Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, August 7
Disagreement on the EAC
One of the most remarkable features of the Election Assistance Commission (EAC) during its first years of existence is the bipartisan commission's conscious effort to act by consensus. As constituted by the Help America Vote Act of 2002 (HAVA), the Commission consists of two Democrats and two Republicans. Despite the politically charged nature of many election administration questions, the commission has managed to make its decisions by unanimous votes. This was true even of such contentious issues as provisional voting during the 2004 election season.

There now appears to be a fissure in the EAC's consensus decisionmaking. Commissioner Ray Martinez III, the EAC's Vice-Chair, has issued this position statement in response to a Tally Vote proposed by his fellow Commissioner, EAC Chair Paul DeGregorio last month. According to Commissioner Martinez's statement, Chairman DeGregorio proposed amendments to the instructions accompanying the federal form, in order to accommodate the State of Arizona's proof-of-citizenship requirement. I've previously blogged on the Arizona controversy several times, most recently here.

Although this statement was issued on July 10, 2006, it's received no public attention, as far as I'm aware. Commissioner Martinez's statement is nevertheless of great interest, both substantively and procedurally.

As a matter of substance, Martinez stands by a prior opinion letter from EAC Executive Director Tom Wilkey, previously discussed here. That letter took the position that Arizona lacked the power to demand additional documentation beyond that set forth in the federal form, before accepting the federal voter registration form mandated by the National Voter Registration Act (NVRA). Though this may appear to be an arcane dispute, it's actually a very significant one since it implicates states' efforts to impose more stringent requirements on voters seeking to register. According to Commissioner Martinez, the position that the EAC has took on Arizona is consistent with guidance previously given to Florida, when that state sought to impose an additional requirement on those seeking to register.

As a matter of procedure, Commissioner Martinez objects to the EAC reversing its prior ruling while judicial proceedings regarding the use of the federal form in Arizona are still pending. U.S. District Judge Roslyn Silver denied a temporary restraining order against Arizona's practice of requiring proof of citizenship (a decision that I believe to be incorrect as discussed here). That decision isn't a final judgment, nor is it clear that other courts -- including the court of appeals -- will come down the same way. The EAC's reversal of its position with respect to Arizona, Commissioner Martinez argues, could create confusion on the part of other states.

Commissioner Martinez also objects to the procedure of having a Tally Vote on this question. He says this "mark[s] the first time that a decision by the EAC commissioners will be decided on a less than unanimous basis," expressing concern that this could mark a "fundamental turning point" for the EAC.

I don't know enough about the Tally Vote procedure to evaluate its propriety here, and can't find anything else on the EAC's website regarding the Arizona registration issue. It does seem to me that the question of how the NVRA applies to voter registration requirements like Arizona's is one over which reasonable people can disagree. Still, one can't help but wonder whether this may be the first of many issues on which there is a breakdown of the consensus that has thus far characterized EAC decisionmaking on hot-botton election administration issues.

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