On July 10, 2017, the American Civil Liberties Union and American Civil Liberties Union Foundation filed this lawsuit in the U.S District Court for the District of Columbia. The Plaintiffs are non-profit, nationwide organizations focused on ensuring the principles of liberty and equality embodied in the Constitution and the nation’s civil rights laws, including laws protecting access to the rights to vote. The Plaintiffs sought declaratory, injunctive, and mandamus relief against Defendants President Trump, Vice President Pence, and the Presidential Advisory Commission on Election Integrity (the "Commission”) under the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2 §§ 1-16.
On May 11, 2017, President Trump issued Executive Order 13,799, establishing the Commission. The stated mission of the Commission was to “study the registration and voting process used in Federal elections” and its ultimate function was to submit a report to the President that identifies various elements that enhance or undermine the nation’s confidence in the integrity of the voting system. Exec. Order No. 13,799 § 3. The Plaintiffs argued that the Commission is an advisory committee, and as such is subject to the disclosure, notice, and reporting requirements of the FACA. The Commission, however, had not followed certain procedures required by FACA, such as having a meeting without holding it open to the public, failing to create detailed minutes of their meetings, failing to provide a transcript of telephonic meetings, and failing other non-discretionary openness requirements. Furthermore, at the time the complaint was filed, the Committee had scheduled a future meeting to take place in a building closed to the public without advanced screening, in violation of the non-discretionary open meeting requirement of FACA § 10(a)(1).
Along with their complaint, the plaintiffs filed a motion for temporary restraining order and preliminary injunction requesting the court to enforce FACA’s requirement’s (1) that any telephonic meeting be noticed and available to the public, (2) that all minutes, agendas, reports, studies and documentary material made available to or prepared for or by Commission member be made available for public inspection and copying at a single, publicly accessible location, and (3) that the July 19th meeting be moved, with public notice, to a publicly accessible location.
On July 18, 2017, District Judge Colleen Kollar-Kotelly denied this motion for temporary restraining order and preliminary injunction without prejudice, reasoning that the court lacked jurisdiction to give relief in the form of mandamus because the Plaintiffs failed to demonstrate the three requirements for mandamus: (1) a clear and indisputable right to relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy exists. Because the Plaintiffs had argued that mandamus relief was the only available remedy, the motion was denied for lack of subject-matter jurisdiction. 266 F.Supp.3d 133.
On September 8, 2017, District Judge Randolph D. Moss approved an unopposed motion to stay the case in anticipation of receiving and reviewing materials provided by the Defendants in a related case,
Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity, also in this
Clearinghouse.
On January 3, 2018, the plaintiffs filed an amended complaint. The amended complaint, in addition to all previous allegation, expanded the allegations of FACA violations to include meetings held in July and September 2017. The defendants had continued to conduct telephone meetings without public access, while failing to take detailed minutes, and while failing to make public any records or reports prepared for those meetings. The amended complaint sought declaratory judgement with respect to all FACA violations in 2017 and mandamus relief requiring the Commission to perform all non-discretionary FACA requirements. Additionally, the plaintiffs sought an injunction requiring the defendants to:
1. make all records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by the Pence-Kobach Commission open for public inspection;
2. hold all meetings of the Commission, including meetings conducted by telephone or other electronic medium, open to the public;
3. cease all activities that have no reasoned basis and/or are not provided for in the Executive Order establishing the parameters under which the Pence-Kobach Commission can operate, including ceasing all activity aimed at investigating particular voters;
4. make provisions to “require the membership of the advisory committee to be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee,” and “to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or any special interest”; and
5. cease all action by the Commission until it is properly constituted.
The same day, President Trump issued an executive order terminating the Commission. The defendants moved to dismiss the case in September 2018, arguing that the case was moot due to the Commission’s dissolution, that the plaintiffs had failed to state a claim, or that mandamus was either unavailable or should not be exercised. A week later the plaintiffs filed an unopposed motion to stay proceedings in light of similar case,
Dunlap v. Presidential Advisory Commission on Election Integrity, (17-2361). The plaintiffs moved to stay the case because the result of
Dunlap might otherwise cause them to voluntarily dismiss the case.
On July 20, 2020, the plaintiffs filed an unopposed notice of voluntary dismissal. According to their motion, the court had resolved
Dunlap; the documents that the plaintiffs sought were released. Accordingly, on July 22, the court dismissed the case with prejudice and denied defendants' motion to dismiss as moot. The case is closed.
Robert Carnes - 10/26/2017
Sara Stearns - 05/26/2020
compress summary
