Case 1:17-cv-02361-CKK Document 7 Filed 11/16/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
MATTHEW DUNLAP,
Civil Action No. 17-cv-2361-CKK
Plaintiff,
- versus PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; MICHAEL R. PENCE, IN HIS OFFICIAL
CAPACITY AS CHAIR OF THE PRESIDENTIAL
ADVISORY COMMISSION ON ELECTION INTEGRITY;
KRIS W. KOBACH, IN HIS OFFICIAL CAPACITY AS VICE
CHAIR OF THE PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION INTEGRITY; ANDREW
KOSSACK, IN HIS OFFICIAL CAPACITY AS
DESIGNATED FEDERAL OFFICER FOR THE
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; GENERAL SERVICES ADMINISTRATION;
TIMOTHY R. HORNE, IN HIS OFFICIAL CAPACITY AS
ACTING ADMINISTRATOR OF THE GENERAL SERVICES
ADMINISTRATION; EXECUTIVE OFFICE OF THE
PRESIDENT; OFFICE OF THE VICE PRESIDENT; OFFICE
OF ADMINISTRATION; MARCIA L. KELLY, IN HER
OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF
ADMINISTRATION,
Defendants.

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, and for the reasons
set forth in the accompanying Memorandum of Law, Plaintiff Maine Secretary of State Matthew
Dunlap moves this Court for a preliminary injunction (1) ordering Defendants promptly to
produce records requested by Secretary Dunlap; (2) ordering Defendants to produce to Secretary
Dunlap all future documents made available to or prepared for or by the Commission promptly
and no later than two weeks in advance of any future Commission meeting; (3) ordering
Defendants to permit Secretary Dunlap to fully participate on an equal basis as all other

 Case 1:17-cv-02361-CKK Document 7 Filed 11/16/17 Page 2 of 3

commissioners; and (4) enjoining the Commission from releasing a final report until Secretary
Dunlap has received all documents to which he is entitled and has had an opportunity to review
them, has participated in the drafting of the report or, if necessary, has completed a concurrence
or dissent to the report.
Pursuant to Local Rule 65.1(d), Secretary Dunlap requests a hearing on this motion be set
for no later than 21 days after this filing. As set forth in the accompanying memorandum of law
and declarations, Secretary Dunlap will be irreparably harmed absent an injunction. The
Commission’s next meeting may be set at any time and, without an injunction, Secretary Dunlap
will be unable to participate fully in any such meeting or in the Commission’s ongoing work.
Pursuant to Local Rule 7(m), counsel for Secretary Dunlap state that they wrote to the
DOJ attorneys representing the Defendants on the morning of November 14, 2017 asking that
Defendants provide the requested documents to Secretary Dunlap. Counsel for Secretary Dunlap
requested a response by November 16 at 11:00 a.m. Counsel for Secretary Dunlap also sent an
email to the DOJ attorneys representing the Defendants on the afternoon of November 15
informing them that we planned to file a motion for preliminary injunction on November 16 and
attaching the proposed order. We asked whether Defendants were willing to stipulate to the
relief sought in the proposed order. On the morning of November 16, 2017, counsel for
Defendants responded. Counsel advised that Secretary Dunlap will be notified as soon as the
next Commission meeting is scheduled, and at least 15 days in advance of such a meeting. He
also represented that Secretary Dunlap would not be punished, retaliated against, or terminated
for asserting his rights. But counsel did not agree to produce any documents to Secretary Dunlap
or make any other commitments that would remove the need for judicial intervention to provide
the relief requested in this motion. Having reached impasse, this motion follows. A proposed
order is attached.
2

 Case 1:17-cv-02361-CKK Document 7 Filed 11/16/17 Page 3 of 3

Dated: November 16, 2017

Respectfully submitted,
By:
/s/ Daniel S. Ruzumna
PATTERSON BELKNAP WEBB & TYLER LLP
Daniel S. Ruzumna (D.C. Bar No. 450040)
Harry Sandick (pro hac vice application pending)
Daniel A. Friedman (pro hac vice application pending)
1133 Avenue of the Americas
New York, N.Y. 10036
Tel: (212) 336-2000
Fax: (212) 336-2222
druzumna@pbwt.com
hsandick@pbwt.com
dfriedman@pbwt.com
AMERICAN OVERSIGHT
Austin R. Evers (D.C. Bar No. 1002367)
Melanie Sloan (D.C. Bar No. 434584)
John E. Bies (D.C. Bar No. 483730)
Cerissa Cafasso (D.C. Bar No. 1011003)
1030 15th Street NW, B255
Washington, DC 20005
Tel: (202) 869-5246
austin.evers@americanoversight.org
msloan@americanoversight.org
john.bies@americanoversight.org
cerissa.cafasso@americanoversight.org

Attorneys for Plaintiff Matthew Dunlap

3

 Case 1:17-cv-02361-CKK Document 7-1 Filed 11/16/17 Page 1 of 6

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
MATTHEW DUNLAP,
Civil Action No. 17-cv-2361-CKK
Plaintiff,
- versus PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; MICHAEL R. PENCE, IN HIS OFFICIAL
CAPACITY AS CHAIR OF THE PRESIDENTIAL
ADVISORY COMMISSION ON ELECTION INTEGRITY;
KRIS W. KOBACH, IN HIS OFFICIAL CAPACITY AS VICE
CHAIR OF THE PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION INTEGRITY; ANDREW
KOSSACK, IN HIS OFFICIAL CAPACITY AS
DESIGNATED FEDERAL OFFICER FOR THE
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; GENERAL SERVICES ADMINISTRATION;
TIMOTHY R. HORNE, IN HIS OFFICIAL CAPACITY AS
ACTING ADMINISTRATOR OF THE GENERAL SERVICES
ADMINISTRATION; EXECUTIVE OFFICE OF THE
PRESIDENT; OFFICE OF THE VICE PRESIDENT; OFFICE
OF ADMINISTRATION; MARCIA L. KELLY, IN HER
OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF
ADMINISTRATION,
Defendants.

DECLARATION OF MATTHEW DUNLAP
I, Matthew Dunlap, declare as follows:
1.

I am the Secretary of State of
of the
the State
State of
of Maine.
Maine. I served as Secretary of State

from 2005 through 2010 and was reelected Secretary of State by the Maine legislature in 2013.
As Secretary of State, I oversee the Bureau of Corporations, Elections and Commissions, which
has oversight of state elections in Maine.
was appointed to the Presidential Advisory
Maine. II was
Commission on Election Integrity
Integrity (the
(the “Commission”)
"Commission") on
on May
May 11,
11, 2017.
2017. I submit this
declaration in support of my motion for a preliminary injunction.

 Case 1:17-cv-02361-CKK Document 7-1 Filed 11/16/17 Page 2 of 6

2.
2.

In 2013, in my capacity of Secretary of State, I received the recommendations of

the 2012 Maine Elections Commission (the “2012
"2012 Commission"),
Commission”), a commission of five Maine
citizens that studied and offered
offered strategies
strategies to
to improve
improveMaine’s
Maine's election
election system.
system. The 2012
Commission met five times, held eight public hearings throughout the state of Maine, received
written testimonial submissions, and held three
three deliberative
deliberative meetings.
meetings. Based on this process, the
2012 Commission made several unanimous recommendations, including to maintain same-day
The 2012
2012 Commission
Commission also
also determined, by a 4-1
voter registration and to institute early voting.
voting. The
vote, that the negative aspects of a Voter
Voter ID
ID law
law outweighed
outweighed its
its potential
potential benefits.
benefits. The 2012
Commission’s report,
report, together
together with
with a cover letter from me to the Maine Legislature, is attached
Commission's
to this declaration as Exhibit 1.
3.
3.

I believe that it is firmly my role as Secretary of State to facilitate the exercise of

the right of American citizens to vote, not to discourage
discourage its
its exercise.
exercise. There are few rights more
important than the sovereign right of a citizen to exercise the franchise of self-governance by
voting.
4.

I agreed to join the Commission because I believed that my experience and

perspective on election issues would be helpful
helpful to
to the
the issues
issues the
the Commission
Commission planned
plannedto
tostudy.
study. I
believed, and continue to believe, that I can use my position as Commissioner to shape the
Commission’s report
report and
and recommendations to the President.
Commission's
5.
5.

On June 28, 2017, I participated in a conference call with the other

commissioners, including Vice President Mike Pence (the Commission’s
Commission's chair), and Vice-Chair
On that
that call,
call, Vice-Chair
Vice-Chair Kobach
Kobach informed
informed the
the other commissioners and me that
Kris Kobach. On
the Commission planned to send letters to all 50 states and the District of Columbia asking that
they provide the Commission
Commission with
with information
information from
from the
thestates’
states' voter
voter rolls.
rolls. I was not given the
requests in advance of this phone call; this phone call was the first time I had heard of these
2

 Case 1:17-cv-02361-CKK Document 7-1 Filed 11/16/17 Page 3 of 6

letters. The
The commissioners
commissioners were
were not
not given
given the
the opportunity
opportunity to
to vote on whether to send the letters,
did not
not have
have time
time to review the letters, to consult with
which were sent later that same day. II did
other commissioners regarding the letters,
letters, or
or to
to consider
consider or
or object
object to
to the
the letters.
letters. If I had been
given a meaningful opportunity to discuss this matter, I might have opposed the decision to send
these letters, or proposed alternative strategies for gathering voting-related information.
6.
6.

The Commission held its first public meeting on July 19, 2017 in Washington,

received only
only four
four documents in advance
D.C. IIreceived
advance of
of the
the July
July 19
19meeting:
meeting: the Commission’s
Commission's
by-laws, the executive order establishing the Commission, and a
charter, the Commission’s
Commission's by-laws,
was not
not consulted
consulted or
or otherwise
otherwise involved
involved in the creation of the agenda for the
meeting agenda. II was
July meeting. II was
was not
not asked
asked my
my opinion
opinion on
on possible
possible topics
topics for discussion at the meeting and I
was not asked to provide the names of any speakers or witnesses that should be invited to the
meeting.
7.

Several commissioners, including Mr. Kobach, Hans von Spakovsky, Christy

McCormick, and J. Kenneth Blackwell, brought documents to the July 19 meeting that were
Although II was
was provided
provided with
with these documents at the meeting, I did
discussed at that meeting. Although
therefore did
did not
not have
have time
time to review the documents, formulate
not receive them in advance. II therefore
questions about them, or engage with my fellow commissioners on those topics at the July 19
meeting.
8.
8.

The Commission held its second
second public
public meeting
meeting on
on September
September 12,
12,2017.
2017. I was

provided with a meeting agenda several
several days
days before
before the
the September
September 12
12 meeting.
meeting. I was not
consulted or otherwise involved in the
the creation
creation of
of the
the agenda.
agenda. I was not asked my opinion on
possible topics for discussion at the meeting and I was not asked to provide the names of any
speakers or witnesses that should be invited to the meeting.
9.
9.

Between September 12 and November 12, I received no substantive information
3

 Case 1:17-cv-02361-CKK Document 7-1 Filed 11/16/17 Page 4 of 6

have not
not been
been informed of the
or communications regarding
regarding the
the Commission’s
Commission's work. II have
Commission’s plans
plans to
to hold
hold another
another public meeting, nor have I been consulted about topics for
Commission's
discussion or involved in discussions with other commissioners.
10.
10.

I have similarly been
been left
left uninformed
uninformed about
aboutthe
theCommission’s
Commission's staff.
staff. For example,

staff member Ronald Williams was arrested and charged with possession and distribution of
was informed of the arrest from a journalist, not by
child pornography on October 13,
13, 2017.
2017. II was
And II still
still have
have not
not been
been told
told whether
whether Mr. Williams has been fired, even after
the Commission. And
inquiries to Andrew Kossack, the Commission’s
Commission's Designated Federal Officer.
11.
11.

On October 17, 2017, I wrote aa letter
letter to
to Mr.
Mr. Kossack.
Kossack. That letter is attached to

requested "copies
“copies of
of any
any and
and all correspondence between
this declaration as Exhibit 2. II requested
Commission members in the possession of the Commission dating from the signing of the
Executive Order on May 11th,
11th, 2017
2017 until
until the
the receipt
receipt of
of this
this request.”
request." I specifically requested
“communications between Commissioners themselves, between Commissioners and/or staff and
"communications
other Federal agencies, communications used in the development of public documents, and any
ongoing discourse between Commissioners and staff about the development of policies and/or
policy proposals that may be offered to policymakers as either a component of any report or
In my
my letter,
letter, II explained
explained to
to Mr.
Mr. Kossack
Kossack that without the information I
under separate cover.”
cover." In
requested, I could not competently carry out my duties as a commissioner.
12.
12.

On October 19, 2017, the Minnesota Voters Alliance (“MVA”),
("MVA"), a group dedicated

to preventing voter fraud, sent a fundraising appeal stating that MVA “was
"was invited to speak at the
The fundraising
fundraising email is attached to this
December 2017 meeting of the”
the" Commission.
Commission. The
declaration as Exhibit 3.
13.
13.

On October 25, 2017, I received
received aa response
response from
from Mr.
Mr. Kossack.
Kossack. That email is

He did
did not
not provide
provide me with the documents I had
attached to this declaration as Exhibit 4. He
4

 Case 1:17-cv-02361-CKK Document 7-1 Filed 11/16/17 Page 5 of 6

Instead, he
he wrote
wrote that
that he
he was
was "consulting
“consulting with counsel"
counsel” regarding my request and
requested. Instead,
that he would be in touch soon.
14.
14.

Later on October 25, 2017, I wrote back asking Mr. Kossack to shed light on the

Commission’s work
work plan and communications. My
My email
email is
is attached
attached to this declaration as
Commission's
Exhibit 5. II asked
asked Mr.
Mr. Kossack
Kossack to confirm reports that the Commission’s
Commission's work was “on
"on hold,”
hold,"
that the Commission had scheduled a meeting for December 2017, and that the Commission had
invited the MVA to speak at the December meeting.
15.
15.

On October 27, 2017,
2017, Mr.
Mr. Kossack
Kossack responded.
responded. Mr. Kossack’s
Kossack's email is attached to

Mr. Kossack
Kossack wrote
wrote that
that he
he had not spoken to the MVA and that no
this declaration as Exhibit 6. Mr.
He did
did not
not address
address whether any commissioner had
meeting was scheduled for December
December 2017.
2017. He
spoken to the MVA and invited them to
to aa Commission
Commission meeting.
meeting. Mr. Kossack did not confirm
work was
was on hold, stating only that he "had
“had no prior communication with
that the Commission’s
Commission's work
Secretary Lawson
Lawson about
about her
her statements”
statements" that
that the
the Commission’s
Commission's work
work was
was on
on hold.
hold. Mr. Kossack
provided no information regarding my pending request for Commission documents.
16.
16.

On November 1, 2017, I wrote to Mr. Kossack asking for an update on my request

for Commission documents.
This email is attached to this declaration
documents. This
declaration as
as Exhibit
Exhibit 7.
7. I stated that I
did not know how the agenda for the September meeting was developed and did not even know
Again, II explained
explained that I needed information in order to fully
what the goal was for that meeting. Again,
participate as a commissioner.
17.
17.

I have not received any response to my November 1, 2017 email and still have not

received any substantive response to
to my
my October
October 17,
17, 2017
2017 request
request for
for documents.
documents. Nor has Mr.
Kossack or any other commissioner provided me with any Commission documents in response
to my request.
18.
18.

The Commission’s
failure to include me in its work or discussions has rendered
Commission's failure
5

 Case 1:17-cv-02361-CKK Document 7-1 Filed 11/16/17 Page 6 of 6

me unable to fulfill my responsibilities as commissioner. I am eager to contribute to the work of
the Commission but I am unable to participate in a meaningful fashion because the Commission
has not shared any documents or communications about the Commission's work and has refused
to involve me in investigations or deliberations.
19.

If the Commission is not compelled to provide me the documents I requested and

to involve me in its work and deliberations, I fear that I will be unable to participate fully in
future meetings, 1 will be unable to contribute to the report and recommendations to the
President, and I will be unable to draft a concurrence or a dissent if 1 disagree with any of the
Commission's findings.

I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge.

Executed thisi day of November, 2017.

6

 Case Document 7-2 Filed 11/16/17 Page 1 of 29

Exhibit 1

Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 2 of 29
STATE

OF

MAINE

OFFICE
OF THE

SECRETARY OF STATE
MATTHEW DUNLAP
SECRETARY OF STATE

1. February 2013
The Hon. John Tuttle, Senate Chair
Joint Standing Committee on Veterans and Legal Affairs
100 State House Station
Augusta, ME 04333
The Hon. Louis Luchini, House Chair
Joint Standing Committee on Veterans and Legal Affairs
100 State House Station
Augusta, ME 04333
Dear Senator Tuttle and Representative Luchini,
Please find attached the report of the 2012 Elections Commission, which was commissioned by
Secretary of State Charles E. Summers, Jr. as the Legislature entertained a number of changes to
election laws in the 125th Legislature. It was decided that a study of election law was prudent
before adoption of broad changes to those laws; the bills were then relegated to the legislative
files.
Because the commission was a creature not of legislation, but wholly of the office of the Secretary
of State, it was speculated that with the change of administration following the November
elections and the attendant changes in political philosophy, that my administration would state that
the commission's work was moot, and let it simply expire.
It is my personal policy to honor the work of all elected officials, and let the facts stand and speak
for themselves. After meeting with members of the commission, I determined to let their work go
forward and to present their report, with the caveat that the decision of whether or not to support
the findings of this report was mine alone.
I do agree almost entirely with the report's findings. Indeed, I find the work of the commission to
be a refreshing reflection of the general skill employed in the conduct of Maine elections and a
fluent narrative of the exploration of issues whose resolutions have proven to be controversial. The
deft handling of these topics earns my complete praise and thanks for a difficult job well done. In
the report, the findings include one that in a widely split vote of 4-1 the commission recommends
deferring action on proposed requirements to provide a photographic identification card in order to
access a ballot; they are unanimous in their recommendation to let the people's decision stand on
Election Day Registration; and they give a unanimous and ringing endorsement of early voting,
which reflects feedback our office received after the successful conclusion of the pilot projects we
completed at the direction of the Legislature.
148 STATE HOUSE STATION • AUGUSTA. MAINE • 04333-0148 • TELEPHONE: (207) 626-8400 • FAX: 1207) 287-8598

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 3 of 29

There are other points about absentee balloting, polling place activity, campaign sign usage and
other issues that are arguable, given the many proposals your committee will consider this session,
but there, findings are reflective of the many changes made to increase access to the ballot and to
address the overall conduct of elections over the last fifteen years.
The controversial issue of voting by students matriculated and residing at our institutions of higher
learning, however, remains problematic in the report, and it is one I will spend some time
reflecting on here, not for the sake of arguing with the work of the commission, but rather to
observe at a high level the elements of this discussion and the stakes involved as I see them. I
appreciate the thoughtful consideration the commission has given in its recommendation; I feel
strongly however that the thesis and analysis of the issues raised are yet lacking a synthesis. Their
recommendation to follow the model of New Hampshire law and replace the term "residence"
with the term "domicile" may come closer to the heart of the discussion, and it has the salutary
effect of partially addressing the concerns of some critics. But given the results of the investigation
of the voter activity of over 200 college students by the Secretary of State's office last year that
failed to produce a single prosecutable instance of voter misconduct, but did prompt many of these
Americans to cancel their voter registrations serves to illustrate the point that the focus on college
student voting is a series of answers looking for a problem. Under this recommendation, the
attendant information that New Hampshire—and presumably Maine, were the recommendation to
be adopted—then provides, including intelligence that by declaring a domicile the voter is now
also assuming other responsibilities of residency, including but not limited to transferring vehicle
registration, driver license and other provenances of citizenship to be fulfilled within given legal
time frames. This assumes that the citizen will otherwise shirk these duties, and wrongly gives the
pedestrian privileges of administrative compliance equal weight to the right to vote.
It is my belief that in the drive to "secure" elections by closely defining the eligibility of voters in
a given precinct that we may inadvertently be constructing barriers—barriers that serve no public
purpose—to American citizens and discouraging them from voting. To be sure, a registrar of
voters may consider a prospective voter's status in terms of vehicle registration or possession of
certain resident credentials to determine voter eligibility, but a lack of possession of these
documents does not impeach one's right to vote, and we should not lose sight of this.
The cries of 'voter suppression' infer an intent that I do not believe to be manifest. The elections
officials and policymakers who have voiced concerns about residency of voters in many
jurisdictions, particularly municipalities that host institutions of higher learning, bring forward
many well-thought out contentions and concerns about voter eligibility. They maintain that if a
citizen wants to vote here, they should do more than just say they live here. They should pay taxes,
they should make permanent their intentions manifestly by getting Maine driver licenses,
registering their cars here, and paying the accompanying excise taxes to support the communities
they are voting in; in short, they should establish a strong and tangible connection to the
community. After all, they aren't just voting in a presidential election, they also are accessing
ballots for municipal issues and for elections to the state legislature as well. They should prove
their commitment.
But we're still talking about American citizens.
American citizens are endowed with the right to vote. I believe firmly that it is the role of my
office to in every way facilitate the exercise of that right, and to not discourage it. Yes, it is true
that if a citizen chooses to domicile in Maine, they must also—within well-defined legal time

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 4 of 29

frames—obtain a Maine driver license, register their car in Maine, pay taxes in Maine, and, if they
choose to participate in Maine elections, to register to vote in Maine. The key question here is at
what point is it appropriate for government to give notice to a citizen of the obligation of that
citizen to the greater community, once they decide to be a resident of that community?
Our office conducted a study in 2007 of a sampling of residency requirements in Maine, pursuant
to a legislative resolve adopted during deliberations about tightening requirements for obtaining a
Maine driver license. In that review, we found that residency in Maine has a distinctly different
meaning depending on the public purpose. Eligibility for seeking public office has one definition;
eligibility for reduced in-state tuition rates very much another. Perhaps the strictest requirements
for resident status involve, curiously, the acquisition of a resident hunting or fishing license, which
includes a sworn statement punishable, if untrue, as a Class D crime.
The courts have ruled that it is invalid to exclude temporary residents, non-property owners, or
other classes of people with arguably less stake in the outcome of local elections from the
franchise (Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969)). The requirement is
not where you were domiciled last summer, yesterday, or where you will be domiciled in a week,
a month or a year; the requirement is to aver where you intend to be domiciled on Election Day—
where you intend to return at the end of the day and have no immediate intention to depart from
(Poirier, Sr. v. City of Saco Maine Supreme Judicial Court 529 A.2d 329 (1987).
In all chapters of Maine law, we count on our citizens to be engaged. We count on our citizens to
voluntarily comply with enacted statutes for the common good. Where gaps arise, we enforce laws
to ensure compliance. We do not, when issuing a driver license, remind the driver that by
accepting that license, they are also bound to use their turn signal, or to come to a complete stop at
a stop sign. We rely on the citizen to understand those obligations. Our citizens are
overwhelmingly law-abiding, and not because we are always checking on them. It is notable here
that in the aforementioned case of hunting and fishing licenses, there is a positive pecuniary
benefit in obtaining a resident versus a non-resident hunting or fishing license. Despite the
apparent presented temptation to attempt to cheat the system by either attempting to obtain a
permit for which one is noteligible, or to not get a permit at all, the reality is that Maine enjoys a
very high compliance rate with its hunting and fishing licensing laws.
In my consideration of this topic, I have reflected greatly on the poll tax. Poll taxes were common
in America, including in Maine, until they were struck by the United States Supreme Court as an
unconstitutional impediment designed, in some jurisdictions, to prevent poor minorities from
participating in the election process. In practice, in order to vote, the voter had to participate up
front by paying a tax, in many areas based on a per capita basis for each member of the household.
Until they participated in this act of citizenship, the voter could not participate in an election. In
areas where those same poor minorities could pay, additional restrictions such as literacy tests
were imposed—presumably, again, to keep them from voting.
The recommendation that we, as elections officials, take the initiative beyond making sure that a
voter is only registered in one place and to make mindful in the voter that by registering to vote,
they are assuming a host of other non-voting obligations attendant to Maine residents domiciled
here as citizens will undoubtedly have a dampening effect on a population whose futures are filled
with promising fluidity. Sensing a warning of long-term commitment with ramifications they do
not have time to discern or understand, many American citizens will forego the exercise of their

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 5 of 29

right to vote here in Maine. Converse to the poll tax, which unconstitutionally discouraged voters
by installing barriers before one could vote, this recommendation calls for proclaiming obligations
to the citizen after they vote. The prospect of the effort needed to assume privileges after
exercising a right will certainly leave the right, for some, unused; and for those who make and
administer the laws of society, there is a diminished risk of reproof from the people, and they
would instead remain comfortably unvexed, so that the will of the public will then be thrown from
balance. I cannot support that unforeseen potential harm of voter silence, and thus, I do not
support that recommendation in this report.
I will be happy to make myself available for any questions you may have.
Sincerely,

Matthew Dunlap
Secretary of State

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 6 of 29

Report
Report of
of the
the 2012
2012 Elections Commission
January
January28,
28, 2013
2013

The Honorable
HonorableJohn
John R.
R. Atwood,
Chair
The
Atwood, Chair
The Honorable
Honorable Paula
Paula D.
D. Silsby
The
Silsby
Ms. Linda
Linda Cohen
Cohen
Ms.
Mr.
Mr. Timothy
Timothy (Tim)
(Tim) Wilson
Wilson
The
The Honorable
HonorableN.
N. Laurence
Laurence Willey,
Willey,Jr.
Jr.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 7 of 29

John R.
Atwood
John
R Atwood
124 The
The King's
King’s Highway
124
Highway
Newcastle,
Newcastle, ME
ME 04553
04553
January 28,
January
28, 2013
2013
The Hon.
The
Hon. Matthew
Matthew Dunlap
Dunlap
Secretary of
of State
Secretary
State
148 State
State House
House Station
148
Station
Augusta, ME
Augusta,
ME04333-0148
04333-0148
Re:
Re: 2012
2012 Elections
Elections Commission
Commission Report
Report
Dear
Dunlap:
Dear Secretary
Secretary Dunlap:
It
which was
It is
is my
my great
great pleasure
pleasure to
to present
present you
you with
with the
the above-noted
above-noted report
report which
was created
created by
by
the Elections
Elections Commission
the
Commission appointed
appointed by
by your
your predecessor.
predecessor.
II believe
believe you’ll
you'll find
find that
that we
we have
have fulfilled
fulfilledour
our mission
mission by
by offering
offeringaanumber
number of
of strategies
strategies to
to
improve
These entail
of
improve Maine’s
Maine's elections
elections system
system as
as enumerated
enumerated in
in this
this report.
report. These
entail aa number
number of
changes
laws, but
you will
changes in
in our
our laws,
but II think
think that
that you
will find
find that,
that, with
with the
the exception
exception of
of aa constitutional
constitutional
amendment to
to allow
allow early
early voting,
voting, they
only minor
minor modifications
modifications in
in our
our law.
law. This
This
amendment
they represent
represent only
is
is because
because our
our review
review of
of Maine’s
Maine'selection
electionpractices
practicesdemonstrated
demonstrated what
what most
most citizens
citizens
already understand:
understand:our
ourState
Stateenjoys
enjoys aa credible,
credible, well-administered
well-administered elections
elections system.
system. We
We
already
hope
that you
you and
and your
your colleagues
colleagues in
in the
Legislature will
will consider
we offer
offer here
as aa
hope that
the Legislature
consider what
what we
here as
means
improve this
this essential
essential part
part of
of our
our democracy.
democracy.
means to
to further
further improve
If
If you
you choose
choose to
toadopt
adopt some
some or
or all
allof
ofthis
thisreport
report in
in your
your in
inyour
yourrecommendations
recommendations to
to the
the
Legislature,
Legislature, we
we would
would be
be honored
honored to
to appear
appear as
as may
may be
be needed
needed in
in that
that forum
forum to
to discuss
discuss this
this
report.
report.
Finally,
appreciation of
of the
the Commission
Commission for
for the
supportof
of your
your office
office
Finally, let
let me
me reiterate
reiterate the
the appreciation
the support
during
this process,
process, especially
especially the
the assistance
assistanceof
ofJulie
Julie Flynn
Flynn and
and Melissa
Melissa Couture.
during this
Couture. II also
also want
want
thank my
my fellow
fellow Commissioners,
Commissioners,Linda
LindaCohen,
Cohen, Paula
Paula Silsby,
Silsby, Tim Wilson
to thank
Wilson and
and Larry Willey
for their
for
their many
many contributions
contributions to
to this
this report
report
Respectfully
Respectfully submitted,
submitted,

John R.
Atwood, Chair
Chair
John
R Atwood,

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 8 of 29

Introduction
Introduction
The 2012
Elections Commission
of Secretary
Secretary of
of State
State Charles
Charles
The
2012 Elections
Commission was
was formed
formed at
at the
the request
request of
E.
E. Summers,
Summers, Jr.,
Jr.,who
whoasked
askedthe
thefive
fivecitizens
citizenswho
whocomprised
comprised the
the members
members of
of the
the
Commission
of the
the Resolve
Resolve which
Commission to
to carry
carry out
out the
the terms
terms of
which directed
directed him
him to
to conduct
conduct aa
study
of
“voter
participation,
the
current
system
for
registering
voters
and
study of "voter participation, the current system for registering voters and the
the conduct
conduct
of
in the
State.” Resolves
of elections
elections in
the State."
Resolves 2011,
2011, ch.133.
ch.133.
The five
tothe
theCommission
Commissionwere
werePaula
PaulaD.
D.Silsby
Silsby of
of Portland,
Portland,Linda
Linda C.
C.
The
five citizens
citizens appointed
appointed to
Cohen
Timothy (Tim)
(Tim)P.
P. Wilson
Wilson of
of Portland,
Portland,N.
N. Laurence
LaurenceWilley,
Willey, Jr.
Jr. of
Cohen of
of South
South Portland,
Portland, Timothy
of
Bangor
John R.
R. Atwood
Bangor and
and John
Atwood of
ofNewcastle,
Newcastle,who
who served
served as
as chair.
chair.
The Commission
The
Commission met
met five
five times,
times, starting
starting on
on May
May 11,
11,2012,
2012, with
with staff
staff from
from the
the Secretary
Secretary
of
of State’s
State's Office
Officeand
andthe
theAttorney
AttorneyGeneral’s
General'sDepartment
Department in
in order
order to
to become
become familiar
familiar
with Maine's
Maine’s election
with
election laws
laws and
and any
any issues
issues which
which may
may relate
relate to
to the
the directive
directive in
in the
the
legislative resolve.
the Commission
Commission held
held eight
eight public
public hearings
hearings in
in Augusta,
Augusta,
legislative
resolve. Thereafter,
Thereafter, the
Portland,
Wells, Farmington,
Bangor, Lewiston,
Isle. These
Portland, Wells,
Farmington, Bangor,
Lewiston, Machias
Machias and
and Presque
Presque Isle.
These
hearings
were webcast,
webcast, and
and all
all Commission
Commission functions
public notice.
hearings were
functions followed
followed proper
proper public
notice.
The
The Commission
Commission also
also met
met with
with local
local election
election officials
officialsatattheir
theirannual
annual training
training
conference
conference at
at Sugarloaf.
Sugarloaf. Further,
Further, Commission
Commissionmembers
members observed
observed the
the 2012
2012 primary
primary
and/orgeneral
generalelections
electionsin
inPortland,
Portland,Bangor,
Bangor, Ellsworth,
Ellsworth, Auburn,
Auburn, Hampden
and/or
Hampden and
and
Lewiston.
Lewiston. Finally,
Finally,the
theCommission
Commissionreceived
receivedwritten
written testimonial
testimonial submissions
submissions from
from
citizens
organizations. The
The purpose
purpose of
of all
all these
citizens and
and interested
interested organizations.
these activities
activities was
was to
to educate
educate
the Commission
Commission as
the
as to
to issues
issues concerning
concerning Maine’s
Maine's election
election practices
practices which
which the
the public
public and
and
local officials
local
officials had
had identified.
identified.
Finally,
Finally, the
the Commission
Commissionheld
heldthree
threedeliberative
deliberative meetings
meetings at
at which
which they
they reviewed
reviewed the
the
material
they had
material they
had accumulated
accumulated over
over the
the previous
previous eight
eight months
months and
and settled
settled on
on the
the
recommendations
contained in
in this
this report.
report. All
All recommendations,
recommendations contained
recommendations, except
except the
the one
one
concerning
Voter ID,
concerning Voter
ID,were
were unanimously
unanimously arrived
arrived at.
at.
In
this report,
report, the
the Commission
Commission took
In preparing
preparing this
took aa non-expansive
non-expansive approach
approach to
to the
the
mandate
containedin
in the
theResolve.
Resolve. That
That is,
is, the
mandate contained
the Commission
Commission decided
decided that
that its
its limited
limited
expertise
and the
the time
time constraints
constraints they
they faced
faced meant
that they
they should
should limit
limit their
expertise and
meant that
their work
work to
to
the prescription
prescription in
in the
the Resolve
Resolve and
the
and not
not address
address some
some of
of the
the other
other interesting
interesting issues
issues
surroundingelections
electionssuch
suchas
as "ranked
“rankedchoice
choice voting",
voting”, open
open v.
v. closed
surrounding
closed primaries,
primaries,
campaign
campaign financing,
financing,and
andthe
thelike.
like. Our
Ourinterest
interest was
was instead
instead broadly
broadly directed
directed to
to the
the three
three
goals of
of HAVA,
HAVA, the
goals
theHelp
HelpAmerica
AmericaVote
VoteAct,
Act,42
42USC
USCsecs.
secs.15301-15545,
15301-15545, namely,
namely,
“security, accuracy
"security,
accuracy and
and accessibility.”
accessibility." We
Weregret
regret that
that such
such omissions
omissions may
may cause
cause
disappointment
to
those
who
have
expressed
interest
in
our
work.
disappointment to those who have expressed interest in our work.
This report
does not
not recommend
recommend any
any radical
radical changes
changes in
in our
our election
election laws.
laws. Indeed,
Indeed, we
This
report does
we
believe
are modest
modest and,
and, if
if adopted,
adopted, will
will cause
only minor
believe our
our suggestions
suggestions are
cause only
minor changes
changes in
in
our
election laws
our election
laws and
and practices.
practices. This
This result
result is
is undoubtedly
undoubtedly due
due to
to the
the fact
fact that
that our
our State
State
has
done an
an outstanding
outstanding job
job in
in administering
administering its
its elections
elections year
in and
has heretofore
heretofore done
year in
and year
year
out.
among eligible
eligible citizens,
citizens, and
out. We
We can
can boast
boast aa very
very high
high rate
rate of
of registration
registration among
and aa

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 9 of 29

nationally
rate. As
As important,
Maine is
nationally recognized
recognized high
high voter
voter participation
participation rate.
important, Maine
is blessed
blessed with
with
dedicated,
knowledgeable, and
election officials
officials at
dedicated, knowledgeable,
and hardworking
hardworking election
at the
the local
local and
and state
state
levels who
voting in
in Maine
levels
who make
make voting
Maine work
work so
so well.
well. ItIt has
has been
been aa privilege
privilege for
for this
this
Commission
with many
many of
of these
these officials.
officials.
Commission to
to work
work with
This report
would not
not be
be complete
complete without
without thanking
thankingSecretaries
Secretariesof
ofState
State Charles
Charles E.
E.
This
report would
Summers,
Jr.,
and
Matthew
Dunlap,
Deputy
Secretary
of
State
Julie
Flynn,
Assistant
Summers, Jr., and Matthew Dunlap, Deputy Secretary of State Julie Flynn, Assistant
Attorney General
General Phyllis
Redmond, Megan
Attorney
Phyllis Gardiner,
Gardiner, and
and Barbara
Barbara Redmond,
Megan Sanborn
Sanborn and
and Debbey
Debbey
French
of
the
Secretary
of
State’s
Office
for
their
support
and
many
thoughtful
French of the Secretary of State's Office for their support and many thoughtful
suggestions for
for our
suggestions
our work.
work.
Finally,
Melissa Couture,
of
Finally, the
the Commission
Commission would
would especially
especially like
like to
to thank
thank Melissa
Couture, Director
Director of
Constituent
Services at
at the
the Secretary
Secretary of
of State's
State’s Office,
Office, for
Constituent Services
forher
her invaluable
invaluable assistance
assistance and
and
many
as she
with us
us in
in exercising
assigned to
to us.
many courtesies
courtesies as
she worked
worked with
exercising the
the responsibilities
responsibilities assigned
us.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 10 of 29

I.
I.

Voter
Voter ID
Generally
Generally speaking,
speaking, “Voter
"VoterID”
ID"means
meansthat
thataavoter
voterwho
whopresents
presentshimself/herself
himself/herself
at the
the polls
polls must,
must, by
at
by law,
law, present
present aa valid,
valid, current,
current, government
government issued
issued
identification
identification which
which also
also contains
contains aa photograph
photograph of
of its
its bearer.
bearer. Numerous
Numerous
arguments run
run in
in favor
favor of,
of, and
The
arguments
and in
in opposition
opposition to,
to, this
this voting
voting requirement.
requirement. The
Commission
benefitted
from
a
variety
of
publications
on
this
topic
as
well
Commission benefitted from a variety of publications on this topic as well as
as
opinions
from aa variety
variety of
of courts,
courts, including
including the
the U.S.
U.S. Supreme
opinions from
Supreme Court,
Court,and
and written
written
and oral
oral testimony
testimony from
from Maine
Maine citizens
and
citizens and
and organizations
organizations concerned
concerned about
about this
this
issue.
issue. Indeed,
Indeed, it
it is
is fair
fair to
to say
say that
that the
the Commission
Commission received
received more
more information
information on
on
this topic
topic than
any other,
other, perhaps
perhaps because
because the
theorigin
origin of
of the
the Commission's
Commission’s
this
than any
establishment
stemsfrom
fromthe
theeffort
effortto
toenact
enactaaVoter
VoterID
ID law
law in
in Maine.
Maine.
establishment stems
One
advisability of
of adopting
adoptingaaVoter
Voter ID
ID law
law in
in Maine
Maine is
One way
way of
of assessing
assessing the
the advisability
is to
to
weigh its
and cons
cons on
on our
our electoral
electoral system.
system. The
The Commission
weigh
its pros
pros and
Commission adopted
adopted this
this
subjective approach
approach on
on this
this issue
issue as
as itit was
was unaware
unaware of
of any
any objective
objective or
or formulaic
formulaic
subjective
analysis which
which could
Accordingly, we
analysis
could guide
guide itit in
in this
this endeavor.
endeavor. Accordingly,
we developed
developed the
the
following lists
following
lists which,
which, while
while not
not complete,
complete, recited
recited the
the factors
factors which
which we
we believe
believe
should be
be weighed
weighed in
in this
this process.
process. They
They are
are as
as follows:
follows:
should
A. Factors
Factorswhich
whichwould
would support
supportaaVoter
VoterID
ID law;
law; the
“pros”:
A.
the "pros":
- A
A Voter
Voter ID
IDlaw
lawwould
wouldprovide
provide an
an effective
effectivetool
tool against
against voter
voter
impersonation,
an example
example of
of voter
impersonation, an
voter fraud.
fraud.
- In
world, the
the need
need for
for aa personal
identification is
is
In today’s,
today's, post
post 9/11
9/11 world,
personal identification
widespread throughout
throughoutAmerican
American society
society and
and is
is needed
for many
widespread
needed for
many
common
common activities
activities such
such as:
as:
Taking aa bus,
- Taking
bus, train,
train, or
or airplane;
airplane;
Obtaining Social
Social Security
-- Obtaining
Security or
or Medicare;
Medicare;
Admission to
-- Admission
to aa hospital
hospital or
or obtaining
obtaining medical
medical treatment;
treatment;
Purchasing any
any alcoholic
alcoholic beverage
-- Purchasing
beverage retail
retail or
or at
at sporting
sporting events;
events;
Obtaining aa public
-- Obtaining
public transportation
transportation pass;
pass;
Opening aa bank
bank account
account or
or moving
moving substantial
sums of
of money;
money;
-- Opening
substantial sums
Checking into
-- Checking
into aa hotel;
hotel;
Obtaining certain
-- Obtaining
certain prescription
prescription drugs;
drugs;
Getting aa document
notarized or
or signing
signing an
an affidavit;
affidavit;
-- Getting
document notarized
-- Many
Many other
activities
too
numerous
to
list
here;
other activities too numerous to list here;
- Voter
Voter ID
IDlaws
lawsare
are popular,
popular, and
and have
have been
been in
in enacted
enacted in
in 30
30 states,
states,
according to
to the
the National
National Conference
Conference of
of State
according
State Legislatures.
Legislatures. The
The concept
concept
also does
does well in polling.
- Barriers
to obtaining
obtaining aa photo
ID are
and can
can be
be overcome
overcome with
Barriers to
photo ID
are overstated
overstated and
with
planning.
planning.
- Voter
Voter ID
forms of
of ID
ID than
ID laws
laws can
can be
be drafted
drafted to
to allow
allow for
for less
less stringent
stringent forms
than aa
current,
government issued
issued photo
photoID.
ID.
current, government
- Costs
free voter
voter ID
ID system
as it
it will
will
Costs to
to implement
implement aa free
system may
may be
be exaggerated
exaggerated as
be
to provide
provide IDs
IDs only
of people
be necessary
necessary to
only to
to the
the small
small number
number of
people who
who have
have
none.
none.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 11 of 29

B.
Factorswhich
whichwould
wouldnot
notsupport
supportaaVoter
VoterID
IDlaw;
law;the
the"cons":
“cons”:
B. Factors
- A
A voter
is little
little or
or no
no history
history in
in Maine
Maine of
voter ID
ID law
law is
is unnecessary
unnecessary as
as there
there is
of
voter impersonation
impersonation or
or identification
identification fraud.
fraud. [Although
[Although the
voter
the Commission
Commission
heard testimony
at its
its Bangor
Bangor and
heard
testimony at
and Portland
Portland hearings
hearings which
which recited
recited
complaints
about
putative
voters
who
were
bussed
to
polling
and
complaints about putative voters who were bussed to polling stations
stations and
then allowed
allowed to
to vote
vote even
even though
though they
they could
could present
then
present little
little or
or no
no evidence
evidence
of
identity
or
residency.
It
was
alleged
that
the
Bangor
incident
may
of identity or residency. It was alleged that the Bangor incident may have
have
affected aa close
legislative race.]
race.]
affected
close legislative
- It
the voting
voting process
process on
on Election
Election Day,
Day, (one
city clerk
It would
would slow
slow down
down the
(one city
clerk
estimated
it would
would take
take 16
16 more
more hours
hours of
of work
work at
at the
the polls
polls with
with voter
voter ID
ID
estimated it
for 6,000
votersat
at10
10seconds
secondsper
pervoter.)
voter.)The
TheMTCCA
MTCCA (Maine
for
6,000 voters
(Maine Town
Town and
and
City Clerks’
Voter ID
ID for
City
Clerks'Association)
Association) opposes
opposes Voter
for this
this reason.
reason.
- It
on Election
Election Day
Day as
the currency
currency of
of an
an ID
It can
can create
create confusion
confusion on
as to
to the
ID when
when
the address
address or
or last
last name
name of
of aa female
been changed.
changed.
the
female voter
voter has
has recently
recently been
- It
to obtain
obtain aa current,
current, valid
It is
is difficult
difficult for
for the
the homeless
homeless to
valid ID
ID because
because they
they
lack aa “current”
lack
"current"address,
address,the
thecost
costof
ofobtaining
obtaining necessary
necessary background
background
documents
is prohibitive,
prohibitive, and
and getting
gettingan
an ID
ID can
can be
slow. Also,
Also, it
documents is
be slow.
it is
is difficult
difficult
to get
get out-of-state
out-of-state documents
documents without
without aa credit
credit card
card and
to
and access
access to
to the
the
internet.
internet.
- It
It is
is difficult
difficult for
for elderly
elderly African-Americans
African-Americansto
todocument
document their
their births
births so
so
obtaining
get aa photo
ID is
obtaining aa birth
birth certificate
certificate as
as aa means
means to
to get
photo ID
is aa serious
serious
challenge.
challenge.
- It
live in
in aa rural
It is
is also
also difficult
difficult for
for those
those who
who live
rural area,
area, without
without means
means of
of
transportation, to
to facilities
facilities which
which issue
issue IDs.
IDs.
transportation,
to get
get access
access to
- Citizens
Citizens with
with disabilities
disabilities face
face similar
similar difficulties
difficulties as
as their
their access
access to
to
transportation, public
public offices
transportation,
offices and
and financial
financial resources
resources can
can be
be
compromised.
compromised.
- Currently
Currently itit can
to get
get aa photo
photo ID
ID from
from State
can take
take as
as many
many as
as 10
10 days
days to
State
government which
which would
would frustrate
frustrate the
of our
government
the purposes
purposes of
our same
same day
day
registration
law.
registration law.
- It
It is
is inconsistent
inconsistent to
to require
require aa voter
voterwho
who presents
presents himself
himself /herself
/herself in
in
person at
at the
the polls
polls to
to have
have aa photograph
photograph ID,
ID, but
for
person
but not
not require
require the
the same
same for
someone
who votes
votes absentee
absenteeand
and is
is not
not applying
applying for
for the
ballot
someone who
the absentee
absentee ballot
in
person.
[In
such
cases,
the
clerk
is
to
compare
the
signatures
on
in person. [In such cases, the clerk is to compare the signatures on the
the
application with
signature on
on the
the ballot
ballot envelope].
envelope]. The
The unavailability
unavailability
application
with the
the signature
of
an ID
of identification
identification might
might push
push people
people without
without an
ID into
into voting
voting absentee
absentee
which is
is more
more susceptible
susceptible to
to fraud
fraud and
and abuse.
which
abuse.
- Studies
Studies have
have shown
shown that
that the
the requirement
requirement of
of aa Voter
Voter ID
ID may
may deter
deter 10
10 to
to
11%
11% of
of eligible
eligible voters
voters from
from voting.
voting. Because
Because Maine
Maine has
has aa disproportionate
disproportionate
number
who are
are elderly,
elderly, poor
living in
in rural
rural areas,
number of
of citizens
citizens who
poor and/or
and/or living
areas, the
the
percentage of
of voters
voters who
who would
would be
be discouraged
discouraged from
from voting
voting may
may be
percentage
be
higher. Thus,
higher.
Thus, while
while aa Voter
Voter ID
IDrequirement
requirement might
might deter
deter aa few
few fraudulent
fraudulent
voters, many
many others
others could
could be
be kept
kept from
from voting
voting by
by virtue
virtue of
voters,
of this
this
requirement.
Moreover, ifif itit is
requirement. Moreover,
is true
true that
that 10
10 to
to 11%
11% of
of citizens
citizens are
are kept
kept

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 12 of 29

-

-

from voting
from
voting for
for lack
lack of
of an
an ID,
ID,the
theresults
results of
ofelections
elections would
would be
be questioned
questioned
as not
representing the
the true
truewill
will of
of the
as
not representing
the people.
people.
Because
Because an
an official
officialvoter
voter identification
identification card,
card, or
or its
its substitute,
substitute, may
may cost
cost the
the
potential
voter money,
money, it
it can
can be
be viewed
viewed as
potential voter
as aa poll
poll tax
tax and
and is
is therefore
therefore
constitutionally
constitutionally suspect.
suspect.
In
to avoid
avoid the
the poll
poll tax
tax problem,
problem, it
it will
will be
on Maine
Maine to
In order
order to
be incumbent
incumbent on
to
establish
the
means
to
obtain
a
cost
free
voter
ID.
Indiana
spent
$10
establish the means to obtain a cost free voter ID. Indiana spent $10
million
their "free"
“free” Voter
Voter ID
million to
to institute
institute their
ID program;
program; Missouri
Missouri estimates
estimates it
it
will
cost
that
state
$20
million
over
three
years
to
implement
theirs.
A
will cost that state $20 million over three years to implement theirs. A
professor
at UMF
UMF estimates
“free” ID
ID program
might cost
cost Maine
Maine $2
professor at
estimates aa "free"
program might
$2 to
to
$6.3 million.
$6.3
million.
There are
are bound
bound to
to be
be on-going,
on-going, year-to-year
costs in
in maintaining
maintaining aa "free"
“free”
There
year-to-year costs
voter ID
ID system,
voter
system, including
includingthe
the hiring
hiringof
ofstate
stateworkers
workers to
to run
run and
and maintain
maintain
the system.
system.
the
If
issued, other
otherforms
formsof
ofID,
ID, such
such as
as college
college IDs
IDs
If IDs
IDsmust
must be
be government
government issued,
would not
not qualify.
qualify.
would
The Commission,
The
Commission, via
viaits
itspublic
publichearings,
hearings,discerned
discerned very
very little
little support
support for
for
voter ID
ID law.
aa voter
law.
The problem
of voter
impersonation, ifif it
it exists
exists at
at all,
all, will
The
problem of
voter impersonation,
will be
be mooted
mooted over
over
time as
as technology
technology is
time
is applied
applied to
to the
the voting
voting process.
process.

C.
Conclusion
C. Conclusion
The Commission,
of aa
The
Commission, by
by aa 44 to
to 11 vote,
vote,finds
findsthat
that the
the negative
negative aspects
aspects of
Voter ID
Voter
Voter
IDlaw
lawoutweigh
outweighits
itspotential
potential benefits
benefits and
and recommends
recommends that
that aa Voter
ID
in Maine.
Maine.
ID system
system not
not be
be pursued
pursued in
If
and wishes
wishes to
to consider
consideraaVoter
VoterID
ID law,
law,
If the
the Legislature
Legislature should
should disagree,
disagree, and
the Commission
Commission recommends
providing for
for same
the
recommends that
that aa statute
statute providing
same include
include
the following:
following:
the
- Municipal
Municipal election
election officials
officialsshould
should be
be authorized
authorized to
to vouch
vouch for
for the
the
identity
of aa voter
in lieu
lieu of
of an
an ID;
ID;
identity of
voter in
of the
the presentation
presentation of
- A
A Voter
Voter ID
IDsystem
systemshould
should be
be phased
phased in
in gradually,
gradually, and
and allow
allow for
for the
the
use of IDs
IDs which
whichexpired
expired within
within aa certain
certain time
time frame;
frame;
use
- A
A Voter
of public
Voter ID
IDshould
shouldbe
befree
freeand
and easy
easy to
to obtain
obtain at
at aa variety
variety of
public
offices
with
operating
hours
on
evenings
and
weekends
during
offices with operating hours on evenings and weekends during the
the
election
election season;
season;
- Documentation
to support
supportthe
theissuance
issuanceof
ofaaVoter
Voter ID,
ID, such
Documentation to
such as
as birth
birth
certificates,
certificates, should
should also
also be
be free;
free;
- Voters
Voters over
age or
or in
in nursing
nursing homes,
homes, or
over aa certain
certain apparent
apparent age
or who
who
are disabled,
disabled, should
should be
be excluded
excluded from
from the
Voter ID
are
the Voter
IDrequirement
requirement or
or
be
to use
use expired
expired IDs;
IDs;
be permitted
permitted to
- State
State government
government should
should take
take the
the initiative
initiative and
and promote
promote the
the
availability of
of photo
IDs for
availability
photo IDs
for aa variety
variety of
of services
services itit provides.
provides.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 13 of 29

II.

Registration
A. Same Day
A.
Day Registration
Registration
While the
the Commission
Commissionheard
heard considerable
considerable testimony on this issue, it believes
believes that
that
the
voters
have
already
spoken
recently
on
this
matter,
deciding
that
we
should
the voters have already spoken recently on this matter, deciding that we should
keep same day registration
in Maine. That
registration in
That being
being the
the case,
case, we
wedetermined
determined that we
recommend disturbing
disturbing this
this decision.
decision. Moreover, we
should and would not
not recommend
we found
found that
that
many
many city
city and
and town
town election
election officials
officials have
have adapted
adapted their
their Election Day
Day processes
processes to
to
and see
see no
no need
needfor
for change.
change. That said, it
same day registration
registration and
it must
must also be
be
reported
that same
same day
day registration
registrationdoes
doesput
putaasignificant
significant burden
burden on
on local
local election
reported that
officials
officials whose
whose Election
ElectionDay
Daystaffing
staffingisisthinner
thinnerthan
thanother
othertowns’.
towns'. Towns
Towns with
with an
an
understaffed
cadre of
of election officials
officials work
understaffed cadre
work very
very long
longand
andunreasonable
unreasonable hours
hours to
to
errors which might
complete their responsibilities, sometimes resulting in clerical errors
have been avoided with a larger, trained
cadre of
of election workers. The solution for
trained cadre
problem is not, the Commission believes,
this problem
believes, the
the repeal
repeal of
of the
the same
same day
day registration
registration
law, but, instead,
instead, action on the part
part of local officials
officialsto
todevote
devotemore
more resources
resources to
Election Day functions.
functions.

B. Third Party Registrations
B.
“Third Party Registrations”,
"Third
Registrations", for
for the
the purpose
purpose of this
this report,
report, simply means the
registration
of voters by third
third parties
parties such
such as
as political
political parties,
parties, advocacy groups,
registration of
candidates
the like, as
conducted by public entities
candidates or the
as opposed
opposed to
to registrations
registrations conducted
entities such
town clerks, BMV,
BMV, or
as town
orother
othergovernmental
governmental organizations.
organizations.
party registrations
registrationsisis four-fold.
four-fold. First, the
The concern or controversy with third party
quality
turned in
in can
can be
be poor.
poor. They are
quality of
of the
the registration
registration cards turned
are sometimes filled out
out
in a rush and are missing signatures
signatures or other key data, including
including the
the important
important
indicia
it falls
falls on
indicia of
of citizenship.
citizenship. Second,
Second,because
because cards
cards can
can contain
contain critical
critical errors,
errors, it
on the
the
municipal
clerk
to
correct
them
–
a
time
consuming
task
as
the
process
of
correcting
municipal clerk to correct them - a time consuming task as the process of correcting
registration
cards usually
usually entails
entails an
an effort to track down the putative
putative voter.
voter. Third,
registration cards
registrationsare
areduplicates
duplicateswhich
whichalso
alsoinvolve
involve clerical
clerical time to verify or
some registrations
or
correct. Fourth, there
there is no means
means to
to hold
hold third
third party
party registrars accountable for the
extra
extra workload
workload they
they create
create by submitting
submitting incomplete
incomplete registration
registration cards
cards as
as there
there is
no means to track them
them once they
they are
are distributed
distributedby
bythe
theSecretary
Secretaryof
ofState's
State’sOffice
Office
to the
the third
third parties.
parties.

The remedies
remedies for
for the
the general
general problem
problem of
ofpoorly
poorlyprepared
prepared registration
registration cards
cards are
are
difficult
difficult to
to identify.
identify.While
Whilethere
thereisisno
nospecific
specificstatute
statutewhich
whichauthorizes
authorizesthird
third parties
parties
registrationdrives,
drives, current
currentlaw
lawreferences
referencesthem,
them,see
seee.g.
e.g. 21-A
to conduct voter registration
M.R.S.
M.R.S.secs.
secs.130,
130,181,
181,and
andthe
theNVRA
NVRArequires
requiresstates
statestotoallow
allowthem.
them.Thus
Thusititappears
appears

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 14 of 29

that we must continue with this registration process despite
despite the
the extra
extra work it can
that
create
for local
local voting
voting officials.
create for
several modest
modest ways
ways to
to mitigate
mitigate this
this problem.
problem. First, while it
That said,
said, there
there are several
it
would increase
increase the
the costs
costs of
of preparing
preparing the
the green
green third
third party
party registration
registration cards,
numbering
them in a series
series would at least
least allow the Secretary
Secretary of State
numbering them
State to
to identify
identify
trends in mistakes made so
registrars could
could be held
trends
so that
that erring
erring third
third party registrars
Similarly, those
accountable for their
their practices. Similarly,
those entities
entities that wish to conduct
registration
registration drives could be
be required
required to participate
participate in training, perhaps
perhaps by webinar,
webinar,
as to how to make out cards correctly. Next, the
the number
number of public
public entities
entities which are
authorized to
to register
registervoters
voterscould
couldbe
beincreased
increasedbeyond
beyondthose
thoselisted
listedatat21-A
21-AM.R.S.
M.R.S.
authorized
the end, though, the best means of eliminating the
sec. 181(1)(B). In the
the need for third
third
party voter registrations
registrations will
will be the institution
institution of on-line voter
voter registration,
registration, the
prospects for which
which are
are not
not addressed
addressed in
inthis
thisreport.
report

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 15 of 29

III.
III.

*Early Voting
*Early
Voting
The Commission
of the
institution of
of Early
Early
The
Commissionheard
heard considerable
considerable testimony
testimony in
in support
support of
the institution
Voting in
about what
what"Early
“Early Voting"
Voting”
Voting
in Maine.
Maine.Although
Althoughthere
there has
has been
been some
some confusion
confusion about
means
because itit is
is often
often confused
confused with
with voting
voting early
early by
by absentee
absenteeballot,
ballot, itit will
will suffice
suffice
means because
for the
purpose of
of this
this report
reportto
todefine
define"Early
“Early Voting"
Voting” as
for
the purpose
as voting
voting in
in person
person on
on aa date
date
before
election Day
Day in
as one
one would
would vote
on election
election Day
Day at
before election
in the
the same
same manner
manner as
vote in
in person
person on
at
by local
aa polling
polling place
place established
established by
local officials.
officials.Thus,
Thus,an
anearly
earlyvoter’s
voter'sparticipation
participation and
and the
the
manner
in which
which his/her
ballot would
would be
be processed
processed would
would be
be the
the same
same as
as if
if the
manner in
his/her ballot
the voter
voter
were voting
voting on
on Election
Election Day
the place
place for
for voting
voting may
were
Day with
with the
the possible
possible exception
exception that
that the
may
differ.
differ.
The Commission
of an
an early
early voting
voting system
in
The
Commission unanimously
unanimously supports
supports the
the establishment
establishment of
system in
our
state for
for the
the following
following reasons:
our state
reasons:
1) The
The pilot
overseen by
by the
the Secretary
Secretary of
of State
State in
2009 in
in which
which
1)
pilot programs
programs overseen
in 2007
2007 and
and 2009
early
in select
elections were
early voting
voting was
was permitted
permitted in
select municipalities
municipalities at
at referenda
referenda elections
were aa
resounding
success. They
resounding success.
They were
were widely
widely accepted
accepted and
and endorsed
endorsed by
by the
the voters
voters and
and
municipal
officials
where
they
were
conducted.
municipal officials where they were conducted.
2)
oral testimony
testimony received
received by
by the
the Commission
Commission favored
2) Nearly
Nearly all
all the
the written
written and
and oral
favored an
an
Early
Voting
system.
Early Voting system.
3)
3) It
It is
is likely
likelythat
that voter
voter participation
participation would increase
increase if voters
voters could
could vote
vote in
in person
person on aa
day
other
than
Election
Day.
The
surveys
conducted
after
the
pilot
efforts
day other than Election Day. The surveys conducted after the pilot efforts showed
showed
that certain
certaingroups
groupsof
of voters
voterswere
weremore
morelikely
likelyto
tovote
voteifif they
they could
could vote
vote "early".
“early”.
that
4) It
4)
It would
would relieve
relieve local
local municipal
municipal election
election officials
officialsofofthe
theburdens
burdensattendant
attendant to
to the
the
handling
ballots as
as it
it is
is likely
likely that
would choose
choose to
to "vote
“vote
handling of
of absentee
absentee ballots
that many
many voters
voters would
early”
of voting
early" instead
instead of
voting by
by absentee
absentee ballot.
ballot.
Instituting
an early
early voting
voting system
system in
in Maine
Maine will
will have
Instituting an
have its
its challenges.
challenges. Foremost
Foremost among
among
them will
will be
legislative and
public approval
of an
amendment to
to Article
Article II,
II, section
them
be the
the legislative
and public
approval of
an amendment
section 44
of
of the
the Maine
Maine Constitution
Constitution which
which would
would authorize
authorize the
the Legislature
Legislature to
to set
set an
an election
election
period
preceding the
the traditional
traditionalElection
Election Day
Day for
for general
period preceding
general elections.
elections.
Moreover,
the Constitution
Constitution succeeds,
succeeds, aa variety
of
Moreover, assuming
assuming that
that aa campaign
campaign to
to amend
amend the
variety of
changes
changes to
to our
our elections
elections system
system will
will need
need to
to be
be undertaken
undertaken to
to accommodate
accommodate an
an early
early
voting system.
voting
system.
Thus, for
Thus,
for example,
example, the
the Secretary
Secretary of
of State’s
State's Office
Officehas
hasrecommended,
recommended, and
and this
this
Commission
in an
an early
early voting
voting system
system be
be subject
subject to
to aa local
local
Commission concurs,
concurs, that
that participation
participation in
option
in towns
approved by
by the
the Secretary
Secretary of
of State.
option in
towns approved
State. The
The reason
reason to
to limit
limit participation
participation to
to
only
towns, at
least in
in the
the early
early years
years of
of an
only certain
certain towns,
at least
an early
early voting
voting system,
system, is
is that
that the
the
conduct
conduct of
of early
early elections
elections will
will have
haveto
tocomply
complywith
withall
allthe
therules
rulesattendant
attendant to
to the
the regular
regular
Election
Election Day.
Day.Thus,
Thus,for
forexample,
example,aaparticipating
participatingtown
town will
willneed
need to
to establish
establish all
all the
the
security procedures
procedures necessary
necessary to
to run
run an
an election
election including
including the
security
the staffing
staffing requirements
requirements
and party
party participation
participation which
which would
would ordinarily
ordinarily be
be present
presenton
on aa "regular"
“regular” election
election day.
day.
and

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 16 of 29

This and
necessary changes
changes would,
would, of
This
and other
other necessary
of course,
course, create
create additional
additional burdens
burdens for
for town
town
officials
officials which,
which,ititmay
maybe
beassumed,
assumed, will
willbe
beeasier
easier for
forlarger
larger towns
towns and
and cities
cities to
to
accommodate.
accommodate.
In
which do
in early
In those
those towns
towns which
do not
not choose
choose to
to participate
participate in
early voting
voting or
or which
which are
are not
not
approved by
by the
the Secretary
Secretary of
of State,
State, voters
will still
to vote
vote "early"
“early” by
approved
voters will
still be
be permitted
permitted to
by
absentee
ballot.
Moreover,
with
the
approval
of
the
Legislature
or
the
Secretary
of State,
State,
absentee ballot. Moreover, with the approval of the Legislature or the Secretary of
as the
the case
case may
may be,
may be
be changed
changed to
to allow
allow the
of
as
be, the
the law
law or
or procedures
procedures may
the processing
processing of
absentee
ballots
well
before
Election
Day,
provided
the
integrity
of
processing
same
is
absentee ballots well before Election Day, provided the integrity of processing same is
assured. In
In sum,
sum, voters
towns may
may still
still have
assured.
voters in
in non-participating
non-participating towns
have the
the convenience
convenience and
and
benefits
of voting
benefits of
voting before
before Election
Election Day.
Day.Thus,
Thus,as
asaapractical
practicalmatter,
matter, voters
voters in
in “approved”
"approved"
towns will
will have
fellow citizens
towns
have no
no advantage
advantage over
over their
their fellow
citizens in
in “unapproved”
"unapproved" towns.
towns.
Nevertheless,
may become
Nevertheless, the
the Commission
Commission anticipates
anticipates that
that voters
voters may
become confused
confused as
as to
to their
their
right
vote “early”
town in
in which
which they
live. It
right to
to vote
"early" depending
depending on
on the
the town
they live.
It is
is hoped
hoped that
that an
an
adequate public
public information
information campaign
campaign can
can address
address this
this issue.
issue. Whether
Whether aa voter
voter lives
lives in
in aa
adequate
participating
town or
or not,
not, it
it is
is anticipated
that all
all voters
voters will
will continue
to be
be able
able to
participating town
anticipated that
continue to
to vote
vote
absentee before
before the
the early
early voting
voting time
absentee
time period.
period.
With respect
to the
the early
early voting
voting time
the Commission
Commission understands
thatitit will,
will, of
of
With
respect to
time period,
period, the
understands that
course,
might be.
be. The
The Commission
course, be
be aa legislative
legislative decision
decision as
as to
to what
what that
that might
Commission recommends,
recommends,
however,
the early
early voting
voting period
period should
should begin
begin no
no earlier
than the
the Monday
Monday of
of the
however, that
that the
earlier than
the
week preceding
preceding Election
Election Day.
Day. ItIt is
week
is believed
believed that
that any
any longer
longer time
time period
period would
would place
place an
an
undue
burdenon
onlocal
local election
electionofficials.
officials. As
undue burden
As to
to the
the last
last day
day for
for the
the early
early voting
voting period,
period, aa
number
of choices
of
number of
choices confront
confront policy
policy makers
makers and
and arguments
arguments can
can be
be made
made in
in support
support of
any one
one of
of an
of dates
dates to
to end
end this
thisperiod.
period.Again,
Again, it
this will
will
any
an assortment
assortment of
it is
is recognized
recognized that
that this
be
be aa legislative
legislative decision,
decision, but
but the
the Commission
Commission sees
sees merit
merit in
in selecting
selecting aa date
date that
that would
would
correspond
with the
the last
last date
dateon
on which
which one
one can
can apply
apply for
for an
ballot. Other
correspond with
an absentee
absentee ballot.
Other
meritorious
possibilities would
would be
be to
to allow
allow the
the localities
localities to
to choose
choose the
the final
final day
meritorious possibilities
day for
for early
early
voting or
the Secretary
Secretary of
of State
voting
or empower
empower the
State to
to choose
choose the
the schedule.
schedule.
In
In sum,
sum, the
the Commission
Commissionbelieves
believesthat
that Maine
Maineshould
shouldparticipate
participate in
inthe
the national
national trend
trend and
and
institute
an Early
Early Voting
Voting system.
institute an
system.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 17 of 29

IV.
IV.

At the
the Polling Place
Place
A. Candidates
the Polls
Polls
A.
Candidates at
at the
The Commission
polls
The
Commission heard
heard from
from many
many citizens
citizensthat
that the
the presence
presence of
of candidates
candidates at
at the
the polls
was an
an unfortunate
unfortunate part
partof
of the
the Election
Election Day
Day process
was
process in
in our
our state.
state. Some
Some testified
testified that
that
they voted
or avoided
avoided voting
they
voted absentee
absentee or
voting altogether
altogether in
in order
order to
to avoid
avoid running
running the
the gauntlet
gauntlet
of
polling place.
Commission members
of campaigners
campaigners at
at their
their polling
place. Commission
members who
who monitored
monitored elections
elections
this year
year witnessed
witnessed this
this phenomenon
phenomenon at
at the
thepolling
polling places
places they
they visited.
visited.
this
Specifically, one
Specifically,
onecity
cityclerk
clerktestified
testifiedthat
thatthe
themost
most frequent
frequent complaint
complaint she
she receives
receives on
on
Election
Election Day
Dayisisthe
theintimidation
intimidationthat
that voters
voters feel
feel when
when they
they are
are approached
approached by
by
candidates
at the
the polling
polling place,
place, aa circumstance
candidates at
circumstance which
which is
is aggravated
aggravated by
by the
the consolidation
consolidation
of
A candidate
election opined
opined that,
that, "A
“A
of polling
polling places
places in
in some
some cities.
cities. A
candidate from
from last
last year’s
year's election
candidate
at the
the polls
polls is
is aa clear
clear attempt
attemptto
toinfluence
influence the
the outcome
outcomeof
of the
the vote."
vote.” On
On the
candidate at
the
other
hand we
we had
had one
one individual
individual defend
defend this
this practice,
practice, aa candidate
candidate for
for the
the State
State Senate,
Senate,
other hand
who offered
offered that,
“Having candidates
who
that, "Having
candidates at
at the
the polls
polls gives
gives aa sense
sense of
of camaraderie
camaraderie and
and
community
community [to
[to the
the process].”
process]."
On
On balance,
balance, the
the Commission
Commissionunanimously
unanimouslyconcluded
concludedthat
thatthe
the presence
presence of
of candidates
candidates at
at
the polls
polls adds
vote
the
adds nothing
nothing to
to the
the electoral
electoral process
process and
and does
does serve
serve to
to depress
depress the
the vote
among those
who wish
wish to
among
those who
to go
go to
to their
their polling
polling place
place unhindered
unhindered by
by advances
advances made
made by
by
candidates.
Accordingly, the
Commission recommends
recommendsthat
that21-A
21-AM.R.S.
M.R.S. sec.
candidates. Accordingly,
the Commission
sec. 682(2)(c)
682(2)(c)
be
as unenforceable
unenforceable and
and an
an impingement
impingement on
on the
the free
free access
access of
be repealed
repealed as
of voters
voters to
to their
their
voting places.
voting
places. Instead,
Instead, the
the Commission
Commissionrecommends
recommends that
that the
the Legislature
Legislature consider
consider aa ban
ban
on
of candidates
or their
their surrogates,
surrogates, except
except for
for voting
voting themselves,
on the
the presence
presence of
candidates or
themselves, within
within
250
feet of
of aa building
250 feet
building containing
containing aa polling
polling place.
place. Such
Suchaaprovision
provisionwould
would be
be consistent
consistent
with the
the restrictions
restrictionson
oncampaign
campaignsigns
signsfound
foundatat21-A
21-AM.R.S.
M.R.S. sec.
with
sec. 682(3).
682(3).
In
In sum,
sum, the
the Commission,
Commission,consistent
consistent with
with the
the weight
weight of
of the
the testimony
testimony it
it heard,
heard, believes
believes
that polling
polling places
zones.
that
places should
should be
be electioneering-free
electioneering-free zones.
B.
at the
the Polls
Polls
B. Petitioners
Petitioners at
The Commission
The
Commissionreceived
receivedoral
oraland
andwritten
written testimony
testimony on
on the
the topic
topic of
of petitioners
petitioners at
at the
the
polls
polls which,
which, while
whilenot
notnearly
nearly as
asadamant
adamant as
as the
the submissions
submissions concerning
concerning candidates
candidates at
at
the polls,
polls, nevertheless
wascritical
critical of
of this
this aspect
aspectof
of the
the Election
Election Day
Day process.
One town
the
nevertheless was
process. One
town
clerk
ignore the
the rules
rules and
and try
try to
to block
block voters
voters as
as they
they exit.
exit. It
It is
is aa
clerk offered
offered that,
that, “Petitioners
"Petitioners ignore
constant
battle for
for the
the wardens."
wardens.” A
A city
constant battle
city clerk
clerk testified
testified that,
that, “While
"Whilesome
somepetitioners
petitioners are
are
difficult,
difficult, itit is
is aa logical
logicalfunction
functionof
ofthe
thedemocratic
democratic process
process which
which is
is effectively
effectively managed
managed
by
law.”
by state
state law."

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 18 of 29

The Commission
Commissionisisconcerned
concernedthat
that the
the presence
presence of
of petitioners
petitioners at the polls does
suppress turnout
turnouton
onElection
Election Day
Day as voters
suppress
voters wish to avoid being
being accosted
accosted by
by petitioners.
petitioners.
On the
candidates at
at polling places, the solicitation
the other hand, unlike the presence
presence of candidates
by petitioners
does serve
serve aa legitimate, albeit modest, purpose
that local
local election
petitioners does
purpose in that
officials
are "good"
“good” in
officials can
canbe
beconfident
confidentthat
that the
the signatures
signatures on
on the
the petitions
petitions are
in that
that they
they
were from voters who were registered
registered to vote as opposed to petitions which are
presented
outside shopping
shopping malls
malls or
or the
the like.
presented outside
Moreover,
Moreover, the
the Commission
Commissionisispersuaded
persuaded that
that with
with modest
modest statutory
statutory changes,
petitioners
may be
be convinced
convinced to
to conform
conform their
theirbehavior
behaviorto
tothe
thelaw.
law.Specifically,
Specifically, the
petitioners may
Commission
Commission recommends
recommends that
that the
the restrictions
restrictions on
on petitioners’
petitioners' activities be consolidated
consolidated
into one section, merging the
the provisions of
of sections
sections 662(2)
662(2) and (4) with 681(4)
681(4) in Title
21-A,
proscribes their
theiractivities.
activities. So,
So, for
21-A,and
and creating
creating aa new
new section
section which
which prescribes
prescribes and proscribes
example,
to solicit a voter, "solicit"
“solicit” may
example, while
while allowing
allowing aa petitioner
petitioner to
may be
be defined
defined in
in the
the
statute so
so as
as to
to exclude loud, unreasonable
or harassing
harassing activities.
activities. At the same time the
statute
unreasonable or
authority of
of the
as described
described in
in section
authority
the warden
warden as
section 662
662 ought
ought to
to be
be retained
retained or
or
strengthened as
as the
the Legislature
Legislature may
strengthened
may deem
deem appropriate.
appropriate.

The Commission
Commissionunanimously
unanimouslyrecommends
recommends that
that the
the privilege
privilege of
ofpetitioners
petitioners to
to appear
appear
at the polls be
be retained
retained albeit with a strengthening
strengthening of prohibitions
prohibitions on their
their activities
and the warden’s
warden's authority.
C.
Campaign Signs
Signs
C. Campaign
It is questionable
that the
the placement
placement of
of campaign signs fits within
questionable that
within the charge to the
Secretary of State
in Resolves 2011, ch.133. Nevertheless,
Secretary
State as
as expressed
expressed in
Nevertheless, it is aa topic
topic
presented to
to us
us as
as an
an issue
issue by
by some of
worthy of brief mention in this report
report as it was presented
testimony heard
heardby
by the
the Commission.
Commission.
the testimony
It
usefulness of campaign
It is
is certainly
certainly beyond
beyond the
the scope
scope of
of this
this effort
effort to
to argue
argue about
about the
the usefulness
campaign
signs. The
The Commission,
Commission,however,
however,endorses
endorsesthe
the current
current limitation as to the placement of
campaign
signs as
as may
may be
be found
found at
at21-A
21-A M.R.S.
M.R.S. sec.
campaign signs
sec. 682(3).
682(3). The Commission also
unanimously
that the
the Legislature
Legislature consider
consider as
as a local option
unanimously recommends
recommends that
option the
the
establishment
authority of a municipality to
establishment of the authority
to regulate
regulate or
or prohibit
prohibit the placement of
campaign
campaign signs,
signs, (or
(or any
any other
other signs
signs for
for that
that matter),
matter), on
on municipal
municipal property,
property, as
as opposed
opposed
easements over
over private
private property.
property.The
The Commission
Commission also recommends
to town easements
recommends that as a
officials, through
law enforcement
enforcementofficials,
officials, be
local option
option that
that municipal officials,
through appropriate
appropriate law
be
authorized to
to remove
remove political
political or
or other
othersigns
signs which
which affect
affect the
the free
free passage
passage of
of vehicles
authorized
pedestriansor
orblock
block their
theirvisibility
visibility at
at intersections,
intersections, traffic
traffic circles or the
the like.
and pedestrians

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 19 of 29

D. Voting
D.
Voting Machines
Machines
Although the
Although
the Commission
Commission heard
heard from
fromonly
onlyone
one citizen
citizen who
who was
was concerned
concerned about
about the
the
use of
of voting
voting machines,
felt it
because, as
as of
of this
use
machines, we
we felt
it was
was important
important to
to address
address this
this issue
issue because,
this
last election,
election, we
we are
are using
using more
more voting
voting machines
machines in
in Maine
Maine and
last
and the
the Commission
Commission wants
wants to
to
encourage
this trend.
trend.
encourage this
Our citizen’s
Our
citizen's concern
concern is
is that
that the
the use
use of
of voting
voting machines
machines raises
raises questions
questions about
about the
the
integrity
That is,
publicly as
integrity of
of the
the balloting
balloting process.
process. That
is, the
the count
count is
is not
not conducted
conducted publicly
as
required
machines is
is subject
subject to
required by
by law
law and
and the
the software
software which
which operates
operates the
the machines
to tampering
tampering
so
that aa machine
machine may
may be
be programmed
programmed or
or "hacked"
“hacked” to
so that
to affect
affect the
the outcome.
outcome. Moreover,
Moreover, it
it
is
is said
said that
that the
the machines
machines are
are privately
privately owned
owned and
and therefore
therefore not
not under
under the
the custody
custody and
and
control
of accountable
public officials.
control of
accountable public
officials. In
In addition,
addition, itit is
is alleged
alleged that
that they
they leave
leave no
no paper
paper
trail so
results cannot
cannot be
be verified.
verified.
trail
so that
that election
election results
We believe
that the
here described
described are
are without
without merit
merit as
as here
here explained.
explained. First
First
We
believe that
the concerns
concerns here
and foremost,
it must
must be
be understood
understoodthat
that our
our voting
votingmachines
machinesare
are"tabulators",
“tabulators”, not
and
foremost, it
not
“voting machines”.
"voting
machines". That
Thatis,
is,the
thevoter
voter fills
fills out
out aa paper
paper ballot,
ballot, feeds
feeds it
it into
into the
the tabulator
tabulator
which "reads"
“reads” the
on aa tape.
tape. The
The tabulator
which
the marks
marks on
on the
the ballot,
ballot, and
and totals
totals the
the results
results on
tabulator is
is
cleared
as would
would be
be shown
shown on
on the
the tape.
tape. The
The machine
machine is
cleared before
before the
the voting
voting begins
begins as
is
thereafter in
in public
public view
at all
all times,
thereafter
view at
times, including
including at
at the
the end
end of
of the
the day
day when
when it
it produces
produces aa
final tally.
and can
final
tally. In
Inthe
the meantime
meantime the
the paper
paper ballots
ballots it
it has
has counted
counted are
are preserved
preserved and
can be
be
used for
for aa recount
for tampering
used
recount or
or for
for auditing
auditing purposes.
purposes. Any
Any possibilities
possibilities for
tampering would
would have
have
to occur
occur in
to
in public
public on
on aa paper
paper ballot,
ballot, such
such as
as double
double voting,
voting, and
andescape
escape detection
detection to
to be
be
successful.
The same
be true
true for
for the
successful. The
same would
would be
the traditional
traditional way
way of
of casting
casting aa ballot.
ballot
64
new tabulators
tabulators were
were put
put into
into use
use for
for the
election and
and results
results from
from hand
hand counts
64 new
the 2012
2012 election
counts
of
that the
nearly flawlessly.
of the
the paper
paper ballots
ballots in
in recounts
recounts showed
showed that
the machines
machines operated
operated nearly
flawlessly.
The Commission
that the
the Secretary
Secretary of
The
Commission understands
understands that
of State
State plans
plans on
on distributing
distributing more
more
new
machines so
so that
that by
towns will
will have
have the
the tabulators
tabulators
new machines
by the
the next
next general
general election,
election, 200
200 towns
available, none
available,
none of
of which
which would
would be
be privately
privately owned.
owned. The
The Commission
Commission endorses
endorses the
the effort
effort
to expand
expand the
use of
of tabulators
tabulators as
no threat
threat to
to
the use
as it
it is
is convinced
convinced that
that they
they present
present no
to the
the
integrity
are likely
integrity of
of the
the ballot
ballot counting
counting process,
process, are
likely more
more reliable
reliable than
than the
the traditional
traditional vote
vote
counting
and save
save Maine
Maine election
officials many
many hours
hours of
of work
counting methods,
methods, and
election officials
work ordinarily
ordinarily
spent
hand counting
counting ballots.
ballots.
spent hand
E.
Access to
to the
the Polls
Polls
E. Access
The Commission
and the
The
Commission received
received only
only one
one complaint
complaint concerning
concerning access
access to
to the
the polls
polls and
the
Secretary of
Secretary
of State
State advises
advises they
they have
have received
received only
only two
two complaints
complaints concerning
concerning the
the
Accessible Voting
Voting System
System (AVS).
(AVS).
Accessible

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 20 of 29

As to
to the
the complaint the Commission
Commission received,
received, itit appears
appears the citizen involved objects to
practice of some
the practice
some towns
towns or school districts
districts failing or
or refusing
refusing to
to put
put local
local questions
questions
on the "spoken
“spoken ballot”
ballot" accessible
accessible by
by phone
phone because
because itit costs
costs about
about $130
$130 to
to have
have written
written
ballot questions
expense borne
borne by
by the
the town.
town. Further,
Further, if
if a
questions coded for this purpose, an expense
town has
has aa number
number of
of issues
on the
ballot, it
amount of
of time
town
issues on
the ballot,
it takes
takes an
an inordinate
inordinate amount
time to
to get
get
voter by phone
phone and
and to
to return
returnsame.
same.The
The Commission
Commission explored this
the ballot to the voter
issue
Secretary of State's
State’s Office
Office and
issue with the Secretary
and concluded
concluded that
that this
this citizen’s
citizen's complaint
complaint had
had
merit
but that
that its
its selection
selection of
of this voting option
merit but
option was sensible until technology improves.
improves.
towns of
of providing
providing ballot
ballotquestions
questionsvia
viathe
theAVS,
AVS, we can only
As to
to the
the cost to the
the towns
to accommodate voters
suggest that
that towns be required
required to
voters who need
need this
this system
system and
and
therefore absorb
absorbthis
thiscost.
cost. Alternatively,
Alternatively, the Legislature may want
therefore
want to consider
appropriatingfunds
funds to
to the
theSecretary
Secretaryof
of State's
State’s Office
Office to
appropriating
to reimburse
reimburse towns for this
expense.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 21 of 29

V.
V.

Local
Local Responsibility
Responsibility and
and Accountability.
Accountability.
In
locally by
by local
local election
officials. They
In Maine,
Maine, all
all elections
elections are
are conducted
conducted locally
election officials.
They are
are
bound
by state
laws and
however, when
when overseeing
overseeing "state"
“state” elections.
elections.
bound by
state laws
and procedures,
procedures, however,
But,
But, by
by virtue
virtue of
of Maine’s
Maine's “Home
"Home Rule”
Rule"tradition,
tradition, local
local officials
officialsenjoy
enjoysome
some latitude
latitude
when conducting
conducting their
their own
own municipal
municipal elections.
elections.
when
The Commission
this approach
approach is
is well
well established
in our
The
Commissionunderstands
understands that
that this
established in
our State
State and
and
that there
there is
is no
no sentiment
sentiment to
to change
change the
the local
local nature
of our
that
nature of
our elections
elections administration.
administration.
Indeed,
Indeed, the
the Commission
Commissionheard
heard no
no testimony
testimony that
that we
we abandon
abandon this
this approach.
approach.
(Although
(Although the
the Commission
Commissiondid
didhear
hear from
from citizens
citizensin
inone
onetown
townwho
whowere
were upset
upset about
about
the conduct
conduct of
of aa local
the
local election
election in
inthe
the recent
recent past.)
past.) Moreover,
Moreover, ititisistrue
true that
that the
the great
great
majority
majority of
of Maine
Maine towns
towns do
do an
an excellent
excellentjob
jobadministering
administering our
our elections
elections –- aa
demanding
task which
which entails
entails aa mastery
masteryof
of complex
complex election
election laws
laws as
as well
well as
as aa lot
lot of
of
demanding task
hard
work and
and long
long hours.
hard work
hours.
That
the level
level of
That said,
said, the
the Commission
Commission heard
heard complaints
complaints about
about the
of training
training and
and
competence
of some
some local
local election
officials. To
competence of
election officials.
Tobe
besure,
sure, the
the number
number of
of towns
towns which
which
disappoint
their electorate
electorateisisprobably
probablyquite
quitesmall,
small,but
butthe
theSecretary
Secretaryof
ofState's
State’sOffice
Office
disappoint their
advised us
us of
of the
advised
the following
following issues
issues which
which have
have arisen
arisen in
in recent
recent elections:
elections:
-

-

numberof
of experienced,
experienced, trained
trainedlocal
localelection
electionofficials
officials calling
calling
aa substantial
substantial number
during
election season
with questions
which demonstrate
lack of
of
during the
the election
season with
questions which
demonstrate aa lack
understanding
of election
understanding of
election processes;
processes;
approximately 75
75 towns
in 2012
after the
the deadline
deadline of
of
approximately
towns in
2012 filing
filing their
their election
election returns
returns after
the Friday
Friday following
following primary
election day,
day, and
about half
half of
of all
the
primary election
and about
all municipalities
municipalities
filing forms
(The Secretary
Secretary of
of State
filing
forms in
in that
that election
election which
which were
were incomplete;
incomplete; (The
State
advised that
performance in
in the
general election
election showed
showed significant
significant
advised
that performance
the 2012
2012 general
improvement.)
improvement.)
some town
not allowing
some
town select
select boards
boards or
or administrators
administrators not
allowing their
their town
town clerk
clerkand/or
and/or
registrar
to attend
attendthe
theelection
electionofficials'
officials’ training
training conducted
conducted by
by the
the Secretary
Secretary of
of
registrar to
State as
as required
requiredby
bylaw,
law,see
see21-A
21-AM.R.S.
M.R.S. sec.
State
sec. 101(9);
101(9);
aa few
few towns
towns failing
failingor
orrefusing
refusingto
tocooperate
cooperate with
with recounts
recounts and
and other
other postpostelection
election processes;
processes;

In
In the
the Commission’s
Commission's view,
view,while
whilethese
thesekinds
kindsof
ofproblems
problemsare
are not
not widespread,
widespread, they
they
engender
lack of
engender lack
of confidence
confidence in
in the
the electoral
electoral process
process which,
which, in
inturn,
turn, undermines
undermines the
the
process
itself. Indeed,
process itself.
Indeed, aa study
study at
at Columbia
Columbia University
Universityshowed
showed that
that poor
poor election
election
administrationisisusually
usuallymislabeled
mislabeledasas"fraud".
“fraud”.Minnite,
Minnite,"The
“The Politics
Politics of
of Voter
Voter
administration
Fraud”,
Fraud", Project
Project Vote,
Vote, 2006
2006 (est.
(est. date).
date).
The Commission
The
Commissionstruggled
struggled to
to come
comeup
upwith
withrecommended
recommended solutions
solutions to
to the
the problems
problems
experienced
in aa small
experienced in
small minority
minority of
of towns,
towns, as
as illustrated
illustrated above,
above, and
and came
came up
up with
with the
the
following list
following
list which
which the
the Legislature
Legislature may
may wish
wish to
to consider:
consider:

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 22 of 29

-

Currently,
Currently, there
there is
is nothing
nothing the
the Secretary
Secretary of
of State
State can
cando
doto
tocorrect
correct errant
errant
practices
on the
the local
local level.
level. Thus,
the Secretary
Secretary of
of State
State as
as follows
follows
practices on
Thus, empowering
empowering the
might
might be
be worthy
worthy of
of consideration:
consideration:
o Authorize
Authorize the
of aa town
the Secretary
Secretary of
of State
State to
to suspend
suspend the
the authority
authority of
town to
to
conduct
conduct aa “state”
"state" election
election and
and assign
assign that
that responsibility
responsibility to
to aa neighboring
neighboring
town or
or oversee
oversee the
the election
election itself.
itself. Obviously
Obviously such
town
such aa drastic
drastic step
step should
should
only
follow
efforts
at
remediation
or
graded
sanctions.
only follow efforts at remediation or graded sanctions.
o Clarify
provisionatat21-A
21-AM.R.S.
M.R.S. sec.
Clarify the
the penalties
penalties provision
sec. 32
32 to
to allow
allow for
for the
the
assessment
of
fines
against
a
town
which
violates
a
mandate
of
the
assessment of fines against a town which violates a mandate of the
elections
laws. (See
(See e.g.
e.g. 21-A
M.R.S. sec.
elections laws.
21-A M.R.S.
sec.32(2)
32(2) which
which only
only applies
applies to
to
officials.).
officials.).Obviously,
Obviously,too,
too,such
suchaastep
stepmight
mightbe
beappropriate
appropriate only
only after
after
other
correction efforts
efforts have
have failed.
failed.
other correction
o Increase
the fines
fines assessable
assessableunder
under30-A
30-AM.R.S.
M.R.S. sec.
Increase the
sec. 2607
2607 for
for the
the neglect
neglect
or
refusal of
of aa municipal
or refusal
municipal officials
officialsto
toperform
perform their
their duties.
duties.
o Authorize
Authorize county
government to
to take
takethe
theplace
placeof
of municipal
municipal officials
officials in
county government
in
towns which
which do
elections according
according to
to law.
law.
towns
do not
not administer
administer elections

The Commission
The
Commissionisismindful
mindfulthat
thatthis
thisisisaasensitive
sensitivearea
areaand
andhere
herereiterates
reiterates the
the
notion
that suspension
suspension of
of elections
elections authority
authority or
orpenalties
penaltiesagainst
againstlocal
local officials
officials or
notion that
or aa
town itself
itself should
town
should only
only be
be considered
considered when
when all
all other
other efforts
efforts at
at correcting
correcting poor
poor
practices
have not
succeeded.
practices have
not succeeded.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 23 of 29

VI.

Absentee Ballots
The Commission
Commissionwas
wasprovided
provided with
withan
anabundance
abundance of
oforal
oraland
andwritten
written testimony
testimony
concerning
absenteeballot
ballot system.
system. From
From this,
this, the
the Commission
Commission
concerning Maine’s
Maine's current
current absentee
concluded that the system works well as
as currently
currently constructed but would be
benefitted
benefitted by at least two minor changes.
First,
First, the
the Commission
Commission finds
finds no
no fault
fault with
with our
our “no
"no reason”
reason" basis
basis to
to apply
apply for
for an
an
absentee ballot.
ballot. Thus, because
not give aa reason
absentee
because aa voter
voter need not
reason to apply for an
an
absentee ballot,
ballot, the
the Commission
Commission believes
more qualified citizens are
are likely to
absentee
believes that
that more
to
are personal
personal to
to them,
them, even if
vote and
and that
that they will do
do so
so absentee
absentee for
for reasons
reasons that
that are
it
it is
is only
only for
for convenience.
convenience.
current system,
system, the
the Commission
Commission believes
With reference
reference to
to the
the current
believes that
that the
the calendar
calendar for
the availability of
of absentee
absentee ballots
ballots is
is aa generous
generous one
one and
and need
need not be changed. That
That
is, applications
made available 3 months
months before
before Election
Election Day,
Day, and
applications for ballots must be made
ballots
Day. However,
ballots must be available 30 days before Election Day.
However,the
thelatter
latter period
period
ends, except for emergency situations,
situations, on
on the
the Thursday
Thursdaybefore
beforeElection
ElectionDay.
Day. With
reference
the Commission heard
reference to this deadline, the
heard testimony
testimony advocating for aa system
system
in which a voter can apply for an absentee
ballot through
throughElection
Election Day
Day itself.
absentee ballot
Nevertheless, the Commission concurred
concurred with the position of many town clerks and
Secretary of
of State's
State’s Office
Office that
the Secretary
that the
the Friday,
Friday, Saturday
Saturday and
and Monday before
before Election
Day
of Election Day
Day should
should be
be left
left for
for the
the preparation
preparation of
Day itself
itselfwithout
without the
the additional
additional
burden
minute applications
applications for
for absentee
absenteeballots.
ballots. Moreover,
Moreover, the
the Commission
Commission
burden of last minute
recommends that
that if
if Early Voting
Votingwere
were to
to be
be instituted,
instituted, the
the election calendar
calendar should
have
the last
last day to apply for an
have the
the last day for
for early
early voting
voting correspond
correspond with the
an
absentee ballot.
ballot. It
It may also be that
that the
the institution
institutionof
ofEarly
Early Voting
Voting will
absentee
will take
take some
some
pressure
off the
pressure off
the work
work associated
associated with
with processing
processing absentee
absentee ballots.

The Commission
Commission was
was made
made aware
aware of
ofaapotential
potential for
for abuse
abuse in
in the
the absentee
absentee ballot
or addressed
addressedby
bylegislation.
legislation. That is,
system which needs
needs to be examined further
further or
someone applies
applies for an absentee
absentee ballot
ballot for
for a family member, there is no
when someone
requirement
for a notary
notary or
or witness
witness certification for the
requirement for
the ballot envelope
envelope and
and the
the
can then
then return
returnthe
theballot
ballottotothe
theclerk.
clerk.See
See21-A
21-AM.R.S.
M.R.S. sec.754family member
member can
A(1)(C),(E). Under
ballot for a family
A(1)(C),(E).
Undersuch
suchaasystem
system the
the person
person who solicited the ballot
member
member could vote
vote the
the ballot,
ballot, forge
forge the
the voter’s
voter's signature
signature and
and thereby
thereby commit aa
Apparently, there
there is
is at
at least
least one
one case in recent years in which a person was
fraud. Apparently,
prosecuted
for pursuing
pursuing this
this very
very ruse.
ruse. The
The solution to this
this problem
problem may
may simply be
prosecuted for
be
the exception for a family
to eliminate the
family member’s
member's role in absentee balloting, and
require
voters who
who rely on a third
person for
for assistance
assistance to
to follow the
require all absentee
absentee voters
third person
the
procedure
the presence
presence of aa witness,
procedure requiring the
witness, notary
notary or
or the
the clerk
clerk as outlined at
at 2121-

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 24 of 29

A M.R.S.
M.R.S.sec.754-A
sec.754-A(2).
(2).Another
Anotheroption
optionwould
wouldbebetotorequire
requirethe
thevoter
voterto
to request
request a
ballot
ballot to
to be
be delivered
delivered or
or returned
returned by an immediate
immediate family
family member,
member, rather
rather than
than
allowing the family
family member
member to
to make
make the
the request, possibly without the knowledge of
the voter. That would still allow the
the family
familymember
member to
to return
return the ballot if the
the voter
requests
requests it and would eliminate the need for one or more witnesses.
Moreover,
Moreover, itit isisrecommended
recommended that
that when
when clerks
clerks receive
receive the
the standard
standard absentee
absentee ballot,
they should be sure to compare the voter’s
voter's signature on the application with the
signature on the ballot to be
appear to
to be
be the
the same. Both these
signature
be sure
sure that they appear
these
documents are retained
retained so
so that
that members
membersof
of the
the public can be satisfied that
that the
person
person applying for
for an
an absentee
absentee ballot
ballot appears
appears to
to be
be the
the same
same one
one who
who voted
voted that
that
ballot.
ballot
Finally,
Finally, we
wewere
were advised
advised that
that because local elections
elections do
do not
not have to
to comport with
absentee ballot
ballot process
process which
which attends
attendsstatewide
statewideelections,
elections,towns
townsand
andRSUs
RSUs are
the absentee
are
period within which absentee
free to
to shorten
shorten the period
absentee ballot applications
applications are
are made
made
available with the
the result
result that not only can
can absent
absent voters
voters be
be frustrated
frustrated in their
their desire
to exercise their
their right
right to
to vote,
vote, town
town clerks
clerks are
are inundated
inundated with
with the
the work
work associated
associated
absentee ballot
ballot applications
applications in
in a compressed
compressed time
time frame. The
with processing absentee
Commission
Commission respectfully
respectfully suggests
suggests that
that legislation
legislation be
be considered
considered which would
would
require
absentee ballot
ballot system
system which may be
require local jurisdictions
jurisdictions to
to institute
institute an absentee
be more
more
convenient
convenient for
for voters
voters and
and election
election administrators
administrators alike.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 25 of 29

VII.

Residency
It
It is
is an
an axiomatic
axiomatic principle
principle in
in American
American elections
elections that
that citizens
citizens have
have the
the right
right to
to vote
vote
where they
they are
are residents
residentsfor
forvoting
votingpurposes.
purposes.And,
And,"A
“A person
where
person can have only one
one
residence
atany
anygiven
giventime."
time.” Maine
Maine has
has codified
codified these
theseprinciples
principlesatat21-A
21-AM.R.S.
M.R.S. secs
residence at
111(3)&112(2). Moreover,
Moreover, aa person
111(3)&112(2).
person who
who votes
votes in
in aa community
communitywhere
where he/she
he/she is
is not
not
a bona fide resident
resident dilutes the votes of those citizens who properly
properly voted in that
that
community.
While these appear
appear to
to be straightforward
straightforward concepts,
concepts, controversy
community. While
controversy and
and
confusion have surrounded
the application
application of the word "residency"
“residency” in establishing
surrounded the
the qualifications of aa potential
potential voter. All
Allthree
threebranches
branches of
ofour
our state
state government
government
have addressed
the problem
problemof
of defining
defining who
who is qualified to vote.
addressed the
For
For its
its part,
part, the
the Legislature, as
as the
the entity
entity who
who makes
makes the
the “rules”
"rules" concerning
concerning
residency, has defined “residence”
"residence" for purposes
purposes of the qualification to vote as,
“…that place where
person has
has established
establishedaa fixed
fixed and principal home to which
"...that
where the person
person, whenever
whenevertemporarily
temporarilyabsent,
absent,intends
intendstotoreturn."
return.”21-A
21-AM.R.S.
M.R.S. secs.
the person,
1(40), &112(1).
&112(1). “This
1(40),
"This definition
definition of
of voting
votingresidence
residence has
has been
been held
held to
to be
be equivalent
equivalent
to
domicile,
which
means
living
in
a
locality
with
the
intent
to
make
it
a
fixed
to domicile, which means living in a locality with the intent to make it a fixed and
and
principal
home.” Op.
Op. Me. Att’y
Poirierv.v.City
City of Saco, 529
principal home."
Att'y Gen.
Gen.2008-01
2008-01 at 3, citing,
citing Poirier
A.2d,329 330,
330, n.2
n.2 (Me.
(Me.1987).
1987).The
TheLegislature
Legislaturehas
has also
also established
established aa menu
menu of factors
factors
potential voter
votermay
mayoffer
offerto
toaaregistrar
registrarasasproof
proofofofresidency.
residency.21-A
21-AM.R.S.
M.R.S.
which a potential
sec.112(1)(A).
As will
As
willbe
bediscussed
discussedherein,
herein,the
the executive
executivebranch,
branch,through
through the
the attorney
attorney general
general and
and
secretary of
of state, and the
the courts
courts have
have been
been called
called upon from time to time to
the secretary
interpret
thelaws
laws concerning
concerning voter
voter qualification
qualification as they relate
relate to
to residency.
residency. Most
interpret the
attention has
has been
been directed
directedto
tothe
theclarification
clarification of the
frequently their attention
the law or
or the
the
resolution of disputes concerning the
the application
application of the law to college
college students.
students.
Typically, the
who come
come to
to Maine
Maine from
Typically,
thecontroversy
controversy is
is centered
centered on
on students
students who
from another
another
state
to
obtain
their
college
education.
Since
many,
if
not
most,
of
these
students
state to obtain their college education. Since
if not most, of these students
return
”home” or
return "home"
or go
go elsewhere
elsewhere on
on vacations
vacations or
or breaks,
breaks, and
and don’t
don't vote
vote in
in person
person or
or
absentee in
in elections,
elections, such as primaries,
primaries, which do not occur during the school year,
absentee
year,
it is often argued that they should not be considered
considered Maine
Maine "residents"
“residents” for voting
purposes.
who attend
attendcollege
college in
in Maine
purposes. [A similar
similar argument
argument is
is made
made as
as to
to students
students who
Maine, but
and who are from Maine,
but vote
vote in
in their
their college
collegecommunity
communityrather
rather than
than their
their town
of origin.]

While these
these concerns
concerns have
have legitimacy,
legitimacy,and
andcomplainants
complainants correctly
correctly argue
argue that
that the
the
axiom cited above should
should be inviolate,
inviolate, namely
namely that
that citizens
citizens should
should vote
vote where
where they
“reside”, court
consistent legal
"reside",
court decisions
decisions and
and attorney
attorney general opinions provide consistent

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 26 of 29

guidance to the effect that
that college
college students
students are free to establish a Maine residency
residency
and vote here
here just
just as
as any
any other
other non-student
non-student individual might.
might
Thus, as
as Attorney
Attorney General
General Rowe
Rowe opined
opined in
in 2008,
2008, “Where
"Where aa fundamental
fundamental right,
right, such
such
as the right to vote, is
is at
at issue,
issue, the
the state
state has
has to
to meet
meet aa higher
higher burden
burden in
in order
order to
to
justify
justify any
any limitations
limitations on
on that
that right.
right. Restrictions
Restrictions on
on the
the right
right to
to vote
vote must
must be
be
justified
justified by
by aacompelling
compellingstate
stateinterest
interest and
and must
must be
be narrowly
narrowly tailored
tailored to
to serve
serve that
that
interest.”
Op. Me. Att’y
Dunn v. Blumstein,
405U.S.
U.S. 330,
interest." Op.
Att'y Gen.
Gen. 2008-01,
2008-01, at 5, citing Dunn
Blumstein, 405
336-37
(1972). Accordingly,
Accordingly, as
336-37 (1972).
as noted,
noted, aa college
collegestudent
student cannot
cannot be
be barred
barred from
voting simply
simply because
because of
ofthat
that status;
status; instead
instead it is
is aa neutral
neutral factor
factor and
and the
the student
student is
potential voter
voter might,
might, by the
free to
to establish
establish voting residency,
residency, as
as any
any other
other potential
the fair
guidelines by
by which qualification to vote may be
application of the statutory
statutory guidelines
established.
Said better,
better, "[U]nder
“[U]nder Maine
Maine law, local [election officials]
established. Said
officials] should
should not
not
place
place students
students in
in any
any better
better nor
nor in
in any
any worse
worse position
position than
than non-students
non-students when
when
making aa determination
determination as to whether
whether a voting residence has been established.”
established."
Memorandum
from AG
AG Erwin
2, attached
to Op.
Op.
Memorandum from
Erwin to
to Sec’y
Sec'yofofState
StateEdgar,
Edgar,1/4/72,
1/4/72, at
at 2,
attached to
Me. Att’y
also, 21-A M.R.S.
M.R.S. sec.
Att'y Gen.
Gen. 2008-01;
2008-01; See also,
sec.112(7).
112(7).
From all this
this itit may
may be
be fairly
fairlyconcluded
concludedthat
that as
as long
longas
asaastudent
student studying
studying here
here
one or
or more
more of
of the
the factors
factors enumerated
enumeratedatat21-A
21-AM.R.S.
M.R.S. sec. 112(1)(A),
satisfies one
112(1)(A), he
he or
or
permittedto
to register
registerto
tovote.
vote.Typically,
Typically, for
for aa student
studentcoming
coming to
to Maine
she must be permitted
state, that
thatwould
wouldlikely
likely entail
entail subsections
subsections1,
1, 2,
2, 9 or 16 of section
from another
another state,
112(1)(A).

The Commission
Commission also
alsobelieves
believesthat
that establishing
establishing this
this important
important right of citizenship
citizenship
confers certain responsibilities
responsibilities upon
uponthat
thatindividual.
individual.In
In this
this regard,
regard,Maine
Maine law, as
interpreted
by previous attorneys
interpreted by
attorneys general and
and secretaries
secretaries of state,
state, requires
requires that
that
bona fide citizens who establish a voting residency
residency here also comply with
with other
other laws
apply to
to Maine citizens. Thus, as opined
opined by
by Attorney
AttorneyGeneral
GeneralCohen,
Cohen, "...[W]e
“…[W]e
which apply
conclude
student, physically located
conclude that
that a person, such as a student,
located in this
this State
State who
who
registers
to vote
vote and
and by
by that
that act
act claims
claims Maine as his or her fixed habitation, is
registers to
thereby precluded
precluded from claiming nonresident
thereby
nonresident status
status so as to continue
continue his
his or
or her
her
exemption from Maine’s
licensing laws. Thus itit appears
Maine's registration
registration and operator
operator licensing
appears
plain
anyone physically located
to vote
vote in
in aa Maine
plain that
that anyone
located in this
this State who
who registers
registers to
register his or her
and must
must obtain a
municipality must register
her motor
motor vehicle
vehicle in Maine and
Maine operator’s
license.” Op.
Op. Me.
operator's license."
Me. Att’y
Att'yGen.
Gen.80-38
80-38atat2.2.The
Thesame
sameprecedent
precedent
concludes
establishes aa voting
voting residence
residencein
in Maine
Maine is domiciled here
concludes that
that one who establishes
here for
purposes
of our
our property,
property,income
incomeand
andexcise
excisetax
taxlaws.
laws.Id.
Id.at
at3.
3.So,
So, while Maine
purposes of
statutes are
aresilent
silenton
onthe
theissue,
issue,the
theessential
essentialpoint
pointof
ofAttorney
Attorney General
General Cohen's
Cohen’s
statutes
opinion is that
that if one is claiming
claiming aa Maine
Maineresidence
residence for
for voting
votingpurposes,
purposes, then
then one has
claimed
claimed Maine
Maine as
as one’s
one's domicile
domicile for
for all
all purposes.
purposes.

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 27 of 29

to establishing
establishing one's
one’s domicile
domicile in Maine appear
While the
the responsibilities
responsibilities attendant
attendant to
appear
individual’s failure to register
register aa vehicle,
to be well settled,
settled, it
it is
is also
also true
true that
that an individual's
obtain
motor vehicle
vehicle license, or
or pay taxes
taxes in Maine after becoming a Maine voter
obtain a motor
do not, by themselves,
themselves, extinguish
extinguish the
the individual’s
individual's right to vote here. Instead, such a
citizen
citizen becomes
becomes vulnerable
vulnerable to
to prosecution
prosecution for
for the
the failure
failure to
to adhere
adhere to
to the
the laws
laws
which impose
impose obligations
obligations on
on those
those who
who become
become Maine
Maine residents.
residents.

At least
least one advocacy
advocacy group
group which
which appeared
appeared before the Commission on a number
number of
occasions
the right
right to
to vote
vote should
should be
be "decoupled"
“decoupled” from
occasions offered
offered the
the notion
notion that
that the
from any
any
citizen responsibilities
which are
are tied
tied to
to establishing
establishingMaine
Maine as
as one's
one’s domicile.
domicile. The
responsibilities which
idea,
idea, apparently,
apparently, is
is that
that college
college students,
students, or
or any
any other
other person
person wishing to
to exercise
exercise the
the
Maine, should
to any law which
franchise in Maine,
should not,
not, by
by that
that act,
act, be
be required
required to adhere
adhere to
imposes responsibilities
responsibilitieson
onsuch
suchaspiring
aspiringMaine
Maine citizens.
citizens. The
The Commission would
reject
approach as
as contrary
contraryto
tothe
thehistory
historyand
andlaw
lawof
of Maine
Maine which has
reject this
this approach
has always
always
been to the
the contrary.
contrary. Further,
Further,in
in the
theCommission's
Commission’s view,
view, full citizenship with its
concomitant
also entails
which are
universally imposed
imposed for
for
concomitant rights
rights also
entails responsibilities
responsibilities which
are universally
greatergood,
good, such
such as
as paying
paying taxes, serving
serving as
as a juror,
juror, etc.. Indeed, to immunize
the greater
those with
with citizen rights
rights from the burdens
burdensof
of citizen responsibilities,
responsibilities, especially
especially if the
those
were to
to benefit
benefit only
only one
one group
group of
of people, like college
former were
college students,
students, would place
place
those who are entitled to select our political leaders
leaders and enact our ordinances
without any direct or
or indirect
indirect responsibility
responsibility for
for the
the consequences
consequences of
of those
those choices.
without
In our view,
view, participation
participation in civic
civic life
lifeshould
shouldnot
notsegregate
segregate aaright
right dependent
dependent on
residency
residency with the obligations which accompany
accompany the
the declaration
declaration of residency.
residency. In
In this
this
regard,
regard, a bona
bona fide resident
resident of Maine should
should not
not be
be free
free to
to select
select which
which laws
laws based
based
on
on residency
residency he/she
he/she wishes to obey and
and those
those which
which he/she
he/she does not.
not.
challenges to
to the
the concept
concept of
of "residency"
“residency” as it
Two other groups of citizens present
present challenges
relates
to the
the right
right to
to vote.
vote. The
The first
who has
relates to
first of
of these
these is
is the
the non-domiciled
non-domiciled resident
resident who
has aa
vacation or
or second
second home
home in
in Maine.
Maine. Because these folks have a “residence”
"residence" in our
State, aa few
few believe
believe they
they can
can vote
vote here
here as
as “residents”.
"residents". While this
this is
is not
not aa common
common
phenomenon, it does arise in the administration
administration of
of local elections when there is
interest
and incentive
incentive to
to vote
vote on
on local issues such as zoning ordinances.
interest and
ordinances.
when a bona
bona fide Maine
The same
same problem
problem has
has arisen
arisen when
Maine resident
resident has two homes in
Maine but
but can, and
and should, be
be domiciled
domiciled for
for voting
voting purposes
purposes in only one of them.
Nevertheless, such voters purposely or mistakenly decide to vote in the community
where they
they have
have aa "residence"
“residence” but
but are
are not
not domiciled.
domiciled. Such events
where
events occur, as
as with
with the
the
non-Maine
in a local election where
non-Maine residents,
residents, when there is strong interest
interest in
where the
voter has
has aa non-domiciled
non-domiciled "residence".
“residence”. So,
So, for
voter
for example,
example, the
the Commission
Commission was
was advised
advised
that some voters
voters with
with a non-voting residency on Peak’s
that
Peak's Island attempted
attempted to vote
there in
in the
the secession referendum
referendum even
even though
though they were
were domiciled elsewhere.
there

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 28 of 29

Whether this was intentional or through misunderstanding, the issue remains that a
to vote, especially in
few voters
voters will
will attempt
attempt to
in local
local elections,
elections,where
where they
they are
are not
not
properly
properly domiciled.
Before
Before addressing
addressing possible
possible cures
cures for
for the
the problems
problems set
set out
out here,
here, itit is
is worth
worth raising
raising
complaints we
we heard
heard from
from aa variety
variety of
of citizens
citizens and
and election
election officials concerning
the complaints
concerning
the list of
of potential
potential factors
factors which
which aa registrar
registrar may
may use
use to
to establish
establish aa voter’s
voter's residency
residency
found at
at21-A
21-A M.R.S.
M.R.S. sec.
as found
sec. 112(1)(A).
112(1)(A).

The first of
of these
these is the
the use
use of
of an
an oath
oath as
as authorized
authorized by section
section 121(1)
121(1) as a “direct
"direct
statement of
of intention,"
intention,” to
statement
to establish
establish residency
residency under
under section 112(1)(A).
Unfortunately, the
the form of
of the
the oath
oath to
to be
be used
used isis not
not prescribed
prescribed by statute,
statute, although
Secretary of State’s
the Secretary
State's Office
Officedoes
doesprovide
provideregistrars
registrars with
with an
an oath
oath form
form and
and
instructions
to require
require proof
proof of
of identity from the potential
potential voter
voter who is taking the
instructions to
oath.
Two other
forms of
of identification
to establish
establish residency
residency have
have been
beencriticized.
criticized. One
One is,
is,
Two
other forms
identification to
“[t]he place where any motor
motor vehicle owned by the person
person is
is registered."
registered.” 21-A
21-A
"[t]he
M.R.S.
not aa post
post office
office box,
M.R.S.sec.
sec.112(1)(A)(6).
112(1)(A)(6).The
Theother
otheris,
is,“[t]he
"[t]heresidence
residence address,
address, not
residenthunting
huntingor
orfishing
fishing licenses
licenses held
held by
by the
the person.
person. Id.,
Id.,
shown on any current
current resident
sec. 112(1)(A)(10). As
As to
to the
the latter,
latter, because
because one can obtain such a license without
without
proof
proof of
of residency
residency in
in aa particular
particular town,
town, and
and need
need only establish
establish Maine residency
residency to
to
an IFW license should not suffice as
get a license, it is argued
argued that
that an
as proof
proof of
of residency
residency
in a particular town. With respect
respect to motor vehicle registration
registration as proof of
residency,
thataafew
few town
town clerks
clerks will,
will, on
residency, itit has
has been
been reported
reported that
on occasion,
occasion, register
register aa
motor vehicle in their town without
without proof
proof of residency in order
order to
to collect
collect excise tax
for their
their town. While
While such
such incidents
incidents are
are probably
probably rare,
rare, it
it may
may be
be worth
worth reviewing
reviewing
this factor as evidence of
of residency
residency for
for voting
voting purposes.
purposes.
More substantively, the Commission believes that much of the
the confusion and
controversy
the question
question of
of residency
residency would
would be cured
cured by changing the
controversy over the
the law
law to
to
substitute the
theword
word"domicile"
“domicile” for the word "residence"
“residence” wherever
wherever applicable.
applicable. This
substitute
amendment to
to our
our election
election laws
laws would make it clear that residency for voting
amendment
purposes
means domicile,
domicile, just
havealways
always said.
said. Thus,
purposes means
just as
as the
the law’s
law's interpreters
interpreters have
persons
than one
one "residence",
“residence”, and were confused in thinking
persons who have more than
thinking that
that
they had more
more than one forum to
to choose
choose from
from when
when voting,
voting,would
wouldunderstand
understand that
that
they could only vote where
where they are domiciled, that is, the place which they
they intend
intend
to make
sec.112(1),
112(1),even
evenififthat
thatintent
intent
make "their
“their fixed
fixed and
and principal
principalhome",
home”,21-A
21-A M.R.S.
M.R.S. sec.
may
may be
be short-lived.
short-lived. Thus,
Thus, as
as the
the Secretary
Secretary of State
State correctly
correctly offered
offered in
in his
his guidance
guidance
registrars in
in 1974,
1974, "All
“All that
to registrars
that isis required
required is the
the applicant’s
applicant's residency within the
community
intention to
to claim that
community plus
plus the
the present
present intention
that community as
as the
the applicant’s
applicant's

 Case 1:17-cv-02361-CKK Document 7-2 Filed 11/16/17 Page 29 of 29

SOLE residence.”
SOLE
residence."(emphasis
(emphasissupplied).
supplied).Indeed,
Indeed,our
ourcurrent
current statute
statute defines
“residency” as
as "domicile"
“domicile” without
using the
thelatter
latterword.
word.21-A
21-AM.R.S.
M.R.S. sec.112(1).
"residency"
without using
sec.112(1).
As aa remedy
As
remedy for
for the
the problems
problems surrounding
surrounding the
the use of an
an oath
oath as
as one
one means
means to
to
establish
residency, (or,
(or, preferably,
preferably, "domicile"),
“domicile”), the
establish voting residency,
the Commission
Commission respectfully
respectfully
prescribed oath
oath as
as New Hampshire
suggests adopting
adopting aa statutorily
statutorily prescribed
Hampshire has
has done
done at
at
N.H.RS,
N.H.RS,sec.
sec.654:12.
654:12.By
Bycodifying
codifyingthe
theoath
oathofof“domicile”
"domicile"and
andrequiring
requiringthat
that the
the oath
oath
be taken in the same manner
manner as
as one taken
taken before
before a notary, the
the Legislature would be
insuring
insuring that
that the practice was uniform statewide,
statewide, was
was consistent
consistent with
with other
other laws
concerning oath-taking, and would, hopefully,
hopefully,put
putto
torest
rest the
the unease
unease some town
clerks
feel in
in relying on this method
method to
to establish
establish voting
voting domicile.
clerks and
and registrars
registrars feel
Additionally, ififthe
Additionally,
the Legislature
Legislature were
were inclined
inclined to
to amend
amend this
this aspect
aspect of our
our law
law as
as it
it
voter qualifications, the Commission
applies to establishing voter
Commission also
also recommends
recommends that
that
registration form
form currently
currently used
usedbe
be revised
revised to
to use
use the
the word
word"domicile"
“domicile” and
the voter registration
and
that he/she
he/shecan
canonly
onlyhave
have one
one domicile
domicile for
to make it
it clear
clear to
to the
the registrant
registrant that
purposes
of voting. Again,
purposes of
Again,New
NewHampshire
Hampshirehas
has adopted
adopted such a form
form which
which has
has the
that by registering to vote,
additional positive purpose
purpose of advising
advising the
the registrant
registrant that
he/she
taking on
on other
other responsibilities
responsibilitiesof
of citizenship, such as obtaining a driver’s
he/she isis taking
driver's
and registering
registeringhis
hisororher
hermotor
motorvehicle.
vehicle.See
SeeN.H.RS,
N.H.RS, sec.
sec. 654:7
654:7IV.
IV.
license and
the proper
propervoting
voting venue
venue for college students,
With further
further respect
respect to the
students, the
the
Commission believes
suggested above
above will help clarify their
believes that
that the minor changes suggested
their
participation
in Maine
Maine elections. The Commission
participation in
Commission strongly
strongly believes,
believes, however,
however, that
that
college
college administrators
administrators must
must take a more
more pro-active
pro-active approach
approach in assisting
assisting their
their
students in
in the
theexercise
exerciseof
of their
their right
rightto
tovote
vote by
by affirmatively
affirmatively and
and effectively
students
reaching
reaching out
out to
to them
them to
to encourage
encourage them
them to engage
engage in
in our
our democratic
democratic processes.
processes.
Thus, for example,
example, aatimely
timelymemo
memoto
tostudents
students advising
advising them
them of
of their
their rights
rights and
obligations
obligations when
when registering
registering to vote
vote here
here would be
be aa service
service to
to them
them and
and the
the
college’s
college's community.
community. At
At the
the same
same time
time these
these officials
officials should
should offer
offer to
to assist
assist those
those
students who
who wish
wish to
to remain
remain domiciled
domiciled at their
their original homes so they may obtain
students
absentee ballots
ballots in
in aa timely
timely way. Further,
that the
the Secretary
Secretary of
of State
State will
absentee
Further, it is hoped
hoped that
continue to communicate
communicate with
with college
college officials
officials and
and offer
offer to
to assist
assist them
them with the
proper registration of their students.

 Case Document 7-3 Filed 11/16/17 Page 1 of 3

Exhibit 2

Case Document 7-3 Filed 11/16/17 Page 2 of 3

STATE OF MAINE

OFHCE
OF THE
SECRETARY OF STATE

 

MATTHEW DUNLAP
SECRETARY OF STATE

I7 October 2017

Mr. Andrew Kossack. Executive Director

The Presidential Advisory Commission on Election Integrity
Office of the Vice President of the United States

1600 Avenue

Washington, DC 20500

Dear Mr. Kossack.

I am writing in my capacity as a member of the Presidential Advisory Commission on
Election Integrity (hereafter referred to as the Commission). I am seeking information
because I lack it; I am asking questions because I do not know the answers. I am a keen
observer of the public discourse. and it has been made manifestly clear that there is
information about this commission being created and shared among a number of parties,
though apparently not universally. Thus. I am in a position where I feel compelled to
inquire after the work of the Commission upon which I am sworn to serve. and am yet
completely uninformed as to its activities.

Under the auspices 10(b) of the Federal Advisory Committee Act. I am requesting
copies of any and all correspondence between Commission members in the Ipossession of
the Commission dating from the signing ofthe Executive Order on May 1 1t . 2017 until
the receipt of this request. This request includes communications between
Commissioners themselves. between Commissioners and/or staff and other Federal
agencies. communications used in the development of public documents. and any
ongoing discourse between Commissioners and staff about the development of policies
and/or policy proposals that may be offered to policymakers as either a component of any
report or under separate cover of which this Commissioner may be unaware.

I am requesting this information because since our second meeting adjourned in New
Hampshire on the 12lh ultimo. I have received utterly no infomiation or updates from
Commission staff or leadership about ongoing active research, inquiries for research
requests. documents for consideration during future meetings. or indeed any information
about whether or not the Chair has plans on convening another meeting.

Nonetheless. media inquiries continue to come forth. wherejoumalists are requesting
comment on sundry developments concerning the Commission. but that I as a
commissioner am blind to.

148 STATE HOUSE STATION 0 AUGUSTA. MAINE 0 04333-0148 0 TELEPHONE: I207I 626-8400 0 FM: I207I 287-8598

Case Document 7-3 Filed 11/16/17 Page 3 of 3

If there are activities that are ongoing that would involve covert investigation or are
classi?ed, it beggars the imagination that my understanding of any activity would come
by way of media inquiries. Further, in the wake of the arrest of researcher Ronald
Williams II on charges of possession of child pornography, it is further frustrating to me
as a Commissioner that intelligence of this development was presented to me in the form
of a text message from a journalist. At this writing. there yet is a vacuum of information
forthcoming about that situation or any other activity of the Commission from the
leadership of the Commission or its staff.

The legal basis for my request can be found in Cummock v. Gore. 180 F.3d 282 (DC.
Cir. 1999).

I look forward to your response with anticipation, and remain very sincerely yours,

   

 

un
Maine Secretary of State
Member, Presidential Advisory Commission on Election Integ 

 
  

Case Document 7-4 Filed 11/16/17 Page 1 of 4

Exhibit 3

Case 1:17-cv-02361-CKK Document 7-4 Filed 11/16/17 Page 2 of 4

From: Minnesota Voters Alliance <info@mnvoters.org>
Subject: Voter Data lawsuit update and more!
Date: October 19, 2017 at 8:44:38 AM CDT

October 2017 Update
Dear Friends,
We are pleased to let you know that the Minnesota Voters Alliance (MVA) was
invited to speak at the December 2017 meeting of the "Presidential Advisory
Commission on Election Integrity", also known as the "Trump Voter Fraud
Commission".
2

 Case 1:17-cv-02361-CKK Document 7-4 Filed 11/16/17 Page 3 of 4
The meeting information has not been released yet, but we'll let you know as we
learn more, as well as share with you our objectives for the event. The Commission
has held two meetings thus far; the first one was held at the White House and the
second was in New Hampshire.
Your continued support has made this possible and we are very grateful.
Minnesota Secretary of State covering up voter data
The Office of the Secretary of State holds a monopoly on statewide election data and
over the years has become increasingly unwilling to open the books for public
scrutiny.
Secretary of State Steve Simon’s recent defiance of the Presidential Commission
on Election Integrity’s request for access to Minnesota’s voter registration data is
just the latest example of stonewalling by his office.
Minnesota has led the nation in voter fraud convictions, yet, Secretary Simon tells the
people that no voter exists because he has ‘rigorous safety measures” in
place. When asked to see proof, i.e.” the data”, he says “it’s not public”.
In our ongoing efforts to determine the true amount of ineligible voting in Minnesota,
we submitted a simple Data Practices Act (DPA) request to the Secretary of State on
July 21, 2017, asking for “public” voter data on all voters, and, as expected, were
denied.
Lawsuit against Secretary of State
The Minnesota Voters Alliance (MVA) filed a lawsuit against Secretary of State Steve
Simon on August 10, 2017, in Ramsey County District Court, for wrongfully rejecting
our Data Practices Act (DPA) request seeking ‘public’ voter data.
Under the Minnesota Government Data Practices Act statute, all government data is
presumed to be ‘public”, unless explicitly classified as non-public or confidential.
Our DPA request simply asked for ‘public’ voter data, (i.e, name, address, voter
status, etc.. ), on all voters in the Statewide Voter Registration System (SVRS)
including those with an “Ineligible” voter status. The request did not seek personal
information about party affiliation, or confidential information such as driver's license
numbers.
The only data that the Secretary of State currently releases as ‘public data” is
routinely sold on CD-ROM for $46 to any Minnesota voter. But, the readily available
disk contains only “active” voters because it was intended to be used as a political
mailing list.
The CD-ROM, however, does not contain that same information on persons
marked "inactive" and "challenged”. Such designations, or “voter statutes”, are key
indicators of a voter’s ineligibility and are critical to identifying how much ineligible
voting is occurring.
Recent opinions by the Data Practices Office (DPO, formerly known as IPAD), a
government agency established to settle disputes over access to government-held
data, suggests that ‘public data” is available on all voters, not merely just those
marked “active” in the SVRS.
Two major advantages
-While the Data Practices Office is not a court, the law states that a court must give
‘deference’ to a favorable DPO opinion, thus, providing us with considerable leverage
in court.
-Nationally recognized Judicial Watch has expressed strong interest in filing an
Amicus ‘friend of the court’ supporting our position.
Judge and court data assigned:
We have been assigned Ramsey County District Court Judge Jennifer Fritsch, and a
court date of December 4, 2017. We'll keep you posted!
3

 Case 1:17-cv-02361-CKK Document 7-4 Filed 11/16/17 Page 4 of 4
Critical Support!
We are seeking to raise $10,000 by November 15th to stay on course for our 2017
budget and to cover court costs, administrative and operational expenses.
A generous donor has agreed to match all donations up to $5,000 towards this
appeal. Please make a generous “Tax Deductible” donation today to help us reach
our goal!
If you have not recently done so, please make check payable today to the
“Minnesota Voters Alliance” or you can donate online at www.MNVoters.org
Warm regards,
Andrew Cilek
Minnesota Voters Alliance
Executive Director
P.O. Box 4602
St. Paul, MN 55104
P.S: Please make a generous "Tax Deductible" donation today!
The Minnesota Voters Alliance is a 501c3 organization. Donations are tax
deductible. We are able to accept personal and corporate contributions.

---------Minnesota Voters Alliance
http://www.mnvoters.org

Click unsubscribe to be removed from the mailing list.

4

 Case Document 7-5 Filed 11/16/17 Page 1 of 2

Exhibit 4

Case 1:17-cv-02361-CKK Document 7-5 Filed 11/16/17 Page 2 of 2

Htqo< Mquucem- Cpftgy L/ GQR0QXR ]ocknvq<Cpftgy/L/MquucemBqxr/gqr/iqx_
Ugpv< Ygfpgufc{- Qevqdgt 36- 3128 ;<33 CO
Vq< Fwpncr- Ocvvjgy
Uwdlgev< TG< Tgswguv hqt Kphqtocvkqp

Secretary Dunlap:

I am in receipt of your letter dated October 17, 2017, in which you request copies of correspondence in the
Commission's possession. As you know, eight lawsuits are currently pending against the Commission and other
federal agencies, and several of those cases concern the disclosure of records under section 10(b) of the Federal
Advisory Committee Act ("FACA"). I am consulting with counsel regarding a response to your request to
ensure any response accords with all applicable law. I will be back in touch soon.

As always, please feel free to reach out to me should you have any other questions or concerns.

Thank you.

Andrew

2

 Case Document 7-6 Filed 11/16/17 Page 1 of 5

Exhibit 5

Case 1:17-cv-02361-CKK Document 7-6 Filed 11/16/17 Page 2 of 5

---------- Forwarded message ---------From: Matthew Dunlap <mattdunlap47@gmail.com>
Date: Wed, Oct 25, 2017 at 3:46 PM
Subject: Thank you for responding, but....
To: "Kossack, Andrew J. EOP/OVP" <Andrew.J.Kossack@ovp.eop.gov>
Cc: "Dunlap, Matthew" <matthew.dunlap@maine.gov>, "Muszynski, Kristen"
<kristen.muszynski@maine.gov>
Andrew,
I appreciate the response you sent this morning to my letter of the 17th. In an effort to keep my
request simple and make the job of the attorneys a bit easier as they sort out whether the response to
my request "accords with all applicable law," perhaps you could shed light on our work schedule and
our communications generally. Please see below; the text immediately below is from a media inquiry
about statements made by Indiana Secretary of State and fellow commissioner Connie Lawson that
our work is on hold because of pending litigation, and further a fundraising email sent out by the
Minnesota Voters Alliance celebrating their invitation to present testimony at our December meeting
(the first I had heard of either). Both of these elements may help make the vice-chair "aware of any
information or discussions or exchange of materials from commission members that would exclude
(Dunlap)" as reported by PBS News.

2

 Case 1:17-cv-02361-CKK Document 7-6 Filed 11/16/17 Page 3 of 5
If our work is on hold, could you let us know? And if we're meeting, can we know that too? My phone
is ringing off the hook about this and I don't have any answers.
Any light you could shed would be helpful.
Matt Dunlap
Secretary of State of Maine and Commissioner,
Presidential Advisory Commission on Election Integrity

"I hope you’re doing well. I wanted to reach out to Secretary Dunlap to get his thoughts on comments made by Secretary
Connie Lawson today. After a hearing in Washington, she told reporters that it was her understanding that the work of the
election integrity commission had essentially been paused because of the lawsuits filed against the commission. She said
that has had a chilling effect, and that it’s her understanding that the commission is waiting to resolve those suits before
moving forward. She said she hasn’t received any new information since the last meeting and that she doesn’t think
members are emailing each other.

Here’s part of Lawson’s comments today: "It's my understanding that there were just so many lawsuits against the
commission that it's really right now there's nothing going on. So it's not the fact that anybody's being shut out, it's just
that they wanted to get some of these lawsuits settled and then move forward."

I know that Secretary Dunlap has been concerned about the lack of communication that he has received as a commission
member. I wanted to ask him if he has any thoughts or reaction to Secretary Lawson’s explanation of what’s going on. I’m
writing this up so if he has any response or a second to chat, that would be great."

From: Minnesota Voters Alliance <info@mnvoters.org>
Subject: Voter Data lawsuit update and more!
Date: October 19, 2017 at 8:44:38 AM CDT
To: jimacarlson@comcast.net

Tkijv.enkem
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jgnr rtqvgev
{ qwt rtkx ce{ Qwvnq qm
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October 2017 Update
Dear Friends,
We are pleased to let you know that the Minnesota Voters Alliance (MVA) was invited to speak at the December
2017 meeting of the "Presidential Advisory Commission on Election Integrity", also known as the "Trump Voter
Fraud Commission".
3

 Case 1:17-cv-02361-CKK Document 7-6 Filed 11/16/17 Page 4 of 5
The meeting information has not been released yet, but we'll let you know as we learn more, as well as share with
you our objectives for the event. The Commission has held two meetings thus far; the first one was held at the White
House and the second was in New Hampshire.
Your continued support has made this possible and we are very grateful.
Minnesota Secretary of State covering up voter data
The Office of the Secretary of State holds a monopoly on statewide election data and over the years has become
increasingly unwilling to open the books for public scrutiny.
Secretary of State Steve Simon’s recent defiance of the Presidential Commission on Election Integrity’s request
for access to Minnesota’s voter registration data is just the latest example of stonewalling by his office.
Minnesota has led the nation in voter fraud convictions, yet, Secretary Simon tells the people that no voter exists
because he has ‘rigorous safety measures” in place. When asked to see proof, i.e.” the data”, he says “it’s not
public”.
In our ongoing efforts to determine the true amount of ineligible voting in Minnesota, we submitted a simple Data
Practices Act (DPA) request to the Secretary of State on July 21, 2017, asking for “public” voter data on all voters,
and, as expected, were denied.
Lawsuit against Secretary of State
The Minnesota Voters Alliance (MVA) filed a lawsuit against Secretary of State Steve Simon on August 10, 2017, in
Ramsey County District Court, for wrongfully rejecting our Data Practices Act (DPA) request seeking ‘public’ voter
data.
Under the Minnesota Government Data Practices Act statute, all government data is presumed to be ‘public”, unless
explicitly classified as non-public or confidential.
Our DPA request simply asked for ‘public’ voter data, (i.e, name, address, voter status, etc.. ), on all voters in the
Statewide Voter Registration System (SVRS) including those with an “Ineligible” voter status. The request did not
seek personal information about party affiliation, or confidential information such as driver's license numbers.
The only data that the Secretary of State currently releases as ‘public data” is routinely sold on CD-ROM for $46
to any Minnesota voter. But, the readily available disk contains only “active” voters because it was intended to be
used as a political mailing list.
The CD-ROM, however, does not contain that same information on persons marked "inactive" and
"challenged”. Such designations, or “voter statutes”, are key indicators of a voter’s ineligibility and are critical to
identifying how much ineligible voting is occurring.
Recent opinions by the Data Practices Office (DPO, formerly known as IPAD), a government agency established
to settle disputes over access to government-held data, suggests that ‘public data” is available on all voters, not
merely just those marked “active” in the SVRS.
Two major advantages
-While the Data Practices Office is not a court, the law states that a court must give ‘deference’ to a favorable DPO
opinion, thus, providing us with considerable leverage in court.
-Nationally recognized Judicial Watch has expressed strong interest in filing an Amicus ‘friend of the court’
supporting our position.
Judge and court data assigned:
We have been assigned Ramsey County District Court Judge Jennifer Fritsch, and a court date of December 4,
2017. We'll keep you posted!
Critical Support!
We are seeking to raise $10,000 by November 15th to stay on course for our 2017 budget and to cover court
costs, administrative and operational expenses.
A generous donor has agreed to match all donations up to $5,000 towards this appeal. Please make a generous
“Tax Deductible” donation today to help us reach our goal!
If you have not recently done so, please make check payable today to the “Minnesota Voters Alliance” or you can
donate online at www.MNVoters.org
Warm regards,
4

 Case 1:17-cv-02361-CKK Document 7-6 Filed 11/16/17 Page 5 of 5
Andrew Cilek
Minnesota Voters Alliance
Executive Director
P.O. Box 4602
St. Paul, MN 55104
P.S: Please make a generous "Tax Deductible" donation today!
The Minnesota Voters Alliance is a 501c3 organization. Donations are tax deductible. We are able to accept
personal and corporate contributions.

---------Minnesota Voters Alliance
http://www.mnvoters.org

Click unsubscribe to be removed from the mailing list.

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5

 Case Document 7-7 Filed 11/16/17 Page 1 of 6

Exhibit 6

Case 1:17-cv-02361-CKK Document 7-7 Filed 11/16/17 Page 2 of 6

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xs xli imklx pe{wymxw gyvvirxp} tirhmrk ekemrwx xli Gsqqmwwmsr erh sxliv jihivep
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 Case 1:17-cv-02361-CKK Document 7-7 Filed 11/16/17 Page 3 of 6
Erhvi{
Jvsq> Qexxli{ Hyrpet _qempxs>qexxhyrpet7;Dkqemp1gsqa
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@ovmwxir1qyw~}rwomDqemri1kszB
Wyfnigx> _I\XIVREPa Xlero }sy jsv viwtsrhmrk/ fyx1111

Andrew,
I appreciate the response you sent this morning to my letter of the 17th. In
an effort to keep my request simple and make the job of the attorneys a bit
easier as they sort out whether the response to my request "accords with
all applicable law," perhaps you could shed light on our work schedule and
our communications generally. Please see below; the text immediately
below is from a media inquiry about statements made by Indiana
Secretary of State and fellow commissioner Connie Lawson that our work
is on hold because of pending litigation, and further a fundraising email
sent out by the Minnesota Voters Alliance celebrating their invitation to
present testimony at our December meeting (the first I had heard of
either). Both of these elements may help make the vice-chair "aware of
any information or discussions or exchange of materials from commission
members that would exclude (Dunlap)" as reported by PBS News.
If our work is on hold, could you let us know? And if we're meeting, can we
know that too? My phone is ringing off the hook about this and I don't have
any answers.
Any light you could shed would be helpful.
Matt Dunlap
Secretary of State of Maine and Commissioner,
Presidential Advisory Commission on Election Integrity

"I hope you’re doing well. I wanted to reach out to Secretary Dunlap to get his thoughts
on comments made by Secretary Connie Lawson today. After a hearing in Washington,
she told reporters that it was her understanding that the work of the election integrity
commission had essentially been paused because of the lawsuits filed against the
commission. She said that has had a chilling effect, and that it’s her understanding that
the commission is waiting to resolve those suits before moving forward. She said she
hasn’t received any new information since the last meeting and that she doesn’t think
members are emailing each other.
Here’s part of Lawson’s comments today: "It's my understanding that there were just so
many lawsuits against the commission that it's really right now there's nothing going on.
So it's not the fact that anybody's being shut out, it's just that they wanted to get some of
these lawsuits settled and then move forward."

3

 Case 1:17-cv-02361-CKK Document 7-7 Filed 11/16/17 Page 4 of 6
I know that Secretary Dunlap has been concerned about the lack of communication that
he has received as a commission member. I wanted to ask him if he has any thoughts or
reaction to Secretary Lawson’s explanation of what’s going on. I’m writing this up so if
he has any response or a second to chat, that would be great."

From: Minnesota Voters Alliance <info@mnvoters.org>
Subject: Voter Data lawsuit update and more!
Date: October 19, 2017 at 8:44:38 AM CDT
To: jimacarlson@comcast.net

Vjg nkpm gf
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Vjg hkng oc{
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oqx gftgp cogf- qt
fgngvgf/
Xgtkh{ vjcv
vjg nkpm
rqkpvu vq vjg
eqttgev hkng
cpf nqecvkqp/

October 2017 Update
Dear Friends,
We are pleased to let you know that the Minnesota Voters Alliance (MVA) was
invited to speak at the December 2017 meeting of the "Presidential Advisory
Commission on Election Integrity", also known as the "Trump Voter Fraud
Commission".
The meeting information has not been released yet, but we'll let you know as we
learn more, as well as share with you our objectives for the event. The Commission
has held two meetings thus far; the first one was held at the White House and the
second was in New Hampshire.
Your continued support has made this possible and we are very grateful.
Minnesota Secretary of State covering up voter data
The Office of the Secretary of State holds a monopoly on statewide election data and
over the years has become increasingly unwilling to open the books for public
scrutiny.
Secretary of State Steve Simon’s recent defiance of the Presidential Commission
on Election Integrity’s request for access to Minnesota’s voter registration data is
just the latest example of stonewalling by his office.
Minnesota has led the nation in voter fraud convictions, yet, Secretary Simon tells the
people that no voter exists because he has ‘rigorous safety measures” in
place. When asked to see proof, i.e.” the data”, he says “it’s not public”.
In our ongoing efforts to determine the true amount of ineligible voting in Minnesota,
we submitted a simple Data Practices Act (DPA) request to the Secretary of State on
July 21, 2017, asking for “public” voter data on all voters, and, as expected, were
denied.
Lawsuit against Secretary of State
The Minnesota Voters Alliance (MVA) filed a lawsuit against Secretary of State Steve
Simon on August 10, 2017, in Ramsey County District Court, for wrongfully rejecting
our Data Practices Act (DPA) request seeking ‘public’ voter data.
Under the Minnesota Government Data Practices Act statute, all government data is
presumed to be ‘public”, unless explicitly classified as non-public or confidential.
4

 Case 1:17-cv-02361-CKK Document 7-7 Filed 11/16/17 Page 5 of 6
Our DPA request simply asked for ‘public’ voter data, (i.e, name, address, voter
status, etc.. ), on all voters in the Statewide Voter Registration System (SVRS)
including those with an “Ineligible” voter status. The request did not seek personal
information about party affiliation, or confidential information such as driver's license
numbers.
The only data that the Secretary of State currently releases as ‘public data” is
routinely sold on CD-ROM for $46 to any Minnesota voter. But, the readily available
disk contains only “active” voters because it was intended to be used as a political
mailing list.
The CD-ROM, however, does not contain that same information on persons
marked "inactive" and "challenged”. Such designations, or “voter statutes”, are key
indicators of a voter’s ineligibility and are critical to identifying how much ineligible
voting is occurring.
Recent opinions by the Data Practices Office (DPO, formerly known as IPAD), a
government agency established to settle disputes over access to government-held
data, suggests that ‘public data” is available on all voters, not merely just those
marked “active” in the SVRS.
Two major advantages
-While the Data Practices Office is not a court, the law states that a court must give
‘deference’ to a favorable DPO opinion, thus, providing us with considerable leverage
in court.
-Nationally recognized Judicial Watch has expressed strong interest in filing an
Amicus ‘friend of the court’ supporting our position.
Judge and court data assigned:
We have been assigned Ramsey County District Court Judge Jennifer Fritsch, and a
court date of December 4, 2017. We'll keep you posted!
Critical Support!
We are seeking to raise $10,000 by November 15th to stay on course for our 2017
budget and to cover court costs, administrative and operational expenses.
A generous donor has agreed to match all donations up to $5,000 towards this
appeal. Please make a generous “Tax Deductible” donation today to help us reach
our goal!
If you have not recently done so, please make check payable today to the
“Minnesota Voters Alliance” or you can donate online at >www.MNVoters.org<
Warm regards,
Andrew Cilek
Minnesota Voters Alliance
Executive Director
P.O. Box 4602
St. Paul, MN 55104
P.S: Please make a generous "Tax Deductible" donation today!
The Minnesota Voters Alliance is a 501c3 organization. Donations are tax
deductible. We are able to accept personal and corporate contributions.

---------Minnesota Voters Alliance
>http://www.mnvoters.org<
5

 Case 1:17-cv-02361-CKK Document 7-7 Filed 11/16/17 Page 6 of 6

Click unsubscribe to be removed from the mailing list.

6

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Vjg hkng oc{
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 Case Document 7-8 Filed 11/16/17 Page 1 of 2

Exhibit 7

Case 1:17-cv-02361-CKK Document 7-8 Filed 11/16/17 Page 2 of 2

D/+-6$M,(/'37$F'N&40
;"$56$"45(465'*7$8+94;<4.$@7$>?@A$C#D@#O?$EF
<+6$P+66'K)7$Q(5.40$JR$GSETSUE$VQ(5.40RJRP+66'K)W+93R4+3R2+9X
EB6$Y'(4//17$M+.+%&*Z$F,6[*(6)17$P.16%4(
;@.A"B56$%&'()$*+,$-+.$-+//+01(2$,3
$

M4'.$F.R$P+66'K)7
$
I&'()$*+,$-+.$K/'.1-*1(2$1($*+,.$.463+(64$%+$;*$3.491+,6$4;'1/$'<+,%$H4K.4%'.*$\'06+(]6$K+;;4(%6$'(5$*+,.$
K+;;,(1K'^+($+.$.'%&4.7$/'K)$%&4.4+-7$01%&$%&4$F1((46+%'$U+%4.6$Q//1'(K4R
_$';$6^//$0+(54.1(2$'<+,%$;*$-+.;'/$.4`,46%R$I+$2194$*+,$'$64(64$+-$%&4$.++%$+-$;*$`,46^+(67$-+.$4a';3/47$
04$&'5$'$-,//*$5494/+345$'24(5'$-+.$%&4$840$L';36&1.4$;44^(2bb<,%$_$';$'%$'$/+66$%+$,(54.6%'(5$&+0$%&'%$
'24(5'$0'6$-+.;457$&+0$%&4$01%(46646$0&+$%46^c45$04.4$K&+64($+.$1(91%457$+.$494($0&'%$+,.$2+'/$0'6$-+.$
%&'%$;44^(2R$I&4$5+K,;4(%6$_$';$.4`,46^(2$'.4$6+$%&'%$_$K'($-,//*$3'.^K13'%4$'6$'$K+;;1661+(4.R$_-$_$)(+0$
0&+]6$5+1(2$0&'%7$'(5$&+0$_$K'($;+.4$-,//*$3'.^K13'%47$%&4($_$K'($<4N4.$-,/c//$;*$.+/4$'6$'$Y+;;1661+(4.R
$
_%$16$K/4'.$%&'%$6+;4+(4$16$0+.)1(2$+($6+;4%&1(2$'(5$%'/)1(2$%+$+%&4.67$'(5$_$6&+,/5$<4$'$3'.%$+-$%&'%$0+.)$
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$
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E.46154(^'/$Q5916+.*$Y+;;1661+($+($G/4K^+($_(%42.1%*

 Case 1:17-cv-02361-CKK Document 7-9 Filed 11/16/17 Page 1 of 4

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
MATTHEW DUNLAP,
Civil Action No. 17-cv-2361-CKK
Plaintiff,
- versus PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; MICHAEL R. PENCE, IN HIS OFFICIAL
CAPACITY AS CHAIR OF THE PRESIDENTIAL
ADVISORY COMMISSION ON ELECTION INTEGRITY;
KRIS W. KOBACH, IN HIS OFFICIAL CAPACITY AS VICE
CHAIR OF THE PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION INTEGRITY; ANDREW
KOSSACK, IN HIS OFFICIAL CAPACITY AS
DESIGNATED FEDERAL OFFICER FOR THE
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; GENERAL SERVICES ADMINISTRATION;
TIMOTHY R. HORNE, IN HIS OFFICIAL CAPACITY AS
ACTING ADMINISTRATOR OF THE GENERAL SERVICES
ADMINISTRATION; EXECUTIVE OFFICE OF THE
PRESIDENT; OFFICE OF THE VICE PRESIDENT; OFFICE
OF ADMINISTRATION; MARCIA L. KELLY, IN HER
OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF
ADMINISTRATION,
Defendants.

DECLARATION OF HARRY SANDICK
I, Harry Sandick, declare as follows:
1.
1.

I am a partner at the law firm Patterson
Patterson Belknap
Belknap Webb
Webb &
& Tyler
Tyler LLP.
LLP. I represent

Plaintiff Maine Secretary of State Matthew
Matthew Dunlap
Dunlap in
in this
this action.
action. A motion for me to be
submit this
this declaration
declaration in support of Secretary
admitted pro hac vice in this action is pending.
pending. II submit
Dunlap’s motion
motion for
for a preliminary injunction.
Dunlap's
2.
2.

Secretary Dunlap filed the complaint to initiate this action on November 9, 2017.

The complaint alleges five causes of action relating to Secretary Dunlap’s
Dunlap's service on the

10129135v.1

 Case 1:17-cv-02361-CKK Document 7-9 Filed 11/16/17 Page 2 of 4

Presidential Advisory Commission on
on Election
Election Integrity
Integrity (the
(the “Commission”).
"Commission"). In particular, the
Complaint charges that the Commission’s
Commission's leadership and staff have failed to share the
Commission’s documents
documents with
with Secretary
Secretary Dunlap, interfering with his ability to participate in the
Commission's
Commission’s business
business and
and depriving
depriving him of his right to access information as a member of a
Commission's
federal advisory committee. The
The complaint
complaint was
was filed only after several efforts by Secretary
Dunlap to obtain these materials from the Commission’s
Commission's staff were rebuffed, leaving litigation as
the only remaining option.
3.
3.

On November 13, 2017, after summonses were issued, I directed a process server

Service has not yet been completed.
to effectuate service on all Defendants.
Defendants. Service
4.

On November 14, 2017, I sent a letter to attorneys from the U.S. Department of

Justice that I believe likely represent
represent Defendants
Defendants in
in this
this action.
action. That letter is attached to this
The reason
reason for
for my
my belief
belief that
that these
these attorneys represent Defendants in
declaration as Exhibit 1. The
this action is because the same attorneys represent defendants in the related cases Electronic
Privacy Information Center v. Presidential Advisory Commission on Election Integrity, No.
1:17-cv-1320 (CKK); American Civil Liberties Union v. Trump, No. 17-cv-1351 (CKK); and
Lawyers’ Committee
Committee for Civil Rights Under Law v. Presidential Advisory Commission on
Lawyers'
Election Integrity, No. 17-cv-1354 (CKK), all of which also assert claims under the Federal
Advisory Committee Act relating to the practices of the Commission, including its refusal to
share information under federal disclosure laws.
5.
5.

In my November 14 letter, I referenced the repeated requests for documents and

information that Secretary Dunlap had made to Andrew
Andrew Kossack,
Kossack, the
the Commission’s
Commission's Designated
asked that
that the
the DOJ
DOJ attorneys
attorneys inform
inform me
me by
by November 16 at 11:00 a.m. if Mr.
Federal Officer. II asked
Kossack was willing to produce Commission
Commission documents
documents to
to Secretary
SecretaryDunlap.
Dunlap. I also sent a
courtesy copy of the complaint.
2
10129135v.1

 Case 1:17-cv-02361-CKK Document 7-9 Filed 11/16/17 Page 3 of 4

6.
6.

On the afternoon of November 15, 2017, I sent an email to the DOJ attorneys

informing them that we planned to file a motion for preliminary injunction asking the Court to
order Defendants to (1) promptly produce records requested by Secretary Dunlap; (2) produce to
Secretary Dunlap all future documents made available to or prepared for or by the Commission
promptly and no later than two weeks in advance of any future Commission meeting; (3) permit
Secretary Dunlap to fully participate on an equal basis as all other commissioners; (4) inform all
Commissioners of plans to hold Commission meetings; and to enjoin Defendants from (5)
releasing a final report until Secretary Dunlap has received all documents to which he is entitled,
has had an opportunity to review them, and has participated in the drafting of the report or, if
necessary, has completed a concurrence or dissent to the report; and (6) punishing, retaliating
against, or terminating Secretary Dunlap as commissioner for asserting his rights under FACA.
That email is attached to this declaration as Exhibit 2.
7.

I also provided a draft of the proposed
proposed order
order to
to the
the DOJ
DOJ attorneys.
attorneys. I invited the

DOJ attorneys to tell me if they would agree to the relief requested, mooting the need to file the
motion.
8.
8.

On the morning of November 16, 2017, I received a response from Joseph E.

Mr. Borson
Borson is a trial attorney for the Department of
Borson, Esq., on behalf of Defendants.
Defendants. Mr.
Justice, Civil Division, Federal Programs Branch and his letter to me is attached to this
Mr. Borson
Borson represented
represented that all materials related to the Commission
declaration as Exhibit 3. Mr.
were being preserved and promised that the Commission would not punish, retaliate, or
terminate Secretary Dunlap for asserting
asserting his
his rights
rights under
under FACA.
FACA. He also advised that Secretary
Dunlap will be notified as soon as the next Commission meeting is scheduled, and at least 15
But Mr.
Mr. Borson
Borson stated
stated that Defendants would not agree to
days in advance of such a meeting. But
produce any documents that Secretary Dunlap requested, stating that “the
"the Commission has taken
3
10129135v.1

 Case 1:17-cv-02361-CKK Document 7-9 Filed 11/16/17 Page 4 of 4

. . . that these incidental communications are not subject to disclosure under FACA
the position ...that
documents to Secretary Dunlap in
Nordid
Borson agree
agree to
to produce
produce future
future documents
section 10(b)." Nor
did Mr.
Mr.Borson

of any meeting or agree to permit Secretary Dunlap participate in the setting of
of meeting
advance of
agendas or topics for discussion.

9.
9.

the Defendants
Defendants in Mr. Borson's
Borson's letter do
The specific commitments made by the

judicial intervention,
intervention, but the letter does not resolve the
narrow the issues that might require judicial
raised in
in the
the complaint
complaint or
or this
this motion
motionfor
for aa preliminary
preliminary injunction:
injunction: whether
central issue raised
is entitled
entitled to
to review
review documents
documents that
that reflect
reflect the
the work
work of
ofthe
the Commission.
Commission. On
Secretary Dunlap is
this point,
point, the Defendants have renewed the position taken before our exchange of
of letters,
letters, and
position in
in other
other related litigation over the
Defendants' position
taken a position that is similar to the Defendants'

Commission's disclosure obligations.
Commission's

of perjury that the foregoing is true and correct to the best of
of my
I declare under penalty of
knowledge.
knowledge.

Executed this 16th day of
of November,
November, 2017.
2017.
i'

Harry Sandick

4

 Case Document 7-10 Filed 11/16/17 Page 1 of 3

Exhibit 1

Case 1:17-cv-02361-CKK Document 7-10 Filed 11/16/17 Page 2 of 3

Harry Sandick

November 14, 2017

(212) 336-2723
hsandick@pbwt.com

By Email Attachment
Carol Federighi, Esq.
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
Carol.federighi@usdoj.gov

Re:

Matthew Dunlap v. Presidential Advisory Commission on Election
Integrity, et al., No. 17-cv-2361-CKK (D.D.C.)

Dear Ms. Federighi:
We represent Maine Secretary of State Matthew Dunlap in the above-captioned
case and we are writing because we believe that you represent Mr. Andrew Kossack, the
Designated Federal Officer of the Presidential Commission on Election Integrity (the
“Commission”) and the other defendants in this case. We have enclosed a courtesy copy of our
complaint in this action, which we filed on Thursday November 9, 2017.
The allegations and legal authority identified in our complaint demonstrate that
Secretary Dunlap has an entitlement under the Federal Advisory Commissions Act to
Commission documents beyond the very small number of documents that he has received. The
Vaughn index produced in the related case, Lawyers’ Committee For Civil Rights Under Law v.
Presidential Advisory Commission on Election Integrity, No. 1:17-cv-1354-CKK (D.D.C.),
makes clear that hundreds of Commission documents have been created during the past several
months, including in the time period before the Commission’s meetings in July and September
2017. This case was filed only after Secretary Dunlap made numerous unsuccessful requests for
these documents to Mr. Kossack.
Please let us know by Thursday November 16, 2017 at 11:00 a.m. if Mr. Kossack,
as the Commission’s Designated Federal Officer, is willing to produce these documents to
Secretary Dunlap. Given that the Commission’s charter calls for public meetings every 30-60
days and the Commission’s last meeting was on September 12, 2017, it is likely that there will
soon be another public meeting. Immediate production of these documents is required to allow
Secretary Dunlap to participate fully in the Commission’s activities. In addition, please confirm
that your clients will not destroy any Commission documents, including but not limited to the

10120367v.1

 Case 1:17-cv-02361-CKK Document 7-10 Filed 11/16/17 Page 3 of 3

Carol Federighi, Esq.
November 14, 2017
Page 2
documents listed on the Vaughn index, during the pendency of this litigation.
Very truly yours,
/s/ Harry Sandick
(pro hac vice motion pending)
cc:

Elizabeth J. Shapiro, Esq.
Joseph E. Borson, Esq.
Kristina A. Wolfe, Esq.

10120367v.1

 Case Document 7-11 Filed 11/16/17 Page 1 of 2

Exhibit 2

Case 1:17-cv-02361-CKK Document 7-11 Filed 11/16/17 Page 2 of 2

From:
Sent:
To:

Attachments:

Sandick, Harry (x2723)
Wednesday, November 15, 2017 6:05 PM
'carol.federighi@usdoj.gov'; 'Elizabeth.shapiro@usdoj.gov'; 'joseph.borson@usdoj.gov';
'Kristina.wolfe@usdoj.gov'
Friedman, Daniel (x2378); Melanie Sloan; Austin Evers; John Bies; Ruzumna, Daniel
(x2034)
Dunlap v. Presidential Advisory Commission on Election Integrity, No. 17-cv-2361
(D.D.C.)
Proposed order - DRAFT.PDF

FilingDate:

11/15/2017 11:05:00 PM

Cc:
Subject:

Dear Ms. Federighi:
I represent Secretary of State Matt Dunlap in the above-captioned case involving the Presidential Advisory Commission
on Election Integrity (“Commission”). I am writing to follow up on the letter I sent yesterday. Please confirm that you
represent Defendants in this matter.
Secretary Dunlap has requested documents and information about the Commission’s activities from the Commission’s
Designated Federal Officer, Andrew Kossack, numerous times over the past month. I renewed those requests on behalf
of Secretary Dunlap in my letter to you. Secretary Dunlap and I have not received any documents or even promises to
produce documents in response to these requests.
To protect his rights, Secretary Dunlap is planning to file a motion for a preliminary injunction tomorrow. We believe a
motion has a strong chance of being granted. In our papers, we plan to make the following arguments: The Federal
Advisory Committee Act and the D.C. Circuit’s binding precedent in Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999),
give a commissioner a clear right to obtain documents made available to or prepared for or by an advisory committee like
the Commission. Secretary Dunlap will be irreparably harmed if commissioners and staff continue to work without
Secretary Dunlap and if additional meetings are scheduled without granting Secretary Dunlap access to Commission
documents. We have been unable to identify any harm the Commission would face from complying with FACA and it the
public interest would be served by Secretary Dunlap’s full participation in the Commission’s work and deliberations.
As a courtesy, I am providing the proposed order that we plan to submit in connection with the motion. Please let me
know no later than 11:00 a.m. tomorrow if the Commission and the other defendants are willing to stipulate to the relief
sought in whole or in part such that Secretary Dunlap’s motion can be avoided.
Regards,
Harry Sandick
Harry Sandick
Partner
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036
(212) 336-2723
(212) 336-1215 (fax)
hsandick@pbwt.com
www.pbwt.com

1

 Case Document 7-12 Filed 11/16/17 Page 1 of 4

Exhibit 3

Case 1:17-cv-02361-CKK Document 7-12 Filed 11/16/17 Page 2 of 4
U.S. Department of Justice
Civil Division
Federal Programs Branch
Mailing Address
P.O. Box 883
Washington, D.C. 20044

Joseph E. Borson
Trial Attorney

Overnight Delivery Address
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

Tel: (202) 514-1944
Fax: (202) 616-8460
Joseph.Borson@usdoj.gov

November 16, 2017
Harry Sandick
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036-6710
hsandick@pbwt.com
Re: Dunlap v. Presidential Advisory Commission on Election Integrity, et al., No. 17cv-2361 (CKK) (D.D.C.)
Dear Mr. Sandick:
Thank you for your letter of November 14, 2017, and your email of November 15, 2017.
In that letter, you requested, on behalf of your client, Secretary Dunlap, unspecified documents
to which you stated he was entitled to under the Federal Advisory Committee Act (“FACA”).
You also requested that the Commission confirm that it will not destroy any Commission
documents during the pendency of this litigation. Furthermore, in your email sent on the evening
of November 15, you indicated that you planned to file a motion for a preliminary injunction on
November 16. I write on behalf of the defendants in this matter.
First, I want to assure you that all materials related to the Commission are currently being
preserved pursuant to the Presidential Records Act and litigation holds that were issued in
several related cases. As a reminder, Secretary Dunlap also has Presidential Record Act and
preservation responsibilities, and you should ensure that he is complying with those with respect
to this litigation.
Second, I also would like to assure you that no records related to the substantive or
collective advisory work of the Commission have been withheld from Secretary Dunlap or any
other Commission member. While individual Commission members and Commission staff have
created and received miscellaneous documents and electronic records during the Commission’s
pendency, as indicated in the Vaughn-type index filed in Lawyers’ Committee for Civil Rights
Under Law v. Presidential Advisory Commission on Election Integrity, No. 17-cv-1354 (CKK)
(D.D.C.), as further indicated in that filing these materials are not part of the substantive or
collective work of the Commission. It is for this reason that the Commission has taken the
position, in that filing and in others, that these incidental communications are not subject to
disclosure under FACA section 10(b).

 Case 1:17-cv-02361-CKK Document 7-12 Filed 11/16/17 Page 3 of 4

Furthermore, in Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999), the D.C. Circuit held
that “the Commission could not deny [a Commissioner] access to information that [the
Commission] reviewed and relied upon in formulating its recommendation.” Id. at 292; see also
id. (commission member is “entitled to review” “information that was made available to the
Commission during the course of its deliberative process”). But none of the information
referenced above constitutes material used by the Commission in the course of its deliberations,
nor has any of it been relied upon by the Commission in formulating its recommendations (of
which, of course, there have been none).
As to any upcoming meeting, your client is fully aware that no future meeting has yet
been proposed or scheduled. Mr. Kossack sent Secretary Dunlap an email on October 27, 2017,
confirming to Secretary Dunlap that no meeting is scheduled, and that Mr. Kossack would
“notify [Secretary Dunlap] immediately as soon as the next meeting is scheduled.” Any future
meeting will be also noticed in the Federal Register at least fifteen days in advance. See 41
C.F.R. § 102-3.150. Meanwhile, no substantive analysis or deliberations is ongoing.
In sum, Secretary Dunlap has not been excluded from any Commission work or
substantive, collective discussions or deliberations and there is no intention that he, or any other
Commission member, be so excluded in the future. We would be happy to work with Secretary
Dunlap to ensure that he feels comfortable in the future with the level of information he is
receiving from the Commission. I stress, however, that there is no particular urgency to
resolving these issues given the above-described status of Commission deliberations and the fact
that no meeting has been scheduled.
We regret that this matter has proceeded to litigation, without any preliminary contact
from you, and hope that we can discuss these issues frankly without being constrained by the
litigation status. In light of the representations above, we expect that this resolves the need for
any emergency injunctive relief, as you indicated in your email sent late in the day on November
15. In any event, as we mentioned above, the Commission will inform Secretary Dunlap of any
plans for scheduling future meetings, and will, of course, permit and encourage Secretary
Dunlap’s participation on an equal basis as the other Commission members. The Commission
further will not punish, retaliate, or terminate Secretary Dunlap as a Commission member for
asserting his rights under FACA. With respect to any documents to which Secretary Dunlap
believes he is entitled, as mentioned above, we are happy to work with Secretary Dunlap to
ensure he feels comfortable with the information he receives, as guided by the requirements of
FACA section 10(b). In light of these representations and given the current state of the
Commission’s activities, emergency judicial relief is not warranted.
Finally, on an issue related to Secretary Dunlap’s response to our request for documents
in September (for which we are grateful for his cooperation), I note that his letter of October 17,
2017, references a text message he received from a journalist. In responding to our document
request in September, Secretary Dunlap did not identify any text messages, either sent or
received. Could you please confirm that he did not at that time of the certification have any
relevant text messages? The issue of text messages has been raised by the plaintiff in the
Lawyers’ Committee case. While we are fully justified in relying on Secretary Dunlap’s good
faith certification that he complied with our document request, given the reference in his letter to
2

 Case 1:17-cv-02361-CKK Document 7-12 Filed 11/16/17 Page 4 of 4

a text message, we want to ensure that our representations (and his) are fully accurate.
Please let us know if you have any further questions.

Sincerely,

/s/ Joseph E. Borson
ELIZABETH J. SHAPIRO
CAROL FEDERIGHI
KRISTINA A. WOLFE
JOSEPH E. BORSON
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
Phone: (202) 514-1944
Email: joseph.borson@usdoj.gov
Counsel for Defendants

3

 Case 1:17-cv-02361-CKK Document 7-13 Filed 11/16/17 Page 1 of 29

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
MATTHEW DUNLAP,
Civil Action No. 17-cv-2361-CKK
Plaintiff,
- versus PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; MICHAEL R. PENCE, IN HIS OFFICIAL
CAPACITY AS CHAIR OF THE PRESIDENTIAL
ADVISORY COMMISSION ON ELECTION INTEGRITY;
KRIS W. KOBACH, IN HIS OFFICIAL CAPACITY AS VICE
CHAIR OF THE PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION INTEGRITY; ANDREW
KOSSACK, IN HIS OFFICIAL CAPACITY AS
DESIGNATED FEDERAL OFFICER FOR THE
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; GENERAL SERVICES ADMINISTRATION;
TIMOTHY R. HORNE, IN HIS OFFICIAL CAPACITY AS
ACTING ADMINISTRATOR OF THE GENERAL SERVICES
ADMINISTRATION; EXECUTIVE OFFICE OF THE
PRESIDENT; OFFICE OF THE VICE PRESIDENT; OFFICE
OF ADMINISTRATION; MARCIA L. KELLY, IN HER
OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF
ADMINISTRATION,
Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION FOR A
PRELIMINARY INJUNCTION

 Case 1:17-cv-02361-CKK Document 7-13 Filed 11/16/17 Page 2 of 29
TABLE OF CONTENTS
Page
I.

INTRODUCTION ...............................................................................................................1

II.

FACTUAL BACKGROUND..............................................................................................3
A.

Secretary Dunlap......................................................................................................3

B.

The Presidential Advisory Commission on Election Integrity ................................4
1.

The Formation and Membership of the Commission ..................................4

2.

The Commission Conducts Business Without Providing Secretary Dunlap
With Advance Access To Documents .........................................................5

III.

APPLICABLE LAW: The Federal Advisory Committee Act Grants Commissioners a
Right of Access to Documents.............................................................................................7

IV.

Argument .............................................................................................................................9
A.

V.

Secretary Dunlap Is Likely to Succeed on the Merits..............................................9
1.

Defendants Have Violated—And Continue to Violate—FACA .................9

2.

Secretary Dunlap Can Bring a Cause of Action for FACA Violations. ....13
a.

Secretary Dunlap Is Entitled to Relief Under the APA .................13

b.

Secretary Dunlap Is Entitled to a Writ of Mandamus....................15

B.

Secretary Dunlap Will Be Irreparably Harmed Absent a Preliminary Injunction. 18

C.

The Balance of Harms Weighs in Favor of Preliminary Relief.............................22

D.

Preliminary Relief Will Serve the Public Interest..................................................23

CONCLUSION..................................................................................................................23

i

 Case 1:17-cv-02361-CKK Document 7-13 Filed 11/16/17 Page 3 of 29
TABLE OF AUTHORITIES
Page(s)
Cases
ACLU v. Trump,
2017 U.S. Dist. LEXIS 111293 (D.D.C. July 18, 2017)....................................................14, 19
ACLU v. Trump,
No. 17-cv-1351 (D.D.C.) .........................................................................................................17
Ala.-Tombigbee Rivers Coal., v. Dep't of Interior,
26 F.3d 1103 (11th Cir. 1994) .................................................................................................22
Am. Airlines, Inc. v. Austin,
778 F. Supp. 72 (D.D.C. 1991). ...............................................................................................14
Am. Hosp. Ass’n v. Burwell,
812 F.3d 183 (D.C. Cir. 2016) .................................................................................................15
Ass'n of Am. Physicians & Surgeons v. Clinton,
813 F. Supp. 82 (D.D.C. 1993), rev’d on other grounds, 997 F.2d 898 (D.C.
Cir. 1993) .................................................................................................................................20
Byrd v. United States EPA,
174 F.3d 239 (D.C. Cir. 1999) .................................................................................................11
Chamber of Commerce of U.S. v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................15
Council on Am.-Islamic Relations v. Gaubatz,
667 F. Supp. 2d 67 (D.D.C. 2009) .............................................................................................9
Ctr. for Arms Control & Non-Proliferation v. Lago,
2006 U.S. Dist. LEXIS 83226 (D.D.C. Nov. 15, 2006) ....................................................13, 17
Ctr. for Biological Diversity v. Tidwell,
239 F. Supp. 3d 213, 221 (D.D.C. 2017) ...........................................................................13, 17
* Cummock v. Gore,
180 F.3d 282 (D.C. Cir. 1999) ......................................................................................... passim
EPIC v. Presidential Advisory Commission,
No. 17-cv-1320 (D.D.C.) .........................................................................................................17
Food Chem. News v. Dep’t of Health and Human Servs.,
980 F.2d 1468 (D.C. Cir. 1993) .....................................................................................8, 10, 17
Freedom Watch, Inc. v. Obama,
807 F. Supp. 2d 28 (D.D.C. 2011) ...........................................................................................15
ii

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
Gates v. Schlesinger,
366 F. Supp. 797 (D.D.C. 1973) ........................................................................................22, 23
Joyner v. Presidential Advisory Commission,
No. 17-cv-22568 (S.D. Fl.) ......................................................................................................17
Judicial Watch, Inc. v. U.S. Dep’t of Commerce,
736 F. Supp. 2d 24 (D.D.C. 2010) ...............................................................................13, 15, 16
Judicial Watch v. Nat’l Energy Policy Dev. Grp.,
219 F. Supp. 2d 20 (D.D.C. 2002) ...............................................................................13, 15, 16
Lawyers’ Comm. for Civ. Rights Under Law v. Presidential Advisory Comm’n on
Election Integrity,
2017 U.S. Dist. LEXIS 111184 (D.D.C. July 18, 2017) (CKK)........................................15, 19
Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory
Commission on Election Integrity,
No. 17-cv-1354 (D.D.C.) .............................................................................................11, 12, 17
League of Women Voters of U.S. v. Newby,
838 F.3d 1 (D.C. Cir. 2016) .................................................................................................9, 22
In re Medicare Reimbursement Litig.,
414 F.3d 7 (D.C. Cir. 2005) .....................................................................................................15
National Anti-Hunger Coalition v. Executive Comm. of the President’s Private
Sector Survey on Cost Control,
557 F. Supp. 524 (D.D.C. 1983) ..............................................................................................11
National Anti-Hunger Coalition v. Executive Comm. of the President’s Private
Sector Survey on Cost Control,
711 F.2d 1071 (D.C. Cir. 1983) .................................................................................................8
Norton v. S. Utah Wilderness All.,
542 U.S. 55 (2004)...................................................................................................................14
Pub. Citizen v. Nat’l Advisory Comm. on Microbiological Criteria for Foods,
886 F.2d 419 (D.C. Cir. 1989) ...................................................................................................7
Pub. Citizen v. Nat'l Econ. Com.,
703 F. Supp. 113 (D.D.C. 1989) ..............................................................................................21
Public Citizen v. U.S. Dep’t of Justice,
491 U.S. 440 (1989)...............................................................................................11, 12, 13, 17

iii

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
Soucie v. David,
448 F.2d 1067 (D.C. Cir. 1971) ...............................................................................................14
Statutes
5 U.S.C. app. 2 § 3 .......................................................................................................................7, 9
5 U.S.C. app. 2 § 5(b)(2)............................................................................................................7, 11
5 U.S.C. app. 2 § 9(c)...........................................................................................................8, 12, 17
5 U.S.C. app. 2 § 10(b) ................................................................................................................8, 9
5 U.S.C. § 551(1) ...........................................................................................................................15
5 U.S.C. §§ 704, 706......................................................................................................................14
Other Authorities
41 C.F.R. § 102-3.60(b)(3) ..............................................................................................................7
41 C.F.R. § 102-3.170......................................................................................................................8
H.R. REP. NO. 92-1017 (1972), reprinted in 1972 U.S.C.C.A.N. 3491 ...............................7, 8, 23
H.R. REP. NO. 92-1017 (1972), reprinted in 1972 U.S.C.C.A.N. 3491 .........................................8

iv

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I.

INTRODUCTION
Plaintiff Matthew Dunlap, Secretary of State of Maine and member of the Presidential

Advisory Commission on Election Integrity (the “Commission”) brings this motion for
injunctive relief to compel the Commission and its co-defendants to provide him with the
documents and access necessary to fulfill his obligations as a commissioner. Secretary Dunlap
brought this lawsuit reluctantly, only after repeated attempts to gain access to the Commission
documents to which he is entitled under federal law, and after additional meet-and-confer with
counsel for the Defendants. Despite these efforts and the filing of this action, he continues to be
blocked from receiving Commission documents. This denial of access by the Commission and
its leadership and staff prevents Secretary Dunlap from carrying out his responsibilities and
blocks his full participation in the Commission’s activities.
This is an easy case. It is crystal clear that Secretary Dunlap is entitled to receive access
to the documents that he seeks in this lawsuit. The Federal Advisory Committee Act (“FACA”)
mandates that members of advisory committees—like Secretary Dunlap—be provided with the
documents necessary to participate in the advisory committee’s investigation, deliberations, and
reporting. FACA’s requirement that advisory committees are truly balanced is not satisfied
unless commissioners who represent a cross-section of the American public are appointed and
then granted actual access to Commission documents and permitted to participate in all
Commission deliberations. The D.C. Circuit has squarely held that commissioners themselves
are entitled to see all information “made available to the Commission” so that they can “fully and
adequately participate” in the Commission’s “deliberative process.” Cummock v. Gore, 180 F.3d
282, 292 (D.C. Cir. 1999). Here, the defendants have violated FACA by withholding
Commission documents and communications from Secretary Dunlap and by walling him off
from Commission deliberations.
1

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A preliminary injunction is necessary to compel Defendants’ compliance with FACA and
to prevent continuing irreparable harm. Under clear and controlling precedent, Secretary Dunlap
is entitled to the documents he has requested from the Commission that will enable him to fulfill
his duties and serve fully as a commissioner. Id. at 292. Each day that he is denied access to
Commission documents, Secretary Dunlap suffers and will continue to suffer irreparable injury.
Defendants’ failure to provide documents in a timely fashion limited Secretary Dunlap’s ability
to participate at the Commission’s July 2017 and September 2017 meetings. Although Secretary
Dunlap has been told that he will receive advance notice of the next meeting, he also was told
that he cannot expect to receive the documents he needs to participate in that meeting in a
meaningful fashion. Meanwhile, press accounts and comments from other commissioners
suggest that the Commission continues to forge ahead in secret toward a final report that will not
be the product of a balanced committee immune from special interests, as FACA requires.
Absent an order requiring the prompt production of documents and enjoining the publication of
any report until Secretary Dunlap has time to review those documents and participate in
discussions, Secretary Dunlap will continue to be unable to participate in the Commission’s
meetings or deliberations. Finally, Defendants will suffer no harm from the order sought by this
motion. This order will do nothing more than insist on compliance with FACA by including all
of the Commission’s own members in the Commission’s deliberations. The public interest
likewise will be served by compliance with FACA.
Accordingly Secretary Dunlap respectfully requests that this Court grant his motion for a
preliminary injunction and (1) order Defendants promptly to produce records requested by
Secretary Dunlap; (2) order Defendants to product to Secretary Dunlap all future documents
made available to or prepared for or by the Commission promptly and no later than two weeks in
advance of any future Commission meeting; (3) order Defendants to permit Secretary Dunlap to
2

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fully participate on an equal basis as all other commissioners; and (4) enjoin the Commission
from releasing a final report until Secretary Dunlap has received all documents to which he
entitled and has had an opportunity to review them, has participated in the drafting of the report
or, if necessary, has completed a concurrence or dissent to the report.1
II.

FACTUAL BACKGROUND
A.

Secretary Dunlap

Plaintiff Matthew Dunlap is the Maine Secretary of State. He has served since he was
elected by the Maine State Legislature in 2013. (Dunlap Decl. ¶ 1). Secretary Dunlap
previously served as Maine Secretary of State from 2005 through 2010. (Id.) One of Secretary
Dunlap’s responsibilities is to oversee the Bureau of Corporations, Elections and Commissions,
which is responsible for state elections in Maine. (Id.) Secretary Dunlap therefore has extensive
first-hand experience and expertise in issues surrounding the right to vote in the United States.
Beyond the election experience he gains every day as Secretary of State, Secretary Dunlap has
also carefully studied issues concerning voting and elections. He reviewed the findings of the
2012 Maine Elections Commission, a committee of five Maine citizens that studied and offered
strategies to improve Maine’s election system. (Id. ¶ 2). In this process, Secretary Dunlap
carefully considered the pros and cons of various hot-button voting rights issues, including sameday voter registration, early voting, and voter ID laws. (Id. and Ex. 1).
As a longtime advocate for the sovereign right of each citizen to exercise the franchise of
self-governance, Secretary Dunlap agreed to join the Commission in order to lend his
considerable expertise to the process and to provide his perspective concerning the issues the
1

In a November 16, 2017 letter, Defendants’ counsel promised that the Commission would not punish,
retaliate against, or terminate Secretary Dunlap as a Commission member for asserting his rights under
FACA and promised to inform Secretary Dunlap of any plans for scheduling future meetings. (Sandick
Decl. ¶ 8 and Ex. 3). In light of these representations, Secretary Dunlap does not seek preliminary relief
in the form of an injunction ordering Defendants not to punish, retaliate against, or terminate Secretary
Dunlap and ordering them to notify Secretary Dunlap of any future meeting.

3

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Commission is considering. (Id. ¶¶ 3, 4). He is aware that some observers have called for
Democrats to refuse to serve on the Commission, but he believes that participation will allow
him to influence and shape the Commission’s recommendations and report; at a minimum, he
may publish a concurrence or dissent to the report, which only commissioners have the right to
do. (Id. ¶¶ 4, 19).
B.

The Presidential Advisory Commission on Election Integrity
1.

The Formation and Membership of the Commission

President Trump established the Commission by Executive Order on May 11, 2017.
Exec. Order 13799. The Executive Order declared that the Commission’s purpose is to “study
the registration and voting processes used in Federal elections” and to report to the President on
topics including “those vulnerabilities in voting systems and practices used for Federal elections
that could lead to improper voter registrations and improper voting, including fraudulent voter
registrations and fraudulent voting.” Id. § 3. On May 11, 2017, President Trump appointed Vice
President Mike Pence to serve as Chair of the Commission. Id. § 2. He also named Kansas
Secretary of State Kris Kobach as Vice Chair of the Commission.2 Between May 11, 2017 and
July 10, 2017, President Trump named additional members of the Commission, including
Secretary Dunlap.3 With these appointments, the resignation of one commissioner, and the
2

Press Release, Office of the Press Secretary, President Announces Formation of Bipartisan
Presidential Commission on Election Integrity (May 11, 2017), available at
https://www.whitehouse.gov/the-press-office/2017/05/11/president-announces-formationbipartisan-presidential-commission.
3
Id.; Press Release, Office of the Press Secretary, President Donald J. Trump Announces Intent
to Nominate Personnel to Key Administration Posts (June 21, 2017), available at
https://www.whitehouse.gov/the-press-office/2017/06/21/president-donald-j-trump-announcesintent-nominate-personnel-key; Press Release, Office of the Press Secretary, President Donald J.
Trump Announces Key Additions to his Administration (June 29, 2017), available at
https://www.whitehouse.gov/the-press-office/2017/06/29/president-donald-j-trump-announceskey-additions-his-administration; Press Release, Office of the Press Secretary, President Donald
J. Trump Announces Key Additions to his Administration (July 10, 2017), available at
https://www.whitehouse.gov/the-press-office/2017/07/10/president-donald-j-trump-announceskey-additions-his-administration
4

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untimely passing of another, the Commission is currently comprised of seven Republicans and
four Democrats.
2.

The Commission Conducts Business Without Providing
Secretary Dunlap With Advance Access To Documents

The Commission convened a phone call on June 28, 2017, during which Defendant
Kobach announced his plans to send letters to each state and the District of Columbia seeking
voter data. (Dunlap Decl. ¶ 5). Those letters were sent later that same day, without giving time
for other commissioners to review the request and state concerns or objections. (Id.)
The Commission’s first public meeting was held on July 19, 2017. (Id. ¶ 6). The
commissioners were provided with only four documents prior to the meeting: the executive order
establishing the Commission; the Commission’s charter; the Commission’s by-laws; and a
meeting agenda. (Id.) Several Commission members (including Defendant Kobach) introduced
and distributed documents at the July 19, 2017 meeting that were not provided to Secretary
Dunlap or to the other commissioners in advance of the meeting. (Id. ¶ 7).
The Commission held another meeting on September 12, 2017. (Id. ¶ 8). Other than
logistical emails, Secretary Dunlap received no substantive information about the September
meeting, such as prepared testimony, invitations to or correspondence with participants, or
materials to be discussed at the meeting. (Id.) Secretary Dunlap was not informed of how the
speakers or the agenda for the September meeting were prepared. (Id.)
Between the September meeting and the filing of this lawsuit, Secretary Dunlap received
no substantive communications or information regarding the work of the Commission. (Id. ¶ 9).
On October 13, 2017, a Commission staff member, Ronald Williams, was arrested and charged
with possession and distribution of child pornography. (Id. ¶ 10). Secretary Dunlap was not

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informed of the arrest by the Commission or any other Defendant and his inquiries regarding
whether Mr. Williams has been fired have been ignored. (Id.)
On October 17, 2017, Secretary Dunlap wrote to Andrew Kossack, the Commission’s
Designated Federal Officer, asking him to provide all Commission-related correspondence and
documents. (Id. ¶ 11 and Ex. 2). Defendant Kossack responded that he was “consulting with
counsel” and did not provide any materials in response to Secretary Dunlap’s request. (Id. ¶ 13
and Ex. 4). Secretary Dunlap sent several follow-up emails but received no documents from the
Commission. (Id. ¶¶ 14-17 and Exs. 5-7).
However, despite the silence from the Commission and its staff, press accounts and
comments by other commissioners make clear that the Commission’s work continues.
Commissioner von Spakovsky said, in an article published on November 2, 2017, that the
Commission “is planning to meet again.” Lydia Wheeler, “Trump voter fraud panel member
fights back against critics,” THEHILL, (November 2, 2017), available at
http://thehill.com/business-a-lobbying/358107-trump-voter-fraud-panel-member-fights-backagainst-critics. And an interest group, the Minnesota Voters Alliance, stated publicly that it had
been invited to speak at a December Commission meeting. (Dunlap Decl. ¶ 12 and Ex. 3). The
Commission’s charter provides for meetings every 60 - 90 days, and so while Secretary Dunlap
does not know the date of the next meeting, there will be a meeting in the near future.
Secretary Dunlap filed this lawsuit on November 9, 2017. On November 14, 2017,
Secretary Dunlap’s attorney sent a letter to the DOJ attorneys representing Defendants asking,
inter alia, that they provide the documents and information requested by Secretary Dunlap.
(Sandick Decl. ¶¶ 4, 5 and Ex. 1). On November 16, 2017, counsel for Defendants responded,
writing that Defendants would not agree to produce any documents that Secretary Dunlap
requested, stating that “the Commission has taken the position . . . that these incidental
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communications are not subject to disclosure under FACA section 10(b).” (Id. ¶¶ 8, 9 and Ex.
3). Counsel for Defendants did not agree to produce Commission documents created in the
future to Secretary Dunlap in advance of any meeting or agree to permit Secretary Dunlap to
participate in the setting of meeting agendas or topics for discussion. (Id.) Having reached
impasse with the Defendants over the subject of access to documents, this motion followed.
III.

APPLICABLE LAW: THE FEDERAL ADVISORY COMMITTEE ACT
GRANTS COMMISSIONERS A RIGHT OF ACCESS TO DOCUMENTS
The Federal Advisory Committee Act (“FACA”) applies to commissions “established or

utilized by the President” that are not “composed wholly of full-time, or permanent part-time
officers or employees of the Federal Government.” 5 U.S.C. app. 2 § 3. FACA requires that
advisory committee membership be “fairly balanced in terms of the points of view represented
and the functions to be performed.” 5 U.S.C. app. 2 § 5(b)(2). It also requires that the advisory
committee not be “inappropriately influenced by the appointing authority or . . . any special
interest,” but rather that any advice is “the result of the advisory committee’s independent
judgment.” Id. § 5(b)(3). An advisory committee must have a “plan to attain fairly balanced
membership” which ensures that membership “will consider a cross-section of those directly
affected, interested, and qualified.” 41 C.F.R. § 102-3.60(b)(3). Congress has recognized the
dangers associated with the “lack of balanced representation of different points of view and the
heavy representation of parties whose private interests could influence their recommendations.”
H.R. REP. NO. 92-1017 (1972), reprinted in 1972 U.S.C.C.A.N. 3491, 3496; see also Pub.
Citizen v. Nat’l Advisory Comm. on Microbiological Criteria for Foods, 886 F.2d 419, 424 (D.C.
Cir. 1989).
FACA also demands transparency in the procedures and meetings of advisory
committees. It requires that “the records, reports, transcripts, minutes, appendixes, working

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papers, drafts, studies, agenda, or other documents which were made available to or prepared for
or by each advisory committee shall be available for public inspection and copying.” 5 U.S.C.
app. 2 § 10(b). This requirement “serves to prevent the surreptitious use of advisory committees
to further the interests of any special interest group.” H.R. REP. NO. 92-1017 (1972), reprinted
in 1972 U.S.C.C.A.N. 3491, 3500. Advisory committees are affirmatively obligated to provide
access to the Section 10(b) materials. Food Chem. News v. Dep’t of Health and Human Servs.,
980 F.2d 1468, 1472 (D.C. Cir. 1993). Timely access to advisory committee materials is “an
important element of” FACA because it “provide[s] a meaningful opportunity to comprehend
fully the work undertaken by the advisory committee.” 41 C.F.R. § 102-3.170. And
commissioners themselves have rights “beyond those given to members of the general public.”
Cummock, 180 F.3d at 292.
One of the principal concerns of Congress in enacting FACA was that “interest groups
may use their membership on such bodies to promote their private concerns.” H.R. REP. NO.
92-1017 (1972), reprinted in 1972 U.S.C.C.A.N. 3491, 3496. For 45 years, FACA has stood as a
safeguard against the danger that commissions would be captured by special interests and has
worked to “open to public scrutiny the manner in which government agencies obtain advice from
private individuals.” National Anti-Hunger Coalition v. Executive Comm. of the President’s
Private Sector Survey on Cost Control, 711 F.2d 1071, 1072 (D.C. Cir. 1983). To effectuate
these goals, each of the FACA requirements is mandatory. See 5 U.S.C. app. 2 § 9(c) (“No
advisory committee shall meet or take any action until an advisory committee charter has been
filed . . .”) (emphasis added); id. § 10(b) (“[T]he records, reports, transcripts, minutes,
appendixes, working papers, drafts, studies, agenda, or other documents which were made
available to or prepared for or by each advisory committee shall be available for public
inspection and copying.”) (emphasis added).
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IV.

ARGUMENT
A preliminary injunction is warranted where the party seeking relief makes a “clear

showing that four factors, taken together, warrant relief: likely success on the merits, likely
irreparable harm in the absence of preliminary relief, a balance of equities in its favor, and
accord with the public interest.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 6 (D.C.
Cir. 2016) (internal quotation marks and citation omitted); see also Council on Am.-Islamic
Relations v. Gaubatz, 667 F. Supp. 2d 67, 74 (D.D.C. 2009). Secretary Dunlap easily satisfies
each factor.
A.

Secretary Dunlap Is Likely to Succeed on the Merits.
1.

Defendants Have Violated—And Continue to Violate—FACA

As a commissioner, Secretary Dunlap is statutorily entitled to obtain and review
information prepared by or used by the Commission “during the course of its deliberative
process.” Cummock, 180 F.3d at 292. This includes all documents “that were prepared for or
relied upon by the Commission.” Id. at 284; see also 5 U.S.C. app. 2 § 10(b).4
Secretary Dunlap’s entitlement to Commission documents is beyond question. Cummock
v. Gore controls here. M. Victoria Cummock was a commissioner of the White House
Commission on Aviation Safety and Security who sued the Commission, the Commission’s chair
(then-Vice President Gore), and the Commission’s Designated Federal Officer for violating her
rights under FACA “by denying her access to . . . documents and information, and thereby
compromis[ing] her ability to participate in Commission proceedings.” Cummock, 180 F.3d at
284. In Cummock, the Commission had disbanded before Cummock filed suit, but Cummock

4

It is clear that the Commission is an advisory committee subject to FACA. The Commission
was established by the President pursuant to an executive order and is not composed wholly of
federal government employees. See 5 U.S.C. app. 2 § 3.
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wished to prepare a dissent based on previously undisclosed documents and append it to the
Commission’s report. Id. at 287, 290.
The D.C. Circuit found that the commissioner “readily satisfie[d] the standing
requirements” and held that Section 10(b) compelled the Commission to provide the
commissioner “access to information that it reviewed and relied upon.” Id. at 290, 292. A
commission member “possesses an even greater right [to documents] than a member of the
public” because a commissioner “is entitled to fully participate in its deliberations.” Id. In
Cummock, the D.C. Circuit emphatically rejected the Government’s argument that “advisory
committee membership accords no real right to participate in committee proceedings.” Id. at
291.
Secretary Dunlap has been injured in the same way, although here there is an opportunity
to mitigate the irreparable harm because the Commission has not yet issued a report or
disbanded. He has been walled off “from the committee’s operations, rendering membership
essentially meaningless.” Cummock, 180 F.3d at 291. He was notified of the Commission’s
decision to request voter data from the states mere hours before the letters were sent. (Dunlap
Decl. ¶ 5). He did not receive any substantive materials, testimony, or other information before
the Commission’s first meeting in July 2017, (Id. ¶ 6), even though FACA “affirmatively
obligates the Government to provide access to the identified materials.” Food Chem. News, 980
F.2d at 1472. And since the September meeting, Secretary Dunlap has received no documents or
substantive information from the Commission or its staff. (Dunlap Decl. ¶ 9). Secretary
Dunlap’s complete walling off is illustrated by the Commission’s failure to even notify Secretary
Dunlap when a Commission staff member was arrested and charged with possession and
distribution of child pornography. (Id. ¶ 10). Secretary Dunlap’s inquiries about the actions, if
any, that the Commission has taken in response to the arrest have been met with silence. (Id.)
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Secretary Dunlap’s repeated requests for these documents from Defendant Kossack, the
Commission’s Designated Federal Officer, have gone unfulfilled, giving him standing to pursue
his requests via litigation. See Public Citizen, 491 U.S. at 449 (standing requires only that that
plaintiff “sought and w[as] denied records”); Byrd v. United States EPA, 174 F.3d 239, 243
(D.C. Cir. 1999) (“[A] refusal to provide information to which one is entitled under FACA
constitutes a cognizable injury sufficient to establish Article III standing.”); National AntiHunger Coalition v. Executive Comm. of the President’s Private Sector Survey on Cost Control,
557 F. Supp. 524, 527 (D.D.C. 1983) (plaintiff had standing to challenge the “balance” of
committee membership).
It is apparent that certain commissioners and the Commission’s staff continue to work
behind the scenes even while Secretary Dunlap is denied access. In related litigation before this
Court, Defendants prepared and filed a Vaughn-type index listing more than 800 documents and
categories of documents relating to the Commission’s work. Third Decl. of Andrew J. Kossack,
Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory Commission on
Election Integrity, No. 1:17-cv-1354 (CKK) (Dkt. 33-1). Defendants have provided Secretary
Dunlap with virtually none of these documents or others that have been created relating to the
Commission’s work. (Dunlap Decl. ¶ 17).
Secretary Dunlap is also likely to succeed on his claims that Defendants have violated
Section 5 of FACA. Section 5 requires “the membership of the advisory committee to be fairly
balanced in terms of the points of view represented . . . .” 5 U.S.C. app. 2 § 5(b)(2); see also id.
§ 5(b)(3) (requiring that “the advice and recommendations of the advisory committee will not be
inappropriately influenced by the appointing authority or by any special interest”). Advisory
committees “must also be ‘fairly balanced in terms of the points of view represented and the

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functions’ they perform.” Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 447 (1989)
(citing 5 U.S.C. app. 2 §§ 5(b)(2), (c)).
In Cummock, the D.C. Circuit held that failing to provide documents to a commissioner
“would fly in the face” of FACA’s balancing requirement because a commissioner walled off
from Commission documents and deliberations would be “precluded from meaningful
participation” and the Commission would be “effectively unbalanced.” Cummock, 180 F.3d at
291. When an individual agrees to serve on an advisory committee, “the Government obtains
valuable advice and political legitimacy with respect to its policy decisions.” Id. at 292. The
Commission received this legitimacy when Secretary Dunlap, a respected public official with an
extensive background in conducting elections, agreed to serve as a commissioner. An advisory
committee may not do what it has done to Secretary Dunlap: “appoint an individual to an
advisory committee and then wall that individual off from the committee’s operations, rendering
membership essentially meaningless.” Id. By being denied access to the Commission’s
documents, Secretary Dunlap has been excluded from meaningful participation in the
Commission’s activities in violation of Section 5.
Defendants also have violated Section 9 of FACA, which provides that “[n]o advisory
committee shall meet or take any action until an advisory committee charter has been filed.” 5
U.S.C. app. 2 § 9(c). Six weeks passed between the establishment of the Commission by
executive order and the filing of the Commission’s charter. Charter, Presidential Advisory
Commission on Election Integrity ¶ 14 (“The filing date of this charter is June 23, 2017.”). In
that time, members of the Commission met, conferred, communicated, and discussed substantive
issues relevant to the Commission’s work in violation of Section 9(c). See Index, Lawyers’
Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election
Integrity, No. 1:17-cv-1354-CKK (Dkt. 33-3).
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2.

Secretary Dunlap Can Bring a Cause of Action for FACA
Violations.

Although this Court has held that FACA does not provide a private cause of action, Ctr.
for Biological Diversity v. Tidwell, 239 F. Supp. 3d 213, 221 (D.D.C. 2017),5 it is clear that a
commissioner—like Secretary Dunlap—who has been denied access to Commission documents
can obtain relief for this FACA violation. There are two avenues by which this Court may grant
relief: (i) by violating FACA, Defendants have acted arbitrarily and capriciously in violation of
the Administrative Procedure Act, or, in the alternative, (ii) Secretary Dunlap is entitled to a writ
of mandamus compelling Defendants to perform their non-discretionary duties under FACA.
Whichever path is chosen, FACA violations like those suffered by Secretary Dunlap are
judicially reviewable. See Cummock, 180 F.3d at 291 (finding violation of FACA); Tidwell, 239
F. Supp. at 228 (allowing claim for violation of Section 10(b) of FACA to go forward); Judicial
Watch v. Nat’l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 43 (D.D.C. 2002) (denying motion
to dismiss FACA causes of action; cf. Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440
(1989) (reviewing district court decision that FACA did not apply to the ABA’s Standing
Committee on Federal Judiciary).
a.

Secretary Dunlap Is Entitled to Relief Under the APA

Secretary Dunlap may obtain relief through the Administrative Procedure Act. A
plaintiff may assert APA claims against federal agencies for violating the requirements of
FACA. See, e.g., Tidwell, 239 F. Supp. 3d at 221; Judicial Watch, Inc. v. U.S. Dep’t of
Commerce, 736 F. Supp. 2d 24, 30-31 (D.D.C. 2010) (“[P]laintiff may bring its [FACA] claims

5

But see, e.g., Ctr. for Arms Control & Non-Proliferation v. Lago, 2006 U.S. Dist. LEXIS
83226, at *12 (D.D.C. Nov. 15, 2006) (“Although FACA does not contain a provision providing
a private right of action to enforce its provisions, it appears that the Supreme Court has
essentially assumed that citizens may sue if they have been denied access to records under
FACA.”).
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pursuant to the APA.”). Secretary Dunlap has brought claims against the General Services
Administration (“GSA”) and its Acting Administrator. Compl. ¶¶ 15, 19. GSA indisputably is a
federal agency subject to the APA. See Am. Airlines, Inc. v. Austin, 778 F. Supp. 72, 75 (D.D.C.
1991). Under the Executive Order creating the Commission and the Commission’s Charter,
GSA provides the Commission with such administrative services, funds, facilities, staff,
equipment, and other support services as may be necessary, and must perform the President’s
functions under FACA. Charter, Presidential Advisory Commission on Election Integrity ¶ 6;
see also ACLU v. Trump, 2017 U.S. Dist. LEXIS 111293, at *18 (D.D.C. July 18, 2017) (“[T]he
GSA is the agency responsible for administering FACA.”) (internal citation and quotation marks
omitted). GSA’s actions in providing administrative support to the Commission without
disclosing Commission documents as required by FACA constitutes “final agency action” that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§§ 704, 706.
A plaintiff may maintain a claim under Section 706(1) of the APA “where a plaintiff
asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v.
S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original). Secretary Dunlap has
identified a discrete action that GSA is required to, but has failed to, take: providing him with
Commission documents pursuant to Section 10(b) of FACA. Relief is available under the APA
even if GSA’s responsibilities are merely administrative in terms of carrying out orders from the
Commission or the other Defendants. Where an entity not subject to the APA (such as the Vice
President) orders an agency to take action, courts have “power to review the legality of” the
agency’s action under the APA, because “courts have power to compel subordinate executive
officials to disobey illegal . . . commands.” Soucie v. David, 448 F.2d 1067, 1072 n.12 (D.C.
Cir. 1971). In other words, the fact that an agency’s actions “are based on” the directive of an
14

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APA-exempt entity does not “insulate them from judicial review under the APA,” even if APA
review of the agency’s actions will “draw[] into question” “the validity of” the directive from the
APA-exempt entity. Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1327 (D.C. Cir.
1996). The APA thus authorizes this Court to review any action by GSA to implement a
directive that is inconsistent with FACA, whether the directive came from the Commission, the
Vice President, or anyone else allegedly exempt from the APA.6
b.

Secretary Dunlap Is Entitled to a Writ of Mandamus

Alternatively, Secretary Dunlap is likely to succeed in obtaining a writ of mandamus
compelling each Defendant to perform their mandatory duties under FACA. “[A] district court
may grant mandamus relief if (1) the plaintiff has a clear right to relief; (2) the defendant has a
clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” In re
Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005). If the requirements are met, a
court may grant relief “when it finds compelling equitable grounds.” Am. Hosp. Ass’n v.
Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016).
All requirements have been found sufficient to state a claim in cases alleging FACA
violations and are likewise satisfied here. See Freedom Watch, Inc. v. Obama, 807 F. Supp. 2d
28, 34 (D.D.C. 2011) (“The mandamus statute may provide an avenue to remedy violations of
statutory duties even when the statute that creates the duty does not contain a private right of
action.”); Judicial Watch, Inc. v. United States, 736 F. Supp. 2d 24, 31 (D.D.C. 2010)
(“[P]laintiff may bring his claim for alleged FACA violations under the Mandamus Act.”);
Judicial Watch v. Nat’l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 42 (D.D.C. 2002)
6

Defendants Office of Administration (OA), Office of the Vice President (OVP), and the
Executive Office of the President (EOP) also are “agencies” for purposes of the APA. The APA
defines “agency” broadly to include “each authority of the Government of the United States,
whether or not it is within or subject to review by another agency,” subject to specified
exclusions not relevant here. 5 U.S.C. § 551(1).
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(mandamus statute provides a remedy for FACA violation); cf. Lawyers’ Comm. for Civ. Rights
Under Law v. Presidential Advisory Comm’n on Election Integrity, 2017 U.S. Dist. LEXIS
111184, at *21-22 (D.D.C. July 18, 2017) (CKK) (acknowledging that mandamus relief may “be
appropriate for alleged FACA violations”).
First, Secretary Dunlap has a “clear right to relief” under FACA. In Cummock, the D.C.
Circuit held that a commissioner who was denied advisory committee documents and records in
violation of Sections 5 and 10(b) was entitled to an order compelling the committee to provide
her with those documents. Cummock, 180 F.3d at 292 (“[T]o the extent that Cummock seeks
information that was made available to the Commission during the course of its deliberative
process and without which her ability to fully and adequately participate in that process was
impaired, she is entitled to review such materials.”). On remand in Cummock, this Court ordered
the defendants to “disclose to Plaintiff all non-classified records or documents of any kind
created by, made available to, or relied upon by the Commission.” Memorandum Order,
Cummock v. Gore No. 97-00981-CKK (D.D.C.) (Dkt. 91). Secretary Dunlap is similarly situated
and is clearly entitled to the same relief.
Second, Defendants have a “clear duty” to comply with Sections 5 and 10(b) of FACA by
providing the requested documents to Secretary Dunlap and allowing him to participate in the
Commission’s work. “When a federal official has an obligation to perform a ministerial or nondiscretionary duty, a federal district court may issue a writ of mandamus under § 1361 to compel
that officer to fulfill the obligation.” Judicial Watch, 219 F. Supp. 2d at 42. The relevant
sections of FACA contain mandatory language, leaving no room for interpretation. “[N]early
every provision of the FACA that explains the statutory duties of advisory committees, like those
at issue here, includes the word ‘shall.’” Judicial Watch, 736 F. Supp. 2d at 31. “Section 10(b)
contains unambiguous language that identifies certain materials, and describes in detail the
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methods and location by and at which the Government must make those materials available to
the public.” Food Chemical News, 980 F.2d at 1472. “Any advisory committee operating under
FACA has no discretion or choice in the matter.” Ctr. for Arms Control & Non-Proliferation v.
Lago, 2006 U.S. Dist. LEXIS 83226, *14-15 (D.D.C. Nov. 15, 2006). Sections 5 and 9(c)
include similar nondiscretionary language. See Cummock, 180 F.3d at 291 (Sections 5(b)(2) and
(3) of FACA “requir[e] that committee membership be fairly balanced in terms of viewpoints
and functions, and that committees exercise independent judgment free from improper
influences.”) (emphasis added); 5 U.S.C. app. 2 § 9(c) (“No advisory committee shall meet or
take any action until an advisory committee charter has been filed.”).
Third, mandamus is likely the only remedy available to Secretary Dunlap. This Court has
held that FACA does not provide a private cause of action. Tidwell, 239 F. Supp. 3d at 221.
And the Government has argued in related cases that the APA remedy is unavailable to plaintiffs
asserting violations of FACA in connection with this Commission. See Lawyers’ Committee for
Civil Rights Under Law v. Presidential Advisory Commission, No. 17-cv-1354 (D.D.C.) (Dkt.
15) at 10-13; ACLU v. Trump, No. 17-cv-1351 (D.D.C.) (Dkt. 16) at 10-13; EPIC v. Presidential
Advisory Commission, No. 17-cv-1320 (D.D.C.) (Dkt. 49-1) at 24-36; Joyner v. Presidential
Advisory Commission, No. 17-cv-22568 (S.D. Fl.) (Dkt. 53) at 12-20. If this Court were to find
that Secretary Dunlap is not entitled to relief pursuant to the APA, then he is entitled to relief
under the mandamus statute.
Finally, there are compelling equitable grounds for this Court to grant relief. Courts have
consistently held that the lack of a private right of action within the FACA statute does not
permit advisory committees to violate FACA with impunity. See Public Citizen, 491 U.S. at 451
(plaintiffs had standing to pursue a FACA violation because they could be entitled to “significant
relief if they prevail in their suit”); Cummock, 180 F.3d at 291 (finding violation of FACA);
17

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Tidwell, 239 F. Supp. at 228 (allowing claim for violation of Section 10(b) of FACA to go
forward). Here, Defendants have prevented Secretary Dunlap from carrying out his
responsibilities as a commissioner. Continued refusal to provide relevant documents to
Secretary Dunlap will prevent his full participation in the Commission’s work. The
Commission’s ultimate report will not reflect the expertise of a cross-section of the American
public. It will not reflect, as FACA requires, the work of a balanced committee of experts in
election law, but rather the inappropriate influence of special interests. Secretary Dunlap will be
denied the “recognition and even prestige” that accompanies appointment to a federal advisory
committee. Cummock, 180 F.3d at 292. As the D.C. Circuit held in Cummock, the failure to
provide documents to commissioners is judicially reviewable and this Court should grant the
requested relief.
B.

Secretary Dunlap Will Be Irreparably Harmed Absent a Preliminary
Injunction.

Prompt access to the Commission’s documents is essential to Secretary Dunlap’s ability
to fulfill his “right and responsibility to participate” in the Commission’s deliberations and
contribute to the work of the Commission. Cummock, 180 F.3d at 290. Secretary Dunlap has
suffered—and will continue to suffer—concrete harm. The Commission’s refusal to provide
relevant documents in advance of the phone calls and meetings at which they were discussed has
already severely hampered Secretary Dunlap’s ability to discharge his responsibilities to the
Commission. (Dunlap Decl. ¶¶ 5, 7-8). Denied time to adequately review—or even review at
all—materials or time to prepare questions for witnesses, Secretary Dunlap has been relegated to
a position no better than an outside observer with no opportunity to influence the Commission’s
work or conclusions. (Dunlap Decl. ¶¶ 18-19). If Defendants continue to deny Secretary Dunlap
access to Commission documents and communications, Secretary Dunlap will be similarly

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unable to participate fully in the future Commission meetings. To Secretary Dunlap’s
knowledge, each witness will only appear at Commission meetings a single time, so absent the
opportunity to prepare and ask questions at meetings, he will forever lose the opportunity to
examine and investigate the topics discussed at each meeting. An injunction ordering
Defendants to share all Commission documents to which Secretary Dunlap is entitled far enough
in advance of the next meeting for him to have time to review them is necessary. Given the
history of denied access, Defendants cannot be relied upon to provide documents that will be
discussed at the next meeting absent a court order.
In two related cases before this Court, defendants represented that “there are few
documents that [will] pertain to the [July 19, 2017] meeting.” Lawyers’ Comm., 2017 U.S. Dist.
LEXIS 111184, at *30; ACLU, 2017 U.S. Dist. LEXIS 111293, at *23. This court relied on this
representation in denying preliminary injunctions in those cases. Lawyers’ Comm., 2017 U.S.
Dist. LEXIS 111184, at *34 (no irreparable harm because “Defendants have represented that,
with respect to the July 19 meeting of the Commission, they will disclose the materials that will
be used at the meeting.”); ACLU, 2017 U.S. Dist. LEXIS 111293, at *23 (“Documents ‘prepared
for or by the Commission’ invariably must include documents that will be ‘used and discussed’
at the July 19 meeting. Accordingly, Defendants have satisfied their obligation . . . .”). In fact,
directly contrary to Defendants’ representations, at least four previously undisclosed documents
were brought to the July 19, 2017 meeting and were discussed at that meeting. (Dunlap Decl.
¶ 7).
There also is reason to believe that the next meeting will be held shortly; one outside
group has stated that it was invited to present at a December 2017 meeting. (Id. ¶ 12). The
Commission’s charter states that meetings will be held approximately every 30 – 60 days.
Charter, Presidential Advisory Commission on Election Integrity ¶ 9. The last meeting, on
19

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September 12, was more than 60 days ago, giving good reason to believe that the next meeting
will be held shortly. See Ass'n of Am. Physicians & Surgeons v. Clinton, 813 F. Supp. 82, 94 &
n.19 (D.D.C. 1993) (irreparable harm inquiry satisfied under FACA where committee likely to
meet, gather evidence, and publish report within the next 55 days), rev’d on other grounds, 997
F.2d 898 (D.C. Cir. 1993).
The issue of notice with respect to the next meeting was raised with Defendants prior to
the filing of this motion. During pre-motion meet-and-confer, Defendants agreed to notify
Secretary Dunlap of the next meeting “as soon as [it] is scheduled” and with at least fifteen days
advance notice. (Sandick Decl. Ex. 3). However, Defendants have not agreed to give more than
15 days’ notice, to provide documents to Secretary Dunlap in advance of any meeting, or to
permit Secretary Dunlap to help decide when to hold the next meeting or to play any role in the
setting of the meeting agenda (such as the selection of witnesses or subjects for discussion). (Id.
¶ 8 and Ex. 3). With these limitations, the only benefit to Secretary Dunlap of the 15 days’
notice is the ability to set his travel itinerary a few days in advance of the meeting. The promised
notice period does nothing to facilitate his participation in the Commission’s work and Secretary
Dunlap therefore remains at serious risk of being unprepared and unable to participate
substantively in future meetings.
Secretary Dunlap has reason to believe that the Commission is forging ahead with work
behind his back. In response to Secretary Dunlap’s letter, Defendant Kossack would not confirm
that the Commission’s work was on hold. (Dunlap Decl. ¶ 15). Defendants admit that
Commission staff and other Commissioners “have created and received miscellaneous
documents and electronic records” but take the position that Secretary Dunlap is not entitled to
any of them. (Sandick Decl. Ex. 3). If he is not provided with Commission documents and
invited to participate in deliberations, there is a substantial risk that Secretary Dunlap will not be
20

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able to contribute to any report issued by the Commission and that the Commission will enjoy
undeserved “political legitimacy with respect to its policy decisions.” Cummock, 180 F.3d at
292; (Dunlap Decl. ¶ 19). Additionally, Secretary Dunlap has the “right to have [a] dissent
published with the [Commission’s] final report.” Id. at 293. He is completely in the dark as to
when the Commission plans to publish a final report, so an injunction against the publication of a
report is necessary to allow Secretary Dunlap time to obtain and review documents and exercise
his right to publish a concurrence or a dissent, should he decide to publish one.
Defendants’ statement that “there is no particular urgency to resolving these issues” is
incorrect. (Sandick Decl Ex. 3). Defendants’ inflexible position that FACA does not entitle
Secretary Dunlap to any of the documents listed on the Vaughn index is incorrect and needs to be
litigated. Because a meeting may be scheduled at any time with only 15 days’ notice, putting the
litigation on hold will only require litigating these issues on an emergency basis in the near
future. There is no reason to force Secretary Dunlap to wait until the eleventh hour to bring this
matter to the Court’s attention. A preliminary injunction motion now, while the next meeting is
certain to occur but as yet unscheduled, is the most logical way to proceed. A preliminary
injunction motion also is superior to a motion for a temporary restraining order because it
provides greater time for briefing, argument, and consideration of the motion.
These issues are appropriate for resolution via a preliminary injunction. If forced to wait
for the civil litigation process to run its course, relief will come too late to be meaningful. The
Commission will terminate no later than two years after it was established by executive order or
thirty days after the Commission issues its report to the President, whichever comes first.
Charter, Presidential Advisory Commission on Election Integrity ¶ 10. The Commission will
cease to exist, at the latest, in May 2019. Meanwhile, meetings and deliberations are taking
place. If forced to wait for a final injunction, Secretary Dunlap will not receive documents in
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time to permit his active participation and deliberations. See Pub. Citizen v. Nat'l Econ. Com.,
703 F. Supp. 113, 129 (D.D.C. 1989) (the right to transparency and participation while the
advisory committee is active, is “expressly protected [by] FACA,” causing irreparable harm)
(emphasis added); Gates v. Schlesinger, 366 F. Supp. 797, 801 (D.D.C. 1973) (preliminary
injunction warranted because rights under FACA would “be permanently lost” if an injunction
did not issue); Ala.-Tombigbee Rivers Coal., v. Dep't of Interior, 26 F.3d 1103, 1106 (11th Cir.
1994) (“Because FACA's dictates emphasize the importance of openness and debate, the timing
of such observation and comment is crucial to compliance with the statute. [Transparency] must
be contemporaneous to the advisory committee process itself.”). A key message from Cummock
was that the exclusion of a commissioner until the conclusion of the commission’s work was a
particularly egregious harm: FACA “must be read to confer on a committee member the right to
fully participate in the work of the committee to which he or she is appointed.” 180 F. 3d at 291;
see also id. at 293 (noting that FACA violations “frustrated [the commissioner’s] ability to
prepare a complete and informed dissent” prior to conclusion of the committee’s work).
C.

The Balance of Harms Weighs in Favor of Preliminary Relief.

The balance of the equities tips sharply in Secretary Dunlap’s favor “because a
preliminary injunction will not substantially injure other interested parties.” Newby, 838 F.3d at
12 (internal quotation marks and citation omitted). Defendants will not be injured at all by being
required to comply with their statutory obligations under FACA to provide Commission
documents to all commissioners. See Gates, 366 F. Supp. at 801 (“The Court finds no injury to
Defendants in being obliged to conform to the open meeting requirement imposed by statute.”).
Moreover, the Commission already has engaged in significant work to identify documents
exchanged between or made available to some of the commissioners as evidenced by the
Vaughn-type index prepared for other litigation.

22

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D.

Preliminary Relief Will Serve the Public Interest.

Finally, the Defendants cannot deny that the public interest will be served by an order
requiring Defendants to comply with FACA by permitting Secretary Dunlap to actively
participate in the Commission to which he was appointed. See Gates, 366 F. Supp. at 801
(“[T]he public interest will be best served by requiring strict compliance with the letter and spirit
of the Federal Advisory Committee Act.”). In fact, disclosure to Commissioner Dunlap is
necessary for the Commission to conduct its work in an appropriate manner. A preliminary
injunction is necessary to ensure that interest groups do not “use their membership” on the
Commission “to promote their private concerns.” H.R. REP. NO. 92-1017 (1972), reprinted in
1972 U.S.C.C.A.N. 3491, 3496.
V.

CONCLUSION
Secretary Dunlap has satisfied the requirements for a preliminary injunction.

Accordingly, he respectfully requests that this Court grant his motion for a preliminary
injunction and (1) order Defendants promptly to produce records requested by Secretary Dunlap;
(2) order Defendants to produce to Secretary Dunlap all future documents made available to or
prepared for or by the Commission promptly and no later than two weeks in advance of any
future Commission meeting; (3) order Defendants to permit Secretary Dunlap to fully participate
on an equal basis as all other commissioners; and (4) enjoin the Commission from releasing a
final report until Secretary Dunlap has received all documents to which he is entitled and has had
an opportunity to review them, has participated in the drafting of the report or, if necessary, has
completed a concurrence or dissent to the report.

23

 Case 1:17-cv-02361-CKK Document 7-13 Filed 11/16/17 Page 29 of 29

Dated: November 16, 2017

Respectfully submitted,
By:
/s/ Daniel S. Ruzumna
PATTERSON BELKNAP WEBB & TYLER LLP
Daniel S. Ruzumna (D.C. Bar No. 450040)
Harry Sandick (pro hac vice application pending)
Daniel A. Friedman (pro hac vice application pending)
1133 Avenue of the Americas
New York, N.Y. 10036
Tel: (212) 336-2000
Fax: (212) 336-2222
druzumna@pbwt.com
hsandick@pbwt.com
dfriedman@pbwt.com
AMERICAN OVERSIGHT
Austin R. Evers (D.C. Bar No. 1002367)
Melanie Sloan (D.C. Bar No. 434584)
John E. Bies (D.C. Bar No. 483730)
Cerissa Cafasso (D.C. Bar No. 1011003)
1030 15th Street NW, B255
Washington, DC 20005
Tel: (202) 869-5246
austin.evers@americanoversight.org
msloan@americanoversight.org
john.bies@americanoversight.org
cerissa.cafasso@americanoversight.org

24

 Case 1:17-cv-02361-CKK Document 7-14 Filed 11/16/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
MATTHEW DUNLAP,
Civil Action No. 17-cv-2361-CKK
Plaintiff,
- versus PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; MICHAEL R. PENCE, IN HIS OFFICIAL
CAPACITY AS CHAIR OF THE PRESIDENTIAL
ADVISORY COMMISSION ON ELECTION INTEGRITY;
KRIS W. KOBACH, IN HIS OFFICIAL CAPACITY AS VICE
CHAIR OF THE PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION INTEGRITY; ANDREW
KOSSACK, IN HIS OFFICIAL CAPACITY AS
DESIGNATED FEDERAL OFFICER FOR THE
PRESIDENTIAL ADVISORY COMMISSION ON ELECTION
INTEGRITY; GENERAL SERVICES ADMINISTRATION;
TIMOTHY R. HORNE, IN HIS OFFICIAL CAPACITY AS
ACTING ADMINISTRATOR OF THE GENERAL SERVICES
ADMINISTRATION; EXECUTIVE OFFICE OF THE
PRESIDENT; OFFICE OF THE VICE PRESIDENT; OFFICE
OF ADMINISTRATION; MARCIA L. KELLY, IN HER
OFFICIAL CAPACITY AS DIRECTOR OF THE OFFICE OF
ADMINISTRATION,
Defendants.

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION
FOR A PRELIMINARY INJUNCTION
Upon consideration of Plaintiff Matthew Dunlap’s (“Secretary Dunlap”) Motion for a
Preliminary Injunction, all supporting documents, and any opposition thereto; it is ORDERED
that Plaintiff’s Motion for a Preliminary Injunction is hereby GRANTED. Defendants are (1)
ordered to promptly produce records requested by Secretary Dunlap; (2) ordered to produce to
Secretary Dunlap all future documents made available to or prepared for or by the Presidential
Advisory Commission on Election Integrity (the “Commission”) promptly and no later than two

 Case 1:17-cv-02361-CKK Document 7-14 Filed 11/16/17 Page 2 of 2

weeks in advance of any future Commission meeting; (3) ordered to permit Secretary Dunlap to
fully participate on an equal basis as all other commissioners; and (4) enjoined from releasing a
final report until Secretary Dunlap has received all documents to which he is entitled, has had an
opportunity to review them, and has participated in the drafting of the report or, if necessary, has
completed a concurrence or dissent to the report.
SO ORDERED.

_________________________________
Hon. Colleen Kollar-Kotelly
United States District Judge

_________________________________
Dated:

2