CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/3/2023 1

The Presidential Advisory Commission 

on Election Integrity 

Electronic Privacy Information Center 

v. Presidential Advisory Commission on Election Integrity 

(1:17-cv-1320), ACLU v. Trump (1:17-cv-1351), 

and Lawyers’ Committee for Civil Rights Under Law 

v. Presidential Advisory Commission on Election Integrity 

(1:17-cv-1354) (Colleen Kollar-Kotelly, D.D.C.) and 

Joyner v. Presidential Advisory Commission on Election 

Integrity (Marcia G. Cooke, S.D. Fla. 1:17-cv-22568) 

In mid-2017, President Trump created the Presidential Advisory 

Commission on Election Integrity. The commission’s vice chair 

asked all states to submit extensive voter-registration data to the 

commission. Following states’ reluctance to comply and lawsuits 

challenging the request, President Trump disbanded the commission early in 2018. 

Subject: Voting irregularities. Topics: Registration procedures; 

case assignment. 

Privacy Impact Assessment 

The Electronic Privacy Information Center (EPIC), an organization “established in 1994 to focus public attention on emerging privacy and civil liberties issues,” filed a federal complaint in the district court for the District of 

Columbia on Monday, July 3, 2017, challenging requests to state election officials by the vice chair of President Trump’s Presidential Advisory Commission on Election Integrity for detailed, publicly available voter-roll data.1

EPIC sought an injunction against “collection of personal voter data” and an 

order that the commission prepare a privacy-impact assessment of its requests.2

 At a hearing, EPIC described its membership as approximately one 

hundred persons on its advisory board.3

President Trump created the advisory commission—chaired by Vice 

President Pence—by executive order on May 11.4

 Kansas’s secretary of state 

1. Complaint, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-1320 (D.D.C. July 3, 2017), D.E. 1 [hereinafter Elec. Privacy Info. Ctr.

Complaint]; Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 

878 F.3d 371, 374, 376 (D.C. Cir. 2017); see Mark Berman & John Wagner, At Least 44 States 

Deny Full Data to Voting Panel, Wash. Post, July 6, 2017, at A10. 

2. Elec. Privacy Info. Ctr. Complaint, supra note 1, at 10–11; Elec. Privacy Info. Ctr., 878 

F.3d at 374, 376. 

3. Transcript at 15–18, Elec. Privacy Info. Ctr., No. 1:17-cv-1320 (D.D.C. July 7, 2017, 

filed July 9, 2017), D.E. 22 [hereinafter Elec. Privacy Info. Ctr. Hearing Transcript]. 

4. Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May 16, 2017); Elec. Privacy Info. Ctr., 

878 F.3d at 375; Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 377 F. Supp. 3d 428, 430 

(S.D.N.Y. 2019); United to Protect Democracy v. Presidential Advisory Comm’n on Election 
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2 Federal Judicial Center 11/3/2023 

was named vice chair.5 The vice chair’s letters to other secretaries of state, 

requesting responses by July 14,6

 were sent out on June 28, and approximately half of the states immediately declined to fully comply with the request.7

By a week later, nearly all of the states had balked.8 The vice chair reported in 

litigation, “To my knowledge, as of July 5, 2017, no Secretary of State had yet 

provided to the Commission any of the information requested in my letter.”9

On July 6, Arkansas submitted data, but they were subsequently deleted 

without the commission looking at them.10

With its complaint against the commission, the Vice President, the Executive Office of the President, and the General Services Administration, EPIC 

filed a motion for a temporary restraining order to “safeguard the privacy 

interests of registered voters and maintain the status quo while more permanent solutions may be considered.”11

Judge Colleen Kollar-Kotelly held a telephonic scheduling conference at 

approximately 4:50 p.m. on the day that the case was filed, a day before the 

Independence Day holiday.12 She asked the government to file a response to 

Integrity, 288 F. Supp. 3d 99, 101–02 (D.D.C. 2017); ; Dunlap v. Presidential Advisory 

Comm’n on Election Integrity, 286 F. Supp. 3d 96, 100 (D.D.C. 2017); Elec. Privacy Info. 

Ctr. v. Presidential Advisory Comm’n on Election Integrity, 266 F. Supp. 3d 297, 302 

(D.D.C. 2017); ACLU v. Trump, 266 F. Supp. 3d 131, 135 (D.D.C. 2017); see John Wagner & 

Jenna Johnson, Creation of Voter-Fraud Panel Is Met with Criticism, Wash. Post, May 12, 

2017, at A2. 

5. Elec. Privacy Info. Ctr., 266 F. Supp. 3d at 303; ACLU, 266 F. Supp. 3d at 135; see Ari 

Berman, The Man Behind Trump’s Voter-Fraud Obsession, N.Y. Times, June 13, 2017, Magazine; Wagner & Johnson, supra note 4. See generally Allan J. Lichtman, The Embattled Vote 

in America 223–27 (2018).

6. See Ex. 3, Elec. Privacy Info. Ctr. Complaint, supra note 1; Transcript at 4, Elec. Privacy 

Info. Ctr., No. 1:17-cv-1320 (D.D.C. July 3, 2017, filed July 6, 2017), D.E. 10 [hereinafter Elec. 

Privacy Info. Ctr. Initial Conference Transcript]. 

7. Elec. Privacy Info. Ctr., 878 F.3d at 375–76; United to Protect Democracy, 288 F. Supp. 

3d at 102; Dunlap, 286 F. Supp. 3d at 101; ACLU, 266 F. Supp. 3d at 136–37; see Elec. Privacy 

Info. Ctr. Complaint, supra note 1, at 10–11; Elec. Privacy Info. Ctr., 878 F.3d at 374 (noting 

that the commission could only request information because it lacked authority to demand 

information); see also Mark Berman & David Weigel, States Resist Turning Over Voter Data, 

Wash. Post, July 1, 2017, at A2; Michael Wines & Rachel Shorey, Inside the Uproar Over a 

Government-Led Search for Voter Fraud, N.Y. Times, July 8, 2017, at A14. 

“The Colorado Secretary of State’s Office reported Monday that of the 3,738 people who 

withdrew their registrations between June 28 and Friday, 367 are Republicans and 1,255 are 

unaffiliated voters. Just over 2,000 Democrats have also canceled their registrations.” Jesse 

Paul, Thousands Cancel Registrations, Denver Post, July 18, 2017, at 3A (reporting that some 

voters responded to the data requests by canceling their voter registrations). 

8. See Berman & Wagner, supra note 1. 

9. Kobach Declaration at 3, attached to Government Response, Elec. Privacy Info. Ctr., 

No. 1:17-cv-1320 (D.D.C. July 5, 2017), D.E. 8; see Elec. Privacy Info. Ctr. Hearing Transcript, supra note 3, at 12. 

10. Elec. Privacy Info. Ctr., 878 F.3d at 376; Elec. Privacy Info. Ctr. Hearing Transcript, 

supra note 3, at 40. 

11. Temporary-Restraining-Order Motion, Elec. Privacy Info. Ctr., No. 1:17-cv-1320 

(D.D.C. July 3, 2017), D.E. 3. 

12. Elec. Privacy Info. Ctr. Initial Conference Transcript, supra note 6; Docket Sheet, Elec. 
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Federal Judicial Center 11/3/2023 3

the motion by noon following the holiday, with a reply due the morning after 

that.13 Arguing a difficulty in reaching the people that she would need to 

reach, the government’s attorney asked for an additional day; following backand-forth bids by the judge and the attorney, Judge Kotelly extended the 

deadline four hours, observing, “I would’ve assumed that since the reaction 

was not a positive one by a lot of states, that [the people the government’s 

attorney needs to reach] would’ve expected that there would be a lawsuit.”14

On the day that briefing was completed, Judge Kotelly scheduled a hearing 

for the following afternoon, identifying seven specific issues for the parties to 

address.15

At a telephonic conference later in the litigation, Judge Kotelly succinctly 

specified an approach that she used in proceedings throughout the litigation: 

I would ask that if you listen to me, there may be an instance where I’m 

going to interrupt you either because I think you’ve wandered off what we 

want to talk about or I’ve heard enough and we need to move on to something else. So I would ask that you please listen.16

By the time of the Friday injunction hearing it was determined that the 

Department of Defense would be maintaining data for the commission,17 so 

EPIC amended its complaint to add the department as a defendant,18 and 

Judge Kotelly allowed the government an opportunity to file a brief on Monday respecting the adding of the additional party.19 She allowed EPIC to file a 

response on the next day.20 The government informed Judge Kotelly and 

EPIC that the director of White House information technology would develop a system for receiving and maintaining the states’ data instead of the Department of Defense, and on Monday the government asked the states not to 

send data until after Judge Kotelly’s ruling.21

Following additional briefing, Judge Kotelly granted an unopposed motion to file a second amended complaint adding information-technology auPrivacy Info. Ctr., No. 1:17-cv-1320 (D.D.C. July 3, 2017) [hereinafter Elec. Privacy Info. Ctr. 

Docket Sheet]. 

13. Elec. Privacy Info. Ctr. Initial Conference Transcript, supra note 6, at 8.

14. Id. at 8–11. 

15. Order, Elec. Privacy Info. Ctr., No. 1:17-cv-1320 (D.D.C. July 6, 2017), D.E. 15. 

16. Transcript at 4, Dunlap v. Presidential Advisory Comm’n on Election Integrity, No. 

1:17-cv-2361 (D.D.C. Nov. 17, 2017, filed Nov. 29, 2017), D.E. 29. 

17. Elec. Privacy Info. Ctr. Hearing Transcript, supra note 3, at 58. 

18. Amended Complaint, Elec. Privacy Info. Ctr., No. 1:17-cv-1320 (D.D.C. July 7, 2017), 

D.E. 21; Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 266 

F. Supp. 3d 297, 304 (D.D.C. 2017). 

19. Order, Elec. Privacy Info. Ctr., No. 1:17-cv-1320 (D.D.C. July 10, 2017), D.E. 23; see

Government Brief, id. (July 10, 2017), D.E. 24. 

20. Order, id. (July 10, 2017), D.E. 26; see EPIC Brief, id. (July 11, 2017), D.E. 27. 

21. Kobach Declaration, attached to Government Notice, Elec. Privacy Info. Ctr., No. 

1:17-cv-1320 (D.D.C. July 13, 2017), D.E. 12; see Rebecca Ballhaus, States Push Back on Voter Records, Wall St. J., July 11, 2017, at A3; Spencer S. Hsu, Trump Voting Panel Asks States 

to Hold Off on Sending Data, Wash. Post, July 11, 2017, at A2; Spencer S. Hsu, Voter Data to 

Go on White House Computers Under Purview of Pence Staff, Wash. Post, July 7, 2017, at A4. 
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4 Federal Judicial Center 11/3/2023 

thorities as defendants.22 In light of the amended complaints and “substantial 

changes in factual circumstances since this action was filed,” Judge Kotelly 

asked EPIC to amend its motion for any injunctive relief that it still sought,23

which EPIC did on Thursday.24

On July 24, Judge Kotelly denied EPIC immediate relief, without prejudice to later consideration should the factual circumstances change.25 The 

second paragraph of her opinion was informative to the general public: 

Although substantial public attention has been focused on the Commission’s request, the legal issues involved are highly technical. In addition to 

the Fifth Amendment of the Constitution, three federal laws are implicated: 

the Administrative Procedure Act, the E-Government Act of 2002, and the 

Federal Advisory Committee Act. All three are likely unfamiliar to the vast 

majority of Americans, and even seasoned legal practitioners are unlikely to 

have encountered the latter two. Matters are further complicated by the 

doctrine of standing, a Constitutional prerequisite for this Court to consider 

the merits of this lawsuit.26

Judge Kotelly found that EPIC’s members did not have standing to challenge transfer of the data, because all of the members who submitted declarations lived in states who had refused to comply, and even if the states complied, the risk that their data would be improperly exposed was speculative.27

EPIC did have informational standing to challenge the commission’s failure 

to prepare a privacy-impact assessment, but (1) the E-Government Act did 

not provide it a cause of action, and (2) the commission was not an agency 

covered by the Administrative Procedures Act.28

The court of appeals determined on December 26 that EPIC did not have 

informational standing—because it was not a voter, its privacy interests were 

not at stake—and affirmed Judge Kotelly’s denial of preliminary relief.29

Three days later, District Judge Rudolph Contreras held that the commission was not an agency with respect to the Paperwork Reduction Act and 

dismissed a September 29 complaint alleging that the commission “acted 

without transparency and without providing legally required opportunities 

22. Elec. Privacy Info. Ctr. Docket Sheet, supra note 12; Second Amended Complaint, 

Elec. Privacy Info. Ctr., No. 1:17-cv-1320 (D.D.C. July 11, 2017), D.E. 33; Elec. Privacy Info. 

Ctr., 266 F. Supp. 3d at 305. 

23. Order, Elec. Privacy Info. Ctr., No. 1:17-cv-1320 (D.D.C. July 11, 2017), D.E. 31. 

24. Amended Injunction Motion, id. (July 13, 2017), D.E. 35; Elec. Privacy Info. Ctr., 266 

F. Supp. 3d at 305. 

25. Elec. Privacy Info. Ctr., 266 F. Supp. 3d 297; see Spencer S. Hsu, Trump Voting Panel 

Wins a Round in Federal Court, Wash. Post, July 25, 2017, at A9. 

26. Elec. Privacy Info. Ctr., 266 F. Supp. 3d at 301 (citations omitted). 

27. Id. at 302, 307–09. 

28. Id. at 302, 309–19; Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 374, 376 (D.C. Cir. 2017); see Matthew Haag, Judge Clears Path 

for Voter Fraud Panel, N.Y. Times, July 25, 2017, at A14. 

29. Elec. Privacy Info. Ctr., 878 F.3d at 376–80; see Rachel Weiner, Appeals Court Rejects 

Challenge to Voting Panel, Wash. Post, Dec. 27, 2017, at A3. 
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Federal Judicial Center 11/3/2023 5

for the public to comment on the appropriateness of the request” to the 

states.30

Transparency and Balance 

The ACLU filed a federal complaint in the district on Monday, July 10, challenging the commission’s ideological balance and seeking a judicial order 

requiring more transparency pursuant to the Federal Advisory Committee 

Act (FACA).31 With its complaint, the ACLU filed a motion for a temporary 

restraining order and a preliminary injunction.32 The ACLU notified the 

court that its case was related to EPIC’s,33 and the court assigned the case to 

Judge Kotelly.34 She set the case for a chambers telephonic conference the 

following morning, and negotiated with the parties a completion of motion 

briefing by the end of the week.35

The Lawyers’ Committee for Civil Rights Under Law also filed a District 

of Columbia July 10 federal complaint seeking judicially imposed transparency pursuant to FACA.36 With its complaint, the committee filed a motion 

for a temporary restraining order or a preliminary injunction37 and a notice 

that its case was related to the other two before Judge Kotelly.38 Judge Kotelly 

held a courtroom telephonic conference with the parties on the following 

morning.39

She ruled in both cases on July 18. 

With respect to the ACLU case, she determined, “The only jurisdictional 

basis pursued by Plaintiffs is in the form of mandamus. Because the Court 

concludes that mandamus jurisdiction is unavailable in this case at the present time, Plaintiffs’ motion must be denied.”40 Litigation on an amended 

complaint was stayed pending the results of other litigation.41 Judge Kotelly 

30. United to Protect Democracy v. Presidential Advisory Comm’n on Election Integrity, 

288 F. Supp. 3d 99 (D.D.C. 2017); Complaint at 2, United to Protect Democracy v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-2016 (D.D.C. Sept. 29, 2017), D.E. 

1; see 44 U.S.C. §§ 3501–3558. 

This case was initially assigned to Judge Kotelly as related to the EPIC case, Docket 

Sheet, United to Protect Democracy, No. 1:17-cv-2016 (D.D.C. Sept. 29, 2017); Notice, id.

(Sept. 29, 2017), D.E. 4, and then reassigned to Judge Contreras, Reassignment, id. (Oct. 3, 

2017), D.E. 9. 

31. Complaint, ACLU v. Trump, No. 1:17-cv-1351 (D.D.C. July 10, 2017), D.E. 1. 

32. Motion, id. (July 10, 2017), D.E. 3. 

33. Notice, id. (July 10, 2017), D.E. 5. 

34. Docket Sheet, id. (July 10, 2017) [hereinafter ACLU Docket Sheet]. 

35. Id. 

36. Complaint, Lawyers’ Comm. for Civil Rights Under Law v. Presidential Advisory 

Comm’n on Election Integrity, No. 1:17-cv-1354 (D.D.C. July 10, 2017), D.E. 1. 

37. Motion, id. (July 10, 2017), D.E. 3. 

38. Notice, id. (July 10, 2017), D.E. 2. 

39. Docket Sheet, id. (July 10, 2017). 

40. ACLU v. Trump, 266 F. Supp. 3d 131, 134 (D.D.C. 2017). 

41. ACLU Docket Sheet, supra note 34; Amended Complaint, ACLU v. Trump, No. 1:17-

cv-1351 (D.D.C. Jan. 3, 2018), D.E. 30. 
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6 Federal Judicial Center 11/3/2023 

approved a voluntary dismissal on July 22, 2020.42

With respect to the Lawyers’ Committee case, Judge Kotelly concluded 

that the committee “has not demonstrated that, at the present time, Defendants are out of compliance with FACA’s open meetings and document disclosure provisions.”43

There is no doubt that the Commission and its request for voter roll information have generated substantial public interest and debate. Nonetheless, Plaintiff has failed to demonstrate that, absent preliminary injunctive 

relief, its ability to engage in this public debate would be substantially impaired in a manner that is both “certain and great.”44

On December 22, 2017, Judge Kotelly granted relief to Matthew Dunlap—Maine’s secretary of state and a member of the commission—in an action seeking a judicial order requiring the commission to share with him information that the commission was providing to other members.45

Other Privacy Cases 

Public Citizen filed a federal complaint in the district on July 10, 2017, challenging the army’s involvement in maintaining the commission’s data46 with 

a notice that the case was related to EPIC’s case,47 so the court assigned the 

case to Judge Kotelly.48 On July 14, Common Cause filed a complaint against 

the commission, the Department of Homeland Security, and the Social Security Administration seeking “to enjoin Defendants from collecting, maintaining, using, or disseminating [voter-roll] data and to destroy or return any 

such data that has already been collected and is being maintained in violation 

42. Order, ACLU, No. 1:17-cv-1351 (D.D.C. July 22, 2020), D.E. 39. 

43. Lawyers’ Comm. for Civil Rights Under Law v. Presidential Advisory Comm’n on 

Election Integrity, 266 F. Supp. 3d 54, 59 (D.D.C. 2017), interlocutory appeal dismissed, Order, No. 17-5167 (D.C. Cir. Dec. 20, 2017), 2017 WL 6945782 (granting voluntary dismissal 

following an order to show cause why the appeal was not moot because of the intervening 

July 19, 2017, meeting of the commission that was the subject of the injunction motion). 

44. Id. at 70. 

45. Dunlap v. Presidential Advisory Comm’n on Election Integrity, 286 F. Supp. 3d 96 

(D.D.C. 2017); Dunlap v. Presidential Advisory Comm’n on Election Integrity, 944 F.3d 945, 

947 (D.C. Cir. 2019); see Complaint, Dunlap v. Presidential Advisory Comm’n on Election 

Integrity, No. 1:17-cv-2361 (D.D.C. Nov. 9, 2017), D.E. 1 (“by obstructing certain commissioners’ access to information and failing to allow substantive participation of commissioners with balance in terms of points of view, the Commission and its staff have compromised 

the legitimacy of any findings that may emerge from this process”); see also Spencer S. Hsu, 

Voting Fraud Panel Will Destroy, Not Share, Data, Wash. Post, Jan. 11, 2018, at A9; John 

Wagner, Trump Voting Panel Sued by Democratic Member Complaining of Exclusion, Wash. 

Post, Nov. 10, 2017, at A9; Michael Wines, Voter Fraud Panel Is Sued, This Time by a Member, N.Y. Times, Nov. 10, 2017, at A18. 

46. Complaint, Public Citizen, Inc. v. U.S. Dep’t of the Army, No. 1:17-cv-1355 (D.D.C. 

July 10, 2017), D.E. 1. 

47. Notice, id. (July 10, 2017), D.E. 2. 

48. Docket Sheet, id. (July 10, 2017); Transcript at 3, Common Cause v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-1398 (D.D.C. Aug. 1, 2017, filed Aug. 3, 

2017), D.E. 19 [hereinafter Common Cause Transcript]. 
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Federal Judicial Center 11/3/2023 7

of the law.”49 Common Cause also told the court that its action was related to 

EPIC’s,50 so the court assigned this case also to Judge Kotelly.51 The court’s 

calendar committee later determined that these two new cases were not related to EPIC’s, so they were reassigned to Judge Royce C. Lamberth on July 

19.52

Public Citizen dismissed its action voluntarily on July 25.53 At 8:10 p.m. 

on Friday, July 28, two weeks after filing its complaint, Common Cause filed 

a motion for a temporary restraining order or a preliminary injunction.54 At 

a hearing on Tuesday morning, Judge Lamberth denied Common Cause 

immediate relief and gave the plaintiff guidance on amending its motion for 

a preliminary injunction.55 On Thursday, Common Cause withdrew its motion instead.56

Challenge by Voters 

Five Florida voters, Florida’s branch of the ACLU, and the Florida Immigrant Coalition filed a federal complaint in the Southern District of Florida 

on July 10 challenging the legality of the commission’s request of the states 

on behalf of Florida voters and voters throughout the United States.57 Named 

as defendants were the commission, its chair, and its vice chair; the executive 

offices of the President and the Vice President, the General Services Administration’s administrator, and Florida’s secretary of state.58 With their complaint, the plaintiffs filed a motion for a temporary restraining order.59

The court assigned the case to Judge Marcia G. Cooke,60 who was relieved 

that as emergency election cases go this one did not have the time pressure 

presented by cases involving legal issues arising while voters are at the polls.61

49. Complaint, Common Cause, No. 1:17-cv-1398 (D.D.C. July 14, 2017), D.E. 1. 

50. Notice, id. (July 14, 2017), D.E. 1-2. 

51. Docket Sheet, id. (July 14, 2017); Common Cause Transcript, supra note 48, at 3. 

52. Reassignment, Common Cause, No. 1:17-cv-1398 (D.D.C. July 19, 2017), D.E. 6; Reassignment, Public Citizen, Inc., No. 1:17-cv-1355 (D.D.C. July 19, 2017), D.E. 6; Common 

Cause Transcript, supra note 48, at 3. 

53. Notice, Public Citizen, Inc., No. 1:17-cv-1355 (D.D.C. July 25, 2017), D.E. 7. 

54. Motion, Common Cause, No. 1:17-cv-1398 (D.D.C. July 28, 2017), D.E. 10. 

55. Common Cause Transcript, supra note 48; Order, Common Cause, No. 1:17-cv-1398 

(D.D.C. Aug. 1, 2017), D.E. 18; see Spencer S. Hsu, Common Cause’s Effort to Block Trump 

Voter Panel Is Denied, Wash. Post, Aug. 2, 2017, at A15. 

56. Notice, Common Cause, No. 1:17-cv-1398 (D.D.C. Aug. 3, 2017), D.E. 20. 

57. Complaint, Joyner v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-

cv-22568 (S.D. Fla. July 10, 2017), D.E. 1. 

58. Id. 

59. Temporary-Restraining-Order Motion, id. (July 10, 2017), D.E. 4; see Corrected 

Temporary-Restraining-Order Motion, id. (July 13, 2017), D.E. 6. 

60. Docket Sheet, id. (July 13, 2017) [hereinafter Joyner Docket Sheet]. 

Tim Reagan interviewed Judge Cooke and her law clerk Alex St. Pierre for this report by 

telephone on March 27, 2018. Judge Cooke died on January 27, 2023. Federal Judicial Center 

Biographical Directory of Article III Federal Judges, www.fjc.gov/history/judges. 

61. Interview with Hon. Marcia G. Cooke and her law clerk Alex St. Pierre, Mar. 27, 

2018. 
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8 Federal Judicial Center 11/3/2023 

Three days after the case was filed, the government notified Judge Cooke of 

the three actions pending before Judge Kotelly.62

On July 17, Judge Cooke ordered the plaintiffs to show cause why their 

motion for a temporary restraining order should not be regarded as a motion 

for a preliminary injunction because of a failure to show why relief should be 

granted before the defendants could be heard.63

Judge Kotelly issued her July 18 decision while Judge Cooke was conducting a telephonic hearing in her own case.64 Government attorneys received notice of Judge Kotelly’s ruling during the hearing, so Judge Cooke 

took a break in the proceeding so that she and the parties could review the 

other judge’s ruling.65

Judge Cooke decided to “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,” and Judge Cooke therefore denied the 

plaintiffs immediate relief against the commission.66

Termination of the Commission 

On January 3, 2018, President Trump disbanded the commission.67

On April 2, the District of Columbia Circuit’s court of appeals denied 

EPIC’s motion to vacate as moot the affirmance of Judge Kotelly’s denying 

EPIC preliminary relief.68

62. Notice, Joyner, No. 1:17-cv-22568 (S.D. Fla. July 13, 2017), D.E. 12; see Joyner Docket 

Sheet, supra note 60 (noting assignment of the case to Judge Cooke, D.E. 2). 

63. Joyner Docket Sheet, supra note 60 (D.E. 17). 

64. Order at 2, Joyner, No. 1:17-cv-22568 (S.D. Fla. July 20, 2017), D.E. 31 [hereinafter 

July 20, 2017, Joyner Order], 2017 WL 3113486; Interview with Hon. Marcia G. Cooke and 

her law clerk Alex St. Pierre, Mar. 27, 2018. 

65. Interview with Hon. Marcia G. Cooke and her law clerk Alex St. Pierre, Mar. 27, 

2018. 

66. July 20, 2017, Joyner Order, supra note 64. 

67. Exec. Order No. 13,820, 83 Fed. Reg. 969 (Jan. 8, 2018); see Notice, Dunlap v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-2361 (D.D.C. Jan. 3, 2018), D.E. 

34; Notice, United to Protect Democracy v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-2016 (D.D.C. Jan. 3, 2018), D.E. 34; Notice, Common Cause v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-1398 (D.D.C. Jan. 3, 2018), D.E. 42; 

Notice, Lawyers’ Comm. for Civil Rights Under Law v. Presidential Advisory Comm’n on 

Election Integrity, No. 1:17-cv-1354 (D.D.C. Jan. 3, 2018), D.E. 39; Notice, ACLU v. Trump, 

No. 1:17-cv-1351 (D.D.C. Jan. 3, 2018), D.E. 29; Notice, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-1320 (D.D.C. Jan. 3, 2018), D.E. 

57; see also Michael C. Bender, Trump Ends Voter Fraud Commission, Wall St. J., Jan. 4, 

2018, at A3; John Wagner, Panel Studying Alleged Voter Fraud Is Dismantled, Wash. Post, 

Jan. 4, 2018, at A1; Michael Wines & Maggie Haberman, Voter Fraud Commission Started by 

a Tweet Is Ended by Another, N.Y. Times, Jan. 5, 2018, at A1. 

68. Orders, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 17-5171 (D.C. Cir. Apr. 2), cert. denied, 586 U.S. ___, 139 S. Ct. 791 (2018). 
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The Florida Action Continued 

In Florida, litigation over voter-roll data continued. In a January 5 motion 

for emergency relief, the plaintiffs alleged, 

New, disturbing developments have arisen, requiring emergency Court 

intervention. On January 3, 2018, the President executed an Executive Order, terminating the Commission. Within hours, Kansas Secretary of State 

Kris Kobach, the Commission’s Vice Chair and notorious vote suppressor, 

gave statements to the media that he and the White House are working together to transfer private, protected voter data to Immigration and Customs 

Enforcement (“ICE”) so that Secretary Kobach, the White House, and ICE 

can work together to purge voter rolls. Secretary Kobach called this a “tactical shift,” saying “[t]he investigations will continue now, but they won’t be 

able to stall [it] through litigation.” Using Commission data, the Federal 

Defendants seek to “Stop Aliens From Voting,” without complying with 

FACA and other laws.69

According to the government, “As of September 29, 2017, the Commission 

had received data from nineteen states, including Florida, and one county.”70

On January 18, 2018, Judge Cooke ordered the government to address the 

plaintiffs’ concerns: 

Federal Defendants shall submit a declaration from Kris Kobach, or another member of the Commission with knowledge of the Commission’s activities and authority to speak on the Government’s behalf, stating 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 [Director of White House Information Technology], upon termination of the Commission.71

A January 16, 2018, letter from Kobach to government counsel stated, “I 

never accessed the state voting data that the [commission] collected, and I do 

not now have access to it.”72 On January 26, the former commission’s executive director declared, “The state voter data has never been provided to, or 

accessed by, the former Commissioners, or any agency.”73

Reviewing amended pleadings, Judge Cooke affirmed and adopted on 

March 19 Magistrate Judge Jonathan Goodman’s February 6 recommended 

denial of immediate relief.74 And Judge Cooke dismissed the case as moot on 

May 30.75

69. Emergency Motion at 2, Joyner, No. 1:17-cv-22568 (S.D. Fla. Jan. 5, 2018), D.E. 69 

[hereinafter Jan. 5, 2018, Joyner Emergency Motion]; see Report and Recommendation, id.

(Feb. 6, 2018), D.E. 97 [hereinafter Joyner Report and Recommendation]. 

70. Government Brief at 8, id. (Jan. 26, 2018), D.E. 89. 

71. Order, id. (18, 2018), D.E. 83, 2018 WL 481880. 

72. Kobach Letter, attached as Ex. D, Government Brief, id. (Jan. 26, 2018), D.E. 89 

[hereinafter Jan. 26, 2018, Joyner Government Brief]. 

73. Kossack Declaration, attached as Ex. D, Jan. 26, 2018, Joyner Government Brief, supra note 72; see Hsu, supra note 45. 

74. Order, Joyner, No. 1:17-cv-22568 (S.D. Fla. Mar. 19, 2018), D.E. 105, 2018 WL 
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A Commissioner’s Entitlement to Documents 

Judge Kotelly decided on June 27 that Commissioner Dunlap was still entitled to the relief that she had granted him in December.76 First, “The Commission’s termination does not affect the premise of the Court’s December 

22, 2017, opinion . . . .”77 Second, “Only upon Plaintiff’s review of the documents generated by the Commission will the extent to which his participation was thwarted become clear.”78 Third, Judge Kotelly regarded evasion of 

her order as a possible motivating factor in terminating the commission as a 

lack of respect for the tribunal: “Were it not so, the Court would have expected Defendants to pursue an interlocutory appeal, rather than termination of the Commission twelve days after this Court’s preliminary injunction 

compelling a document production. They shall not be permitted to further 

postpone compliance with a preliminary injunction.”79

Documents were produced on July 18,80 as ordered by Judge Kotelly.81

Dunlap reported in a status report that the production may not have been 

complete,82 and the commission filed an appeal.83 A second appeal from a 

subsequent production order also was heard on November 18, 2019.84 The 

court of appeals decided on December 20 that it was improper for Judge Kotelly to use mandamus authority to order production of “emails between the 

Vice President’s staff and individuals who were then commissioners discussing potential appointees to the Commission.”85

1859347; Joyner Report and Recommendation, supra note 69; see Jan. 5, 2018, Joyner Emergency Motion, supra note 69; Amended Complaint, Joyner, No. 1:17-cv-22568 (S.D. Fla. 

Dec. 29, 2017), D.E. 65. 

75. Opinion, Joyner, No. 1:17-cv-22568 (S.D. Fla. May 30, 2018), D.E. 108, 2018 WL 

4776089. 

76. Dunlap v. Presidential Advisory Comm’n on Election Integrity, 319 F. Supp. 3d 70, 

83–90, 110 (D.D.C. 2018); see Lawyers’ Comm. for Civil Rights Under Law v. Presidential 

Advisory Comm’n on Election Integrity, 316 F. Supp. 3d 230, 232 (D.D.C. 2018). 

77. Dunlap, 319 F. Supp. 3d at 86. 

78. Id. at 87. 

79. Id. at 89 (citing the commission vice chair’s description of the termination as an “option play” in response to litigation). 

80. Notice, Dunlap v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv2361 (D.D.C. July 18, 2018), D.E. 53 (“relevant documents that any of the former commissioners generated or received”). 

81. Dunlap, 319 F. Supp. 3d at 78, 110. 

82. Status Report, Dunlap, No. 1:17-cv-2361 (D.D.C. July 27, 2018), D.E. 54. 

83. Docket Sheet, Dunlap v. Presidential Advisory Comm’n on Election Integrity, No. 

18-5266 (D.C. Cir. Aug. 31, 2018). 

84. Oral Argument, Dunlap v. Presidential Advisory Comm’n on Election Integrity, No. 

19-5051 (D.C. Cir. Nov. 18, 2019), www.cadc.uscourts.gov/recordings/recordings2019.nsf/ 

6C6EF3E04D6AF1D6852584B6006408DE/$file/18-5266.mp3 (audio recording); see Order, 

Dunlap, No. 1:17-cv-2361 (D.D.C. Jan. 28, 2019), D.E. 64. 

85. Dunlap v. Presidential Advisory Comm’n on Election Integrity, 944 F.3d 945, 947 

(D.C. Cir. 2019). 
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On May 29, 2020, Judge Kotelly terminated the action, finding that Dunlap had received by then all documents to which he was entitled.86

Satisfying Litigation by Destroying Data 

On July 19, 2018, the plaintiffs in the pending actions notified Judge Kotelly 

that they did not object to the government’s proposal to destroy the state 

voter data that was collected by the commission.87 Expressing a “view that no 

further adjudication in this matter is necessary,” Judge Kotelly ordered a notice filed by August 20 confirming the planned deletion of data.88 On that 

date, the government certified that the files had been deleted, and remaining 

fragments and backups had been overwritten.89

Judge Kotelly dismissed the EPIC case on August 22.90 Common Cause 

stipulated dismissal on August 29,91 and Judge Kotelly approved the Lawyers’ 

Committee for Civil Rights Under Law’s voluntary dismissal on September 

7.92 In 2020, Judge Kotelly approved the ACLU’s voluntary dismissal of its 

action.93

Other Actions 

A July 18, 2017, action filed in the Southern District of New York to enjoin 

the cooperation of the commission as created for an improper purpose was 

voluntarily dismissed.94

An August 21, 2017, action under the Freedom of Information Act 

(FOIA) filed in the Southern District of New York sought records from government agencies about the commission so as to discover the true purpose of 

the commission.95 On April 30, 2019, Judge Alvin K. Hellerstein ordered 

agencies using more restrictive search terms to expand their searches accord86. Dunlap v. Presidential Advisory Comm’n on Election Integrity, 464 F. Supp. 3d 247 

(D.D.C. 2020). 

87. Notice, Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, No. 1:17-cv-1320 (D.D.C. July 19, 2018), D.E. 62; see Notice of Compliance, id. (July 17, 

2018), D.E. 61. 

88. Order, id. (July 19, 2018), D.E. 63. 

89. Notice, id. (Aug. 20, 2018), D.E. 64. 

90. Order, id. (Aug. 22, 2018), D.E. 65. 

91. Stipulation, Common Cause v. Presidential Advisory Comm’n on Election Integrity, 

No. 1:17-cv-1398 (D.D.C. Aug. 29, 2018), D.E. 54. 

92. Order, Lawyers’ Comm. for Civil Rights Under Law v. Presidential Advisory 

Comm’n on Election Integrity, No. 1:17-cv-1354 (D.D.C. Sept. 7, 2018), D.E. 47. 

93. Order, ACLU v. Trump, No. 1:17-cv-1351 (D.D.C. July 22, 2020), D.E. 39. 

94. Order, NAACP Legal Def. & Educ. Fund, Inc. v. Trump, No. 1:17-cv-5427 (S.D.N.Y. 

Feb. 28, 2018), D.E. 94; see Second Amended Complaint, id. (Oct. 20, 2017), D.E. 66; First 

Amended Complaint, id. (Sept. 5, 2017), D.E. 39; Complaint, id. (July 18, 2017), D.E. 1; see 

also John Wagner & Sari Horwitz, Trump Voter Panel Has Rocky Start Before First Meeting, 

Wash. Post, July 19, 2017, at A15. 

95. Supplemental Complaint, Brennan Ctr. for Justice v. U.S. Dep’t of Justice, No. 1:17-

cv-6335 (S.D.N.Y. May 7, 2018), D.E. 53; Amended Complaint, id. (Sept. 11, 2017), D.E. 12; 

Complaint, id. (Aug. 21, 2017), D.E. 1; see Opinion at 2, id. (Jan. 31, 2018), D.E. 42, 2018 WL 

637424 (denying immediate relief); see also Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 

377 F. Supp. 3d 428, 431–32 (S.D.N.Y. 2019). 
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12 Federal Judicial Center 11/3/2023 

ing to search terms specified in the order, and Judge Hellerstein decided that 

private emails needed to be searched for agency officials conducting substantial government work using private email accounts.96 Following additional 

productions to the plaintiffs, Judge Hellerstein approved a stipulated dismissal of the action on December 21, 2020.97 He issued a stipulated $140,000 

award of attorney fees and costs on July 7, 2021.98

In the district court for the District of Columbia, Magistrate Judge G. Michael Harvey determined on October 16, 2020, that the Department of 

Homeland Security had not yet demonstrated adequate searches or adequate 

justifications for withholding some information.99 District Judge Emmet G. 

Sullivan adopted Judge Harvey’s conclusions on March 30, 2021.100 The matter of attorney fees in a January 26, 2018, FOIA action was resolved on April 

11, 2023.101

96. Brennan Ctr. for Justice, 377 F. Supp. 3d 428; id. at 434 (“Where challenged, agencies 

have to explain why certain search terms, clearly relevant, were not used.”); id. at 436 (“In an 

environment of widespread use of personal devices for official work, there is danger of an 

incentive to shunt critical and sensitive communication away from official channels and out 

of public scrutiny.”); see Opinion, Brennan Ctr. for Justice, No. 1:17-cv-6335 (S.D.N.Y. June 

28, 2019), D.E. 111 (denying reconsideration). 

97. Order, Brennan Ctr. for Justice, No. 1:17-cv-6335 (S.D.N.Y. Dec. 21, 2020), D.E. 133 

(retaining jurisdiction over possible attorney-fee litigation). 

98. Stipulated Order, id. (July 7, 2021), D.E. 144.

99. Report and Recommendation, id. (Oct. 16, 2020), D.E. 46, 2020 WL 7319365. 

100. Order, id. (Mar. 30, 2021), D.E. 47, 2021 WL 1197730. 

101. Stipulated Dismissal, Lawyers’ Comm. for Civil Rights Under Law v. U.S. Dep’t of 

Justice, No. 1:18-cv-167 (D.D.C. Apr. 11, 2023), D.E. 62; Complaint, id. (Jan. 26, 2018), 

D.E. 1.