When the Presidential Commission on Election Administration held hearings around the country, the future of the Election Commission Administration came up regularly in discussions and testimony.  The EAC had no Commissioners, and the concern was chiefly that it could not attend to its responsibility for voting machine standards and certification. There was also a sense that the absence of the EAC—amid indications of neglect, partisan stand-off, or both—highlighted the weakness of a national commitment to progress in professional election administration.  The EAC was an invaluable resource for administrators, and, if it could steer clear of partisan conflict, it could perform a valuable service to the election administration community—and to the voters.

The EAC then got enough Commissioners for a quorum and full operations.  This was a period of considerable promise, and those working in the field moved quickly to engage with the EAC.  For example, early on Ben Ginsberg and I sent a letter urging that the newly functional Commission initiate steps to improve the standard-setting and certification process for voting machines.  The Commission subsequently acted, and it did so unanimously.  EAC-sponsored discussions in which former PCEA Commissioners and election administrators participated heightened the expectation that the Commission could help mark out the ground for professional administration even in a period of intense political and other conflict over voting rights.  There were warm and encouraging words all around.

Brian Newby, appointed Executive Director in November of 2015, has quickly managed to put all of this at risk.  Claiming authority to disregard past EAC policy and precedent--and understanding full well that he was ignoring disagreement among the Commissioners and provoking fresh partisan conflict--he purported to consent to state requests to modify the Federal Form for registration applicants to include a requirement of documentary proof of citizenship.  On this highly visible and divisive issue, in the face of its long and actively litigated history, Newby concluded that this is what he should do.

Make what you will of Judge Melgren’s analysis of preemption, or the hints of his constitutional stance on the federal-state balance of authority under the Elections Clause—his decision in Kobach v. The United States Election Assistance Commission is a mechanical exercise that leaves the reader without any sense of what this case is about. Kansas and Arizona have not merely made a “determination” of what they need to verify the citizenship of state residents seeking to become voters. The history behind this litigation is more complex, with more history to it, and the court knew it.  It chose, however, to follow example of the Supreme Court and to do as the High Court has done in other cases, like Purcell v. Gonzalez and Crawford v. Marion County, and leave the real world out.