EPEC NEWS

The advisory board of the Election Assistance Commission met for two days this week in Washington for its annual meeting. Among the topics: the Trump Administration’s Executive Order on election integrity, and ongoing litigation over parts of the order. They did a lot of talking — and were told to get moving on changing the voter registration form to require proof of citizenship, which the board had the authority to do on its own.

The EO, in part, calls for the EAC to update the federal voter registration form to require documentary proof of citizenship, which it is authorized to do under the Help America Vote Act (HAVA).

On Apr. 24, district court Judge Colleen Kollar-Kotelly granted a preliminary injunction on Section 2(a), which enjoins EAC board members from “changing the federal voter form … taking any action based on the Executive Order to modify the content of the federal voter registration application form.”

The judge also temporarily enjoined Section 2(d) to prevent federal agencies from “assessing citizenship” before handing out federal voter registration forms — a clear violation of federal law that has legal experts scratching their heads. It is illegal for noncitizens to register to vote in federal elections.

At the very least, they are asked to check a box on the form to affirm citizenship and eligibility to register.

The judge also denied Democrat activist group motions to block Sections 2(b), 7(a), and 7(b) of the Executive Order 14248, per JustSecurity.org, which is tracking the litigation.

Given the 120-page federal court opinion, attendance was way up this year, per advisory board members.

However, after two days of discussions, the board made no formal recommendations, nor did it vote to take any action on changing the form, or to form working groups to address changes on the form to require proof of citizenship to register.

One advisory board member, J. Christian Adams of Public Interest Legal Foundation, urged the EAC board to get moving.

After all, the judge made clear in her order: the EAC has the authority under HAVA to change the federal voter registration form on its own to require proof of citizenship.

Judge Kollar-Kotelly’s ruling takes the disputed view that a chief executive has no authority over an executive branch board such as the EAC — other than appointing board members.

This issue is also being litigated in many federal cases. On this point, given that Congress debated whether to require documentary proof of citizenship when it passed the National Voter Registration Act (NVRA), the judge may be on solid ground about whether a president can essentially order changes to the NVRA.

But the EO doesn’t do that. It directs the EAC to change the voter form under its statutory authority.

Adams made that point during discussion of the EO, telling the board it should expect requests to modify the form.

“I’m a little surprised,” he added, that the board has not begun to prepare for the work. “I understand there’s ongoing litigation. That doesn’t mean you can’t work toward a process” that has not been touched by the litigation.

“Because it’s coming. I would suggest that people get cracking on figuring out what you’re going to do with state applications to revise the federal form with state specific instructions.”

The other item that dominated Day 2: How to update the EAC’s Voluntary Voting System Guidelines (VVSG 2.0) and re-certify vendors to the standard.

Section 4 (b) i. of the March 25th EO says:

The Election Assistance Commission shall initiate appropriate action to amend the Voluntary Voting System Guidelines 2.0 and issue other appropriate guidance establishing standards for voting systems to protect election integrity. The amended guidelines and other guidance shall provide that voting systems should not use a ballot in which a vote is contained within a barcode or quick-response code in the vote counting process except where necessary to accommodate individuals with disabilities and should provide a voter-verifiable paper record to prevent fraud or mistake.

(ii) Within 180 days of the date of this order, the Election Assistance Commission shall take appropriate action to review and, if appropriate, re-certify voting systems under the new standards established under subsection (b)(i) of this section, and to rescind all previous certifications of voting equipment based on prior standards.

As EPEC Team has noted in a prior post: Not one vendor currently operating in the United States is believed to be certified to the “VVSG 2.0” standard for securing election machines. Most are still being certified to the outdated “VVSG 1.1” standard.

Advisory board members did a lot of discussing during the two-day annual meeting. But they took no actions to activate working groups or outreach to vendors, for example, to understand where they are in product cycles regarding updated security standards in VVSG 2.0.