Dunlap v. Presidential Advisory Comm'n on Election Integrity

• Decision Date: 27 June 2018
• Docket Number: Civil Action No. 17–2361 (CKK)
• Citation: 319 F.Supp.3d 70
• Parties: Matthew DUNLAP, Plaintiff, v. PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

319 F.Supp.3d 70

Matthew DUNLAP, Plaintiff,

v.PRESIDENTIAL ADVISORY COMMISSION ON ELECTION INTEGRITY, et al., Defendants.

Civil Action No. 17–2361 (CKK)

United States District Court, District of Columbia.

Signed June 27, 2018

Austin Ridgely Evers, Cerissa Cafasso, Melanie Togman Sloan, Washington, DC, Daniel A. Friedman, Pro Hac Vice, Harry Sandick, Pro Hac Vice, Daniel Seth Ruzumna, Patterson Belknap Webb & Tyler, LLP, New York, NY, for Plaintiff.

Carol Federighi, Elizabeth J. Shapiro, Joseph Evan Borson, Kristina Ann Wolfe, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

On December 22, 2017, the Court held that Plaintiff Matthew Dunlap was entitled to certain documents to vindicate his right, as an appointed commissioner, to fully participate in the proceedings of the Defendant Presidential Advisory Commission on Election Integrity (the "Commission"). See Dunlap v. Presidential Advisory Comm'n on Election Integrity , 286 F.Supp.3d 96 (D.D.C. 2017). The Commission never complied with the Court's Order. Nor did any co-Defendant officials or entities indicate an intention to do so.¹ An Executive Order issued on January 3, 2018, terminated the Commission and triggered a series of motions seeking to clarify the path forward in this case.

Upon consideration of the pleadings,² the relevant legal authorities, and the record as a whole, including the Court's [32] Order and [33] Memorandum Opinion of December 22, 2017, which the Court expressly incorporates herein, the Court DENIES Plaintiff's [35] Application for a Temporary Restraining Order ("TRO Application"), DENIES Defendants' [39] Motion to Reconsider This Court's December 22, 2017, Order ("Motion to Reconsider"), and, in an exercise of the Court's discretion, DENIES Plaintiff's [48] Motion for Leave to Serve a Preservation Subpoena ("Subpoena Motion").

Defendants have indicated that if the Court were to deny their Motion to Reconsider, they would consider seeking appellate review rather than producing the documents at issue. MTR Mem. at 12–13. They accordingly requested a stay of any adverse decision to give them time to evaluate. As the Court shall discuss in this Opinion, Defendants are not entitled to a stay either during their determination of whether to appeal or during any appeal, subject to any finding that the Court lacks jurisdiction over aspects of the case under consideration by the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit" or "Court of Appeals").

Plaintiff is entitled under Cummock v. Gore , 180 F.3d 282 (D.C. Cir. 1999), to the preliminary relief guaranteed by the Court's [32] Order and [33] Memorandum Opinion of December 22, 2017, as further clarified in this Memorandum Opinion, but not to anything more at this time. Defendants must produce the relevant documents by no later than JULY 18, 2018 .

I. BACKGROUND

The Court extensively discussed the statutory and factual background of the Commission in its decision as to Plaintiff's [7] Motion for a Preliminary Injunction. See Dunlap , 286 F.Supp.3d at 99–104. The Court shall only briefly recapitulate here the Commission's short life and Plaintiff's role therein, with emphasis on the factual and procedural developments that have occurred since the Court's decision.

President Donald J. Trump launched the Commission on May 11, 2017, with a mandate to "study the registration and voting processes used in Federal elections." Executive Order No. 13,799 § 3, 82 Fed. Reg. 22,389, 22,389 (May 11, 2017) ("May 11, 2017 Exec. Order"). Plaintiff Matthew Dunlap, Secretary of State of the State of Maine, was among the appointed commissioners. Over the following summer and early fall, the Commission held several meetings regarding election issues and collected some state voter data. Yet, despite his eagerness to contribute to the Commission's work, Plaintiff had reason to believe that Defendants and perhaps other commissioners were inhibiting his ability to fully do so. Plaintiff tried to obtain certain documents from the Commission to vindicate his rights, and when he was unsuccessful, he brought this lawsuit against the Commission, Vice President Michael R. Pence in his capacity as Chair of the Commission, Kris W. Kobach in his capacity as Vice Chair, the Executive Office of the President ("EOP"), and the Office of the Vice President ("OVP"), among others.

Unofficial information shortly thereafter suggested that the Commission might hold a meeting without inviting Plaintiff's involvement in the planning. This precipitated his efforts to obtain preliminary relief, which this Court granted in significant part on December 22, 2017. The Court found that Plaintiff was likely to succeed in obtaining certain relief pursuant to the Court's mandamus jurisdiction, 28 U.S.C. § 1361, and met the remaining elements for a preliminary injunction as to that relief. Defendants were required to provide Plaintiff with certain past and future documents to facilitate his meaningful participation as a commissioner. See, e.g., Dunlap , 286 F.Supp.3d at 107–08. They never did so.

On January 3, 2018, Defendants abruptly notified the Court that President Trump had signed an Executive Order that terminated the Commission. Notice of Executive Order, ECF No. 34. A flurry of public statements comprised the Commission's early epitaph. That day the White House Press Secretary offered one version of the reasons for its demise:

Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry. Rather than engage in endless legal battles at taxpayer expense, today President Donald J. Trump signed an executive order to dissolve the Commission, and he has asked the Department of Homeland Security to review its initial findings and determine next courses of action.

Statement, The White House, Statement by the Press Secretary on the Presidential Advisory Commission on Election Integrity (Jan. 3, 2018), ECF No. 46–1. Mr. Kobach, who had overseen much of the Commission's operations as its Vice Chair, highlighted the realpolitik:

"It got to the point where the staff of the commission was spending more time responding to litigation than doing an investigation," Mr. Kobach said. "Think of it as an option play; a decision was made in the middle of the day to pass the ball. The Department of Homeland Security is going to be able to move faster and more efficiently than a presidential advisory commission."

TRO Mem. at 5 (quoting Michael Tackett and Michael Wines, Trump Disbands Commission on Voter Fraud , N.Y. Times (Jan. 3, 3018), https://www.nytimes.com/2018/01/03/us/politics/trump-voter-fraud-commission.html). At least from his perspective, Mr. Kobach evidently would serve as "an informal adviser to homeland security," id. (quoting Tackett and Wines, supra ) (internal quotation marks omitted), who would be "working closely with the White House and DHS to ensure the investigations continue," id. at 5–6 (quoting John Binder, Exclusive—Kris Kobach: Voter Fraud Commission ‘Being Handed off’ to DHS, Will No Longer Be ‘Stonewalled’ by Dems , Breitbart (Jan. 3, 2018), http://www.breitbart.com/big-government/2018/01/03/exclusive-kris-kobach-voter-fraud-commission-being-handed-off-to-dhs-will-no-longer-be-stonewalled-by-dems/) (internal quotation marks omitted). Confirming that the issue would remain on the agenda, President Trump tweeted, "Push hard for Voter Identification!" on January 4, 2018. MTR Opp'n at 10 n.18 (quoting Donald J. Trump (@realDonaldTrump), Twitter (Jan. 4, 2018) ) (internal quotation marks omitted).

Nowhere did Defendants indicate that they would comply with the Court's December 22, 2017, Order compelling them to provide Plaintiff with certain documents. Defendants' correspondence with Plaintiff indicated that they would instead seek reconsideration of the Court's Order in light of the Commission's termination. TRO Mem. Ex. 2, ECF No. 35–3, at 1–2. Fearing that his final opportunity to participate in the Commission was slipping away, Plaintiff applied for a temporary restraining order ("TRO") seeking extensive relief, including a variety of orders regarding post-dissolution management of Commission documents and an order compelling Defendants' compliance with the Court's preliminary injunction. See Pl.'s Appl. for a TRO, ECF No. 35, at 1–2.

In parallel, Defendants sought reconsideration of the Court's preliminary injunction, citing the "changed circumstances" of the Commission's termination without "issu[ing] a report or mak[ing] any recommendations before its dissolution." MTR Mem. at 1. In an effort to handle the motion practice most efficiently, the Court held a teleconference with the parties and decided to hold the TRO Application in abeyance while the Court resolved the Motion to Reconsider. Min. Order of Jan. 10, 2018. Plaintiff did, however, request the Court's prompt attention to one issue that he had not expressly raised in the TRO Application, namely whether former Commission members—some of whom were never Defendants in this case—could be restrained from unofficially disseminating official Commission records to the Department of Homeland Security or to other third parties. Id. The parties proceeded to brief the Motion to Reconsider, as well as Plaintiff's ancillary request for some form of restraint on former Commission members.

Defendants argued in their briefing that Mr. Kobach, as a Defendant sued only in his official capacity as Vice Chair of the Commission, is no longer a party to this case after the Commission's dissolution.³ See, e.g. , TRO Ancillary Issue Opp'n at 1. Plaintiff accordingly filed a motion for leave to serve a subpoena on Mr. Kobach to ensure that he would preserve documents, in light of Defendants' position that they could not compel him to do so. Subpoena Mem. at 1; see also TRO...