brief in order to highlight the substantial risks that assembling and maintaining such a database could create.” (Exhibit J, page 2).
92. The Amicus Brief further explains that “[f]or all of the vulnerabilities demonstrated during last year’s elections, one feature of our state-based election system that poses challenges to would-be attackers is the extent of its decentralization—including the degree to which information that could be used to exploit potential vulnerabilities is widely dispersed across numerous systems, formats, and regions. That strength is critically undermined by the Commission’s conduct and will continue to be undermined so long as the Commission’s database is maintained. Because 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, amici seek to inform the Court’s understanding of these potential harms as it evaluates Plaintiffs’ complaint and the Government’s motion to dismiss. (Exhibit J, page 2-3).
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COUNT I Violations of the Federal Advisory Committee Act,
5 U.S.C. App. 2, et seq. Against Presidential Advisory Commission, Pence, Kobach, Executive Office of the President, Executive Office of the Vice
President, Horne, and Mulvaney 93. Plaintiffs restate and incorporate paragraphs 1-92. 94. The Executive Order specifically contemplates that the Presidential Advisory Commission is governed by the Federal Advisory Committee Act, 5 U.S.C. App. 2, et seq. (“FACA”). See Executive Order 82 Fed. Reg. 22,389 at § 7(c) (Exhibit A). The Presidential Advisory Commission’s Charter also states that the Commission “is established in accordance with . . . the Federal Advisory Committee Act.” (Exhibit C at ¶ 2). The first notice of any meeting of the Presidential Advisory Commission published in the Federal Register, which was published on July 5, 2017, also states that the Commission was “established in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. . . .” 82 Fed. Reg. 31,063 (Exhibit K) (the “First Meeting Notice”). 95. However, Defendant Presidential Advisory Commission and the other federal Defendants have failed to comply with numerous of the FACA’s clear requirements. Among other things, these Defendants (a) failed to properly notice and conduct meetings, (b) failed to provide opportunities for public participation and input, (c) failed to make its membership fully known, (d) failed to make documents available to the public, (e) conducted unlawful business not authorized by the Executive Order or any statute prior to all of the Commission’s members being
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appointed and sworn in and without input or participation from the public or even most of the Commission’s members; and (f) have shut out select Commission members from the workings, preparations, strategy, and goals of this Commission.
96. “Because FACA’s dictates emphasize the importance of openness and debate, the timing of such observation and comment is crucial to compliance with the statute. Public observation and comment must be contemporaneous to the advisory committee process itself. . . . If public commentary is limited to retrospective scrutiny, the Act is rendered meaningless.” See Alabama-Tombigbee Rivers Coal. v. Dep’t of Interior, 26 F.3d 1103, 1106 (11th Cir. 1994).
97. According to the Eleventh Circuit, “injunctive relief [is] the only vehicle that carries the sufficient remedial effect to ensure future compliance with FACA’s clear requirements.” Id. at 1107. It is the responsibility of the courts to see that the FACA is followed, even where there are only “minor transgressions” of the FACA and where “the subject matter is serious” and “the objective is worthy.” Id. at n.9. “Because the matters are so serious and of such great concern to so many with differing interests, it is absolutely necessary that the procedures established by Congress be followed to the letter.” Id.
98. “[T]o allow the government to use the product of a tainted procedure would circumvent the very policy that serves as the foundation of the Act.” Id.
99. First, the Presidential Advisory Commission and the other federal Defendants, including the Vice President and the Vice Chair on behalf of the Commission, began conducting official business prior to ever holding a meeting for
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which a notice was published in the Federal Register, prior to the appointment and swearing in of all of its members, and prior to any public participation or input being permitted.
100. The first meeting of the Commission for which a notice was published in the Federal Register is presently scheduled to take place on July 19, 2017. At that meeting, the Commission’s members will be sworn in.
101. Yet, on June 28, 2017, the Vice Chair issued letters to the chief elections officials of all 50 States and the District of Columbia seeking personal information about every registered voter in the country, the effect of which would be to amass and centralize a federal voter database not authorized by the Executive Order or any statute, thereby indicating one or more earlier meetings of the Commission have taken place without any notice published in the Federal Register.
102. At that June 28 meeting, certain Commission members, including Secretary Dunlap, were shut out of the preparations for this meeting and the concept of amassing a national voter database. Secretary Dunlap and others had no opportunity to comment or study the intent behind this unprecedented request – one that has already affected Plaintiffs and the Public.
103. According to the 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), attached as Exhibit D, additional telephonic meetings, for which there was no notice published in the Federal Register, were unlawfully held. During the conference call with the Commission’s members, the Vice Chair told the
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other members about the letters he sent to the 50 States and the District of Columbia on behalf of the Commission requesting voter data.
104. Thus, the Vice President and the Vice Chair acted unilaterally on behalf of the Presidential Advisory Commission, without the consent or participation of the public or even the majority of the members of the Commission, in sending the letters seeking voter registration and personal information about every registered voter in the country, in violation of the FACA.
105. In fact, the Vice Chair’s June 28, 2017 letter to each of the 50 States and the District of Columbia, which is printed on Presidential Advisory Commission letterhead and which bears the Seal of the President of the United States, requests that each jurisdiction receiving the letter respond by July 14, 2017, which is prior even to the first meeting of the Commission for which notice was published in the Federal Register, which is scheduled for July 19, 2017.
106. Second, the Presidential Advisory Commission and the other federal Defendants failed to name all of its members before it began conducting business, in violation of the FACA.
107. Pursuant to 5 U.S.C. App. 2 § 2(b)(5), “the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees.”
108. By July 9, 2017, various news reports have indicated that 11 members of the Commission had been appointed, including the Vice President as Chair, and including the Vice Chair. News reports also indicate that one of the members has
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since resigned from the Commission, leaving the Commission with 10 members as of
that date. Pursuant to the Executive Order, the Commission will have “no more than
15 additional members” besides the Vice President, for a maximum possible total of
16 members. As of the time the Commission began conducting official business, the
Commission’s makeup was uncertain and non-final.
109. In fact, the Commission’s members’ swearing-in ceremony did not take
place until approximately July 19, 2017, even though the Commission had already
begun conducting business in violation of the FACA.
110. Third, the Presidential Advisory Commission and the other federal
Defendants have failed to comply with the FACA’s requirements regarding advance
notice of meetings or transparency of their intentions.
111. Pursuant to 41 C.F.R. § 101-6.1015(b), a regulation implementing the
FACA:
(b) Committee meetings. (1) The agency or an independent Presidential advisory committee shall publish at least 15 calendar days prior to an advisory committee meeting a notice in the FEDERAL REGISTER, which includes:
(i) The exact name of the advisory committee as chartered; (ii) The time, date, place, and purpose of the meeting; (iii) A summary of the agenda; and (iv) A statement whether all or part of the meeting is open to the public or closed, and if closed, the reasons why, citing the specific exemptions of the Government in the Sunshine Act (5 U.S.C. 552(b)) as the basis for closure. (2) In exceptional circumstances, the agency or an independent Presidential advisory committee may give less than 15 days notice, provided that the reasons for doing so are included in the committee meeting notice published in the FEDERAL REGISTER.
112. The Presidential Advisory Commission and its affiliated federal
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Defendants have violated 41 C.F.R. § 101-6.1015(b) in multiple regards, by holding meetings that were not noticed in the Federal Register whatsoever and taking action based upon those un-noticed meetings, including:
a. Holding one or more meetings consisting solely of the Vice Chair and/or the Vice President (and possibly other members of the Trump administration, but not including the majority of the members of the Presidential Advisory Commission) that were not noticed in the Federal Register, which led to the Vice Chair sending out letters seeking voter information from all 50 States and the District of Columbia on June 28, 2017, all without the participation or input of the public or even the majority of the Commission’s members; and
b. Holding one or more telephonic meetings that were not noticed in the Federal Register and that did not allow for public participation or input. 113. The meetings of the Commission referenced in the preceding paragraph violate 41 C.F.R. § 101-6.1015(b) for failing to provide any notice in the Federal Register whatsoever. 114. The Presidential Advisory Commission and its affiliated federal Defendants have also violated 41 C.F.R. § 101-6.1015(b) with regard to the first meeting for which a notice was published in the Federal Register, because the notice is legally deficient. 115. The first notice of any meeting of any kind of the Presidential Advisory
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Commission was published in the Federal Register on July 5, 2017, giving notice of an open meeting to take place on July 19, 2017. 82 Fed. Reg. 31,063 (Exhibit K) (the “First Meeting Notice”). Accordingly, even this First Meeting Notice violates 41 C.F.R. § 101-6.1015(b) in that it provides less than 15 days’ notice of the meeting and provides no reasons or exceptional circumstances for doing so, in violation of the FACA.
116. Fourth, the Presidential Advisory Commission and the other federal Defendants have failed to comply with the FACA’s requirement that members of the public be permitted to attend one or more of the Commission’s open meetings in person.
117. Pursuant to 41 C.F.R. § 101-6.1021(b), a regulation implementing the FACA:
The agency head, or the chairperson of an independent Presidential advisory committee, shall ensure that— . . . (b) The meeting room size is sufficient to accommodate advisory committee members, committee or agency staff, and interested members of the public[.] 118. The Presidential Advisory Commission and its affiliated federal Defendants have violated 41 C.F.R. § 101-6.1021(b) with regard to its earlier unnoticed meetings in multiple regards, including by:
a. Holding one or more meetings of the Commission that were not noticed in the Federal Register, in which the meeting room was not sufficient to accommodate interested members of the public (and in which the majority of the Commission’s members were not even in attendance); and
b. Holding one or more telephonic meetings of the Commission that
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were not noticed in the Federal Register, in which the meeting room was necessarily not sufficient to accommodate interested members of the public because the meetings took place by telephone, and thus there was no meeting room. 119. The Presidential Advisory Commission and its affiliated federal Defendants have also violated 41 C.F.R. § 101-6.1021(b) with regard to the first meeting for which a notice was published in the Federal Register, because the notice is legally deficient. 120. The First Meeting Notice states that the meeting “will be open to the public through livestreaming on https://www.whitehouse.gov/live.” This indicates that interested members of the public will not be permitted to attend and observe the meeting in person, in violation of 41. C.F.R. § 101-6.1021(b). 121. Fifth, the Presidential Advisory Commission and the other federal Defendants, including the Vice President, have failed to comply with the FACA’s requirements to provide reasonable public participation in the Commission’s activities. 122. Pursuant to 41 C.F.R § 101-6.1011(b), a regulation implementing the FACA, “[t]he chairperson of an independent Presidential advisory committee shall comply with the Act and this subpart and shall: . . . (b) [f]ulfill the responsibilities of an agency head as specified in paragraphs (d), (h) and (j) of §101–6.1009 . . . .” 41 C.F.R. § 101-6.1009(h), referenced therein, provides that: The head of each agency that uses one or more advisory committees shall ensure: . . . (h) The opportunity for reasonable public participation in
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advisory committee activities[.] 123. Thus, the Presidential Advisory Commission’s refusal to allow in-person attendance at its meetings, along with the Commission having taken action by, at a minimum, sending letters to all 50 States and the District of Columbia seeking voter data to amass and centralize a federal voter database, without any public participation or input, violates the Vice President’s obligations as the Chair of the Commission under the FACA to provide for reasonable public participation in the Commission’s activities. 124. The Vice President’s and Vice Chair’s unilateral actions on behalf of the Presidential Advisory Commission, without even the input of the majority of the Commission’s members, in seeking to collect voter data from all 50 States and the District of Columbia to amass and centralize a federal voter database without first (a) making known the final makeup of the Commission’s members, (b) holding any meetings for which notice(s) were published in the Federal Register, (c) swearing in the Commission’s members, or (d) providing any opportunity for public comment, participation, or input, necessarily violates the FACA because “[p]ublic observation and comment must be contemporaneous to the advisory committee process itself.” See Alabama-Tombigbee Rivers Coal., 26 F.3d at 1106. 125. Sixth, the Presidential Advisory Commission and the other federal Defendants have failed to make available for public inspection a privacy impact assessment for the collection of voter data, and have also failed to comply with numerous transparency and openness provisions of FACA.
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126. Seventh, the Presidential Advisory Commission and the other federal Defendants have failed to comply with FACA provisions requiring that advisory commissions not be partisan. FACA guards against the use of advisory committees to lend a false imprimatur of bipartisanship and legitimacy to their findings and recommendations. Membership of commissions must be “fairly balanced in terms of the points of view represented.” 5 U.S.C. app. 2 § 5(b)(2). Additionally, there must be “a clearly defined purpose for the advisory committee” and the Commission cannot be “inappropriately influenced by the appointing authority or by any special interest.” Id. at §§ 5(b)(1) & (3). “To the extent they are applicable, [these provisions] shall be followed by the President, agency heads, or other Federal officials in creating an advisory committee.” Id. at § 5(c).
127. Yet, the Presidential Advisory Commission is, in reality, mainly comprised of and controlled by individuals who wish to suppress the right to vote, including of particular note, Vice Chair Kobach and the Vice President. Any members, like Secretary Dunlap, who do not wish to suppress the right to vote are left out of important decision-making and are not privy to numerous documents, systems, information, communications, and are otherwise obstructed and blocked from meaningful participation in the Commission. The purported bi-partisanship of the Commission is a facade, hiding the reality of the Commission’s actual work, which is to suppress the right to vote in Florida and nationwide.
128. Eighth, the Commission and the other federal Defendants continue to violate the FACA by storing their materials on unapproved mediums and in darkness
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from the public and otherwise in direct contravention of FACA.
129. On July 28, 2017 Vice Chair Kobach sent a second letter asking for
States to upload voter data to a “White House Computer System.” (Exhibit H). That
very day, Florida complied.
130. Again, this was done without public notice, without the public’s right of
contemporaneous comment, and without the full inclusion of certain Commission
members who have been locked out of this effort to amass and centralize a national
voter database.
131. And now, Secretary (and Commissioner) Dunlap has blown the whistle,
exposing the corrupt nature of this Commission
132. Ninth, for these reasons and other reasons not yet known to the public,
the Commission’s and the other federal Defendants’ FACA violations of transparency
and openness are flagrant. The Commission’s ongoing defiance of the law is
detrimental to Plaintiffs and the Public. The Eleventh Circuit holds:
“Because FACA's dictates emphasize the importance of openness and debate, the timing of such observation and comment is crucial to compliance with the statute. Public observation and comment must be contemporaneous to the Advisory committee process itself.” A simple “excuse us” cannot be sufficient. It would make FACA meaningless, something Congress certainly did not intend.” (T)o allow the government to use the product of a tainted (FACA) procedure would circumvent the very policy that serves as the foundation of the Act.
It is simply insufficient for the government to contend that . . . courts should not interfere or be concerned with (what it claims are) minor transgressions. Quite the contrary. Because the matters are so serious and of such great concern to so many with differing interests, it is absolutely necessary that the procedures
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established by Congress be followed to the letter. Congress outlined in detail exactly what procedures were to be used and it is the responsibility of the courts to see that such laws are carried out.8 Alabama-Tombigbee Rivers Coalition v. Department of Interior, 26 F.3d 1103, 1106-07 n.9 (11th Cir 1994). 133. These violations are all injurious to Plaintiffs. Their right to vote is threatened. Their data is threatened as it is tinkered with in secret by only a select number on the Commission and perhaps unknown others. The data is threatened because there is no assurance of security in this particular White House. 134. The Defendants have failed to comply with the Federal Advisory Committee Act, FACA, 5 U.S.C. App. 2; §§ 1-10, by committing, among other things, the following acts and omissions:
(a) Failing to comply with the requirement 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 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.” This violates FACA, §§1 (5), 10 (b), 5 U.S.C.A. App. 2.
(b) Failing to provide public notice, opportunity of contemporaneous comment, openness and transparency of its meeting that culminated with

8 Id. at 107 and FN 9.

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same-day letters on June 28 and July 26, 2017 to the States and the District of Columbia directing that voter data be uploaded to a White House Computer System. This violates FACA, §§1 (5), 10(a) (1)-(3)(b), 5 U.S.C.A. App. 2.
(c) Shutting or severely restricting Secretary Dunlap and other Commission members who would otherwise provide input and balance on the initiative, purpose and need for the amassing of a nationwide voter database on a White House Computer System. This violates FACA, 5 U.S.C.A. App. 2, § 5 (b) (1-3).
(d) Amassing a National voter database, with Floridian and other state voter data, on a White House Computer System, behind closed White House Doors and with no ability for Plaintiffs, the Public, or even Congress to see what the Commission is doing with that data. This violates FACA, 5 U.S.C.A. App. 2, §§1 (5)10 (b).
(e) Eliminating FACA’s requirement of balance, and only permitting a select few Commissioners to control the agenda, invite participants, and select prepared testimony for Public meetings to the exclusion of Secretary Dunlap and others on the Commission. This violates FACA. 5 U.S.C.A. App. 2, §5 (b)(2), §10 (b); see also Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999).
(f) Failing to inform the public in public meeting the purpose of the voter database, what is being done with it, and otherwise carrying on a secret agenda that is not disclosed to the Public or even members of the Commission. This violates FACA. 5 U.S.C.A. App. 2, §§1 (5), 5 (b)(2), 10 (b). See also
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Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999). (g) Running or considering running Crosscheck or similar voter
elimination programs in secret at the White House on Plaintiffs, Floridians and other voter data that Vice Chair Kobach and the Commission have obtained. This violates FACA. 5 U.S.C.A. App. 2, §§1 (5), 5 (b)(2), 10 (b).
(h) Exceeding the Scope of the Executive Order, which does not empower the Commission to amass and centralize a federal database of voters on a White House computer. This violates FACA. 5 U.S.C.A. App. 2, § (9)(a-b).
(i) Exceeding the Scope of the Commission’s Charter, which does not empower the Commission to amass and centralize a federal database of voters on a White House computer. This violates FACA. 5 U.S.C.A. App. 2, § (9)(a-c).
(j) Continuing to operate in the darkness at nearly all levels, in violation of the letter and spirit of FACA for reasons stated herein and also for those reasons not yet known. 135. Defendants may have committed additional violations of the FACA not presently known to the Plaintiffs, especially in light of the Defendants’ various violations of the FACA that have kept the public in the dark about the Presidential Advisory Commission’s conduct. 136. Plaintiffs are, individually and in their representative capacities, adversely affected and aggrieved by the Defendants’ actions and inaction. 137. The FACA transgressions are blatant and continuing in nature. Neither the Presidential Advisory Commission nor any of the federal Defendants should be
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permitted to utilize any of the documents, materials, or information they received in violation of FACA; they should not be permitted to author or present any reports or the like, including but not limited to the President or anyone, in any official or unofficial capacity; and any reports or the like that it has already authored or prepared, or that it will author or prepare should not be permitted to be utilized. See Alabama-Tombigbee Rivers Coal. v. Dep’t of Interior, 26 F. 3d 1103 (11th Cir. 1994).
138. Unless the Court declares the actions of the Presidential Advisory Commission, the Vice President, the Vice Chair, and the other federal Defendants to be illegal and enters an order or orders granting injunctive relief to require the Defendants to follow all legal requirements, Plaintiffs, individually and in their representative capacities, will be subjected to unknown manipulation and use of their data at the White House, the purpose of which use has not been explained—controlled by the whims of certain Commission’s directors, that is not authorized by any statute, the Executive Order, the Commission’s Charter, and that is the product of numerous violations of the FACA.
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COUNT II Breaches and Violations of Constitutional
Separation of Powers and Article II Against Presidential Advisory Commission, Pence, Kobach, Executive Office of the President, Executive Office of the Vice
President, Horne, and Mulvaney 139. Plaintiffs restate and incorporate paragraphs 1-92. 140. Pursuant to the U.S. Constitution, the powers of the three branches are separated. 141. The Framers of the Constitution placed Congress’s power in Article I. Executive power follows in Article II. 142. Under the U.S. Constitution, Congress is given the power to enforce and protect, through legislation, the right to vote and the election system. The U.S. Constitution gives no power to the Executive Branch concerning the election system or its integrity. Any power the Executive does have to enforce the right to vote or to protect the electoral process is its general enforcement power and its obligation to execute and enforce Congressional acts and laws – faithfully. 143. Under Article I, Congress is given the exclusive federal power to make laws and regulate elections: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Art. I, § 4, U.S. Const. 144. Under the 14th, 15th, 19th, 24th, and 26th Amendments to the U.S. Constitution, the right to vote was secured for African-Americans, women, and 18-
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year olds, and poll taxes were eliminated. In each Amendment, Congress was given the power to enforce these rights with legislation. Each of these Amendments conclude with nearly identical language: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The Executive is not mentioned.
145. Using its Article I Powers, Congress has created the exclusive legal regime over the enforcement of elections and the right to vote, to safeguard the integrity of the voting systems, and to otherwise regulate the integrity of elections. Such legislation includes, inter alia: The Voting Rights Act of 1965; The National Voter Registration Act of 1993 (Motor Voter Law); and the Help America Vote Act of 2002. These laws are aimed at protecting election integrity and the right to vote. The U.S. Court of Appeals for the Eleventh Circuit explained that the Help America Vote Act “represents Congress’s attempt to strike a balance between promoting voter access to ballots on the one hand and preventing voter impersonation fraud on the other.” Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1168 (11th Cir. 2008).
146. The Executive Branch has limited, enumerated powers under Article II of the U.S. Constitution.
147. Nowhere in the Constitution or through Acts of Congress is the Executive granted or delegated any power to amass and centralize a national database of voters that includes party affiliation, voting history, social security numbers, military history, criminal history, address, or any other of the personal data
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the Presidential Advisory Commission requested. 148. To the extent the Executive has implied or express powers through the
enforcement and execution of Congressional Acts – including its limited and delegated authority to establish sunshine, transparent, out-in-the-open commissions under FACA – nowhere does Congress or the Constitution contemplate that the Executive can amass and centralize a national voter database at the White House, where it can tinker with the data in private.
149. The Commission’s acts here are unprecedented. 150. One of the Executive’s duties is that “he shall take care that the laws be faithfully executed.” The Executive – through the Presidential Advisory Commission – is not faithful to the execution of any law. Rather, the Executive is pursuing a widely disputed complaint that millions voted illegally in the 2016 election. 151. The creation and the activities of the Executive’s Presidential Advisory Commission unconstitutionally intrude into the Article I powers of Congress over the electoral system, its authority over the protection of the vote, and its authority over the integrity of the election system. The presidential creation of the Presidential Advisory Commission and its ongoing activities violate the separation of powers of the U.S. Constitution. 152. These actions have exceeded the scope of the Executive’s Article II powers and have otherwise breached Article II. 153. These transgressions of Separation of Powers principles as well as Article II limitations and duties include, inter alia, the following acts and omissions:
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a. Using the Presidential Advisory Commission to amass and centralize a federal database at the White House or elsewhere with personal and private information of voters.
b. Creating a commission that is not tied to any of the Executive’s enumerated Article II powers or to any congressional enactment or authorization.
c. Creating the Presidential Advisory Commission based on a myth of voter fraud and without any legitimate factual finding to support its purported mission.
d. Creating the Presidential Advisory Commission as a ruse to do what the Executive cannot otherwise do – amass and centralize a federal database at the White House with personal and private voter information.
e. Failing to faithfully execute FACA or any other law by allowing the Commission to carry out a secret agenda, to the exclusion of Commission members that are not faithful to the President’s belief of voter fraud.
f. Failing to faithfully execute FACA or any other law by allowing the Commission to upload Data to a White House computer system where the Data can be tinkered with behind closed doors and without public knowledge or input.
g. Failing to faithfully execute any law through the creation
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of and workings of the Presidential Advisory Commission. h. Failing to prevent the commission from exceeding its
purported authority and purpose as set forth in Section 5 of the Executive Order. That is, by creating a federal database, the Presidential Advisory Commission is duplicating the work of existing government entities, namely the states and other existing, independent election commissions such as the U.S. Election Assistance Commission and Federal Election Commission.
i. Failing to prevent the Presidential Advisory Commission from exceeding its purported authority and purpose as set forth in the Executive Order. The Order does not direct the Presidential Advisory Commission to amass and centralize a federal database at the White House of voters’ personal and private information.
j. Failing to prevent the Presidential Advisory Commission from exceeding its own Charter. The Charter does not call on the Presidential Advisory Commission to amass and centralize a federal database at the White House of voters’ personal and private information.
k. Failing to prevent the Presidential Advisory Commission from not disclosing its work materials and full membership as required under the Federal Advisory Committee Act, and to otherwise adhere to the FACA disclosure and sunshine requirements as more fully set forth
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in Count I. l. Failing to prevent the commission from exceeding its
purported authority and purpose as set forth in Section 5 of the Executive Order. That is, by creating a commission whose goal, in the written word, is to protect voting integrity through study of the registration process and voting processes in Federal Elections, the Presidential Advisory Commission is duplicating the work of existing government entities, namely the states and other existing, independent election commissions such as the U.S. Election Assistance Commission and Federal Election Commission.
m. The creation and the activities of the Presidential Advisory Commission unconstitutionally intrude into the Article I powers of Congress over the electoral system, its authority over the protection of the vote, and its authority over the integrity of the election system. The Presidential Advisory Commission’s actions violate the separation of powers delineated in the U.S. Constitution.
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COUNT III Violation of The Paperwork Reduction Act,
44 U.S.C. § 3501, et seq. Against Presidential Advisory Commission, Pence, Kobach, Executive Office of the President, Executive Office of the Vice
President, Horne, and Mulvaney 154. Plaintiffs restate and incorporate paragraphs 1-92. 155. The Paperwork Reduction Act of 1995 (“PRA”) was designed for multiple purposes, but most notably was intended to minimize the burden on the public and on state governments, to ensure the “greatest possible public benefit from and maximize the utility of information created, collected, maintained, used, shared and disseminated by or for the Federal Government.” 44 U.S.C. § 3501 (2017). 156. For purposes of the PRA, “the term ‘agency’ means any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency . . . .” 44 U.S.C. § 3502 (2017). The Presidential Advisory Commission is not otherwise specifically excluded. More particularly, the Executive Office of the President is specifically included as an agency bound by the requirements of the PRA. 157. Agencies, such as the Presidential Advisory Commission, when seeking information from more than 10 respondents, must receive approval from the Office of Management and Budget (“OMB”) prior to the collection of information. 158. The OMB is tasked with promulgating the Federal Regulations to effectuate the mandates of the PRA.
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159. Prior to its collection of information directed at more than ten respondents, namely each of the 50 States and the District of Columbia, the
Presidential Advisory Commission must strictly comply with statutory prerequisites. See 44 U.S.C. § 3506 (2017).
160. This includes, in part, preparing for the Director of the OMB a review that identifies the plan for collection of information, inventory, and control numbers
for each item, and that: (iii) informs the person receiving the collection of information of – (I) the reasons the information is being collected; (II) the way such information is to be used; (III) an estimate, to the extent practicable, of the burden of the
collection; (IV) whether responses to the collection of information are voluntary,
required to obtain benefit, or mandatory; and (V) the fact that an agency may not conduct or sponsor, and a person
is not required to respond to, a collection of information unless it displays a valid control number. 44 U.S.C. § 3506(c)(1)(B)(iii).
161. The Commission failed to prepare a review identifying the plan for collection of information, inventory, and control numbers for each item, and that
“informs the person receiving the collection of information of” “the reasons the information is being collected;” “the way such information is to be used;” “an estimate,
to the extent practicable, of the burden of the collection;” and/or “whether responses to the collection of information are voluntary, required to obtain benefit, or mandatory,” among other things. 44 U.S.C. § 3506(c)(1)(B)(iii).
162. The PRA also requires that the agency must “provide 60-day notice in the Federal Register, and otherwise consult with members of the public and affected
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agencies concerning each proposed collection of information,” 44 U.S.C. § 3506(c)(2)(A), and to solicit comments from the public in order to, in pertinent part:
(i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(ii) evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information;
(iii) enhance the quality, utility, and clarity of the information to be collected; and
(iv) minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology[.] 163. Defendants fail to “provide 60-day notice in the Federal Register, and
otherwise consult with members of the public and affected agencies concerning each proposed collection of information,” and solicit comments about whether “the
proposed collection of information is necessary,” or “practical utility,” the “burden of the proposed collection of information;” and/or about “quality, utility, and clarity of the information to be collected;” and proper collection procedures that “minimize the
burden of the collection of information.” 44 U.S.C. § 3506(c)(2)(A). 164. Defendants’ have not complied with, nor have they attempted to comply
with, any of the required actions of the PRA. 165. Defendants’ collection of the information sought prior to complying with
the requirements of the PRA is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).
166. The Commission is prohibited from collecting information unless in advance of the collection of information the agency has completed all prerequisites
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COUNT IV
Violation of Florida Statute § 97.0585: Information Regarding Voters and Voter Registration Confidentiality
Against Presidential Advisory Commission and Detzner
169. Plaintiffs restate and incorporate paragraphs 1-92.
170. The Florida Constitution guarantees the right of privacy to all persons,
Art. I, § 23, Florida Constitution:
Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
171. Florida law provides for the confidentiality of certain voter information
and voting registration data in § 97.0585, Florida Statutes:
Public records exemption; information regarding voters and voter registration; confidentiality.—
(1) The following information held by an agency as defined in s. 119.011 is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution and may be used only for purposes of voter registration:
(a) All declinations to register to vote made pursuant to ss. 97.057 and 97.058.
(b) Information relating to the place where a person registered to vote or where a person updated a voter registration.
(c) The social security number, driver license number, and Florida identification number of a voter registration applicant or voter.
(2) The signature of a voter registration applicant or a voter is exempt from the copying requirements of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(3) This section applies to information held by an agency before, on, or after the effective date of this exemption.
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172. The Presidential Advisory Commission’s request for voter identifying information includes information deemed confidential under Florida law.
173. The Florida Secretary of State is obligated by the Florida Constitution and laws to preserve and maintain the confidentiality of exempt voter registration information. The Florida Secretary of State must be prohibited from disclosing the private, protected confidential information to the Presidential Advisory Commission. Minimally, the Florida Secretary of State must be enjoined to comply with the requirements in Fla. Stat. § 119.07(1)(d) by redacting any private, protected confidential information to the Presidential Advisory Commission.
174. On July 6, 2017, Defendant Detzner issued a press statement indicating he would comply with the Commission’s request for personal voter registration information from Florida's voter database. Defendant Detzner also stated that in doing so, he will comply with the restrictions set forth in § 97.0585 which prohibit the sharing of a voter’s social security number and Driver’s License number. To ensure Defendant Detzner complies with § 97.0585, and to prohibit the Commission from attempting to obtain that protected information from any other source, Plaintiffs seek an injunction pursuant to § 97.0585 to preclude disclosure of the social security numbers and Driver’s License numbers of Florida voters.
175. At the time this lawsuit was first filed, it was not known whether the Florida Secretary of State had already transmitted the voter data to the Commission, and if so whether he had transmitted only that information permitted to be disclosed under Florida constitutional and statutory provisions cited above, nor whether the
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transmission of data has been made using a secure method of transmission. 176. Subsequent to the lawsuit being filed, an order was entered in this case
enjoining the Florida Secretary of State to comply with such laws. 177. The Defendants should continue to be bound to follow Florida privacy
laws preliminarily and permanently. 178. To the extent the Presidential Advisory Commission seeks disclosure of
private voter information, the request for information is contrary to Florida law. 179. Plaintiffs are, individually and in their representative capacities,
adversely affected and aggrieved by Defendants’ actions and inaction. REQUESTED RELIEF ON ALL COUNTS
Plaintiffs request that this Court: A. Order expedited consideration; B. Declare that the Presidential Advisory Commission and its members have violated the FACA and enjoin the Presidential Advisory Commission and its members from conducting any business unless and until the FACA is fully complied with, and further enjoin all of the federal Defendants from utilizing the products of any materials or information obtained or produced in violation of the FACA; C. Declare and hold unlawful and set aside Defendants’ authority to collect personal voter data from the states; D. Declare and hold unlawful and set aside Defendants’ authority to collect and upload personal voter data from the states to a White House computer system; D. Order Defendants to halt collection of personal voter data;
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E. Order Defendants to securely delete and properly disgorge any personal

voter data collected or subsequently received;

F. Order Defendants to promptly conduct a privacy impact assessment

prior to the collection of personal voter data;

G. Declare that the Presidential Advisory Commission and its members

have violated the PRA and enjoin the Presidential Advisory Commission and its

members from conducting any business unless and until the PRA is fully complied

with, and further enjoin all of the federal Defendants from utilizing the products of

any materials or information obtained or produced in violation of the PRA;

H. Order Defendant Florida Secretary of State to withhold voter-

identifying information from the Presidential Advisory Commission, and to recall all

private and public voter information already produced;

I. Award costs and reasonable attorney's fees incurred in this action; and

J. Grant such other relief as the Court may deem just and proper.

Dated: December 9, 2017

Respectfully submitted,

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S/ H.K. Skip Pita H.K. SKIP PITA Florida Bar No. 101974 PITA WEBER DEL PRADO 9350 S. Dixie Hwy., Suite 1200 Miami, FL 33156 Tel: (305) 670-2889 Fax: (305) 670-6666 spita@pwdlawfirm.com

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S/ Benedict P. Kuehne BENEDICT P. KUEHNE Florida Bar No. 233293 MICHAEL T. DAVIS Florida Bar No. 63374 KUEHNE DAVIS LAW, P.A. 100 SE 2 Street, Suite 3550 Miami, FL 33131-154 Tel: (305) 789-5989 Fax: (305) 789-5987 ben.kuehne@kuehnelaw.com mdavis@kuehnelaw.com efiling@kuehnelaw.com

S/ Marc A. Burton MARC A. BURTON Florida Bar No. 95318 S/ Daniel J. Poterek DANIEL J. POTEREK Florida Bar No. 85204 THE BURTON FIRM, P.A. 2875 N.E. 191 Street, Suite 403 Miami, Florida 33180 Tel: (305) 705-0888 Fax: (305) 705-0008 mburton@theburtonfirm.com dpoterek@theburtonfirm.com pleadings@theburtonfirm.com

S/ Larry S. Davis LARRY S. DAVIS Florida Bar No. 437719 S/ Shana Korda SHANA KORDA Florida Bar No. 109504 LAW OFFICE OF LARRY S. DAVIS, P.A. 1926 Harrison Street Hollywood, FL 33020-5018 Tel: (954) 927.4249 Fax: (954) 927-1653 larry@larrysdavislaw.com shana@larrysdavislaw.com courtdocs@larrysdavislaw.com

S/ Freddy Funes FREDDY FUNES Florida Bar No. 87932 S/ Gerald Greenberg GERALD GREENBERG Florida Bar No. 440094 S/ Jarred L. Reiling JARRED L. REILING Florida Bar No. 93930 S/ Adam Schachter ADAM SCHACHTER Florida Bar No. 647101 GELBER SCHACHTER & GREENBERG, P.A. Cooperating Counsel American Civil Liberties Union Foundation of Florida 1221 Brickell Avenue, Suite 2010

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Miami, FL 33131-3224 Tel: (305) 728-0950 Fax: (305) 728-0951 jreiling@gsgpa.com

S/ Nancy G. Abudu NANCY G. ABUDU Florida Bar No. 111881 Legal Director AMERICAN CIVIL LIBERTIES UNION OF FLORIDA 4343 W. Flagler St., Suite 400 Miami, FL 33134 Tel: (786) 363-2707 Fax: (786) 363-1108 nabudu@aclufl.org

S/ Joseph S. Geller JOSEPH S. GELLER Florida Bar No. 292771 GREENSPOON MARDER, P.A. 200 E. Broward Blvd., Suite 1500 Fort Lauderdale, FL 33301-1874 Tel: (954) 491-1120 Fax: (954) 331-2037 joseph.geller@gmlaw.com

CERTIFICATE OF SERVICE

I certify on December 29, 2017, I electronically filed the foregoing document

with the Clerk of the Court using CM/ECF. I also certify that the foregoing document

is being served this day on all counsel of record identified on the attached service list

in the manner specified, either via transmission of Notices of Electronic Filing

generated by CM/ECF or in some other authorized manner.

s/ Benedict P. Kuehne BENEDICT P. KUEHNE

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SERVICE LIST

H.K. SKIP PITA PITA WEBER DEL PRADO 9350 S. Dixie Hwy., Suite 1200 Miami, FL 33156 Tel: (305) 670-2889 Fax: (305) 670-6666 spita@pwdlawfirm.com lalvarez@pwdlawfirm.com Co-counsel for Plaintiffs
JASON B. BLANK HABER BLANK, LLP 888 S. Andrews Ave., Suite 201 Fort Lauderdale, FL 33316 Tel: (954) 767-0300 Fax: (954) 949-0510 eservice@haberblank.com jblank@haberblank.com Co-counsel for Plaintiffs
BENEDICT P. KUEHNE MICHAEL T. DAVIS KUEHNE DAVIS LAW, P.A. 100 SE 2 Street, Suite 3550 Miami, FL 33131-154 Tel: (305) 789-5989 Fax: (305) 789-5987 ben.kuehne@kuehnelaw.com mdavis@kuehnelaw.com efiling@kuehnelaw.com Co-counsel for Plaintiffs

MARC A. BURTON DANIEL J. POTEREK THE BURTON FIRM, P.A. 2999 N.E. 191 Street, Suite 805 Miami, Florida 33180 Tel: (305) 705-0888 Fax: (305) 705-0008 mburton@theburtonfirm.com dpoterek@theburtonfirm.com pleadings@theburtonfirm.com Co-counsel for Plaintiffs
LARRY S. DAVIS SHANA KORDA LAW OFFICE OF LARRY S. DAVIS, P.A. 1926 Harrison Street Hollywood, FL 33020-5018 Tel: (954) 927.4249 Fax: (954) 927-1653 larry@larrysdavislaw.com shana@larrysdavislaw.com courtdocs@larrysdavislaw.com Co-counsel for Plaintiffs

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FREDDY FUNES GERALD GREENBERG JARRED L. REILING ADAM SCHACHTER GELBER SCHACHTER & GREENBERG, P.A. Cooperating Counsel ACLU Foundation of Florida 1221 Brickell Avenue, Suite 2010 Miami, FL 33131-3224 Tel: (305) 728-0950 Fax: (305) 728-0951 jreiling@gsgpa.com Co-counsel for Plaintiffs
NANCY G. ABUDU Legal Director AMERICAN CIVIL LIBERTIES UNION OF FLORIDA 4343 W. Flagler St., Suite 400 Miami, FL 33134 Tel: (786) 363-2707 Fax: (786) 363-1108 nabudu@aclufl.org Co-counsel for Plaintiffs Co-counsel for Plaintiffs
JOSEPH S. GELLER GREENSPOON MARDER, P.A. 200 E. Broward Blvd., Suite 1500 Fort Lauderdale, FL 33301-1874 Tel: (954) 491-1120 Fax: (954) 331-2037 joseph.geller@gmlaw.com Co-counsel for Plaintiffs

CHAD A. READLER ELIZABETH J. SHAPIRO CAROL FEDERIGHI Senior Trial Counsel KRISTINA A. WOLFE JOSEPH E. BORSON UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 Tel: (202) 514-1944 Fax: (202) 616-8460 carol.federighi@usdoj.gov joseph.borson@usdoj.gov Counsel for the Federal Government Defendants
DAVID A. FUGETT (FBN 835935) General Counsel david.fugett@dos.myflorida.com FLORIDA DEPARTMENT OF STATE R.A. Gray Building, Suite 100 500 South Bronough Street Tallahassee, Florida 32399-0250 Tel: (850) 245-6536 Fax: (850) 245-6127 Lead Counsel for the Florida Secretary of State

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EXHIBIT A

Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 2 of 69 22389

Federal Register Vol. 82, No. 93

Presidential Documents

Tuesday, May 16, 2017

Title 3—
The President

Executive Order 13799 of May 11, 2017
Establishment of Presidential Advisory Commission on Election Integrity

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote fair and honest Federal elections, it is hereby ordered as follows:
Section 1. Establishment. The Presidential Advisory Commission on Election Integrity (Commission) is hereby established.
Sec. 2. Membership. The Vice President shall chair the Commission, which shall be composed of not more than 15 additional members. The President shall appoint the additional members, who shall include individuals with knowledge and experience in elections, election management, election fraud detection, and voter integrity efforts, and any other individuals with knowledge or experience that the President determines to be of value to the Commission. The Vice President may select a Vice Chair of the Commission from among the members appointed by the President.
Sec. 3. Mission. The Commission shall, consistent with applicable law, study the registration and voting processes used in Federal elections. The Commission shall be solely advisory and shall submit a report to the President that identifies the following:
(a) 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;
(b) 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
(c) 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.
Sec. 4. Definitions. For purposes of this order:
(a) The term ‘‘improper voter registration’’ means any situation where an individual who does not possess the legal right to vote in a jurisdiction is included as an eligible voter on that jurisdiction’s voter list, regardless of the state of mind or intent of such individual.
(b) The term ‘‘improper voting’’ means the act of an individual casting a non-provisional ballot in a jurisdiction in which that individual is ineligible to vote, or the act of an individual casting a ballot in multiple jurisdictions, regardless of the state of mind or intent of that individual.
(c) The term ‘‘fraudulent voter registration’’ means any situation where an individual knowingly and intentionally takes steps to add ineligible individuals to voter lists.
(d) The term ‘‘fraudulent voting’’ means the act of casting a non-provisional ballot or multiple ballots with knowledge that casting the ballot or ballots is illegal.
Sec. 5. Administration. The Commission shall hold public meetings and engage with Federal, State, and local officials, and election law experts, as necessary, to carry out its mission. The Commission shall be informed by, and shall strive to avoid duplicating, the efforts of existing government entities. The Commission shall have staff to provide support for its functions.

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22390

Federal Register / Vol. 82, No. 93 / Tuesday, May 16, 2017 / Presidential Documents

Sec. 6. Termination. The Commission shall terminate 30 days after it submits its report to the President.
Sec. 7. General Provisions. (a) To the extent permitted by law, and subject to the availability of appropriations, the General Services Administration 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.
(b) Relevant executive departments and agencies shall endeavor to cooperate with the Commission.
(c) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (the ‘‘Act’’), may apply to the Commission, any functions of the President under that Act, except for those in section 6 of the Act, shall be performed by the Administrator of General Services.
(d) Members of the Commission shall serve without any additional compensation for their work on the Commission, but shall be allowed travel expenses, including per diem in lieu of subsistence, to the extent permitted by law for persons serving intermittently in the Government service (5 U.S.C. 5701–5707).
(e) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(f) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(g) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

jstallworth on DSK7TPTVN1PROD with PRES DOC Trump.EPS</GPH>

THE WHITE HOUSE, May 11, 2017.
[FR Doc. 2017–10003 Filed 5–15–17; 8:45 am] Billing code 3295–F7–P
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EXHIBIT B

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NON-EXHAUSTIVE COMPILATION OF STATEMENTS BY OR ON BEHALF OF THE PRESIDENT
CONCERNING VOTER FRAUD IN THE 2016 ELECTION
1. In August 2016, then-Candidate Trump told an audience that:
The only way they can beat me, in my opinion, and I mean this 100 percent, is if in certain sections of the state, they cheat, OK . . . So I hope you people can sort of not just vote . . . (but also) go around and look and watch other polling places and make sure that it’s 100 percent fine. Sachelle Saunders, Donald Trump wants to fight voter fraud with observers, Orlando News 6 (August 17, 2017), http://www.clickorlando.com/news/politics/trumps-call-for-poll-
observers-could-cause-trouble. Similarly, on October 1, 2017, thenCandidate Trump told an audience to:
watch your polling booths because I hear too many stories about Pennsylvania, certain areas. . . . We can’t lose an election because of, you know what I’m talking about.
Robert Farley, Trump’s Bogus Voter Fraud Claims, FactCheck.org (October 19, 2016), http://www.factcheck.org/2016/10/trumps-bogusvoter-fraud-claims/. These are just two examples, of many, of Mr. Trump encouraging people to go to polling sites to intimidate voters.
2. On October 17, 2016, then-Candidate Trump stated:
Page 1 of 9

Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 6 of 69

They even want to try to rig the election at the polling booths. And believe me, there’s a lot going on. Do you ever hear these people? They say there’s nothing going on. People that have died 10 years ago are still voting. Illegal immigrants are voting. I mean, where are the street smarts of some of these politicians? … So many cities are corrupt, and voter fraud is very, very common.

Tribune news services, Trump wrongly insists voter fraud is ‘very, very

common,’

Chicago

Tribune

(Oct.

17,

2016),

http://www.chicagotribune.com/news/nationworld/politics/ct-donald-

trump-voter-fraud-20161017-story.html.

3. That same day (October 17, 2016), then-Candidate Trump

also tweeted, with no evidence:

Of course there is large scale voter fraud happening on and before election day. Why do Republican leaders deny what is going on? So naive!

Donald J. Trump (@realDonaldTrump), Twitter (Oct. 17, 2016,

8:33am), https://twitter.com/realDonaldTrump/status/787995025527

410688.

4. On October 19, 2016, now-Counselor to the President

Kellyanne Conway, during the presidential campaign, indicated that

she did not believe there would be voter fraud during the 2016 election,

stating: “Absent overwhelming evidence that there is, it would not be

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Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 7 of 69
for me to say that there is[.]” “[W]hen pressed about specific instances of voter fraud, Conway appeared to suggest that the ‘rigged’ system was not meant to be taken literally, and was simply a rhetorical catch-all for what the campaign view[ed] as injustices in the American political system.” Conway added:
I think everyone is missing his larger point. . . . It is a rigged, corrupt system, whether you believe it’s rigged and corrupt at the polls or whether you believe it’s rigged and corrupt in that we have a $19 trillion debt and people who are there for years and years, if not decades. Maxwell Tani, Donald Trump's campaign manager said she doesn't believe there will be voter fraud, Business Insider (Oct. 19, 2017), http://www.businessinsider.com/kellyanne-conway-donaldtrumprigged-voter-fraud-2016-10. 5. On November 27, 2016, shortly after the election, the President-Elect continued his baseless accusations about voter fraud, claiming without evidence that he actually won the national popular vote if “illegal” votes were deducted from the total. The President-Elect 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.
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Donald J. Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 3:30pm), https://twitter.com/realDonaldTrump/status/802972944532 209664. ABC News declared this statement “False,” because “Trump offered no proof to back up this claim, and ABC News, which monitored all 50 states for voting irregularities on election night, has found no evidence of widespread voter fraud.” Lauren Pearle, Fact-Checking Trump's Claims About ‘Serious Voter Fraud,’ ABC News (Nov. 28, 2016), http://abcnews.go.com/Politics/fact-checking-trumps-claims-voterfraud/story?id=43820475.
6. That same day (November 27, 2016), the President-Elect also tweeted, without evidence, that:
Serious voter fraud in Virginia, New Hampshire and California - so why isn’t the media reporting on this? Serious bias - big problem! Donald J. Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 7:31pm), https://twitter.com/realDonaldTrump/status/803033642545 115140. ABC News declared this statement “False,” because “Trump offered no proof to back up this claim, and ABC News found no evidence of widespread voter fraud in those states.” Lauren Pearle, FactChecking Trump's Claims About ‘Serious Voter Fraud,’ ABC News (Nov.
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28, 2016), http://abcnews.go.com/Politics/fact-checking-trumps-claims-

voter-fraud/story?id=43820475.

7. On November 28, 2017, after another presidential candidate

had requested a statewide recount in Wisconsin after the election,

Spokesman for the Transition Team of the President-Elect, Jason

Miller, stated, with no evidence, that:

If this much attention and oxygen is going to be given to a completely obnoxious, throwaway fundraising scheme by someone like [the opposing presidential candidate], then there should be actual substantive looks at overall examples of voter fraud and illegal immigrants voting in recent years.

Brent Griffiths, Trump spokesman fails to back up Trump claim of voter

fraud,

Politico

(Nov.

28,

2016),

http://www.politico.com/story/2016/11/trump-voter-fraud-jason-miller-

231883. No evidence was provided in support of the assertions about

“voter fraud and illegal immigrants voting in recent years.”

8. On November 30, 2017, Kansas Secretary of State and now-

Vice Chair of the Presidential Advisory Commission on Election

Integrity, Kris Kobach, stated, despite all legitimate evidence to the

contrary, that:

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Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 10 of 69
I think the president-elect is absolutely correct when he says the number of illegal votes cast exceeds the popular vote margin . . . .
As reported by The Wichita Eagle, Secretary Kobach “had no tangible
evidence to support that statement.” Secretary Kobach explained that:
This is the problem with aliens voting and registering. There’s no way you can look at the voter rolls and say this one’s an alien, this one’s a citizen[.] . . . Once a person gets on a voter roll, you don’t have any way of easily identifying them as aliens, so you have to rely on post-election studies.
Bryan Lowry, Kobach backs Trump’s unsupported claim of millions
illegally voting, The Wichita Eagle (Nov. 30, 2016),
http://www.kansas.com/news/politics-
government/election/article117933098.html.
9. On December 2, 2016, now-Counselor to the President
Kellyanne Conway stated, on ABC’s “Good Morning America,” that:
the president-elect has been talking to different people including Kris Kobach, [secretary of state] of Kansas, about voting irregularities or the number of illegal votes that may have been cast, and I believe that he bases his information on that.
and
Well, [the President-Elect has] been receiving information about the irregularities and about the illegal votes, particularly from sources, officials like Kris Kobach as I
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mentioned, but he is messaging to his supporters and to the rest of the country the way he feels. Emily Shapiro, Kellyanne Conway Dodges Question on Trump’s Claim That ‘Millions’ Voted Illegally, ABC News (Dec. 2, 2016), http://abcnews.go.com/Politics/kellyanne-conway-dodges-questiontrumps-claim-millions-voted/story?id=43924056. 10. Shortly after the inauguration, on or about January 23, 2017, the President claimed to members of Congress that people who are in the country illegally caused him to lose the popular vote by almost 3 million votes. When asked about the President’s statement, White House Press Secretary Sean Spicer stated that “It was a comment that he made on a long-standing belief,” and “He believes what he believes.” David Jackson, Spicer: Trump believes voter fraud claim despite lack of evidence, USA Today (Jan. 24, 2017), https://www.usatoday.com/story/news/politics/2017/01/24/donald-trumpsean-spicer-lindsey-graham/96994440/. 11. On January 25, 2017, the President 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....
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Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 12 of 69
even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!
Donald J. Trump (@realDonaldTrump), Twitter (Jan. 25, 2017, 7:10 am), https://twitter.com/realDonaldTrump/status/824227824903090176 ; Donald J. Trump (@realDonaldTrump), Twitter (Jan. 25, 2017, 7:13 am), https://twitter.com/realDonaldTrump/status/824228768227217408.
12. On January 26, 2017, Counselor to the President Kellyanne Conway previewed the new administration’s concern about voter fraud, stating about the President:
He knows there are dead people registered, there are illegal people registered, and he wants to get to the bottom of that without an election on the horizon. Usually, people get all exercised about electoral reform after something goes wrong or ballot integrity when we’re about to have an election. Transcript, Kellyanne Conway on Trump’s voter fraud claims, Mexico and the media, PBS NewsHour (Jan. 26, 2017),
http://www.pbs.org/newshour/bb/kellyanne-conway-trumps-voter-fraudclaims-mexico-media/. No evidence was provided.
13. Senior Advisor to the President Stephen Miller, claimed on February 12, 2017:
You have millions of people who are registered in two states or who are dead who are registered to vote. And you have 14
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Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 13 of 69
percent of noncitizens, according to academic research, at a minimum, are registered to vote, which is an astonishing statistic. Madeline Farber, White House's Stephen Miller Doubles Down on Voter Fraud Claim, But Gives No Evidence, TIME (Feb. 12, 2017), http://time.com/4668222/stephen-miller-voter-fraud-georgestephanopolos/; Associated Press, Fact check: Trump aide pushes false story of vote fraud, Honolulu Star Advertiser (Feb. 13, 2017), http://www.staradvertiser.com/2017/02/13/breaking-news/fact-checktrump-aide-pushes-false-story-of-vote-fraud/. This statement, too, has been universally rejected by elections professionals.
Page 9 of 9

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EXHIBIT C

Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 15 of 69
CHARTER
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY
1. Committee’s Official Designation. Presidential Advisory Commission on Election Integrity (“Commission”).
2. Authority. The Commission is established in accordance with Executive Order 13799 of May 11, 2017, “Establishment of a Presidential Advisory Commission on Election Integrity,” (“Order”) and the provisions of the Federal Advisory Committee Act (“FACA”), as amended (5 U.S.C. App.).
3. Objectives and Scope of Activities. The Commission will, consistent with applicable law and the Order, study the registration and voting processes used in Federal elections. The Commission shall be solely advisory and shall submit a report to the President of the United States (“President”) that identifies the following:
a. 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;
b. those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of voting processes used in Federal elections; and
c. 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.
4. Description of Duties. The Commission will function solely as an advisory body.
5. Agency or Official to Whom the Committee Reports. The Commission shall provide its advice and recommendations to the President.
6. Agency Responsible for Providing Support. The General Services Administration (“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, to the extent permitted by law and on a reimbursable basis. However, the President’s designee will be responsible for fulfilling the requirements of subsection 6(b) of the FACA.
7. Estimated Annual Operating Costs and Staff Years. The estimated annual costs to operate the Commission are approximately $250,000 in FY2017 and approximately $250,000 in FY2018, as needed, including approximately three full-time equivalent employees (FTEs) over the duration of the Commission.
8. Designated Federal Officer. Pursuant to 41 CFR § 102-3.105 and in consultation with the chair of the Commission, the GSA Administrator shall appoint a full-time or part-time federal employee as the Commission’s Designated Federal Officer (“DFO”). The DFO will approve or

Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 16 of 69
call all Commission meetings, prepare or approve all meeting agendas, attend all Commission meetings and any subcommittee meetings, and adjourn any meeting when the DFO determines adjournment to be in the public interest. In the DFO’s discretion, the DFO may utilize other Federal employees as support staff to assist the DFO in fulfilling these responsibilities.
9. Estimated Number and Frequency of Meetings. Meetings shall occur as frequently as needed, called, and approved by the DFO. It is estimated the Commission will meet five times at a frequency of approximately 30-60 days between meetings, subject to members’ schedules and other considerations.
10. Duration and Termination. The Commission shall terminate no more than two (2) years from the date of the Executive Order establishing the Commission, unless extended by the President, or thirty (30) days after it presents its final report to the President, whichever occurs first.
11. Membership and Designation.
(a) The Vice President shall chair the Commission, which shall be composed of not more than fifteen (15) additional members.
(b) Members shall be appointed by the President of the United States and shall include individuals with knowledge and experience in elections, election management, election fraud detection, and voter integrity efforts, and any other individuals with knowledge or experience determined by the President to be of value to the Commission. Members of the Commission may include both regular Government Employees and Special Government Employees.
(c) The Vice President may select a Vice Chair from among those members appointed by the President, who may perform the duties of the chair if so directed by the Vice President. The Vice President may also select an executive director and any additional staff he determines necessary to support the Commission.
(d) Members of the Commission will serve without additional compensation. Travel expenses will be allowed, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government service (5 U.S.C. 5701-5707), consistent with the availability of funds.
12. Subcommittees. The Chair of the Commission, in consultation with the DFO, is authorized to create subcommittees as necessary to support the Commission’s work. Subcommittees may not incur costs or expenses without prior written approval of the Chair or the Chair’s designee and the DFO. Subcommittees must report directly to the Commission, and must not provide advice or work products directly to the President, or any other official or agency.
13. Recordkeeping. The records of the Commission and any subcommittees shall be maintained pursuant to the Presidential Records Act of 1978 and FACA.
14. Filing Date. The filing date of this charter is June 23, 2017.

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EXHIBIT D

7/7/20C17ase 1:17-cv-225Re6ad8o-uMt ofGthCe ViceDProesciduenmt'seCnaltl w6it5h -th1e PreEsidnetnetiarleAddviosonryFCoLmSmDissioDnooncEkleecttio1n2In/te2g9rit/y2| 0w1hit7ehouPse.agogve 18 of 69
the WHITE HOUSE
Í

From the Press O ice
Speeches & Remarks Press Brieﬁngs Statements & Releases Nominations & Appointments Presidential Actions Legislation Disclosures

The White House O ice of the Vice President
For Immediate Release

June 28, 2017

Readout of the Vice President's Call with the Presidential Advisory Commission on Election Integrity

This morning, Vice President Mike Pence held an organizational call with members of the Presidential Advisory Commission on Election Integrity. The Vice President reiterated President Trump’s charge to the commission with producing a set of recommendations to increase the American people's confidence in the integrity of our election systems.
"The integrity of the vote is a foundation of our democracy; this bipartisan commission will review ways to strengthen that integrity in order to protect and preserve the principle of one person, one vote,” the Vice President told commission members today.
The commission set July 19 as its first meeting, which will take place in Washington, D.C.

https://www.whitehouse.gov/the-press-ofﬁce/2017/06/28/readout-vice-presidents-call-presidential-advisory-commission-election

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7/7/20C17ase 1:17-cv-225Re6ad8o-uMt ofGthCe ViceDProesciduenmt'seCnaltl w6it5h -th1e PreEsidnetnetiarleAddviosonryFCoLmSmDissioDnooncEkleecttio1n2In/te2g9rit/y2| 0w1hit7ehouPse.agogve 19 of 69 Vice Chair of the Commission and Kansas Secretary of State Kris Kobach told members a letter will be sent today 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.
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EXHIBIT E

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June 28, 2017
The Honorable Ken Detzner Secretary of State R.A. Gray Bldg., 500 S. Bronough, Ste. 100 Tallahassee, FL 32399
Dear Secretary Detzner, I serve as the Vice Chair for the Presidential Advisory Commission on Election Integrity (“Commission”), which was formed pursuant to Executive Order 13799 of May 11, 2017. The Commission is charged with studying the registration and voting processes used in federal elections and submitting a report to the President of the United States that identifies laws, rules, policies, activities, strategies, and practices that enhance or undermine the American people’s confidence in the integrity of federal elections processes. As the Commission begins it work, I invite you to contribute your views and recommendations throughout this process. In particular:
1. What changes, if any, to federal election laws would you recommend to enhance the integrity of federal elections?
2. How can the Commission support state and local election administrators with regard to information technology security and vulnerabilities?
3. What laws, policies, or other issues hinder your ability to ensure the integrity of elections you administer?
4. What evidence or information do you have regarding instances of voter fraud or registration fraud in your state?
5. What convictions for election-related crimes have occurred in your state since the November 2000 federal election?
6. What recommendations do you have for preventing voter intimidation or disenfranchisement?
7. What other issues do you believe the Commission should consider?
In addition, in order for the Commission to fully analyze vulnerabilities and issues related to voter registration and voting, I am requesting that you provide to the Commission the publiclyavailable voter roll data for Florida, including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number

Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 22 of 69
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.
You may submit your responses electronically to ElectionIntegrityStaff@ovp.eop.gov or by utilizing the Safe Access File Exchange (“SAFE”), which is a secure FTP site the federal government uses for transferring large data files. You can access the SAFE site at https://safe.amrdec.army.mil/safe/Welcome.aspx. We would appreciate a response by July 14, 2017. Please be aware that any documents that are submitted to the full Commission will also be made available to the public. If you have any questions, please contact Commission staff at the same email address.
On behalf of my fellow commissioners, I also want to acknowledge your important leadership role in administering the elections within your state and the importance of state-level authority in our federalist system. It is crucial for the Commission to consider your input as it collects data and identifies areas of opportunity to increase the integrity of our election systems.
I look forward to hearing from you and working with you in the months ahead.
Sincerely,
Kris W. Kobach Vice Chair Presidential Advisory Commission on Election Integrity

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EXHIBIT F

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EXHIBIT G

Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 29 of 69

Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart

7/9/17, 5(40 PM

Kobach: Why States Need to Assist the Presidential Commission on Election Integrity
by Kris W. Kobach3 Jul 20175,685

Irfan Khan/Los Angeles Times via Getty Images
Last Thursday, the Presidential Commission on Election Integrity officially asked each state’s chief election official for a copy of their state’s publicly-available voter information, in order to better investigate voter fraud

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart

7/9/17, 5(40 PM

across the nation. I’m the Vice Chair of that Commission, and the letter went out under my signature.

Immediately thereafter, several prominent Democrats declared that they would not comply with this request. California Secretary of State Alex Padilla stated, “California’s participation would only serve to legitimize the false and already debunked claims of massive voter fraud made by the President, the Vice President, and Mr. Kobach.”

Similarly, Virginia Governor Terry McAuliffe fumed, “I have no intention of honoring this request. Virginia conducts fair, honest, and democratic elections, and there is no evidence of significant voter fraud in Virginia.”

Governor McAuliffe’s declaration was particularly amusing, because only three days earlier In Virginia, a college student had been convicted of fraudulently registering 18 dead people. Evidently, there’s plenty of voter fraud in Virginia. Apparently, McAuliffe is ignorant of what’s going on in his own state.

The hyperventilating on the Left about this request is particularly strange since the Commission only requested information that is already publicly available. Any person on the street can walk into a county election office and obtain a publicly-available copy of that state’s voter rolls—which usually includes voter name, address, date of birth, and the recent elections in which the voter participated. During any campaign season, there are literally hundreds of candidates and campaign workers in every state who possess these same voter rolls. Voter rolls are also frequently obtained by journalists seeking to do election-related research.

Although private information like the last four numbers of a voter’s social security number is sometimes included in a state’s voter database, that information is usually not publicly available. The Commission didn’t request

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart

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that information. Thus, there is no threat that the Commission’s work might compromise anyone’s privacy.

The Commission’s primary objectives include measuring the amount of voter fraud and improper voter registration in the country. The voter rolls are the obvious starting point for the Commission’s work.

Indeed just about every investigation that the Commission undertakes will require a copy of the publicly-available voter rolls for its work to be meaningful. For example, if a witness testifies before the Commission that a certain person voted fraudulently in a given state, the Commission needs to confirm that such a person even exists on the voter rolls and actually cast a ballot in the relevant election.

On a larger scale, the Commission is likely to look at the phenomenon of people registering and/or voting the names of the dead. As the recent Virginia conviction illustrates, this is very much a real problem.

Last year, the Pew Center on the States estimated that more than 1.8 million deceased individuals are still registered to vote. And Pew conceded that their estimate was likely on the low side. The Commission could determine the exact number (rather than relying on an estimate) by running the states’ voter rolls against federal and state databases containing the names of deceased individuals.

More importantly, the Commission could answer the question of how many of those deceased individuals were recorded as actually casting a vote in the 2016 election. The number may be large, or it may be small. But the American people deserve to know what it is, either way.

Another important question is how many aliens are illegally registered to vote in the United States. And of those who are registered, how many have actually

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart
voted?

7/9/17, 5(40 PM

During the Obama Administration, the federal government declined state requests to compare state voter rolls to federal databases of known (legal) aliens residing in the United States. But now the Commission may be able to finally conduct that research. If the same person appears on a state’s voter rolls with the indication that he cast a ballot in 2016, and he also appears on the federal government’s list of aliens living in the United States, then there is evidence that an alien has likely voted.

That research has never been done before. Many people would like to see just how big this problem is. The consequences are certainly important. Every time an alien votes, it effectively cancels out the vote of a United States citizen.

In my own state of Kansas, one academic expert has estimated that the number of aliens on the voter rolls may exceed 18,000. In a state such as California, that number is likely to be much, much larger. Is that why the California Secretary of State doesn’t want the Commission to look at his state’s voter rolls?

Finally, some of these opponents of the Commission have suggested that by studying the problem of voter fraud, the Commission will end up suppressing voter turnout in future elections. That is a truly baseless argument. How in the world can studying these statistics and providing information to the American public discourage someone from voting?

The Commission’s work is an exercise in transparent government, enhancing the public debate by providing important statistical information. The Commission’s report (which will not contain any voter’s names) won’t cause anyone to stay at home during the 2018 election. It might however, shine some light on voter fraud and encourage some fraudsters to reduce their

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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Kobach: Why States Need to Assist the Presidential Commission on Election Integrity - Breitbart
activity.

7/9/17, 5(40 PM

Maintaining the integrity of American elections is essential to the health of our republic. It’s also crucial to giving voters confidence that elections will not be stolen.

The bottom line is that without these publicly-available copies of the voter rolls, the Commission will be unable to effectively measure the extent of voter fraud in America. Maybe that’s the real objective of the officials who are standing in the way.

Kris W. Kobach is the elected Secretary of State of Kansas. An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 executive amnesty. President Trump has named him Vice Chairman of the Presidential Commission on Election Integrity.

http://www.breitbart.com/big-government/2017/07/03/kobach-why-states-need-to-assist-the-presidential-commission-on-election-integrity/

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EXHIBIT H

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July 26, 2017
Office of the Secretary of State of Florida The Honorable Ken Detzner, Secretary of State R.A. Gray Bldg., 500 South Bronough Street Tallahassee, FL 32399
Dear Secretary Detzner,
In my capacity as Vice Chair of the Presidential Advisory Commission on Election Integrity, I wrote to you on June 28, 2017, to request publicly available voter registration records. On July 10, 2017, the Commission staff requested that you delay submitting any records until the U.S. District Court for the District of Columbia ruled on a motion from the Electronic Privacy Information Center that sought to prevent the Commission from receiving the records. On July 24, 2017, the court denied that motion. In light of that decision in the Commission’s favor, I write to renew the June 28 request, as well as to answer questions some States raised about the request’s scope and the Commission’s intent regarding its use of the registration records. I appreciate the cooperation of chief election officials from more than 30 States who have already responded to the June 28 request and either agreed to provide these publicly available records, or are currently evaluating what specific records they may provide in accordance with their State laws. Like you, I serve as the chief election official of my State. And like you, ensuring the privacy and security of any non-public voter information is a high priority. My June 28 letter only requested information that is already available to the public under the laws of your State, which is information that States regularly provide to political candidates, journalists, and other interested members of the public. As you know, federal law requires the States to maintain certain voter registration information and make it available to the public pursuant to the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA). The Commission recognizes that State laws differ regarding what specific voter registration information is publicly available. I want to assure you that the Commission will not publicly release any personally identifiable information regarding any individual voter or any group of voters from the voter registration records you submit. Individuals’ voter registration records will be kept confidential and secure throughout the duration of the Commission’s existence. Once the Commission’s analysis is

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complete, the Commission will dispose of the data as permitted by federal law. The only information that will be 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 in response to the narrative questions enumerated in the June 28 letter. Let me be clear, the Commission will not release any personally identifiable information from voter registration records to the public. In addition, to address issues raised in recent litigation regarding the data transfer portal, the Commission is offering a new tool for you to transmit data directly to the White House computer system. To securely submit your State’s data, please have a member of your staff contact Ron Williams on the Commission’s staff at ElectionIntegrityStaff@ovp.eop.gov and provide his or her contact information. Commission staff will then reach out to your point of contact to provide detailed instructions for submitting the data securely. The Commission will approach all of its work without preconceived conclusions or prejudgments. The Members of this bipartisan Commission are interested in gathering facts and going where those facts lead. We take seriously the Commissions’ mission pursuant to Executive Order 13799 to identify those laws, rules, policies, activities, strategies, and practices that either enhance or undermine the integrity of elections processes. I look forward to working with you in the months ahead to advance those objectives. Sincerely,
Kris W. Kobach Vice Chair Presidential Advisory Commission on Election Integrity

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EXHIBIT I

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Agenda Second Meeting of the Presidential Advisory Commission on Election Integrity
Tuesday, September 12, 2017, 10:00 a.m. EST New Hampshire Institute of Politics, Saint Anselm College

1.

Welcome Remarks – Vice Chairman Kris Kobach; Secretary Bill Gardner; Former New Hampshire

Governor and Chief of Staff to Former President George H.W. Bush, John H. Sununu

2.

Panel One: Historical Election Turnout Statistics and the Effects of Election Integrity Issues on

Voter Confidence

 Dr. Andrew Smith, Associate Professor of Political Science, University of New Hampshire  Kimball Brace, President, Election Data Services, Inc.  Dr. John Lott, President, Crime Prevention Research Center and Author, Evidence of Voter Fraud and the
Impact that Regulations to Reduce Fraud Have on Voter Participation Rates (2006)  Q&A and Discussion – All Members

3.

Panel Two: Current Election Integrity Issues Affecting Public Confidence

 Donald Palmer, Former Secretary, Virginia State Board of Elections  Robert Popper, Director, Election Integrity Project, Judicial Watch  Ken Block, President, Simpatico Software Systems  Hans von Spakovsky, Senior Legal Fellow, Heritage Foundation and Member, PACEI  Q&A and Discussion – All Members

4.

Demonstration of Historic New Hampshire Voting Machines Still in Use Since 1892

• Thaire Bryant, Polling Place Moderator for Town of Eaton, New Hampshire • T. Patrick Hines, Polling Place Moderator for Town of Windsor, New Hampshire

5.

Panel Three: Electronic Voting Systems and Election Integrity – A Primer

 Dr. Andrew Appel, Professor of Computer Science, Princeton University  Dr. Ronald Rivest, Professor of Computer Science, Massachusetts Institute of Technology  Harri Hursti, Co-Founder of Nordic Innovation Labs  Q&A and Discussion – All Members

6.

Discussion and Other Business - All Members

7.

Closing Remarks – Vice Chairman Kobach and Secretary Gardner

8.

Adjourn

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EXHIBIT J

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE, ET AL., Plaintiffs, v.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY,
ET AL., Defendants.

No. 1:17-cv-01398, Hon. Royce C. Lamberth

BRIEF OF FORMER NATIONAL SECURITY AND TECHNOLOGY OFFICIALS AS AMICI CURIAE SUPPORTING PLAINTIFFS’
MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

JOSHUA A. GELTZER (D.C. Bar No. 1018768) INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Ave. NW Washington D.C. 20001 Telephone: 202.661.6728 JG1861@Georgetown.edu

ROBERT S. LITT* DAVID A. NEWMAN* SOPHIA M. BRILL* MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue N.W. Washington, D.C. 20006
ROBERT TAJ MOORE* MORRISON & FOERSTER LLP 250 West 55th Street New York, New York 10019

Counsel for Amici Curiae

* pro hac vice motions pending

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TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................ i TABLE OF AUTHORITIES ......................................................................................................... ii INTEREST OF AMICI CURIAE .................................................................................................. 1 INTRODUCTION ......................................................................................................................... 2 ARGUMENT ................................................................................................................................. 3 I. THE COMMISSION’S AGGREGATION OF SENSITIVE VOTER DATA AND
ITS STORAGE OF THAT DATA AT THE WHITE HOUSE CREATES SUBSTANTIAL CYBERSECURITY VULNERABILITIES .......................................... 3 A. Aggregating Vast Amounts Of Personal Data Poses A Substantial Risk
For Cyberattacks .................................................................................................... 3 1. Large-scale databases containing personal information are
particularly attractive targets for malicious cyber actors ........................... 3 2. The Commission’s database would likely be targeted by hostile
nation-states seeking to interfere in U.S. elections .................................... 6 3. The Commission’s database could also be targeted by criminal
actors seeking to sell personal data for profit .......................................... 11 B. Storing Sensitive Personal Data on White House Systems Introduces
Heightened Vulnerabilities .................................................................................. 12 II. THE COMMISSION’S CREATION OF THIS DATABASE RUNS
CONTRARY TO THE PURPOSES OF THE PRIVACY ACT AND COULD CAUSE SIGNIFICANT ONGOING HARM.................................................................. 17 A. The Commission’s Conduct Runs Counter To The Privacy Act’s Purpose
Of Ensuring That Personal Data Handled By The Federal Government Receives Appropriate Protections........................................................................ 17 B. The Commission’s Aggregation Of This Data Could Cause Ongoing Harms That Would Be Difficult To Remedy....................................................... 20 CONCLUSION............................................................................................................................ 21 APPENDIX: LIST OF AMICI CURIAE .................................................................................... 22 CERTIFICATE OF SERVICE .................................................................................................... 23
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TABLE OF AUTHORITIES Page(s)
Cases Am. Civil Liberties Union v. Dep’t of Justice,
655 F.3d 1 (D.C. Cir. 2011) .......................................................................................................6 Attias v. CareFirst, Inc.,
865 F.3d 620 (D.C. Cir. 2017) .................................................................................................11 Ctr. for Nat’l Sec. Studies v. Dep’t of Justice,
331 F.3d 918 (D.C. Cir. 2003) ...................................................................................................6 Doe v. Dep’t of Justice,
660 F. Supp. 2d 31 (D.D.C. 2009) ...........................................................................................19 Remijas v. Nieman Marcus Group, LLC,
794 F.3d 688 (7th Cir. 2015) ...................................................................................................11 United States v. Dokuchaev,
No. 3:17-cr-103 (N.D. Cal. Feb. 28, 2017)..............................................................................10 United States v. Ferizi,
No. 1:16-cr-42 (E.D. Va. June 15, 2016).................................................................................12 Statutes 5 U.S.C. § 552a ........................................................................................................................17, 18 Executive and Congressional Materials Exec. Order No. 13800, “Strengthening the Cybersecurity of Federal Networks
and Critical Infrastructure” (May 11, 2017) ............................................................................14 “Federal Information Security Modernization Act of 2014: Annual Report to
Congress for Fiscal Year 2016” ...............................................................................................13 GAO, “Cybersecurity: Actions Needed to Strengthen U.S. Capabilities” (Feb.
2017) ........................................................................................................................................13 GAO, “Information Security: DHS Needs to Enhance Capabilities, Improve
Planning, and Support Greater Adoption of Its National Cybersecurity Protection System” (Jan. 2016)................................................................................................13
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“Intelligence Community Assessment: Assessing Russian Activities and Intentions in Recent US Elections” (Jan. 6, 2017) ....................................................................................................6, 7, 8
Memorandum from Jonathan R. Cantor, “DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Personally Identifiable Information” (Apr. 27, 2017).........19
S. Rep. No. 93-1183 (1974) ...........................................................................................................18
Seena Gressin, “The Equifax Data Breach: What to Do,” Federal Trade Commission (Sep. 8, 2017) ..........................................................................................................................................4
Statement of Adm. Michael S. Rogers, Commander, United States Cyber Command, before the Senate Comm. on Armed Services (May 9, 2017) ....................................................................9
Statement of James R. Clapper before the Senate Comm. on the Judiciary, Subcomm. on Crime and Terrorism (May 8, 2017)...................................................................................................10
Testimony of Colin Stretch before the Senate Comm. on the Judiciary, Subcomm. on Crime and Terrorism (Oct. 31, 2017) ..........................................................................................................7
Transcript, “Cybersecurity: Ensuring the Integrity of the Ballot Box,” Hrg. before the House Comm. on Oversight and Gov’t Reform, Subcomm. on Information Technology (Sept. 26, 2016) ..........................................................................................................................................9
Transcript, “OPM: Data Breach,” Hrg. before the House Comm. on Oversight and Gov’t Reform (June 16, 2015).........................................................................................................................20
United States Computer Emergency Readiness Team, “Securing Voter Registration Data” (last revised Sept. 30, 2016).........................................................................................................5, 17
Video Recording, Hrg. before the Senate Comm. on Homeland SEcurity and Governmental Affairs (Sept. 27, 2017) ...........................................................................................................10
Video Recording, Hrg. before the Senate Select Comm. on Intelligence (Nov. 1, 2017) ...............7
Other Authorities
Associated Press, “How States Are Handling Trump’s Voter Information Request” (Aug. 2, 2017) ..........................................................................................................20
Brendan Pierson, “Anthem to Pay Record $115 Million to Settle U.S. Lawsuits Over Data Breach,” Reuters (June 23, 2017).............................................................................4
Brian Bennet & W.J. Hennigan, “China and Russia Are Using Hacked Data to Target U.S. Spies, Officials Say,” Los Angeles Times (Aug. 31, 2015) ..................................10
Daisuke Wakabayashi & Scott Shane, “Twitter, With Accounts Linked to Russia, to Face Congress Over Role in Election,” N.Y. Times (Sept. 27, 2017) ....................................7
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Dell Cameron, “Even a Novice Hacker Could Breach Network Hosting Kris Kobach’s Bogus Voter Fraud Program,” Gizmodo.com (Nov. 9, 2017) .................................17
Demetri Sevastopvlo, “Chinese Hack Into White House Network,” Financial Times (Nov. 6, 2008) ...............................................................................................................16
Devlin Barrett & Siobhan Gorman, “Gmail Hack Targeted White House,” Wall St. J. (June 3, 2011)..................................................................................................................16
Ellen Nakashima, “Hackers Breach Some White House Computers,” Wash. Post (Oct. 28, 2014) .........................................................................................................................16
George R. Lynch, “Website Creating Company Faces Data Breach Affecting Over 40 Million Users,” Bloomberg BNA (Oct. 24, 2016) ........................................................4
Jaikumar Vijayan, “The Identity Underworld: How Criminals Sell Your Data on the Dark Web,” Christian Science Monitor (May 6, 2015) .....................................................11
Jennifer Martinez, “White House Thwarts Hacker Attack on Unidentified Computer System,” The Hill (Oct. 1, 2012) ............................................................................16
Jessica Huseman & Derek Willis, “The Voter Fraud Commission Wants Your Data—But Experts Say They Can’t Keep It Safe,” ProPublica, (Oct. 23, 2017) ........................................................................................................................................17
Lillian Ablon, et al., Markets for Cybercrime Tools and Stolen Data, RAND Corporation (2014)...................................................................................................................11
Michael Chertoff, “Trump’s Voter Data Request Poses An Unnoticed Danger,” Wash. Post (July 15, 2017) ......................................................................................................13
Michael Shear, “Technology Upgrades Get White House Out of the 20th Century,” N.Y. Times (Apr. 3, 2016)........................................................................................15
Sari Horowitz, et al., “DHS Tells States About Russian Hacking During 2016 Election,” Wash. Post (Sept. 22, 2017)......................................................................................9
Sasha Issenberg, The Victory Lab: The Secret Science of Hidden Campaigns (2013) .........................................................................................................................................6
Scott Shane, “These Are the Ads Russia Bought on Facebook in 2016,” N.Y. Times (Nov. 1, 2017) .................................................................................................................7
Taylor Hatmaker, “Exposed GOP Database Demonstrates the Risks of DataHungry Political Campaigns,” TechCrunch (June 19, 2017) ....................................................8
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INTEREST OF AMICI CURIAE Amici curiae are former national security and technology officials who have a wealth of experience combatting cyber threats posed by foreign adversaries and other malicious actors.1 Amici have worked at senior levels in administrations of both parties and share strong concerns about securing the integrity of our nation’s electoral systems. This brief is intended to highlight for the Court a particular aspect of this litigation that has been referred to but not substantially discussed by either party: the potentially serious national security and cybersecurity implications of the Presidential Advisory Commission on Election Integrity’s compilation of a massive database of personally identifiable information about American voters and its storage of that database on White House systems. Amici are uniquely positioned to provide the Court with information and insight about the risks that such a database could be breached, as well as the potential consequences of such a breach.
1 No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae, their members, or their counsel made a monetary contribution to the preparation or submission of this brief.
1
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INTRODUCTION Americans recently witnessed an unprecedented attack against our democracy by a hostile nation-state that sought to influence the outcome of our elections. Numerous current and former national security officials and cybersecurity experts have highlighted the urgent need to prevent similar activities—or worse—from occurring in the next election cycle. Our election infrastructure is a continuing target for foreign adversaries, including Russia, and these adversaries are capable of, and increasingly intent on, waging sophisticated cyber campaigns against core U.S. democratic institutions. The stated mission of the Presidential Advisory Commission on Election Integrity (the “Commission”) is to ensure the integrity of our electoral systems. But given the advanced cyber threats posed by foreign adversaries, there is a serious risk that the Commission’s activities will ultimately make U.S. election systems more susceptible to compromise and abuse. The Commission has aggregated and continues to aggregate large volumes of data about American voters, including names, addresses, partial social security numbers, and voting history, into one centralized database stored, operated, and maintained by the White House. That database may be a compelling target for foreign adversaries seeking to interfere in future elections through a variety of means, as well as for cyber criminals and other malicious actors. Yet, despite this grave vulnerability, the Commission chose to move the database from a network administered by the Department of Defense to an ad hoc system built by White House personnel. Amici, who have a wealth of experience as national security and cybersecurity officials, have authored this brief in order to highlight the substantial risks that assembling and maintaining such a database could create. For all of the vulnerabilities demonstrated during last year’s elections, one feature of our state-based election system that poses challenges to would-be attackers is the extent of its
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decentralization—including the degree to which information that could be used to exploit potential vulnerabilities is widely dispersed across numerous systems, formats, and regions. That strength is critically undermined by the Commission’s conduct and will continue to be undermined so long as the Commission’s database is maintained. Because 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, amici seek to inform the Court’s understanding of these potential harms as it evaluates Plaintiffs’ complaint and the Government’s motion to dismiss.
ARGUMENT I. THE COMMISSION’S AGGREGATION OF SENSITIVE VOTER DATA AND
ITS STORAGE OF THAT DATA AT THE WHITE HOUSE CREATES SUBSTANTIAL CYBERSECURITY VULNERABILITIES By aggregating large volumes of personal data in one centralized location, the Commission has created and continues to maintain a compelling target for foreign adversaries and other malicious actors. Personally identifiable information (“PII”) about millions of American voters would be extremely valuable to foreign adversaries seeking to interfere in future elections. This data would also be a valuable target for criminal organizations seeking to steal it for purposes of identity theft or to sell on the black market. Moreover, the Commission has compounded these risks by hosting the database on a White House system that has never been used to store information of this kind and may lack core safeguards. A. Aggregating Vast Amounts Of Personal Data Poses A Substantial Risk For
Cyberattacks 1. Large-scale databases containing personal information are particularly
attractive targets for malicious cyber actors A database that contains large volumes of PII is an extremely attractive target for cyberattacks. Hackers seek to exploit this type of information for a number of reasons, ranging
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from ordinary criminal profiteering (e.g., to commit identity theft or to sell the information on the black market for others to commit identity theft) to intelligence collection by hostile nation states or non-state actors. The bigger the database, the greater the payoff from a potential breach.
A large database aggregating PII 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. One need only examine some of the most recent high-profile data breaches to understand the extent to which information of this nature is regularly targeted by a wide range of actors and the potential harm that could ensue from a breach. The recent attack against Equifax, for example, compromised the information of up to 143 million people, including their names, addresses, dates of birth, credit card information, social security numbers, and driver’s license numbers.2 Major breaches against health care providers and retail companies have demonstrated similar patterns. For example, the 2015 Anthem breach compromised names, birth dates, social security numbers, e-mail addresses, and income information of a reported 79 million people.3 In 2016, Weebly, a web-hosting service, experienced a hack that exposed the IP addresses, usernames and/or e-mail addresses, and hashed passwords of some 43 million users. 4 Government databases with large volumes of PII have also been the subject of significant
2 Seena Gressin, “The Equifax Data Breach: What to Do,” Federal Trade Commission (Sept. 8, 2017), available at https://www.consumer.ftc.gov/blog/2017/09/equifax-data-breachwhat-do.
3 Brendan Pierson, “Anthem to Pay Record $115 Million to Settle U.S. Lawsuits Over Data Breach,” Reuters (June 23, 2017), available at https://www.reuters.com/article/us-anthemcyber-settlement/anthem-to-pay-record-115-million-to-settle-u-s-lawsuits-over-data-breachidUSKBN19E2ML.
4 George R. Lynch, “Website Creating Company Faces Data Breach Affecting Over 40 Million Users,” Bloomberg BNA (Oct. 24, 2016), available at https://www.bna.com/websitecreating-company-b57982079041/.
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breaches—including the infamous breach of the federal Office of Personnel Management, which resulted in the theft of highly sensitive information about more than 20 million Americans.
The proliferation of such attacks poses profound challenges to many facets of our election system. The Department of Homeland Security has warned that “[v]oter registration databases present a unique target for cyber threat actors” and that “[i]t is vital that security professionals take precautions to defend [these systems] against intrusion.”5 The information that the Commission has requested and continues to aggregate contains basic PII such as names, addresses, and dates of birth, as well as more sensitive information such as partial social security numbers, voting history, criminal records, and military status. See Pls.’ Amended Compl. ¶ 62, ECF No. 21 (describing information requested by the Commission); Pls.’ Opp. to Mot. to Dismiss Exh. G-2, at 8-9, ECF No. 30 (listing various states that have provided data to the Commission).6 Even if some of this information may already be publicly available, it becomes far more valuable to malicious actors when centralized and combined with other public and nonpublic information.
That risk is particularly grave in the event that the data is acquired by hostile nationstates, which may be capable of culling through large volumes of information and combining that information with data already in their possession in order to assemble more comprehensive files about American citizens for espionage and counter-intelligence purposes. As the Court of Appeals for the D.C. Circuit has noted in the context of national security information, new disclosures of information must be viewed in light of a broader “mosaic” because “‘[w]hat may
5 United States Computer Emergency Readiness Team, “Securing Voter Registration Data” (last revised Sept. 30, 2016), available at https://www.us-cert.gov/ncas/tips/ST16-001.
6 Copies of the underlying letters from the Commission’s Vice Chair, Kris W. Kobach, seeking information from all 50 states and from the District of Columbia are available at https://www.whitehouse.gov/sites/whitehouse.gov/files/docs/information-requests-to-states06282017.pdf.
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seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.’” Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 928 (D.C. Cir. 2003) (quoting CIA v. Sims, 471 U.S. 159, 178 (1985)) (alterations in original); see also Am. Civil Liberties Union v. Dep’t of Justice, 655 F.3d 1, 9 (D.C. Cir. 2011) (“an individual’s privacy interest in limiting disclosure or dissemination of information does not disappear just because it was once publicly released” (citing Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762-63 (1989)). In recent years, electoral politics and campaigning have been transformed by the trend toward intensively compiling and mining seemingly innocuous bits of user data—including the very types of data that the Commission seeks to ingest—in search of hidden insights about voter behavior.7 This trend has not gone unnoticed by America’s sophisticated foreign adversaries.
2. The Commission’s database would likely be targeted by hostile nationstates seeking to interfere in U.S. elections
The 2016 election cycle teaches a critical lesson: American voters and the integrity of our election systems are targets for hostile nation-states. By interfering with our nation’s electoral process, foreign adversaries can seek to undermine not only particular candidates but also our democracy as a whole. That was Russia’s clear goal in 2016. The United States Intelligence Community concluded unanimously that “Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election.” “Intelligence Community Assessment: Assessing Russian Activities and Intentions in Recent US Elections,” at ii (Jan. 6, 2017) (“ICA”).8 This influence campaign “followed a Russian messaging strategy that blends covert intelligence operations—such as cyber activity—with overt efforts by Russian Government
7 See generally Sasha Issenberg, The Victory Lab: The Secret Science of Hidden Campaigns (2013) (discussing rising use of data analysis in political campaigns).
8 Available at https://www.dni.gov/files/documents/ICA_2017_01.pdf. 6
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agencies, state-funded media, third-party intermediaries, and paid social media users or ‘trolls.’” Id.
The ICA highlights multiple aspects of Russia’s influence campaign, including its hacking and leaking of e-mails, its intrusions into state and local electoral boards, and its social media efforts that sought to drive propaganda. ICA at 2-4. News reports continue to shed light on these social media efforts, and Congress has recently heard testimony about Russia’s extensive efforts to purchase advertising, to maintain fake social media accounts and “troll farms,” and to target particular types of voters.9
Voter targeting efforts, in particular, could benefit from access to the types of information maintained by the Commission. Armed with names, addresses, and voting histories—including information about individuals’ party registration and frequency of voting—a foreign adversary such as Russia could conduct targeted information campaigns against particular subsets of voters. It could even seek to undermine voters’ access to the polls by, for example, targeting individuals of one party or another (or perhaps of all parties) with disinformation about the locations or hours of polling places or false reports that an election has been postponed or

9 Video Recording, Hrg. before the Senate Select Comm. on Intelligence at 00:53:09 –

00:57:20 (Sen. Richard Burr describing how “Russia trolls” created two competing Facebook

groups that encouraged “both sides to battle in the streets,” a tactic intended to create “divisions

between real Americans.”), available at https://www.intelligence.senate.gov/hearings/open-

hearing-social-media-influence-2016-us-elections; Testimony of Colin Stretch before the Senate

Comm. on the Judiciary, Subcomm. on Crime and Terrorism, at 6 (Oct. 31, 2017) (stating that

approximately 126 million people may have seen Russian-sponsored content on Facebook

between 2015 and 2017), available at https://www.judiciary.senate.gov/imo/media/doc/10-31-

17%20Stretch%20Testimony.pdf; Scott Shane, “These Are the Ads Russia Bought on Facebook

in

2016,”

N.Y.

Times

(Nov.

1,

2017),

available

at

https://www.nytimes.com/2017/11/01/us/politics/russia-2016-election-facebook.html?_r=0;

Daisuke Wakabayashi & Scott Shane, “Twitter, With Accounts Linked to Russia, to Face

Congress

Over

Role

in

Election,”

N.Y. Times (Sept. 27, 2017) (describing Russia’s use of fake Twitter accounts to influence the

2016 elections and to continue sowing political and social discord since), available at

https://www.nytimes.com/2017/09/27/technology/twitter-russia-election.html.

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canceled. In short, a national database containing this type of information constitutes a particularly attractive target for Russia or other adversaries seeking to conduct these types of hostile activities. Even if it is correct that some of the information is available in disparate locations and formats across the United States, such as in states’ voter registration records or in political parties’ databases, and indeed even if private actors, such as the Republican and Democratic National Committees, have reportedly already attempted to compile a wide range of data on American voters—an effort that may have itself created vulnerabilities10—the Federal Government should be seeking ways to mitigate those risks, not to compound and exacerbate them. Aggregating a comprehensive and official set of such data onto one high-profile, widely publicized server maintained by the White House may reduce the technical and practical barriers to a foreign adversary acquiring such information and making use of it without detection.
Additionally, if a foreign adversary or other malicious actor were capable of altering the information contained in the database, the results could have other serious implications for future elections. To choose one example, an adversary could manipulate records to create phony irregularities (such as by altering social security numbers or criminal histories) in the hopes of spawning baseless inquiries and investigations that could result in the wrongful removal of legitimate voters from registration rolls. The events of 2016 demonstrate that Russia did in fact target voter registration rolls as part of its active measures campaign. The Intelligence Community concluded that “Russian intelligence obtained and maintained access to elements of multiple US state or local electoral boards”—though they did not access systems involved in vote tallying. ICA at iii; see also id. at 3. Thomas Hicks, Chairman of the United States
10 See Taylor Hatmaker, “Exposed GOP Database Demonstrates the Risks of DataHungry Political Campaigns,” TechCrunch (June 19, 2017), available at https://techcrunch.com/2017/06/19/deep-root-gop-data-leak-upguard/.
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Election Assistance Commission, testified before Congress last fall that hackers had breached Arizona and Illinois’ voter registration lists.11 More recently, the Department of Homeland Security reportedly notified officials in 21 states that their states’ electoral systems were targeted by Russian hackers during the 2016 election.12 Notably, Mr. Hicks observed in his testimony that a key strength of our electoral system is its decentralization, because “there is no national system that a hacker or bad actor can infiltrate to affect the American elections as a whole.”13 A centralized voter registration database creates just such a target.
A number of current and former government officials have further warned that Russia and other foreign adversaries will seek to interfere in future elections and that such behavior may even escalate. Admiral Michael Rogers, director of the National Security Agency, testified before Congress that “[w]e have seen states seeking to shape the policies and attitudes of democratic peoples, and we are convinced such behavior will continue for as long as autocratic regimes believe they have more to gain than to lose by challenging their opponents in cyberspace.”14 James Clapper, the former Director of National Intelligence, similarly testified that Russia is now “emboldened to continue” its election interference activities, “and to do so
11 See Transcript, “Cybersecurity: Ensuring the Integrity of the Ballot Box,” Hrg. before the House Comm. on Oversight and Gov’t Reform, Subcomm. on Information Technology (Sept. 26, 2016), Statement of Thomas Hicks (“Hicks Statement”), at 17, available at https://www.gpo.gov/fdsys/pkg/CHRG-114hhrg26124/pdf/CHRG-114hhrg26124.pdf.
12 Sari Horowitz et al., “DHS Tells States About Russian Hacking During 2016 Election,” Wash. Post (Sept. 22, 2017), available at https://www.washingtonpost.com/world/nationalsecurity/dhs-tells-states-about-russian-hacking-during-2016-election/2017/09/22/fd263a2c-9fe211e7-8ea1-ed975285475e_story.html?utm_term=.56fba78532a2.
13 Hicks Statement at 12. 14 Statement of Adm. Michael S. Rogers, Commander, United States Cyber Command, before the Senate Comm. on Armed Services, at 2 (May 9, 2017), available at https://www.armed-services.senate.gov/imo/media/doc/Rogers_05-09-17.pdf.
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even more intensely.”15 Members of Congress, meanwhile, have repeatedly expressed concerns
about future election interference and the adequacy of existing measures to protect against further attacks, including potential tampering with voter registration systems.16
Finally, hostile nation-states could attempt to breach the Commission’s database for
espionage purposes not directly related to election interference. For example, the Justice
Department has charged two officers belonging to the Russian Federal Security Service (as well
as two other individuals) with orchestrating a massive breach of Yahoo’s networks and accessing information regarding more than 500 million Yahoo user accounts.17 The indictment alleges that
the conspirators used this information to target particular victims of interest to Russian intelligence as well as to orchestrate various scams.18 It has also been reported that other hacked
files pertaining to American citizens are being used by foreign intelligence services, including in
China and Russia, to assemble and cross-index databases that could be used to identify and even blackmail U.S. intelligence operatives.19
15 Statement of James R. Clapper before the Senate Comm. on the Judiciary, Subcomm. on Crime and Terrorism, at 5 (May 8, 2017), available at https://www.judiciary.senate.gov/imo/media/doc/05-08-17%20Clapper%20Testimony.pdf.
16 See, e.g., Video Recording, Hrg. before the Senate Comm. on Homeland Security and Governmental Affairs (Sept. 27, 2017) at 01:41:45 – 01:42:33 (questions from Sen. Claire McCaskill to Elaine Duke, Acting Secretary of DHS, and Christopher Wray, Director of the FBI, concerning measures to prevent interference in future elections); id. at 01:49:55 – 01:50:22 (question from Sen. James Lankford expressing concerns about tampering with voter registration lists), available at https://www.c-span.org/video/?434411-1/senior-officials-testify-homelandsecurity-threats&start=6178.
17 See Indictment, United States v. Dokuchaev, No. 3:17-cr-103, ECF No. 1 (N.D. Cal. Feb. 28, 2017).
18 Id. ¶¶ 34-39. 19 See Brian Bennet & W.J. Hennigan, “China and Russia Are Using Hacked Data to Target U.S. Spies, Officials Say,” Los Angeles Times (Aug. 31, 2015), http://www.latimes.com/nation/la-na-cyber-spy-20150831-story.html.
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3. The Commission’s database could also be targeted by criminal actors seeking to sell personal data for profit
Aggregating large volumes of PII also creates a target for malicious actors seeking to sell such information for profit. This information is valuable to cybercriminals because it can be used to commit identity theft and other acts of fraud. Indeed, there is a sophisticated global black market for stolen PII that reflects the value of this information.20 The demand for stolen PII, in turn, fuels incentives for malicious actors to target networks with large data sets.
This reality has led courts to recognize that individuals whose personal data is stolen are at risk of identity theft. See Attias v. CareFirst, Inc., 865 F.3d 620, 627-29 (D.C. Cir. 2017) (finding that plaintiffs established a “substantial risk” of identity theft after hackers breached the network of a healthcare provider and stole various types of PII); Remijas v. Nieman Marcus Group, LLC, 794 F.3d 688, 692-94 (7th Cir. 2015) (noting a similar risk and suggesting that, “[p]resumably, the purpose of the hack is, sooner or later, to make fraudulent charges or assume those consumers’ identities”). While credit card information may be in greater demand by some actors than the types of PII at issue here, malicious actors can use other types of information— particularly including names, addresses, and social security numbers—to sell for profit or to combine and cross-reference with other datasets to assemble more complete profiles of individuals targeted for identity theft.
There is also a distinct possibility that “ordinary” criminals who breach networks in order to obtain and sell PII could sell that information to parties with more hostile and dangerous ends

20 See, e.g., Lillian Ablon et al., Markets for Cybercrime Tools and Stolen Data, RAND

Corporation (2014), available at https://www.rand.org/pubs/research_reports/RR610.html;

Jaikumar Vijayan, “The Identity Underworld: How Criminals Sell Your Data on the Dark Web,”

Christian

Science

Monitor

(May

6,

2015),

available

at

https://www.csmonitor.com/World/Passcode/2015/0506/The-identity-underworld-How-

criminals-sell-your-data-on-the-Dark-Web.

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in mind. Last year, for example, Ardit Ferizi, a hacker who obtained PII about hundreds of U.S. citizens and provided this information to ISIS, pleaded guilty to hacking and providing material support for terrorism. See Statement of Facts, United States v. Ferizi, No. 1:16-cr-42, ECF No. 36 (E.D. Va. June 15, 2016) (describing facts admitted by Ferizi as part of a plea agreement). Ferizi admitted that he gained access to the server of a retail company based in the United States that contained the PII of tens of thousands of customers and culled that information to identify government employees and military service members. Id. at 3. He then passed that information to a well-known member of ISIS who posted it online and used it to call for attacks against specific individuals. Id. at 3-5.21
In this case, cyber criminals could conclude that a successful breach of the Commission’s database would be rewarded by a substantial bounty from whatever buyer is most interested in obtaining and/or altering the information, and could seek to sell to the highest bidder this information or the tools that could be used to penetrate the database.
B. Storing Sensitive Personal Data on White House Systems Introduces Heightened Vulnerabilities
Federal networks are regularly targeted for attacks by malicious actors, including by nation-states and other sophisticated adversaries seeking precisely the type of information that the Commission is aggregating. As former Secretary of Homeland Security Michael Chertoff has warned in reference to the activities of the Commission:
We know that a database of personal information from all voting Americans would be attractive not only to adversaries seeking to affect voting but to criminals who could use the identifying information as a wedge into identity theft. We also know that foreign intelligence agencies seek large databases on Americans for intelligence and counterintelligence purposes. That is why the theft of more than 20 million personnel
21 Ferizi appears to have provided the information to ISIS free of charge. But other criminal actors could just as easily sell this type of information to a terrorist organization or hostile nation-state.
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files from the U.S. Office of Personnel Management and the hacking of more than half a billion Yahoo accounts were such troubling incidents.22 The Office of Personnel Management breach to which Secretary Chertoff referred was reported in 2015 and resulted in the exposure of the personal information of more than 20 million Americans. The Government Accountability Office (“GAO”) has repeatedly observed that breaches of federal networks are on the rise and that these attacks are evolving and becoming more sophisticated. See, e.g., GAO, “Information Security: DHS Needs to Enhance Capabilities, Improve Planning, and Support Greater Adoption of Its National Cybersecurity Protection System” (Jan. 2016) (noting that “[c]yber-based intrusions and attacks on federal systems have become not only more numerous and diverse but also more damaging and disruptive”).23 Similarly, the White House has reported that federal agencies experienced 30,899 “reportable” cyber incidents for the 2016 fiscal year, 16 of which rose to the threshold of a “major incident” (meaning the incident involved certain types of critical information or that records were compromised on a large scale).24 An Executive Order signed earlier this year took

22 Michael Chertoff, “Trump’s Voter Data Request Poses An Unnoticed Danger,” Wash.

Post (July 15, 2017), available at https://www.washingtonpost.com/opinions/trumps-voter-data-

request-poses-an-unnoticed-danger--to-national-security/2017/07/05/470efce0-60c9-11e7-8adc-

fea80e32bf47_story.html?tid=a_inl&utm_term=.c07d23da07ef. 23 Available at https://www.gao.gov/assets/680/674829.pdf.

See also GAO,

“Cybersecurity: Actions Needed to Strengthen U.S. Capabilities” (Feb. 2017), available at

https://www.gao.gov/assets/690/682756.pdf 24 See “Federal Information Security Modernization Act of 2014: Annual Report to

Congress for Fiscal Year 2016,” at 111, available at

https://www.whitehouse.gov/sites/whitehouse.gov/files/briefing-room/presidential-

actions/related-omb-

material/fy_2016_fisma_report%20to_congress_official_release_march_10_2017.pdf.

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note of these risks, highlighting among other findings that “[t]he executive branch has for too long accepted antiquated and difficult-to-defend [information technology].”25
The Commission’s seemingly last-minute decision to move the database from the control of the Department of Defense (“DOD”) to the White House only exacerbates the database’s vulnerability. The Commission initially intended to use DOD’s Safe Access File Exchange (“SAFE”), which Vice Chair Kobach described in another lawsuit as a “tested and reliable method to secure file transfer used routinely by the military for large, unclassified data sets.” Decl. of Kris W. Kobach ¶ 5, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity (“EPIC”), EFC No. 8, No. 1:17-cv-1320 (D.D.C. July 5, 2017). Just five days later, after the plaintiffs in that case amended their complaint to name DOD as a defendant, see ECF No. 21, EPIC (July 7, 2017), Vice Chair Kobach issued a new declaration stating that the Commission no longer intended to use DOD’s SAFE system and would instead “repurpos[e]” a White House system to accept the voter data. Third Decl. of Kris W. Kobach ¶ 1, ECF No. 24-1, EPIC (July 10, 2017) (“Third Kobach Declaration”).26 The only explanation offered for the move was a somewhat cryptic statement that it was intended “not to impact the ability of other customers to use the DOD [SAFE] site.” Id. The Commission has also not disclosed which White House system has been “repurposed” to accept the PII of millions of Americans or what measures are in place to protect that data adequately, underscoring the importance of further factfinding on these matters. Based on what is already known, however, there is substantial
25 Exec. Order No. 13800, “Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure” (May 11, 2017), available at https://www.whitehouse.gov/the-pressoffice/2017/05/11/presidential-executive-order-strengthening-cybersecurity-federal.
26 These declarations have also been filed as exhibits to the Government’s Motion to Dismiss in this case. See ECF No. 27, Exhs. B and C.
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reason to believe that the Commission has gone about its work in ways that subject the data to significant vulnerabilities and indeed exacerbate those vulnerabilities.
As an initial matter, this White House system has been newly developed—apparently within a matter of days. See Third Kobach Declaration ¶ 1 (stating that the new White House system was expected to be operational by later that day). As such, this new platform is effectively being tested for the first time through the ingestion of millions of data points about American voters. Additionally, the White House’s Information Technology staff does not have the same technical resources at its disposal to maintain large-scale databases as the Department of Defense. 27 Indeed, the Government has expressly affirmed that other White House components, such as the Executive Committee for Information Technology and the U.S. Digital Service, will have “no role” in administering the Commission’s database and that only a “limited number of [] technical staff” will be involved. Mot. to Dismiss, Exh. E, Decl. of Charles Christopher Herndon ¶ 6, ECF No. 27 (“Herndon Declaration”).
These limitations may well have been put in place in an effort to reduce the number of government officials with access to the information. But from a cybersecurity standpoint, the limited extent of information technology resources and personnel available to support the Commission’s work is alarming insofar as White House systems and personnel are regularly the subject of cyberattacks from sophisticated adversaries that require resource-intensive
27 See, e.g., Michael Shear, “Technology Upgrades Get White House Out of the 20th Century,” N.Y. Times (Apr. 3, 2016) (noting that “[u]ntil very recently, West Wing aides were stuck in a sad and stunning state of technological inferiority” and describing ongoing challenges), available at https://www.nytimes.com/2016/04/04/us/politics/technology-upgradesget-white-house-out-of-the-20th-century.html.
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responses.28 Moreover, there is no indication that the Commission has taken the appropriate additional measures, and allocated the necessary additional resources, to fortify its database against these risks. Given that attempted attacks against White House unclassified networks are regularly reported in the media (and therefore should be well known to the Commission), this suggests an overall lack of attentiveness to the magnitude and gravity of the cybersecurity risks posed.29
Mr. Herndon’s Declaration describes certain basic measures that he avows have been taken or will be taken to secure the Commission’s database, such as his assertion that the data will be encrypted and that Commission members will be able to access it through dedicated laptops with secure connection mechanisms. Herndon Declaration ¶ 5. But, on numerous other fronts, Mr. Herndon’s Declaration is silent, leaving open the very real possibility that serious vulnerabilities remain in the way that the Commission is going about its work. Most notably, there is no indication that there are measures in place—including steps consistent with previous DHS recommendations for securing voter databases—that would: (1) restrict access only to Commission members as opposed to their staffs, or perhaps only those staff members specifically involved in analyzing the raw data; (2) restrict administrative privileges; (3) conduct

28Jennifer Martinez, “White House Thwarts Hacker Attack on Unidentified Computer

System,” The Hill (Oct. 1, 2012), available at http://thehill.com/policy/technology/259461-

hackers-attack-white-house-computer-system; Demetri Sevastopvlo, “Chinese Hack Into White

House Network,” Financial Times (Nov. 6, 2008), available at

https://www.ft.com/content/2931c542-ac35-11dd-bf71-000077b07658 (subscription required).

See also Devlin Barrett & Siobhan Gorman, “Gmail Hack Targeted White House,” Wall St. J.

(June 3, 2011) (describing how Chinese hackers breached Gmail systems and targeted White

House

employees),

available

at

https://www.wsj.com/articles/SB10001424052702304563104576361863723857124

(subscription required). 29 See, e.g., Ellen Nakashima, “Hackers Breach Some White House Computers,” Wash.

Post (Oct. 28, 2014), available at https://www.washingtonpost.com/world/national-

security/hackers-breach-some-white-house-computers/2014/10/28/2ddf2fa0-5ef7-11e4-91f7-

5d89b5e8c251_story.html?utm_term=.7888768cd42e.

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penetration testing and security audits; and (4) provide basic cybersecurity training to Commission members and their staffs, including training to avoid phishing attempts.30 The need
for basic cybersecurity training appears especially heightened in light of reports that a voter
database previously created by Vice Chair Kobach is riddled with vulnerabilities, including
through human errors such as officials sending passwords through email and even exposing them publicly.31 Finally, because no assurance has been given that the Commission’s database would
be wholly cut off from other White House systems, a breach of those other systems could
provide a platform from which intruders could penetrate the database.
II. THE COMMISSION’S CREATION OF THIS DATABASE RUNS CONTRARY TO THE PURPOSES OF THE PRIVACY ACT AND COULD CAUSE SIGNIFICANT ONGOING HARM
A. The Commission’s Conduct Runs Counter To The Privacy Act’s Purpose Of Ensuring That Personal Data Handled By The Federal Government Receives Appropriate Protections
The Privacy Act expressly recognizes that the Government’s ability to protect individual
privacy is intertwined with its ability to provide security for personal information that it retains.
The Privacy Act contains an extensive set of record-keeping requirements for covered records.
Government agencies must maintain “only such information about an individual as is relevant
and necessary to accomplish a purpose of the agency.” 5 U.S.C. § 552a(e)(1). They must
establish certain “rules of conduct” for personnel who have a role in administering records
30 See United States Computer Emergency Readiness Team, “Securing Voter Registration Data” (last revised Sept. 30, 2016), available at https://www.us-cert.gov/ncas/tips/ST16-001.
31 See Dell Cameron, “Even a Novice Hacker Could Breach Network Hosting Kris Kobach’s Bogus Voter Fraud Program,” Gizmodo.com (Nov. 9, 2017), available at https://gizmodo.com/even-a-novice-hacker-could-breach-the-network-hosting-k-1820263699; Jessica Huseman & Derek Willis, “The Voter Fraud Commission Wants Your Data—But Experts Say They Can’t Keep It Safe,” ProPublica (Oct. 23, 2017), available at https://www.propublica.org/article/crosscheck-the-voter-fraud-commission-wants-your-datakeep-it-safe.
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systems. Id. § 552a(e)(9). And, critically, agencies charged with handling covered records must establish “appropriate . . . safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.” Id. § 552a(e)(10).
When Congress enacted the statute in 1974, it was acutely aware that technological advances, including the ability to maintain large volumes of personal data on computer systems, posed new challenges for securing personal information retained by the Government. A study by the National Academy of Sciences that substantially informed the legislative process listed among the major priorities for public action the need to “increase[] work by the computer industry and professionals on security measures to make it possible for organizations to keep their promises of confidentiality.” S. Rep. No. 93-1183, at 6 (1974). Congress specifically sought to ensure “that certain computer hardware and software used to operate the information systems of government should provide features which will promote the necessary security of” those systems. Id. at 16. Although the Privacy Act does not mandate any specific set of technical standards, the Senate Committee Report explained that the term “adequate . . . standards” was meant to incorporate “safeguards which represent current state-of-the-art procedures at any given time.” Id. at 54; see also id. at 55 (noting that computer experts gave testimony about concerns such as “tapped transmissions” and that the National Academy of Sciences predicted that “the payoff in sensitive personal information to be obtained by . . . outsiders breaching system security is going to increase in the coming years”).
The facts in this case raise grave concerns that precisely mirror those considered by Congress in 1974. The Commission is aggregating a large-scale database that includes (or is
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intended to include) voters’ names, addresses, dates of birth, partial social security numbers, voting history, criminal records, and military status. See supra p. 5. That data is being ingested into a system designed by and accessible to Commission members as well as at least some White House personnel. See Herndon Declaration ¶¶ 3, 6. As already described, this aggregated information would be an extraordinarily valuable target for hackers—including hackers acting on behalf of foreign intelligence services as well as those operating for profit. Yet, apart from providing a months-old and generally vague declaration from another case describing how the database was anticipated to operate, the Government has provided no meaningful assurances about the measures that it is now using to secure this pool of data. See Herndon Declaration n.1 (noting that the declaration was originally filed on July 17, 2017 in a prior case).
Indeed, it is not even clear from the materials provided by the Government whether any specific person or entity is accountable for the security of the database. Mr. Herndon, who serves as the Director of White House Information Technology, stated that he was asked to “assist” in creating a mechanism to store this data on White House computer systems and that members of his technical staff would “assist” in the data collection process. Herndon Declaration ¶¶ 3, 6. Mr. Herndon also stated that White House network monitoring tools would log access to the database. Id. ¶ 6. Yet—in sharp contrast to the requirements of the Privacy Act—the Commission does not appear to have established any rules or procedures governing access to the database or any rules governing ongoing safeguards. Cf., e.g., Doe v. Dep’t of Justice, 660 F. Supp. 2d 31, 43 (D.D.C. 2009) (noting that the Department of Justice has “promulgated extensive regulations . . . that safeguard its Privacy Act-protected records”) (internal quotations omitted); Memorandum from Jonathan R. Cantor, “DHS Privacy Policy Regarding Collection, Use, Retention, and Dissemination of Personally Identifiable Information”
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(Apr. 27, 2017) (providing guidance with respect to the handling of PII in the Department of Homeland Security, including information security requirements and restrictions on disseminating such information outside the Department).32 The Commission’s operations thus stand at odds with the Privacy Act’s clear purpose of ensuring that federal databases containing records about individuals maintain certain minimum safeguards to protect the security of those records.
B. The Commission’s Aggregation Of This Data Could Cause Ongoing Harms That Would Be Difficult To Remedy
Due to the nature of data breaches, the Commission’s aggregation of voter information could cause ongoing harms that would be difficult to remedy after they have occurred. Some states have already complied (or partially complied) with the Commission’s requests, see supra p. 5, and others have indicated their intent to do so.33 Whatever the extent of this compliance, the potential for harm can only increase so long as the database remains on White House systems and continues to grow. Voter data can become vulnerable to attack as soon as it is placed on White House systems. Once a network has been penetrated, hostile actors can begin exfiltrating data, often without the network administrator even becoming aware of the incident. In the case of the breach against OPM, for example, the intrusions were detected only after OPM installed new security systems, long after huge quantities of sensitive personal information had been stolen.34 If the voter data at issue here is copied, it can never be fully erased or returned from the
32 Available at https://www.dhs.gov/sites/default/files/publications/PPGM%20201701%20Signed_0.pdf
33 See Associated Press, “How States Are Handling Trump’s Voter Information Request,” (Aug. 2, 2017) (cataloguing states’ responses), available at https://elections.ap.org/content/howstates-are-handling-trumps-voter-information-request.
34 See transcript, “OPM: Data Breach,” Hrg. before the House Comm. on Oversight and Gov’t Reform, at 42-43 (June 16, 2015), available at https://www.gpo.gov/fdsys/pkg/CHRG114hhrg99659/pdf/CHRG-114hhrg99659.pdf.
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possession of those who gain improper access to it. Moreover, if it is altered, that alteration could be difficult to detect and could cause widespread confusion for months or years to come.
CONCLUSION The Court should deny the Government’s motion to dismiss. In the alternative, the Court should grant Plaintiffs’ request to conduct jurisdictional discovery. Respectfully submitted,

/S/______________ JOSHUA A. GELTZER (D.C. Bar No. 1018768) INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Ave., N.W. Washington, D.C. 20001 Telephone: 202.661.6728 JG1861@Georgetown.edu

ROBERT S. LITT* DAVID A. NEWMAN* SOPHIA M. BRILL* MORRISON & FOERSTER LLP 2000 Pennsylvania Ave., N.W. Washington, D.C. 20006
ROBERT TAJ MOORE* MORRISON & FOERSTER LLP 250 West 55th Street New York, N.Y. 10019
Counsel for Amici Curiae
* pro hac vice motions pending

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APPENDIX: LIST OF AMICI CURIAE 1. James R. Clapper served as the U.S. Director of National Intelligence (DNI) from 2010 to January 20, 2017. Prior to becoming the DNI, he served for over three years in two administrations as the Under Secretary of Defense for Intelligence, where he was dual-hatted as the Director of Defense Intelligence for the DNI and as the Director of the National GeospatialIntelligence Agency from 2001 to 2006.
2. Dipayan Ghosh served as Senior Advisor on Technology Policy at the Office of Science and Technology Policy and National Economic Council in the White House from 2013 to 2015, and until recently served as a privacy and public policy advisor at Facebook.
3. Andrew J. Grotto served as the Senior Director for Cybersecurity Policy at the White House from 2016 to 2017. He previously served as Senior Advisor for Technology Policy at the Department of Commerce.
4. Nancy Libin served as Chief Privacy Officer at the U.S. Department of Justice from 2009 to 2012.
5. Alex Macgillivray was Deputy United States Chief Technology Officer from 2014 to 2017. He previously served as General Counsel at Twitter and Deputy General Counsel at Google.
6. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014. He previously served as the General Counsel for the National Security Agency and in various national security-related roles at the Department of Justice.
7. Christopher Painter served as the Coordinator for Cyber Issues at the Department of State from 2011 to 2017.
8. Paul Rosenzweig is a Senior Fellow at the R Street Institute. He teaches Cybersecurity Law and Policy at George Washington University School of Law. He served as Deputy Assistant Secretary for Policy at the Department of Homeland Security from 2006 to 2009.
9. Suzanne Spaulding served from 2011 to 2017 as the Under Secretary for the National Protection and Programs Directorate (NPPD) at the Department of Homeland Security, which is charged with strengthening cybersecurity and protecting the nation’s critical infrastructure.
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CERTIFICATE OF SERVICE I hereby certify that on December 5, 2017, I filed this Motion with the United States District Court for the District of Columbia using the CM/ECF system, which will cause it to be served on all counsel of record.

Dated: December 5, 2017

Respectfully submitted,
_______/S/________________ JOSHUA A. GELTZER (D.C. Bar No. 1018768) INSTITUTE FOR CONSTITUTIONAL ADVOCACY AND PROTECTION Georgetown University Law Center 600 New Jersey Ave. NW Washington D.C. 20001 Telephone: 202.661.6728 JG1861@Georgetown.edu

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EXHIBIT K

Case 1:17-cv-22568-MGC Document 65-1 Entered on FLSD Docket 12/29/2017 Page 69 of 69

Federal Register / Vol. 82, No. 127 / Wednesday, July 5, 2017 / Notices

31063

subsidiary’s liabilities under applicable accounting standards. The Federal Reserve used information collected on the Capital and Asset Report for Foreign Banking Organizations (FR Y–7Q), the FR Y–9C and the FR XX–1 to calculate liabilities of these institutions.
The Board granted a request from one financial company to use an accounting standard or method of estimation other than GAAP to calculate liabilities. The requesting company is an insurance company that reports financial information under Statutory Accounting Principles (‘‘SAP’’). The Board approved a method of estimation for this company that is based on line items from SAP reports, with adjustments to reflect certain differences in accounting treatment between GAAP and SAP.
By order of the Board of Governors of the Federal Reserve System, acting through the Director of Supervision and Regulation under delegated authority, June 28, 2017.
Ann E. Misback,
Secretary of the Board.
[FR Doc. 2017–14011 Filed 7–3–17; 8:45 am]
BILLING CODE 6210–01–P
GENERAL SERVICES ADMINISTRATION
[Notice-MK–2017–01; Docket No. 2017– 0002; Sequence 11]
The Presidential Commission on Election Integrity (PCEI); Upcoming Public Advisory Meeting
AGENCY: Office of Government-wide Policy (OGP), General Services Administration (GSA).
ACTION: Meeting notice.
SUMMARY: The Presidential Advisory Commission on Election Integrity (Commission), a Federal Advisory Committee established in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App., and Executive Order 13799, (https:// www.federalregister.gov/documents/ 2017/05/16/2017-10003/establishmentof-presidential-advisory-commission-onelection-integrity) will hold its first meeting on Wednesday, July 19, 2017. This 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.
DATES: Meeting Date: 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.
ADDRESSES: The meeting will be held at the Eisenhower Executive Office Building, Room 350, located at 1650 Pennsylvania Avenue NW., Washington, DC 20502. It will be open to the public through livestreaming on https:// www.whitehouse.gov/live.
FOR FURTHER INFORMATION CONTACT: To obtain information about the Commission or to submit written comments for the Commission’s consideration, contact the Commission’s Designated Federal Officer, Andrew Kossack, via email at ElectionIntegrityStaff@ovp.eop.gov or telephone at 202–456–3794. Please note the Commission may post written comments publicly, including names and contact information, in accordance with the provisions of FACA. There will not be oral comments from the public at this initial meeting.
The Commission will provide individuals interested in providing oral comments the opportunity to do so at subsequent meetings. Requests to accommodate disabilities with respect to livestreaming or otherwise should also be sent to the email address listed above, preferably at least 10 days prior to the meeting to allow time for processing.
SUPPLEMENTARY INFORMATION: The Commission was established in accordance with E.O. 13799 of March 11, 2017, the Commission’s charter, and the provisions of FACA. The Commission will, consistent with applicable law and E.O. 13799, study the registration and voting processes used in Federal elections. The Commission shall be solely advisory and shall submit a report to the President of the United States that identifies the following:
a. 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;
b. those laws, rules, policies, activities, strategies, and practices that undermine the American people’s confidence in the integrity of voting processes used in Federal elections; and
c. 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.

Dated: June 30, 2017.
Jeffrey A. Koses,
Director, Office of Acquisition Policy, Office of Government-wide Policy.
[FR Doc. 2017–14210 Filed 7–3–17; 8:45 am]
BILLING CODE 6820–61–P
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
[30Day–17–1146]
Agency Forms Undergoing Paperwork Reduction Act Review
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses; and (e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to omb@cdc.gov. Written comments and/or suggestions regarding the items contained in this notice should be directed to the Attention: CDC Desk Officer, Office of Management and Budget, Washington, DC 20503 or by fax to (202) 395–5806. Written comments should be received within 30 days of this notice.

sradovich on DSK3GMQ082PROD with NOTICES

VerDate Sep<11>2014 17:57 Jul 03, 2017 Jkt 241001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\05JYN1.SGM 05JYN1

 
 Case 1:17-cv-22568-MGC Document 31 Entered on FLSD Docket 07/20/2017 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 17-22568-CIV-COOKE/Goodman

ARTHENIA JOYNER, et al., Plaintiffs,

vs.

PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al.,
Defendants. ______________________________/

ORDER ON PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

THIS MATTER is before upon Plaintiffs’ Corrected Motion for Temporary Restraining

Order (“TRO”), with Request for Expedited Treatment and Incorporated Memorandum of Law

(“Motion”) (ECF No. 6). A hearing was held regarding the Motion on July 18, 2017. I have

carefully reviewed the Motion, the record, and the relevant legal authorities, and considered

the arguments of counsel. I have also reviewed the United States District Court for the

District of Columbia’s July 18, 2017 Memorandum Opinion in Lawyers’ Committee for Civil

Rights Under Law v. Presidential Advisory Commission on Election Integrity, Case No. 17-1354-

CKK (D.D.C. July 18, 2017) (ECF No. 17). I have acknowledged the Florida Secretary of

State’s position that he would only produce information allowed by Florida law and would

protect all exempt voter information from disclosure. Being otherwise fully advised in the

premises, I find as follows:

I. LEGAL STANDARD

In order to obtain a temporary restraining order or preliminary injunction, a party

must demonstrate “(1) a substantial likelihood of success on the merits; (2) that irreparable

injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the

harm the relief would inflict on the non-movant; and (4) that the entry of the relief would

serve the public interest.” Schiavo ex. rel Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th

Cir. 2005).

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II. ANALYSIS Based on the proceedings at the July 18, 2017 hearing and consideration of the entirety of the record, I incorporate the findings and conclusions announced at the hearing, including the following:
A. The Florida Secretary of State’s July 6, 2017 letter to the Presidential Advisory Commission on Election Integrity (“Commission”), attached as Exhibit H to the Complaint (ECF No. 1-1 at 31–32), appropriately acknowledges Florida privacy laws. The Florida Secretary of State, before this litigation commenced, set out Florida’s intention to comply with these laws as they relate to the dissemination of information to the Commission. Moreover, Federal Defendants have represented that the Commission has requested that the states, including Florida, not submit any data to the Commission until the court rules on the pending motion for a temporary restraining order in Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity, et al., Case No. 17cv-01320-CKK (D.D.C.) (the “EPIC Case”).
B. This Order is consistent with the legal authority discussed above. III. CONCLUSION
For the foregoing reasons, it is ORDERED and ADJUDGED as follows: 1. In accordance with the Florida Secretary of State’s July 6, 2017 letter, the
Secretary will limit Florida’s response to the Commission to the information allowed by Florida law.
2. The Federal Defendants have represented that the Commission has requested that the states, including Florida, not submit any data until the District of Columbia District Court in the EPIC Case issues a ruling on the pending motion for a temporary restraining order.
3. Once that ruling issues in the EPIC Case, the Florida Secretary of State remains bound by the representations contained in his July 6, 2017 letter, pending further order of Court. By this ruling, the Florida Secretary of State will continue to comport with all protections governed by Florida law.
4. I recognize that, in the midst of the July 18, 2017 hearing in the instant action, the United States District Court for the District of Columbia issued its July 18, 2017
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Memorandum Opinion in Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity, Case No. 17-1354-CKK (D.D.C. July 18, 2017) (ECF No. 17), denying a temporary restraining order against the Commission pursuant to claims made in that case under the Federal Advisory Committee Act, 5 U.S.C. App. 2, et seq. (“FACA”). I decline to make a ruling on the merits of any of the instant claims, including those brought under FACA, against the Federal Defendants at this time, but defer to the United States District Court for the District of Columbia’s July 18, 2017 Order and Memorandum Opinion for the limited purpose of determining whether to grant a temporary restraining order against the Federal Defendants. Thus, Plaintiffs’ motion for entry of a temporary restraining order against the Federal Defendants is DENIED without prejudice at this time.
DONE and ORDERED in chambers, at Miami, Florida, this 20th day of July 2017.
Copies furnished to: Jonathan Goodman, U.S. Magistrate Judge Counsel of record
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 Case 1:17-cv-22568-MGC Document 97 Entered on FLSD Docket 02/06/2018 Page 1 of 31
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION CASE NO. 17-22568-CIV-COOKE/GOODMAN ARTHENIA JOYNER, et al., Plaintiffs, v. PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al., Defendants. ______________________________/ REPORT AND RECOMMENDATIONS ON PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION The ACLU of Florida, the Florida Immigrant Coalition, Inc., and five registered Florida voters filed an emergency motion for injunctive relief, seeking to prevent the now-terminated Presidential Advisory Commission on Election Integrity and other federal defendants from transferring or using voter registration information and other data that the Commission collected or otherwise obtained from the states. [ECF No. 69]. Plaintiffs allege that the emergency was created by statements (made within hours of the issuance of a Presidential Executive Order terminating the Commission) by Kansas Secretary of State Kris Kobach, the former Commission Vice Chair. Plaintiffs describe Secretary Kobach as a “notorious vote suppressor” who was “[o]ne of President Trump’s biggest campaign surrogates during the 2016 election” and who “has a long
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history of suppressing the fundamental right to vote.” [ECF No. 69, pp. 1-2]. They classify him as “the President’s ally and chosen agent to work to suppress the right to vote[.]” [ECF No. 69, p. 4].
Plaintiffs also describe as a “disturbing development” Secretary Kobach’s public comments that he and the White House were “working together to transfer private, protected voter data to Immigration and Customs Enforcement (‘ICE’) so that [he], the White House, and ICE can work together to purge voter rolls.” [ECF No. 69, p. 2]. Plaintiffs’ emergency motion quotes Secretary Kobach as saying that the termination of the Commission reflects a “tactical shift,” which would mean that “[t]he investigations will continue now, but they won’t be able to stall [it] through litigation.” [ECF No. 69, p. 2]. Plaintiffs allege that the Federal Defendants seek to stop aliens from voting by using “Commission data” but “without complying with FACA1 and other laws.” [ECF No. 69, p. 2].
In their amended opposition response [ECF No. 89], the Federal Defendants2 do not expressly deny that Secretary Kobach said what Plaintiffs allege he said. Instead, they argue that Plaintiffs’ fears are “based on unsubstantiated news reports” made by Secretary Kobach, in which he “expounded on his personal ‘expectations’ regarding
1 “FACA” is the Federal Advisory Committee Act. 2 The Federal Defendants argue that the Commission, Vice President Michael Pence (in his official capacity as Chair of the now-terminated Commission) and Secretary Kobach “ceased to be proper defendants when the Commission was terminated on January 3, 2018.” [ECF No. 89, p. 11, n. 1 (internal citations omitted)].
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future activities but provided no definitive details about the actual plans.” [ECF No. 89,

p. 12]. Similarly, in a letter signed in response to the emergency motion [ECF No. 89-4,

p. 2], Secretary Kobach also does not deny making the statements Plaintiffs attributed to

him. Indeed, his letter does not respond at all to the statements the Plaintiffs contend he

made immediately after the Commission was terminated.

As noted, the Federal Defendants did not affirmatively represent whether

Secretary Kobach did make those statements (or similar ones).3 Instead, they focus on

declarations explaining that (1) Secretary Kobach was never provided access to the state

voter data before the Commission’s termination; (2) Secretary Kobach does not

currently have access; (3) the data was never provided to, or accessed by, the other

former Commissioners or any agency; (4) the data will not be transferred to, accessed by

or used by any agency, except by the National Archives and Records Administration

(“NARA”), if the records are not otherwise destroyed; and (5) the former Commission

did not reach any preliminary findings or issue any report and cannot do so in the

future.

The Federal Defendants also attached a copy of a January 16, 2018 letter from

Secretary Kobach, who explained that a declaration would not be appropriate because

he is no longer Vice-Chair and cannot speak for the now-dissolved Commission.

3

Plaintiffs filed copies of news stories from Breitbart News [ECF No. 69-15]; the

Associated Press [ECF No. 69-16]; Politico [ECF No. 69-17]; and the New York Times

[ECF No. 69-18] as support for their assertions about Secretary Kobach’s post-

termination comments.

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Nevertheless, the letter represented (albeit not under penalty of perjury) that he “never accessed the state voting data” collected by the Commission and he does “not now have access to it.” [ECF No. 89-4, p. 2]. The Undersigned had ordered [ECF No. 71] an updated declaration from Secretary Kobach but the Federal Defendants, after some procedural skirmishes, were permitted to file updated declarations from other Commissioners. They ultimately submitted an updated declaration from Andrew Kossack, Associate Counsel in the Office of the Vice President. [ECF No. 89-5].
The Federal Defendants raise myriad arguments in opposition to the emergency motion, but the Undersigned need not consider most of them. That is because (1) Plaintiffs have already obtained the emergency relief they seek, as the Commission no longer exists and is no longer collecting state voter data and the voter data previously collected will not be transferred or used except for the possible transfer to the National Archives; (2) it seems clear that Secretary Kobach’s statements to the media about providing the voter data to law enforcement agencies now appear to be incorrect predictions or personal opinions; and (3) Plaintiffs have not met their burden of establishing that they face a substantial threat of irreparable injury without injunctive relief.
Consequently, the Undersigned respectfully recommends that United States District Judge Marcia G. Cooke deny the emergency motion for injunctive relief, albeit without prejudice (in case Plaintiffs learn of and submit additional evidence that the
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factual scenario depicted in the declarations and other materials submitted by the Federal Defendants is incorrect, misleading, incomplete, or has become outdated). The remainder of this Report outlines the facts, procedural history, and legal analysis in greater detail.
This Report, however, focuses only on the narrow issue of whether emergency injunctive relief is warranted. It does not make any findings or reach any conclusions about Plaintiffs’ allegations concerning Secretary Kobach (e.g., whether President Trump strategically selected him as a vote-suppressor), the legitimacy of the Commission (i.e., whether “the President and Secretary Kobach, among others, have enacted a scheme to . . . collect protected, private voter data under the ruse of a FACA commission”), whether its creation was a pretext to suppress and restrict voting rights, whether its requests for voter data violated federal law, and whether it “conducted extensive business in violation of FACA.” [ECF No. 69, pp. 12, 16]. In addition, it does not address the viability of other claims that are still in the case (such as the existence of records other than the voter data itself) but which do not directly relate to the grounds Plaintiffs flagged to support their emergency motion for injunctive relief. And it does not address the issue of whether all, some, or none of Plaintiffs have standing to seek relief. Factual Background
The allegations underlying the emergency motion arise from both the
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Amended Complaint and the motion itself [ECF Nos. 65; 69]: The Commission is (or was, until it was terminated on January 3, 2018) an
advisory commission of the United States government within the meaning of FACA. Defendant Michael Pence is the Vice President of the United States and the Chair of the now-terminated Commission. Secretary Kobach has already been identified in this Report, but the Amended Complaint notes that he proclaims, on the Kansas Secretary of State official website, that he was elected to stop voter fraud. The Amended Complaint also mentions two federal appellate decisions issued in 2016 that Plaintiffs say rejected his arguments.
Specifically, the Amended Complaint quotes from Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016), where, according to Plaintiffs, the Tenth Circuit upheld the district court’s injunction against him and “explained that Mr. Kobach’s actions and the Kansas statutory scheme amounted to a ‘mass denial of a fundamental constitutional right’ for more than 18,000 voters.” Id. Defendant Executive Office of the President of the United States (“EOP”) is an agency, and the Office of the Vice President of the United States is a subcomponent of EOP and constitutes an agency. Defendant Tim Horne is the Administrator of the U.S. General Services Administration, an agency, and Defendant Ken Detzner is the Florida Secretary of State.
The Amended Complaint begins its factual section with allegations about President Trump, who Plaintiffs say
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has a long history of propagating baseless conspiracy theories about voter fraud, ostensibly in order to suppress the right to vote. As a presidential candidate and now as President, Mr. Trump repeatedly, and baselessly, spoke about widespread voter fraud across the country, including supposed votes cast by dead people, people voting multiple times, people voting in multiple states, and, supposed votes cast by “illegal immigrants.” [ECF No. 65, p. 12]. The Amended Complaint also provides purported examples of “Mr. Trump encouraging people to go to polling sites to intimidate voters.” [ECF No. 65, p. 13]. Continuing with this theme, the Amended Complaint alleges that “shortly after the election, the President-Elect continued his baseless accusations about voter fraud, claiming without evidence that he actually won the national popular vote if ‘illegal’ votes were deducted from the total.” [ECF No. 65, p. 13]. Plaintiffs then focus their chronological allegations to a time shortly after the inauguration, when, on January 25, 2017, 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!” [ECF No. 65, p. 14]. According to the Amended Complaint, “with these tweets, the President stated his intention to create what would later become the Presidential Advisory Commission.” [ECF No. 65, p. 14]. Under FACA, the Commission was established by Executive Order on May 11, 2017. The Executive Order instructs the Presidential
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Advisory Commission to “study the registration and voting processes used in Federal elections.” [ECF No. 65, p. 15]. The Amended Complaint alleges that “the Executive Order does not contain any authority to amass a national voter database, collect personal voter data, to initiate investigations, or to seek the disclosure of state voter data. It says nothing about uploading voter’s data and information to a White House computer.” [ECF No. 65, p. 15].
On June 23, 2017, the Commission filed its Charter. Plaintiffs’ Amended Complaint notes that “[t]he Charter says nothing about amassing a national voter database, collecting personal voter data, initiating investigations, or seeking the disclosure of state voter data. And like the Executive Order, it says nothing about uploading individuals’ voting history and data to a White House computer.” [ECF No. 65, p. 15]. The Amended Complaint then addresses, and challenges, some of Secretary Kobach’s actions:
Mr. Kobach “initiated a process to collect detailed voter information, including personal identifying information, from all 50 States and the District of Columbia. This request had never occurred before, notwithstanding the existence of the U.S. Election Assistance Commission created by the Help America Vote Act of 2002. 52 U.S.C. §§ 20921-20930.” [ECF No. 65, p. 15].
Moreover, the Amended Complaint further alleges that “[o]n June 28, 2017, prior to all [of the] Commission’s members being publicly named and sworn in, and before
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any duly noticed meetings, Vice Chair Kobach stated during a phone call with Commission members that ‘a letter w[ould] be sent today to the 50 States and [the] District of Columbia on behalf of the Commission requesting publicly-available data from state voter rolls[.]’” [ECF No. 65, p. 16]. According to Plaintiffs, “[t]he conference call—which took place mere hours before the letters were sent—was the first time Commission members were informed of the letters requesting voter information. The timing of this disclosure deprived commission members of the opportunity to consult with other members of the Commission or to formulate and express their views as to the legality or propriety of this action.” [ECF No. 65, p. 16].
The Amended Complaint alleges that “[o]ne of the Vice Chair’s hastily sent letters on June 28, 2017 was sent to Florida Secretary of State Ken Detzner.” [ECF No. 65, p. 17]. These letters
include a request for voter identifying information, 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.” [ECF No. 65, p. 18]. As outlined in the Amended Complaint, the Vice Chair’s letters also sought “[w]hat evidence or information [the state had] regarding instances of voter fraud or registration fraud” and “[w]hat convictions for election related crimes ha[d] occurred in
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[the] state since the November 2000 federal election.” [ECF No. 65, p. 18]. Plaintiffs filed an earlier version of their lawsuit on July 10, 2017. The Amended
Complaint alleges that at least nine states refused to provide any voter data as of the date they filed their lawsuit. According to the Amended Complaint, President Trump responded to the news that numerous states were objecting to the production of voter data to the Commission by tweeting, “Numerous states are refusing to give information to the very distinguished VOTER FRAUD PANEL. What are they trying to hide?” [ECF No. 65, p. 21].
The Amended Complaint then discusses the circumstances underlying Florida’s response to the request for voter registration data:
Two days after a hearing denying a preliminary injunction seeking to enjoin certain Commission activities on a related case in Washington, D.C., the Commission – on July 26, 2017 – met again, in secret and without public notice, and again without the full input and participation of all Commission members. That day, Vice Chair Kobach sent a second letter again asking States to upload voter data. This time, states were directed to “transmit the data to the White House computer system.” Like the first letter, the public had no opportunity whatsoever to comment contemporaneously. [ECF No. 65, p. 23]. The allegations proceeded: “Wasting no time, Florida Secretary of State Ken Detzner uploaded the data that very day to the White House computer.” [ECF No. 65, p. 23]. Plaintiffs’ Amended Complaint notes that Secretary Detzner’s disclosure “remained subject to limitations under Florida law that this Court had in place since a
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July 20, 2017 ruling on Plaintiff’s Motion for Temporary Restraining Order.”4 [ECF No.

65, p. 23].

The Amended Complaint references a lawsuit which Mathew Dunlap, Maine’s

Secretary of State, who was also a member of the now-terminated Commission, filed

against the Commission. According to Plaintiffs, “Secretary Dunlap has sounded the

alarm on the secretive nature of the Commission. He has blown the whistle, exposing

the corrupt nature of this Commission. The Secretary has called the Commission out for

its hidden agenda, as well as the Commission’s violations of the sunshine and

transparency that FACA requires.” [ECF No. 65, p. 24].

Specifically, as alleged in the Amended Complaint, Secretary Dunlap’s lawsuit

exposed that “the purported bi-partisanship of the Commission is a facade, hiding the

reality of the Commission’s actual work;” “Dunlap and other Commission members

have no idea what the purpose of the Commission’s voter database is and for what

purpose its information has been gathered;” “the Commission has obstructed Dunlap

and other Commission members from participating in the substantive process of the

Commission’s work;” and “the Commission’s legitimacy, any findings it may purport

to make, [and] what the Commission does with the voter data on the White House

4

The District Court did not issue a ruling on the merits of the claims but it denied

without prejudice the motion for a temporary restraining order. In doing so, however,

the District Court emphasized that the Florida Secretary of State will limit his response

to the Commission to the information allowed by Florida law. The Court also

underscored that Mr. Detzner would “continue to comport with all protections

governed by Florida law.” [ECF No. 31].

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computers are all compromised.” [ECF No. 65, pp. 25-26]. As alleged by Plaintiffs, “by secretly tinkering with the data behind closed White
House doors, the Commission has up-ended FACA’s very soul of openness and transparency. Plaintiffs and the public have no idea what is behind being done with their data. Or for what purpose.” [ECF No. 65, p. 27].
The Amended Complaint also alleges that the now-terminated Commission is exposing voter data to a cyber hacking threat and that it violated FACA; Constitutional Separation of Powers and Article II; the Paperwork Reduction Act; and a Florida statute concerning voter information and voter registration confidentiality.
Neither the Federal Defendants nor Florida Secretary of State Detzner has filed answers to the Amended Complaint. Instead, they have filed motions to dismiss. [ECF Nos. 86-87].
United States District Judge Marcia G. Cooke entered an order referring all nondispositive matters to the Undersigned, and later issued another order also referring Plaintiffs’ Emergency Motion. [ECF Nos. 32; 70].
The Emergency Motion for Injunctive Relief On January 3, 2018, the Federal Defendants’ counsel filed a “Notice of Executive Order,” announcing that President Trump had earlier in the day signed an Executive Order terminating the Commission. [ECF No. 68]. The notice explained that defense counsel would “confer with counsel for the plaintiffs about next steps for moving
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forward.” [ECF No. 68, p. 1]. But two days later, on January 5, 2018, Plaintiffs filed their emergency motion.
On January 8, 2018, the Undersigned entered an Order requiring expedited briefing. [ECF No. 71]. That Order required, among other things, an updated declaration from Christopher Herndon, Director of White House Information Technology and Deputy Assistant to the President, (responding to the allegations) and an updated declaration from Secretary Kobach. Secretary Kobach previously signed a letter (as opposed to a declaration) dated July 26, 2017, which was filed as an attachment to Secretary Detzner’s August 14, 2017 motion to dismiss the initial Complaint. [ECF No. 38].
My briefing Order required the Federal Defendants to identify (1) the current and precise location of the voter information obtained from the State of Florida; (2) what person or persons have access to this information; (3) how the information is stored; (4) whether the federal government plans to distribute this information to the Department of Homeland Security, ICE, or another agency; (5) whether such distributions have already occurred; and (6) whether there are any guidelines or procedures in place limiting the distribution of and access to the voter information.
The Federal Defendants filed a motion to amend the briefing Order, asking for a vacatur of the requirement that an updated declaration from Secretary Kobach be submitted. Plaintiffs filed an objection to the motion to amend, and the Undersigned denied the motion. [ECF Nos. 78; 80]. The Federal Defendants pursued an appeal and
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Judge Cooke entered an Order granting in part and denying in part the appeal. [ECF Nos. 81; 83].
In that Order, Judge Cooke noted that Mr. Herndon’s updated declaration and Secretary Kobach’s letter did not fully address Plaintiffs’ concerns about the intended use of information collected by the Commission. Judge Cooke explained that “[s]pecifically, there is no mention of what other information, if any, was collected by the Commission and what plans the Commission made, if any, to maintain or dispose of the information upon the termination of the Commission.” [ECF No. 83, p. 2]. The Order further highlighted the fact that “[w]hile Mr. Herndon can attest to who accessed the voter information stored on the White House system, he himself was not a member of the Commission who can state with authority and knowledge what additional information or records may have been collected or created, where they were kept, by whom they were accessed, and what plans were made to keep or dispose of them once the Commission ended.” [ECF No. 83, p. 2].
Moreover, the Order further explained that “[i]n light of statements made by Mr. Kobach after the termination of the Commission, additional information regarding the Commission and its activities is necessary to render an informed decision on Plaintiff’s Emergency Motion.” [ECF No. 83, p. 3]. The Order further pointed out that “Federal Defendants should not be able to avoid making statements regarding the Commission simply because the Commission was terminated—and terminated specifically as a
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result of pending lawsuits.” [ECF No. 83, p. 3]. After presenting these substantive points, Judge Cooke’s order required the
Defendants to submit a declaration from Secretary Kobach or another member of the Commission with knowledge of the Commission’s activities and authority to speak on the Government’s behalf on the same type of information required in the Undersigned’s briefing Order: “what information was collected or created by the Commission and/or its members on behalf of the Commission, where that information was and is being stored, by whom the information has been accessed, and what plans were made by the Commission to maintain or dispose of the information, including the voter information data held by the DWHIT, upon termination of the Commission.” [ECF No. 83, p. 3].
To promote efficiency and eliminate the need for additional briefing, the Undersigned directed the Federal Defendants to file an amended response to the emergency motion, to address the new points in the forthcoming declaration required by Judge Cooke’s Order. [ECF No. 85]. The Federal Defendants filed their amended response in opposition to the emergency motion and Plaintiffs filed a reply. [ECF Nos. 89; 95]. Secretary Detzner also filed a response to the emergency motion. [ECF No. 79]. The Motion (Substantively)
Plaintiffs’ emergency motion seeks a temporary restraining order, a preliminary injunction, and other appropriate emergency injunctive relief. The motion requests the following relief: an Order “prohibiting Defendants from misappropriating,
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disseminating, selling, assigning, conveying, transferring, hypothecating, or utilizing, in
any way, any private voter data or any other information collected or otherwise
obtained by the Commission, and ordering the Florida Secretary of State to remain
bound by this Court’s Order of July 20, 2017 [ECF No. 31]” and “to continue to comport
with all protections governed by Florida law, pending further order of Court.” [ECF No.
69, p. 21 (emphasis added)].
The emergency motion emphasized Secretary Kobach’s public comments
following the Commission’s termination and also emphasized a White House press
release, also issued on January 3, 2018 (the day the Commission was terminated).
Plaintiffs allege that the White House released a press release stating:
Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry. Rather than engage in endless legal battles at taxpayer expense, today President Donald J. Trump signed an executive order to dissolve the Commission, and he has asked the Department of Homeland Security to review its initial findings and determine next courses of action.
[ECF Nos. 69, p. 9 (emphasis added); 69-14, p. 3 (an exhibit press release attached to the
motion supporting that specific wording)].
However, another exhibit press release attached to the motion is worded slightly
differently:
Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry. Rather than engage in endless legal battles at taxpayer expense, today I signed an executive order to
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dissolve the Commission, and have asked the Department of Homeland Security to review these issues and determine next courses of action. [ECF No. 69-14, p. 2 (emphasis added)]. So one version of the press release mentions that President Trump asked the Department of Homeland Security to review the Commission’s “initial findings,” while the other version substitutes the words “these issues” for “its initial findings.” But the emergency motion also quotes a statement from the White House Press Secretary the following day (i.e., January 4, 2018), which does mention “findings” (as opposed to “issues”): “‘we are going to send the preliminary findings from the Commission to the Department of Homeland Security and make determinations on the best way forward from that point’” because “‘that was the agency best determined by the Administration and we are moving forward in letting them take over the process.’ The White House, Press Briefing with Press Secretary Sarah Sanders, YouTube (Jan. 4, 2018), https://youtu.be/mHDHfUhEkrw?t=5127, beginning at 1:25:27.” [ECF No. 69, pp. 11-12 (emphasis supplied)]. The emergency motion articulates Plaintiffs’ theory about the need for emergency injunctive relief, and one of the primary reasons is their allegation that President Trump, Secretary Kobach, and others “enacted a scheme” to, among other goals, “turn the private voter data over to ICE and Secretary Kobach, so they can, at a minimum, “Stop Aliens From Voting.” [ECF No. 69, p. 11 (emphasis added)]. Plaintiffs emphasize their concern over the private voter data collected by the
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Commission and stored on White House computers several times in their emergency motion. For example, they allege that “it is abundantly clear” that the Federal Defendants “plan to disseminate the state voter data for their own ends as they please, and may have done so already.” [ECF No. 69, p. 11 (emphasis added)]. Likewise, they allege that the Federal Defendants “have either already utilized the state voter data for means not authorized by FACA, the PRA, or any other authority governing the Commission; or will be doing so very, very soon.” [ECF No. 69, p. 12 (emphasis added)].
Similarly, Plaintiffs allege that they “oppose the dissemination, collection, and potential distribution of their voter and identity information, and they are concerned about the potential distribution of their voting history and personal voter information, and the potential for misuse of that information.” [ECF No. 69, p. 13 (emphasis added)].
In the section of the motion addressing the all-important irreparable harm requirement, Plaintiffs allege an “imminent threat of their private, personal data – which was obtained under the facade of a FACA commission – being transferred to ICE and other persons, many of whom may not yet be known, to suppress the right to vote and other reasons not yet known.” [ECF No. 69, p. 18 (emphasis added)]. And their discussion of why they believe injunctive relief would serve the public interest notes that “the public interest is to prevent the transfer of private, protected voter data to others who are not affiliated with the Commission for illegitimate, non-Commission
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purposes.” [ECF No. 69, p. 19 (emphasis added)]. The Federal Defendants’ Substantive Response (including Representations in Declarations and Other Materials)
The Federal Defendants’ amended response [ECF No. 89] mirrors their initial response [ECF No. 82] -- but includes an additional declaration from Andrew Kossack, Associate Counsel in the Office of the President (and legal argument discussing the information provided in the additional declaration). Mr. Kossack’s declaration [ECF No. 89-5] explains that he was the Executive Director and Designated Federal Officer for the Commission before it was dissolved on January 3, 2018.
The Federal Defendants’ amended opposition response provides a factual update about the status of the voter data collected by the Commission and outlines myriad legal challenges to the motion, including Plaintiffs’ purported lack of standing and the argument that FACA does not provide a private right of action.
But the Undersigned need not grapple with these legal attacks because the factual update is sufficient to establish that Plaintiffs are not entitled to the extraordinary relief of an emergency injunction against federal government officials and former members of a now-disbanded Presidential Commission.
The material factual updates are listed below: 1. The President signed an Executive Order on January 3, 2018, terminating the Commission.
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2. All of the state voter data provided to the now-terminated Commission, including the state voter data from Florida, is encrypted and stored in a separate container within a designated domain.
3. Only four members of the White House Informational Technology (“WHIT”) department staff have had access to the data.
4. These four staff members are not authorized to transfer or use the voter data.
5. No Commission member was ever provided access to the state voter data before the Commission was terminated and none has access now.
6. No dedicated laptops were issued to any Commissioner. 7. The state voter data has never been transferred to, accessed by, or used by the Department of Homeland Security (“DHS”) or any other agency. 8. The state voter data will not be transferred to or accessed or used by DHS or any other agency, except to the NARA, pursuant to federal law, if the records are not otherwise destroyed. 9. The White House intends to destroy all state voter data. Until that happens, the data will continue to be maintained by the WHIT technical staff as Presidential Records. 10. The Commission never created any preliminary findings.
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11. Secretary Kobach never accessed the state voting data collected by the

Commission and does not now have access to it.5

12. The Commission had only two meetings: one on July 19, 2017 and one on

September 12, 2017.

13. After the Commission was dissolved, the Director of White House Office

of Records Management sent a letter to all former Commissioners, instructing them to

forward any records they created or received regarding Commission work that they

had not already sent to the Executive Office of the President for preservation.

14. No Commission records or data will be transferred to another agency,

except perhaps to NARA.

The Florida Secretary of State’s Response

Secretary Detzner’s response [ECF No. 79] opposes the emergency motion and

emphasizes that this Court previously permitted him to provide a public record

response to the Federal Defendants to the extent permitted by Florida law. He also

noted that the emergency motion did not criticize him for providing the information

and did not suggest that he intends to take any objectionable future actions. And he

underscores the point that the emergency motion does not allege that he has any control

5

This update came from a January 16, 2018 letter signed by Secretary Kobach, not

a declaration made under penalty of perjury. Nevertheless, the January 9, 2018

declaration signed by Charles Herndon was signed under penalty of perjury, and it

represents that “no Commission member was provided access to the state voter data

prior to the Commission’s termination and none has access now.” [ECF No. 89-2]. Thus,

this unequivocal declaration includes, by definition, Secretary Kobach.

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over the dissemination of information by the Federal Defendants. The Secretary also contends that the emergency request for injunctive relief against him should be denied because it impermissibly “seeks an injunction to ensure compliance with a previous temporary restraining order.” [ECF No. 79, p. 3].
At bottom, Secretary Detzner’s position is that Plaintiffs have no controversy with him. Thus, he argues that the emergency motion should be denied as to him.
Plaintiffs’ Reply In their reply [ECF No. 95], Plaintiffs assert a new form of relief, not urged in their emergency motion: they ask that the Court require the Federal Defendants to promptly destroy the state voter data. Plaintiffs also challenge the Federal Defendants’ submission of an updated declaration by Andrew Kossack because Judge Cooke’s Order (on the appeal of my ruling denying the Federal Defendants’ motion to eliminate the requirement that Secretary Kobach submit an updated declaration) requires a declaration from either Secretary Kobach or another Commission member (and Mr. Kossack is not a former Commissioner). Because Mr. Kossack was not a Commissioner, Plaintiffs argue, his representation (under penalty of perjury) that the Commission did not create any preliminary findings “should be viewed skeptically.” [ECF No. 95, p. 6]. Plaintiffs theorize that “one reason Kobach does not want to sign a sworn declaration is because he has been recently sanctioned for making intentionally
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misleading statements in court.” [ECF No. 95, p. 5, n. 3]. They refer to a Kansas federal court which “upheld an inherent-power sanction against Kobach, which included a $1000 fine and the requirement that he be deposed, where Kobach ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons,’ where Kobach intentionally misled the court.” [ECF No. 95, p. 5, n. 3 (quoting Fish v. Kobach, 267 F. Supp. 3d 1297, 1302-03 (D. Kan. 2017)]. In that case, a district court judge denied Secretary Kobach’s appeal of a magistrate judge’s Order imposing sanctions against him. The Court rejected the appeal as untimely and waived the new explanation that Secretary Kobach’s lack of clarity in response to a sanctions motion was due to “last-minute editing mistakes” and held that the magistrate judge did not commit clear error in imposing the fine against Secretary Kobach for “misleading the court.”6 Fish, 267 F. Supp. 3d at 1302.
The reply also argues that “this case” is about more than the voter information data held by the DWHIT. [ECF No. 95, p. 6 (emphasis supplied)]. It contends that “the existence of other Commission records and data, in addition to the voter information data held by the DWHIT, cannot be disputed.” [ECF No. 95, p. 7]. In fact, a significant portion of the reply discusses Commission records and data other than the voter information data forwarded by the states.
Given the legal challenges asserted in the Federal Defendants’ response,

6

Secretary Kobach pursued an appeal to the Tenth Circuit Court of Appeals but

later filed a motion to dismiss the appeal, which the appellate court granted. Fish v.

Kobach, No. 17-3161, 2017 WL 7065741 (10th Cir. Aug. 30, 2017).

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Plaintiffs’ reply responds to some of them, such as the argument that Plaintiffs have FACA standing and a private right of action. But the Undersigned is not going to wrestle with those legal issues because my recommendation hinges on fact-based grounds demonstrating that Plaintiffs have not met their burden of establishing all the requirements for injunctive relief. Applicable Legal Principles and Analysis
“The grant or denial of a preliminary injunction is a matter within the discretion of the district court, reviewable only for abuse of discretion or if contrary to some rule of equity.” United States v. Jefferson Cty., 720 F.2d 1511, 1519 (11th Cir. 1983) (internal citations omitted).
To obtain a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure, the movant must establish that (1) there is a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury exists if an injunction is not granted; (3) the threatened injury to the plaintiff outweighs any harm that an injunction may cause the defendants; and (4) issuing the injunction will not harm the public interest. Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002).
As the Eleventh Circuit has made clear, a preliminary injunction is an “extraordinary and drastic remedy” that is granted only where the movant clearly establishes the “burden of persuasion” as to each of these requirements. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (internal quotation omitted) (emphasis added).
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Indeed, the granting of a preliminary injunction “is the exception rather than the rule.” Id. (quoting Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975)). See also Ne. Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (noting that given the extraordinary and drastic nature of the requested relief, the burden of persuasion “is at all times upon the plaintiff”) (internal quotations omitted).
Moreover, a showing of irreparable injury is “the sine qua non of injunctive relief.” Siegel, 234 F.3d at 1176 (quoting Ne. Fla. Chapter, 896 F.2d at 1285 (internal quotation omitted)). In other words, irreparable harm is “the single most important prerequisite for the issuance of a preliminary injunction.” Rodriguez ex rel. Rodriguez v. Debuono, 175 F.3d 227, 233-34 (2d Cir. 1999) (internal quotation omitted); see generally Franklin v. Votypka, No. 07-61848, 2009 WL 1286335, at *1 (S.D. Fla. May 6, 2009) (noting that the irreparable harm factor is “the most important requirement for an injunction”).
As the United States Supreme Court has explained, the “basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies[.]” Sampson v. Murray, 415 U.S. 61, 88 (1974) (internal quotation omitted).
Framed by this approach, which underscores the critical importance of the irreparable harm requirement, a plaintiff’s success in establishing the likelihood it will prevail on the merits does not obviate the necessity to show irreparable harm. Indeed, a court does not need to address each element when “no showing of irreparable injury
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was made.” Ne. Fla. Chapter, 896 F.2d at 1285; see also Siegel, 234 F.3d at 1176 (“the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper” even if a plaintiff established a likelihood of success on the merits) (internal citations omitted); Jefferson Cty., 720 F.2d at 1519 (“unnecessary to address the other prerequisites to such relief” when a movant does “not carry the burden as to irreparable harm”). Before analyzing Plaintiffs’ success in establishing irreparable harm, the Undersigned will first address two procedural points and a factual issue.
First, Plaintiffs assert for the first time in their reply the new argument (or request for relief) that the Federal Defendants be required to promptly destroy all voter data collected from the states. Federal courts do not consider arguments raised for the first time in a reply (because the other side does not have the opportunity to respond). Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014) (finding that arguments raised for the first time in a reply “come too late”); Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008) (“[w]e decline to address an argument advanced by an appellant for the first time in a reply brief”) (internal citation omitted); see also Grasso v. Grasso, 131 F. Supp. 3d 1303, 1309 (M.D. Fla. 2015) (“the case reporters are replete with cases wherein court declined to consider arguments raised for the first time in a reply”) (internal citation omitted). Therefore, the Undersigned will not consider the new demand for prompt destruction of the voter registration data.
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Second, Plaintiffs argue in their reply that “the case” involves documents and records other than the private voter registration data and voter information. That may well be, but their emergency motion (as opposed to the entire case) focused only on the voter information, not the other Commission “records” that may not have been completely turned over (because Plaintiffs suspect that some Commissioners may have retained some “records”). Therefore, the evaluation of Plaintiffs’ emergency motion concerns the voter information, not other records that may still in some way be part of the lawsuit.
Therefore, Mr. Kossack’s recently-filed declaration may leave unanswered some questions about the continued existence and location of other categories of Commission-related documents and information besides the voter data. Plaintiffs do not specify what these other documents and information might be, and Mr. Kossack’s declaration does not shed light on them either. But whatever those other documents are, one point is clear: they are not private voter data, because the Commissioners never accessed the data in the first place and cannot do so now. So Plaintiffs may be concerned about these other documents and that concern may well be legitimate, but those worries relate to issues other than the private voter data that formed the foundation of the emergency motion. Consequently, it need not be evaluated when determining the viability of the emergency motion for injunctive relief.
Third, Plaintiffs’ emergency motion is, to a large extent, based on Secretary
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Kobach’s post-termination remarks and the White House press releases issued on the same day of the termination (or the day after). But now that the Federal Defendants have submitted declarations (and Secretary Kobach’s letter), it seems clear that those comments were premature, incorrect, speculative, exaggerations, predictions, illinformed, incomplete, flat-out wrong or some combination of those scenarios.
Plaintiffs may have suspected that the voter information data provided by Mr. Detzner and other state officials has been provided to Homeland Security, ICE, or some other federal law enforcement agency. But the evidence submitted to the Court establishes that those suspicions have proven to be incorrect. To be sure, it is not surprising that Plaintiffs developed those suspicions, given Secretary Kobach’s remarks (which neither he nor the Federal Defendants have denied were actually said). But the Undersigned has no reason to doubt the unequivocal representations, made under penalty of perjury, that no Commissioner (including Secretary Kobach) was ever provided with the voter data or ever had access to it. To the extent that Secretary Kobach’s representation is in a letter rather than a declaration, the other declarations establish and confirm that he never had access to the voter data.
To the extent that the press releases mentioned (on January 3rd and 4th of 2018) that the Department of Homeland Security would review the Commission’s initial findings, the only evidence (as opposed to suspicious speculation) before this Court is that the Commission never made any findings (initial, preliminary, final, or otherwise).
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To be sure, it would have been more accurate if the press releases had initially said that the Commission had not made any findings or had been phrased in a more-neutral way (e.g., “initial findings, if any were even made in the first place”). But the Undersigned is not going to recommend emergency injunctive relief because of some sloppy or inartful phrasing in a two-sentence press release issued on the very day the Commission was terminated (or the following day) when the later-received evidence establishes that the press release mistakenly gave the impression that initial findings had been reached.
The Undersigned concludes that Plaintiffs have not established a substantial threat of irreparable injury absent emergency injunctive relief based on their theory that former Commission members or the White House will disseminate or transfer voter data. The Commission has been terminated, no Commissioner was provided access to the voter data information and no Commissioner currently has access. Moreover, the White House intends to destroy all state voter data collected by the Commission -- and if that plan is not carried out, then the data will ultimately be transferred only to NARA.
Under these circumstances, Plaintiffs’ suspicions, which may well have been well taken several weeks ago, have turned out to be incorrect or, at best, speculative. In other words, Plaintiffs have not established irreparable harm. N.E. Florida Chapter, 896 F.2d at 1285 (finding that injury “must be neither remote nor speculative, but actual and imminent”) (internal quotation omitted); see also Transunion Risk & Alt. Data Sols., Inc. v. Challa, 676 F. App’x. 822, 826 (11th Cir. 2017) (affirming denial of preliminary
29

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injunction, crediting testimony that defendant, a former employee, that he has not and would not disclose any proprietary information and rejecting argument that “the mere possibility” of disclosure of confidential information required a finding of irreparable harm). See generally Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (“Because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate – as opposed to a merely conjectural or hypothetical – threat of future injury.”) (internal citation omitted); see also Ruffin v. Great Dane Trailers, 969 F.2d 989, 995 (11th Cir. 1992) (finding that “injunction is inappropriate if possibility of future harm arising from the behavior plaintiff seeks to enjoin is purely speculative) (internal citation omitted); Ne. Fla. Chapter, 896 F.2d at 1286 ( finding that conclusory allegation of irreparable harm in verified complaint and assertion of speculative economic injury at injunction hearing were inadequate to support an injunction order); Morton v. Copenhaver, No. 114-095, 2014 WL 12573838, at *1 (S.D. Ga. 2014) (“Unsubstantiated allegations of injury cannot provide the basis for establishing the irreparable harm required for an injunction to issue.”) (internal quotation omitted); Nat’l Airlines, Inc. v. Airline Pilots Ass’n Int’l, 431 F. Supp. 53, 55 (S.D. Fla. 1976) (“Speculative injury is not sufficient; there must be more than unfounded fear on the part of the applicant.”) (internal quotation omitted).
For these reasons, the Undersigned respectfully recommends that Judge Cooke deny Plaintiffs’ emergency motion for injunctive relief.
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OBJECTIONS The parties will have 7 days7 from the date of being served with a copy of this
Report and Recommendations within which to file written objections, if any, with the United States District Judge. Each party may file a response to the other party’s objection within 7 days of the objection. Failure to file objections timely shall bar the parties from a de novo determination by the District Judge of an issue covered in the Report and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report except upon grounds of plain error if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (1989); 11th Cir. R. 3-1 (2016).
RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on February 6, 2018.

Copies Furnished to: Honorable Marcia G. Cooke All Counsel of Record

7

The Undersigned is shortening the objections period because the motion at issue

has been designated as an emergency, the briefing has taken longer than would be

deemed standard for an emergency motion, and the parties have already extensively

briefed the issues.

31

 
 Case 1:17-cv-22568-MGC Document 105 Entered on FLSD Docket 03/19/2018 Page 1 of 3
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-22568-CIV-COOKE/GOODMAN
ARTHENIA JOYNER, et al., Plaintiffs,
vs.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al.,
Defendants. ___________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION THIS MATTER is before me upon U.S. Magistrate Judge Jonathan Goodman’s Report and Recommendations on Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 97). Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction (“Motion”) (ECF No. 69) was referred to Judge Goodman pursuant to 28 U.S.C. § 636(b)(1)(A). See ECF No. 70. Judge Goodman recommends that Plaintiffs’ Motion be denied because Plaintiffs have not established a substantial threat of irreparable injury “based on their theory that former Commission members or the White House will disseminate or transfer voter data.” Report, 29. Specifically, Judge Goodman found that the Commission has been terminated, no Commissioner was provided access to the voter data, no Commissioner currently has access to the voter data, and the White House intends to destroy all state voter data. Id. Based on the evidence presented, Judge Goodman determined Plaintiffs’ concerns were incorrect or, at best, speculative. Id. Plaintiffs filed timely Objections (ECF No. 101) to Judge Goodman’s Report, objecting on four grounds: 1) the Report is based upon errors of fact, in that the Motion is about more than just voter data; 2) the Report fails to consider the “effects and repercussions” of the Federal Defendants’ failure to comply with my January 18, 2018 Order (ECF No. 83) requiring a declaration from a Commission member; 3) the Report does not appropriately consider the substantial threat of irreparable harm to Plaintiffs; and 4) the Report
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inappropriately relies on the Federal Defendants’ factual update, including the unsworn letter from Secretary Kris Kobach.
The Federal Defendants filed a Response to Plaintiffs’ Objections (ECF No. 102). Federal Defendants contest all of Plaintiffs’ grounds for objection. As to Plaintiffs’ first ground for objecting, Federal Defendants argue (with many citations to the Motion), that Judge Goodman correctly characterized Plaintiffs’ Motion as seeking emergency relief based on the Commission’s alleged actions with the state voter data. After reviewing the Motion and the parties’ arguments, I agree with Judge Goodman’s reading of Plaintiffs’ Motion that the basis for emergency relief was the possible dissemination of Plaintiffs’ collected voter data. Further, to the extent Plaintiffs motion did include reference to “other information” collected by the Commission, and to the extent the Commission possesses such other information, Plaintiffs have not indicated how they would be irreparably harmed by the dissemination of the information.
In response to Plaintiffs’ third ground for objecting, Federal Defendants contend that Plaintiffs “have not even attempted to establish irreparable harm.” Resp., 9. While Plaintiffs have indeed attempted to make a case for irreparable harm if their voter information is distributed, as Judge Goodman noted, what they have failed to establish is the likelihood of it occurring such that emergency injunctive relief is necessary. TransUnion Risk & Alternative Data Sols., Inc. v. Challa, 676 F. App’x 822, 825 (11th Cir. 2017) (stating that harm is not irreparable where it is speculative, and it is speculative when the defendant credibly claims he will not engage in the act sought to be enjoined). Tied in to Plaintiffs’ fourth objection, Plaintiffs argue Judge Goodman discounted the harm to Plaintiffs by improperly relying on the factual updates and unsworn letter from Secretary Kobach, which stated that the voter data had not been viewed by anyone other than select White House staff and would not be viewed by anyone else prior to it being destroyed or sent to the National Archives. However, a closer review of Judge Goodman’s report indicates that he did not rely on the unsworn letter of Secretary Kobach, but instead relied on the sworn declarations of Mr. Andrew Kossack, Associate Counsel in the Office of the Vice President, and Mr. Christopher Herndon, Director of White House Information Technology and Deputy Assistant to the President. See generally Report. Judge Goodman noted that Plaintiffs’ provided “no reason to doubt the unequivocal representations, made under penalty of perjury, that no Commissioner (including Secretary Kobach) was ever provided with the voter data or ever had access to it.” Id. at 28. In fact, Judge Goodman
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specifically noted that “[t]o the extent that Secretary Kobach’s representation is in a letter rather than a declaration, the other declarations establish and confirm that he never had access to the voter data.” Once again, I find Judge Goodman’s reasoning to be clear, cogent, and compelling.
Lastly, to Plaintiffs’ objection with the Federal Defendants’ response to my January 18, 2018 Order (ECF No. 83) requiring an updated declaration from a Commission member, I find that the declaration of Mr. Kossack substantially comports with my Order. While not a Commission member himself, Mr. Kossack was the Commission’s Designated Federal Officer and Executive Director, a position that specifically required him to “chair or attend each meeting of [the Commission],” and authorized him, “whenever he determines it to be in the public interest, to adjourn any such meeting.” Resp., 16 (quoting 5 U.S.C. app. 2 § 10(e)) Mr. Kossack also had knowledge of the Commission’s activities, and authority to speak on the Government’s behalf.
“In this Circuit, a preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion . . . .” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (internal citations and alterations omitted). I agree with Judge Goodman that Plaintiffs have not met their burden.
Accordingly, Judge Goodman’s Report and Recommendation (ECF No. 28) is AFFIRMED and ADOPTED as Order of this Court. It is hereby ORDERED and ADJUDGED as follows:
1. Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 69) is DENIED.
2. Plaintiff’s Objections (ECF No. 101) are OVERRULED. DONE and ORDERED in chambers, at Miami, Florida, this 19th day of March 2018.
Copies furnished to: Jonathan Goodman, U.S. Magistrate Judge Counsel of record
3

 
 Case 1:17-cv-22568-MGC Document 108 Entered on FLSD Docket 05/30/2018 Page 1 of 11
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-22568-CIV-COOKE/GOODMAN
ARTHENIA JOYNER, et al., Plaintiffs,
vs.
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al.,
Defendants. _____________________________/
OMNIBUS ORDER GRANTING MOTIONS TO DISMISS THIS MATTER is before me upon Defendant Florida Secretary of State’s [“Secretary Detzner”] Motion to Dismiss Amended Complaint (ECF No. 86) and Federal Defendants’1 Motion to Dismiss Plaintiffs’ Amended Complaint (ECF No. 87). Plaintiffs filed responses in opposition (ECF Nos. 99, 100), and Secretary Detzner and the Federal Defendants filed replies (ECF Nos. 103, 104). After careful consideration, and for the reasons discussed below, Defendants’ motions are granted.
I. BACKGROUND Plaintiffs filed the instant lawsuit against the Federal Defendants and Secretary Detzner alleging four Counts in their Amended Complaint: Violations of the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2, et seq., against all the Federal Defendants (Count I), Breaches of Violations of Constitutional Separation of Powers and Article II against all the Federal Defendants (Count II), Violation of the Paperwork Reduction Act (“PRA”), 44 U.S.C. § 3501, et seq., against all Federal Defendants (Count III), and Violation of Florida Statute § 97.0585 against the Commission and Secretary
1 The Federal Defendants are as follows: the Presidential Advisory Commission on Election Integrity (“Commission”); Michael Pence, in his official capacity as Chair of the Commission; Kris Kobach, in his official capacity as Vice Chair of the Commission; Executive Office of the President of the United States; Executive Office of the Vice President of the United States; Tim Horne, in his official capacity as Administrator of the General Services Administration; and Mick Mulvaney, in his official capacity as Director, Office of Management and Budget.
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Detzner (Count IV). Plaintiffs’ Amended Complaint essentially challenges “the legality of the actions of the newly created [Commission] and the legality of its directive requesting and collecting voter registration information of state-registered voters in Florida and throughout the United States.” Am. Compl., ECF No. 65, ¶ 1.
On July 13, 2017, Plaintiffs filed a Motion for Temporary Restraining Order (ECF Nos. 4, 6), objecting to many of the Commission’s actions, including the Commission’s Request Letter to States asking the States to provide the Commission with various voter identification information. The Motion requested a temporary restraining order (“TRO”) restraining all Defendants from collecting voter data in furtherance of creating a national, centralized voter database; conducting any business until fully complying with the provisions of FACA and the PRA; and transferring to the Commission individualized voter data from Secretary Detzner or otherwise. After a hearing, as well as a review of a ruling in a parallel case in the District Court for the District of Columbia,2 I denied Plaintiff’s Motion for TRO. See Ord. on Pl.’s Motion for TRO, ECF No. 31. In my Order on TRO, I acknowledged Secretary Detzner’s position espoused in his July 6, 2017 letter to the Commission that he would only produce information allowed by Florida law and ordered that he would remain bound by those representations.
The case then proceeded on a normal track until January 3, 2018, when the President signed an Executive Order terminating the Commission. See Not. of Exec. Ord., ECF No. 68. Two days later, Plaintiffs filed an Emergency Motion for TRO and Preliminary Injunction (ECF No. 69), seeking an “emergency [TRO] and/or a preliminary injunct[ion] and/or other appropriate injunctive relief to prohibit Defendants from misappropriating, disseminating, selling, assigning, conveying, transferring, hypothecating, or utilizing . . . any private voter data or any other information collected or otherwise obtained by the [Commission], and ordering [Secretary Detzner] to remain bound by this Court’s July 20, 2017 Order . . . .” Plaintiffs’ Emergency Motion was based on statements made by the President’s Press Secretary and Defendant Kobach, an alleged “notorious vote suppressor,” which implied that the White House, Immigration and Customs Enforcement (“ICE”), and Defendant Kobach would work together to transfer the private data to ICE, allegedly to
2 Lawyers for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity, Case No. 17-1354-CKK, ECF No. 17 (D.D.C. July 18, 2017).
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purge voter rolls in a way that was not susceptible to being stalled through litigation. Emerg. Motion for TRO, 2. I referred the Emergency Motion to the Honorable Jonathan Goodman and the parties briefed the issues. The Federal Defendants submitted some factual updates3 which included the following: all of the state voter data (including the voter date from Florida) was encrypted and stored in a separate container within a designated domain; only four members of the White House Informational Technology (“WHIT”) department staff have or have had access to it, and those four staff members were not authorized to transfer or use the voter data; no Commission member was ever provided access to the data or currently has access; and the data would not be transferred to or accessed or used by DHS or any other agency, except to the National Archives and Record Administration (“NARA”), if the records are not otherwise destroyed. See Rep. and Rec., ECF No. 97, 19– 20. Judge Goodman issued a Report and Recommendations recommending that the Emergency Motion be denied because, based on the factual updates, Plaintiffs had not established irreparable harm. Id. at 29. I agreed with Judge Goodman, adopting his Report and Recommendations. See Ord. Adopting Rep. and Rec., ECF No. 105.
While the Emergency Motion was being decided, Defendants filed the instant Motions to Dismiss, making several arguments, including mootness based upon the dissolution of the Commission. After careful review of the parties’ arguments, I agree that Plaintiffs’ claims are moot and the instant action is due to be dismissed.
II. LEGAL STANDARD Article III of the Constitution confines federal courts to adjudicate only actual “cases” and “controversies.” Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). A moot action cannot be characterized as an active case or controversy. Al Najjar v. Ashcroft, 273 F.3d 1330, 1335
3 Judge Goodman ordered the Federal Defendants to submit an updated declaration from Defendant Kobach. ECF No. 71. The Federal Defendants objected and some litigation ensued, see ECF Nos. 76, 80, 81, ending in my Order on Federal Defendant’s Appeal of Magistrate Judge’s Order (“Order on Appeal”) (ECF No. 83). My Order on Appeal required the Federal Defendants to submit a declaration from Defendant Kobach or another member of the Commission with knowledge of the Commission’s activities and authority to speak on the Government’s behalf. The Federal Defendants submitted a declaration from Mr. Andrew Cossack, Associate Counsel in the Office of the Vice President. I found his declaration substantially comported with my Order on Appeal. See Ord. Adopting Rep. and Rec., ECF No. 105, 3.
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(11th Cir. 2004). “If events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is moot and must be dismissed.” Id. at 1336. “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
However, “[t]he doctrine of voluntary cessation provides an important exception to the general rule that a case is mooted by the end of the offending behavior.” Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1282 (11th Cir. 2004). “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Nat’l Ass’n of Boards of Pharmacy v. Bd. of Regents of the Univ. Sys. of Georgia, 633 F.3d 1297, 1309 (11th Cir. 2011) (internal citations and quotation marks omitted). Yet the law provides an “important exception to this important exception . . . .” Id. “[T]he case may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated.” United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). The Eleventh Circuit has decided that when the defendant is a government actor, “there is a rebuttable presumption that the objectionable behavior will not recur.” Troiano, 382 F.3d at 1283 (emphasis in original) (citing Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328–29 (11th Cir. 2004). “[A] challenge to government policy that has been unambiguously terminated will be moot in the absence of some reasonable basis to believe that the policy will be reinstated if the suit is terminated.” Id. at 1285.
III. DISCUSSION A. Secretary Detzner Secretary Detzner moves to dismiss Plaintiffs’ Amended Complaint on several grounds, one of them being mootness. Because I agree that this case is moot as to Secretary Detzner, I will not address his other grounds for dismissal. Plaintiffs allege in their Amended Complaint that Defendant Kobach, on behalf of the Commission, “initiated a process to collect detailed voter information, including personal identifying information, from all 50 States and the District of Columbia.” Am. Comp., ¶ 40. The information requested included the names, addresses, dates of birth, political party affiliation, last four digits of social security numbers, voting history, and
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conviction information of all registered voters. Id. at ¶¶ 41–48. Plaintiffs correctly note that Florida law does not allow Secretary Detzner to disclose all of this information, a contention with which Secretary Detzner agrees. In fact, based on this undisputed interpretation of the law, Secretary Detzner sent a letter to the Commission on July 6, 2017, stating that much of the information requested was publicly available under Florida Public Records Law, Chapter 119 of Florida Statute, but that certain information, like driver’s license and social security numbers, could not be provided under Fla. Stat. 97.0585. Accordingly, in my Order on TRO, I specifically found that Secretary Detzner’s letter to the Commission appropriately acknowledged Florida privacy laws, and ordered Secretary Detzner to limit Florida’s response to the Commission to the information allowed by Florida law. Secretary Detzner eventually uploaded information in compliance with Florida law and my Order on TRO—a fact Plaintiffs acknowledge.
Now that Florida has already provided the Commission with the publicly available information and the Commission has been disbanded, Plaintiffs do not explain how there remains a continuing case or controversy with respect to Secretary Detzner. Instead, Plaintiffs argue that the voluntary cessation doctrine should apply here and the burden should be on Secretary Detzner to show that the challenged conduct cannot reasonably be expected to start again. Plaintiffs, however, ignore the fact that when the defendant is a government actor, “there is a rebuttable presumption that the objectionable behavior will not recur.” Troiano, 382 F.3d at 1283. The burden is therefore on Plaintiffs to show a “reasonable basis to believe that the policy will be reinstated if the suit is terminated.” Id. at 1285. Plaintiffs have not met this burden, and simply argue that Secretary Detzner’s submission of information occurred quickly and therefore can repeatedly evade review. This argument is disingenuous. Secretary Detzner did not submit any information to the Commission until after the issue had been considered by two separate Courts; there is therefore no basis to believe Secretary Detzner would submit information to a now-defunct Commission without Plaintiffs having the ability to challenge the action in court. This case is moot as to Secretary Detzner.
B. Federal Defendants The Federal Defendants also claim this case no longer presents a justiciable case or controversy and is therefore moot. Plaintiffs disagree, and point out that I acknowledged in
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my Order on Appeal of Magistrate Judge’s Order (“Order on Appeal”) (ECF No. 83) that simply because a Commission ceases to exist does not necessarily render a case moot. While I still agree that dissolution of a Commission does not automatically moot a case, a careful review of the facts of this case and Plaintiffs’ Amended Complaint show that the instant case has indeed become moot as to the remaining Federal Defendants. I therefore will not address the Federal Defendants other proposed grounds for dismissal.
a. Defendants Commission, Pence, and Kobach As an initial matter, Plaintiffs’ claims for relief against the Commission, Michael Pence, in his official capacity as Chair of the Commission, and Kris Kobach, in his official capacity as Vice Chair of the Commission “[are] moot. [Defendants Pence and Kobach are] no longer the [Chair and Vice Chair of the Commission], and [the Commission] no longer exists. A declaratory judgment and use injunction against the nonexistent [Commission] and against [Defendants Pence and Kobach], who no longer hold[] the now non-existent position[s] of [the Commission’s Chair and Vice Chair], would afford [Plaintiffs] no meaningful relief.” Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d 1076, 1081 (11th Cir. 2002).4
b. Remaining Federal Defendants After the dismissal of three of the Federal Defendants, we are left with the Executive Office of the President of the United States, the Executive Office of the Vice President of the United States, Tim Horne, in his official capacity as Administrator of the General Services Administration, and Mick Mulvaney, in his official capacity as Director, Office of Management and Budget. They argue that now that the Commission has been dissolved, there is no reason to believe that any allegedly illegal practices will continue and that the relief sought in Plaintiffs’ Amended Complaint has been effectuated. I agree. Plaintiffs argue, however, that there remains a case or controversy because the voter data remains on the White House computer system and should not be allowed to remain there based on the Commission’s allegedly tainted FACA procedures. Plaintiffs cite to Alabama-Tombigbee Rivers Coalition v. Department of Interior, 26 F.3d 1103, 1107 (11th Cir.
4 While this issue was quickly briefed and considered in my Order on Appeal (ECF No. 83), Federal Defendants have further fleshed out the issue and it is now clear that the instant case is moot as to the Commission and Defendants Kobach and Pence in their official capacities as Commission members.
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1994), which states, “[T]o allow the government to use the product of a tainted [FACA] procedure would circumvent the very policy that serves as the foundation of the Act.” The instant case is markedly different, however. In Alabama-Tombigbee¸ the plaintiffs sought to enjoin the defendant agency from “publishing, employing and relying upon the Advisory Committee report” which was allegedly created in violation of FACA. Id. at 1105. As Defendants note, mootness was not at issue in Alabama-Tombigbee, and here the Commission did not create any report. Further, the data collected by the Commission, whether or not collected in violation of FACA, is not being published, employed, or relied upon by the now-defunct Commission—or anyone else—and will likely be destroyed. See Third Herndon Decl., ¶¶ 3–4.
Plaintiffs contend an intent to destroy data is not a commitment to do anything.5 However, Plaintiffs did not ask for the destruction of the data in their Amended Complaint. Even if they had, Plaintiffs’ Amended Complaint relies heavily on an Amicus Brief, submitted by former national security officials in a similar District of Columbia case, to show that the aggregation of the voter data in one place “may be a compelling target for foreign adversaries seeking to interfere in future elections through a variety of means, as well as for cyber criminals and other malicious actors.” Am. Compl., ¶ 92 (quoting Amicus Brief of Former National Security and Technology Officials in Common Cause v. Presidential Advisory Commission on Election Integrity, U.S.D.C. Case No. 17-Cv-01398-RCL (D.D.C) (ECF No. 38-1)). As frightening a hypothetical as that may be, I cannot say that it rises above the speculative level to create a “certainly impending” present risk of injury, which would constitute a live controversy and save this case from mootness. See Clapper v. Amnesty Intern. USA, 568 U.S. 398, 410 (2013) (A “threatened injury must be certainly impending to constitute injury in fact.”).
Moreover, now that the Commission is disbanded, the proper Defendant in an action seeking the destruction of data would be the current custodian of the data. See Ctr. for Arms Control & Non-Proliferation v. Pray, 531 F.3d 836, 839 n* (D.C. Cir. 2008) (“Even if the [plaintiff’s] claims against the Commission and its executive director became moot when the
5 Plaintiffs argue that Defendants may hold their data indefinitely; however, Mr. Herndon’s declaration states that the information is being maintained “pending resolution of outstanding litigation involving the Commission and pending consultation with [National Archives and Records Administration], pursuant to Federal law.” Third Herndon Decl., ¶ 4.
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Commission relinquished custody of its records and ceased to exist, [a] case is not moot because, regardless whether mandamus relief is available, a declaration of the [plaintiff’s] legal right to the materials could form the basis of an injunction against the [current legal custodian of the records].”) (alterations and emphasis added). None of the remaining four Defendants are the custodians of the data, and they are therefore not in a position to release or destroy the information.
Similarly, to the extent Plaintiffs seek access to other records besides the voter data,6 such as “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,” 5 U.S.C. app. 2 § 10(b), such access claims are also limited at this time to the current custodian of the records. See Ctr. for Arms Control, 531 F.3d at 838, 839 n*. As stated above, such claims are moot as to the Defendants in this case.
As a last attempt to save their case, Plaintiffs claim that the voluntary cessation doctrine applies in the instant case as to the Federal Defendants. Plaintiffs’ fail to address any of Federal Defendants’ cited authority, much of which pertains to FACA lawsuits, and simply cite to Flanigan’s Enterprises, Inc. of Georgia v. City of Sandy Springs, 868 F.3d 1248, 1256–57 (11th Cir. 2017) in support of their position. In Flanigan’s, the Eleventh Circuit noted as follows: “Because of the deference with which we view voluntary changes in government action, a plaintiff disputing a finding of mootness must present more than ‘[m]ere speculation that the City may return to its previous ways.’” Id. at 1256 (quoting Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005). “The key inquiry in this mootness analysis therefore is whether the evidence leads us to a reasonable expectation that the City will reverse course and reenact the allegedly offensive portion of its Code should this Court grant its motion to dismiss.” Id. The court went on to outline three factors to guide the inquiry into whether mootness applies to a specific government action: 1) whether the conduct resulted from substantial deliberation or is merely an attempt to
6 Plaintiffs argue in their Response to Federal Defendants’ Motion that they are entitled to this information and therefore their Amended Complaint has not been mooted; however, the request for relief only mentions records other than voter data once, when Plaintiffs request Defendants be enjoined from utilizing the product of any materials or information obtained or produced in violation of FACA. Am. Compl., ¶ B. That has been achieved by the dissolution of the Commission.
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manipulate the court’s jurisdiction; 2) whether the government’s decision to terminate the challenged conduct was “unambiguous”; and 3) whether the government has consistently maintained its commitment to the new policy or legislative scheme. Id. at 1257. Flanigan’s did not involve a FACA Commission, and therefore the factors do not perfectly align with the events in the instant case. However, the Flanigan’s court noted that “these factors should not be viewed as exclusive nor should any single factor be viewed as dispositive. Rather, the entirety of the relevant circumstances should be considered and a mootness finding should follow when the totality of those circumstances persuades the court that there is no reasonable expectation that the government entity will reenact the challenged legislation.” Id.
Plaintiffs claim that the Commission was terminated to manipulate this Court’s jurisdiction and was therefore not the result of substantial deliberation. Specifically, Plaintiffs allege the President dissolved the Commission in an attempt to avoid complying with an order in a separate case in the District Court for the District of Columbia, Matthew Dunlap v. Presidential Advisory Commission on Election Integrity, 1:17-cv-02361-CKK. The Dunlap case, however, is vastly different from the instant matter—Mr. Dunlap, the plaintiff, being a former Commission member, see Am. Comp. ¶ 42—and does not show that the termination of the Commission was an effort to thwart this Court’s jurisdiction. Next, Plaintiffs argue that the decision was not “unambiguous” because the President tweeted, and Defendant Kobach and the President’s Press Secretary stated, the Commission’s work would continue at the DHS.7 In addition, they argue the updated factual declarations submitted by the Federal Defendants in response to Plaintiffs’ Emergency Motion are illusory and without substance, although they fail to provide any “reason to doubt the unequivocal representations[] made under penalty of perjury.” Rep. and Rec., 28. Lastly, Plaintiffs argue that the government has not consistently maintained its commitment to ending the Commission’s agenda because the statements regarding DHS show there is an intent to continue with the Commission’s work. Taken in their totality, Plaintiffs argue the circumstances show that “the purported dissolution is not a sufficiently convincing policy reversal.”
7 Notably, the DHS is not a party to this case.
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However, as I noted above, the Flanigan’s factors are not specifically tailored to a FACA case. For Plaintiffs claims to remain alive, the government would have to recreate the Commission and conduct it in a way that allegedly violates FACA, the PRA, and the Constitutional Separation of Powers. See Byrd v. U.S. E.P.A., 174 F.3d 239, 244 (D.C. Cir. 1999) (noting that plaintiff’s “injury would be mooted if EPA convened another panel . . . in compliance with FACA and provided [plaintiff] with all panel documents either before or at the meeting”); Citizens for Responsibility & Ethics in Washington v. Duncan, 643 F. Supp. 2d 43, 51 (D.D.C. 2009) (“Moreover, it is undisputed that the New Panel is chartered under FACA, and to date, this panel has satisfied all of its requirements under FACA. These actions by the Department eliminate the need for this Court to grant declaratory and injunctive relief.”). While Plaintiffs allege that the underlying work and secret agenda of the Commission may continue, the claims they alleged in their Amended Complaint were for violations of the FACA, PRA and the Constitutional Separation of Powers as they related to the running of the Commission. Even assuming arguendo Plaintiffs’ claims were meritorious prior to the dissolution of the Commission, Plaintiffs have not shown how the continuation of that work by entities that are not parties to this case would violate FACA, the PRA, or the Constitutional Separation of Powers as it relates to the Federal Defendants named in this action.
The issue in this lawsuit is whether the Commission and the other named Defendants violated FACA and whether Plaintiffs have shown that the Commission is likely to be reinstated and run in such a way that violates the FACA, PRA and the Constitutional Separation of Powers. The burden is on Plaintiffs to show such reinstating of the Commission is likely, and they have not done so. Should the Commission be reinstated and run in a manner inconsistent with FACA, “the courthouse door is open to [Plaintiffs] to reinstate [their] lawsuit. Under such circumstances, the case would not be moot even if the [Commission were again dissolved] in response to the lawsuit, because such ‘flip-flopping’ would create a reasonable expectation that the [Defendants] would reinstate the challenged practice at the close of the lawsuit.” Jews for Jesus, Inc. v. Hillsborough Cty. Aviation Auth., 162 F.3d 627, 630 (11th Cir. 1998). Until that time, this case is moot.
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Case 1:17-cv-22568-MGC Document 108 Entered on FLSD Docket 05/30/2018 Page 11 of 11 IV. CONCLUSION
Accordingly, it is hereby ORDERED and ADJUDGED as follows: 1. Florida Secretary of State’s Motion to Dismiss Amended Complaint (ECF No. 86) is
GRANTED. 2. Federal Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint (ECF No.
87) is GRANTED. 3. Plaintiffs’ Amended Complaint is DISMISSED. The Clerk of Court shall CLOSE
this case. All pending motions, if any, are DENIED as moot. DONE and ORDERED in chambers, at Miami, Florida, this 30th day of May 2018.
Copies furnished to: Jonathan Goodman, U.S. Magistrate Judge Counsel of record
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