U.S. Department of Homeland Security
Washington, DC 20528

Homeland
Security
Privacy Office, Mail Stop 0655

August 30, 2018
SENT VIA E-MAIL TO: weiserw@brennan.law.nyu.edu
Wendy R. Weiser
Director, Democracy Program
Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750
New York, NY 10271
Re:

17-cv-06335-KBF
Brennan Center v. DOJ, et al.
First Interim Release for DHS FOIA Request No. 2018-HQFO-00465

Dear Ms. Weiser:
This is our first interim response to your Freedom of Information Act (FOIA) request to the
Department of Homeland Security (DHS), received on January 8, 2018. You had provided
additional information regarding this request to our office on January 19, 2018.
For this production, DHS reviewed 741 pages. After review of those 741 pages, DHS has
determined that 176 pages were responsive. We have released 145 pages are released in full.
Further, DHS determined that pursuant to FOIA Exemptions b5 and b6, portions of 31 pages are
withheld in part. Additionally, 47 pages were referred to U.S. Customs and Border Protection
(CBP) and CBP will respond to you directly. Finally, 518 pages were found to be nonresponsive, and will not be produced.
If you have any questions regarding this release, please contact Assistant U.S. Attorney Casey
Lee, United States Attorney’s Office, Southern District of New York, at (212) 637-2714, or by
email at Casey.Lee@usdoj.gov.
Sincerely,

Bradley E. White
FOIA Program Specialist
Enclosed: 176 pages

  

 

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From:

 

 

 

?Mathias, Susan Ilibmz?) 
To. I

 

Subject: RE: urgent ask

 

Date: ZUIBIDUUB 16:53:00

 

Priority: Normal

 

 

 

Type: Note

 

 

0k. Attached is the amended complaint from 9113f?, against the Commission. DHS,
and Kobach

(133(5)

 

 

 

 

 

(MG)

 

 

 

 

00(5)

 

 

 

From: Mathias, Susan

Sent: Monday, January 8, 2018 4:07 PM
T040385)

Subject: RE: urgent ask

 

 

Okay, thanks.

Susan Mathias

Assistant General Counsel for Strategic Oversight
Legal Counsel Division

Of?ce of the General Counsel

US. Department of Homeland Security
(W35)

 

 

 

 

This communication, along with any attachments. may contain con?dential and legally
privileged information. lfthe reader of this message is not the intended recipient, you are
hererby notified that any dissemination, distribution, use or copying ofthis message is
strictly prohibited. If you have received this in error. please reply to the sender and delete
this message.

 

1

Sent: Monday, January 8, 2018 4:06 PM
To: Mathias, Susanl?bl?)

Subject: RE: urgent ask

 

 

 

1331(6) I Let me review some materials and get back to
you a couple.

 

From: Mathias, Susan

Sent: Monday, January 8, 2018 3:35 PM

I
Subject: RE: urgent ask

 

 

Hi-l included the information about DOJ's ?ling in December, but would
appreciate any additional information on the status of the case. Thanks.

Susan Mathias
Assistant lGeneral Counsel for Strategic Oversight
Legal Counsel Division

Of?ce of the General Counsel

US. Department of Homeland Security

(133(5)

 

 

 

 

This communication, along with any attachments. may contain con?dential and legally
privileged information. lfthe reader of this message is not the intended recipient, you are
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strictly prohibited. If you have received this in error. please reply to the sender and delete
this message.

From: Mathias, Susan

Sent: Monday, January 8, 2018 3:15 PM

To; thE) I
SubJ ect: urgent ask

 

 

 

-the following paragraph appears in a white paper being prepared for the front
of?ce:

 

USES)

 

 

 

Can you give me the current status of this litigation?

Susan Mathias

Assistant General Counsel for Strategic Oversight
Legal Counsel Division

Of?ce of the General Counsel

US. Department of Homeland Security
(W5)

 

 

 

 

This communication. along with any attachments, may contain confidential and legally
privileged information. If the reader of this message is not the intended recipient, you are
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strictly prohibited. If you have received this in error, please reply to the sender and delete
this message.

 

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Sender:

 

 

 

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Sent Date: 16:52:58

 

Delivered Date: 2013}01/08 16:53:00

 

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Subject: RE: Common Cause v. Reply Brief clue today

 

Date: 11:56:00

 

Type: 

 

 

 

 

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?'Borson, Joseph (CWT 
Recipient: ?'Federighi, Carol (CWT 
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Sent Date: 11:56:27?

 

Delivered Date: 201?,?12,? 15 11:56:00

 

 

 

 

Case Document 21 Filed 091317 Page 1 of 42

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE
805 15?? Street, NW.
Washington, DC. 20005,

and Case NO. (RCL)

JAN CANTLER

ofo DEMOCRACY FORWARD FOUNDATION
P.O. Box 34553

Washington, DC. 20043,

and

ANTHONY GUTIERREZ

ofo DEMOCRACY FORWARD FOUNDATION
P.O. Box 34553

Washington, DC. 20043,

and

THOMAS KENNEDY I
do DEMOCRACY FORWARD FOUNDATION 
P.O. Box 34553 
Washington, DC. 20043, 

and

ELLEN NAKHNIKIAN

do DEMOCRACY FORWARD FOUNDATION
P.O. Box 34553

Washington, DC. 20043,

Plaintiffs,

vs.

PRESIDENTIAL ADVISORY COMMISSION ON
ELECTION INTEGRITY

The White House

1600 Avenue, NW.
Washington, DC. 20405,

Case Document 21 Filed 091317 Page 2 of 42

U.S. DEPARTMENT OF HOMELAND SECURITY
245 Murray Lane, S.W.
Washington, DC. 20528.

and
KRIS W. KOBACH. in his of?cial capacity as Vice-
Chair of the Presidential Advisory Commission on

Election Integrity

Defendants.



AMENDED COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF

 

 

Plaintiffs Common Cause, Anthony Gutierrez, Thomas Kennedy, Ellen
Nakhnikian, and Jan Cantler, hereby sue the Presidential Advisory Commission on
Election Integrity (?Commission?), the US. Department of Homeland Security 
and Kris W. Kobach, in his of?cial capacity as Vice-Chair of the Commission.

Preliminary Statement

Plaintiffs bring this action to enjoin the Commission and its Vice-Chair.
Defendant Kris W. Kobach, from conducting an unprecedented and sweeping
investigation into alleged voting misconduct by individual American citizens. Neither
the Constitution nor federal law permits this investigation, for which the Commission,
acting in concert with other Defendants, has already amassed the politically sensitive
voting data of millions of individual American citizens. Moreover, the Commission?s
continued maintenance of data regarding Americans? political affiliations and voting
history violates the Privacy Act of 1974, a Watergate-era law which specifically
prescribes the government?s collection of information that ?describ[es] how any

individual exercises rights guaranteed by the First Amendment." 5 U.S.C. 552a(e)(7).

Case Document 21 Filed 09!l3!l7 Page 3 of 42

Although Executive Order No. 13,799 established the Commission as a ?solely
advisory? body, the Commission and Defendant Kobach have undertaken multiple
actions that not only far outstrip this limited mission but also lack any legal authority.
Among these actions, the Commission?s investigation began on June 28, 2017, when
Defendant Kobach, acting on his own, requested the voting rolls (including individuals?
party affiliation and voter history) from all 50 states and the District of Columbia without
permitting his fellow Commission members to vote on the data request. Defendant
Kobach likewise failed to even notify his fellow Commission members before sending a
second data request to the states on July 26, 2017.

In his role as Vice-Chair, Defendant Kobach has made clear his intention to
?crosscheck? the data the Commission intakes from the states against other federal
databases containing information on individuals (including databases maintained by
Defendant DHS and other federal agencies) in order to identify individuals whom the
Commission believes to be fraudulently registered to vote. At the Commission?s July 19,
2017 meeting, Defendant Kobach spoke openly of modelling the Commission?s
investigation on the multi?state voting crosscheck program that he runs out of Kansas?
known as the Interstate Voter Registration Crosscheck Program?that compares states
voting data to identify potential misconduct and target individuals for removal from state
voter rolls, including by criminal prosecution. To that end, Defendant Kobach, with the
consent of the Commission, directed Commission staff to obtain ?whatever data? there
was within the federal government (including multiple sources of data on individuals held
by Defendant DHS and other federal agencies subject to the Privacy Act) to assist the

Commission in its investigation. These actions have driven at least one member of the

Case Document 21 Filed Page 4 of 42

Commission, Maine Secretary of State Matthew Dunlap, to publicly question the
propriety of the Commission?s pursuit of individuals? voting data and to withhold the
data of Maine?s voters until he better understands ?the Commission?s goal.? But
multiple other states have complied with the Commission?s request, and, as a result, the
Commission is continuing to collect and maintain voting data on millions of American
voters.

In one of his Breitbarr columns, Defendant Kobach has stated that he
contemplates that ?every investigation? the Commission undertakes will require
individuals? state voter roll data. Defendant Kobach has discussed the need to call
witnesses to testify before the Commission concerning specific individuals who allegedly
voted fraudulently in elections and believes the state voter data is needed to, among other
things, ?confirm? the identity and voting history of the individuals named. Just days
before the ?ling of this Amended Complaint, Defendant Kobach publicly targeted and
accused a group of voters in New Hampshire of voter fraud in another Brefrbarr column,
citing to information presented to the Commission for its September 12 meeting.
Defendant Kobach continued to make these accusations in New Hampshire at the
Commission?s most recent September 12 meeting. In an apparent attempt to continue
their investigation unchecked and keep the public in the dark, neither Defendant Kobach
nor other Commission members updated the Commission or the public at the September
12 meeting on the work that the Commission has been conducting.

Defendants may not, under the cloak of a presidential ?advisory? Commission,
establish a new federal agency within the White House to conduct an unauthorized

investigation of the validity of millions of Americans? participation in the political

Case Document 21 Filed 09!l3l17 Page 5 of 42

process. Doing so directly circumvents the Privacy Act?s protections on the collection of
information regarding citizens? First Amendment activities as well as the Act?s
restrictions on disclosure of individuals? information, and lacks any basis in the
Constitution or federal law. Accordingly, Defendants? actions?which are ultra vires and
violate the Privacy Act and the Administrative Procedure Act?should be enjoined.

1. Plaintiff, Common Cause, is a nonpro?t corporation organized and existing under
the laws of the District of Columbia. Common Cause is one of the nation?s leading
democracy reform organizations and has over one million members and supporters
nationwide. Since its founding in 1970, Common Cause has been dedicated to the
promotion and protection of the democratic process, such as the right of all citizens,
including its eligible members, to be registered for and vote in fair, open, and honest
elections. Common Cause brings this action on behalf of itself and its members.
2. Common Cause conducts signi?cant nonpartisan voter-protection, advocacy,
education, and outreach activities to ensure that voters are registered to vote and have
their ballots counted as cast. Common Cause also advocates for policies, practices, and
legislation?such as automatic and same-day registration?that facilitate voting for
eligible voters and ensure against disenfranchisement. Common Cause opposes efforts
that burden registration andlor voting, including restrictive voter identification laws,
partisan gerrymandering, and any other effort that could potentially chill citizens' rights
to register or stay registered. Common Cause advocates the safeguarding of personal

information, in keeping with the dictates of both state and federal law.

Case Document 21 Filed 09!l3ll7 Page 6 of 42

3. Common Cause and its members have been and will be injured by the
Defendants? activities, including the efforts to obtain personal and private information
regarding voter affiliation, vote history, and other related details. Common Cause has
already expended staff time and resources to engage in non-litigation related outreach and
communications efforts to oppose the impermissible collection of voter information as
sought by the Commission, diverting resources from its core activities. The expenditures
of resources that Common Cause has been forced to make as a result of the
Commission?s activities are aimed at counteracting the harm that the Commission?s
impermissible attempt to collect voter information will cause to Common Cause?s
mission of encouraging and facilitating voter participation and engagement.

4. The Commission?s attempt to collect voter information will also harm Common
Cause?s and its members? efforts to encourage voter registration and participation. For
voters and prospective voters facing political polarization, the threat that the federal
government will monitor their electoral participation and even their party affiliations is
deeply troubling and has deterred and will continue to deter the exercise of their First
Amendment-protected rights to express their views through the ballot box. Further, the
Commission?s effort to collect voter information is causing registrants and voters to
cancel their registration status (as has already occurred in Florida and Colorado) or forgo
registering and voting altogether. Such actions would directly undo the work to which
Common Cause has devoted itself over the past few decades and would limit voter
engagement and participation in our democracy. To counteract these harmful effects,

Common Cause has been engaged in direct counseling of individual voters seeking to de-

Case Document 21 Filed 09!l3!l7 Page 7 of 42

register from voting as a result of the fear they have for what the Commission will do
with their personal First Amendment information.

5. Plaintiff Anthony Gutierrez is a United States citizen and resident of the State of
Texas. Mr. Gutierrez is registered to vote in Texas and his personal information,
including political party af?liation and voting history, has been sought by the
Commission. Texas?s Secretary of State has stated that he will be providing the
Commission with voting information regarding Texas-registered voters such as Mr.
Gutierrez. Mr. Gutierrez has experienced grave concern over his voting history, party,
and other personal data being collected by the Commission. He is also concerned that the
Commission?s plans to crosscheck the data collected against other federal databases,
including those maintained by Defendant DHS, will create obstacles to his future
participation in the political process.

6. Plaintiff Thomas Kennedy is a United States citizen and a resident of the State of
Florida, where he is registered to vote. Originally from Argentina, Mr. Kennedy became
a citizen of the United States in 2016 and, upon completing his citizenship ceremony,
immediately registered to vote. The Commission has obtained voter information
regarding Florida-registered voters such as Mr. Kennedy. Mr. Kennedy is highly
concerned and anxious about the Commission?s collection of his voter information as
well as its stated plans to perform a crosscheck in concert with other federal agencies,
including Defendant DHS, which has andfor imminently will disclose Mr. Kennedy and
other naturalized citizens? data to the Commission without consent. Such a crosscheck
will disproportionately disenfranchise andf or hamper recently naturalized citizens, like

Mr. Kennedy, from voting andfor participating fully in the political process. Mr.

Case Document 21 Filed 09!l3l17 Page 8 of 42

Kennedy is especially concerned about Defendants? actions given Defendant Kobach?s
direct public attacks and animus towards immigrants, like himself. Mr. Kennedy?s
participation in the political process is, accordingly, threatened by Defendants? actions.
7. Plaintiff Ellen Nakhnikian is a United States citizen and resident of New York.
She is a registered voter. The Commission has obtained voter information regarding New
York-registered voters such as Ms. Nakhnikian. Ms. Nakhnikian is highly concerned
about the Commission?s collection of her voter information as well as its stated plans to
perform a crosscheck in concert with other federal agencies. Such actions undermine her
confidence and participation in the political process and also invade her privacy.

8. Plaintiff Jan Cantler is a United States citizen and resident of New York. She is a
registered voter. Ms. Cantler is highly concerned about the Commission?s collection of
her voter information as well as its stated plans to perform a crosscheck in concert with
other federal agencies. Such actions undermine her participation in the political process
and also invade her privacy.

9. Ms. Cantler supported the Governor of New York?s stance that voter data would
not be disclosed to the Commission, but became anxious and concerned when the
Commission took steps to override the Govemor?s decision in order to obtain her and
other New York voters? data. To express her opposition and in an attempt to persuade
the Commission and Defendant Kobach to change its course, Ms. Cantler called
Defendant Kobach?s office?the Secretary of State?s of?ce in Kansas?to reach him.
Ms. Cantler was not connected to Defendant Kobach but was connected to someone in
the Secretary of State?s office. After making clear that she was not a Kansas constituent.

Ms. Cantler expressed her concerns regarding Defendant Kobach and the Commission?s

Case Document 21 Filed 0911317 Page 9 of 42

activities to this individual. The individual rebuffed Ms. Cantler?s concerns, stating only
that the data that was being collected by the Commission was ?public data.? Ms. Cantler
explained that the data that the Commission was directing the states to provide was not of
the type that could be accessed by the general public without going through certain steps
and that the matching logic that would be used by the Commission to crosscheck
individual voter data could lead to inaccurate and problematic results as well as invasions
of privacy. The individual continued to rebuff her concerns.

10. Defendant Commission is a federal agency within the meaning of 5 U.S.C.

552a(a)(1) and 5 U.S.C. 551(1) that is headquartered in Washington, DC.

11. Defendant US. Department of Homeland Security is a federal agency within the
meaning of5 U.S.C. 552a(a)(1) and 5 U.S.C. 551(1) that is headquartered in
Washington, DC. DHS (including its components) maintains multiple ?systems of
records" containing records concerning individuals? immigration status, including, for
example, ?les of individuals? citizenship applications as well as the Systematic Alien
Veri?cation for Entitlements Program a system administered by the US.
Citizenship and Immigration Services, a component of DHS, that tracks the legal status
of non-citizens for use in administering bene?t programs. Multiple states have
previously attempted to use the SAVE database to verify individuals? names as part of
voter list maintenance programs.

12. Defendant Kris W. Kobach is the Vice-Chair of the Commission. He is sued in his
official capacity as Vice-Chair of the Commission. Defendant Kobach was appointed

Vice-Chair of the Commission by President Donald J. Trump. Laws and policies

Case Document 21 Filed 09I13i17 Page 10 of 42

Defendant Kobach has championed have been the subject of multiple lawsuits by voters?
rights and civil rights groups and have been responsible for suppressing votes.

Jurisdiction and Venue

 

13. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
1331, because this action arises under federal law, specifically the Privacy Act, 5
U.S.C. 552a{b), and the APA, 5 U.S.C. 701-706.

14. Venue is proper in this district pursuant to 28 U.S.C. 1391(e), because at least
one of Defendants is headquartered in Washington, D.C. and a substantial part of the
events or omissions giving rise to Plaintiffs? claims occurred here.

Legal Framework

 

15. Advisory commissions are governed by the Federal Advisory Committee Act,
which sets forth various statutory requirements for commissions established by the
President or other federal agencies, including requirements regarding public access to
committee materials and meetings. See 5 U.S.C. app. 2 2; Pub. Citizen v. US. Dep ?r of
Justice, 491 US. 440, 445-47 (1989).

16. Lawfully constituted federal agencies are empowered to act by statute and may
exercise only the authority prescribed by Congress. See City of'ArIington v. CC, 569
U.S. 290, 290 {2013) (?Both [agencies?] power to act and how they are to act is
authoritatively prescribed by Congress, so that when they act improperly, no less than
when they act beyond their jurisdiction, what they do is okra Multiple statutes,
including the Privacy Act of 1974 and the Administrative Procedure Act, govern

agencies? actions and interactions with members of the public.

10

Case Document 21 Filed 09I13t17 Page 11 of 42

17. The Privacy Act of 1974 regulates the govemment?s collection, maintenance, use,
and dissemination of sensitive personal information.

18. Congress, which passed the Act following Watergate, was ?concerned with
curbing the illegal surveillance and investigation of individuals by federal agencies that
had been exposed during the Watergate scandal.? Overview of the Privacy Act of 1974,
Dep?t of Justice (last updated July 16, 2015), 
objectives.

19. Section 552a(b) of the Privacy Act prohibits the ?disclos[ure of] any record which
is contained in a system of records by any means of communication to any person, or to
another agency,? unless certain exceptions apply.

20. Section 552a(e)(7) provides that an agency shall ?maintain no record describing
how any individual exercises rights guaranteed by the First Amendment unless expressly
authorized by statute or by the individual about whom the record is maintained or unless
pertinent to and within the scope of an authorized law enforcement activity.?

21. As the DC. Circuit has explained: ?The legislative history of the Act reveals
Congress? own special concern for the protection of First Amendment rights, as borne out
by statements regarding ?the preferred status which the Committee intends managers of
information technology to accord to information touching areas protected by the First
Amendment of the Constitution.? Albright v. United States, 631 F.2d 915, 919 (DC.
Cir. 1980) (citing S. Rep. No. 1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916, 6971).
Congress directed Section at ?inquiries made for research or statistical
purposes which, even though they may be accompanied by sincere pledges of

confidentiality are, by the very fact that government make (sic) the inquiry, infringing on

11

Case Document 21 Filed 09113717 Page 12 of 42

zones of personal privacy which should be exempted from unwarranted Federal inquiry.?
Id. (citing S. Rep. No. 1183). This same legislative history also ?reveals a concern for
unwarranted collection of information as a distinct harm in and of itself.? Id; see also
Bassiouni v. FBI, 436 F.3d 712, 718 (7th Cir. 2006) enacting 552a, Congress was
motivated by a general concern with the potential for abuse if the Government is allowed
to collect political dossiers about American citizens?).

22. Moreover, in interpreting the Privacy Act, the DC. Circuit has ?taken particular
care not to undermine the Act?s fundamental goals,? Pilot: v. US. Department of Justice,
73 F.3d 1111, 1118 (DC Cir. 1996), and has resisted ??neat legal maneuver[s]?
attempted by the government that, while literally consistent with the Act?s terms, were
not in keeping with the privacy-protection responsibilities that Congress intended to
assign to agencies under the Act,? id. (alteration in original; citation omitted) (quoting
Benovfdes v. US. Bureau 995 F.2d 269, 272 (DC. Cir. 1993)); see also Bartel
v. FAA, 725 F.2d 1403, 1409 (DC. Cir. 1984) (declining to adopt interpretation that
would have ?circumvent[ed]? the Act?s privacy protections); Tijerinn v. Walters, 821
F.2d 789, 797 (D.C. Cir. 1987') (same, regarding interpretation that ?would give agencies
license to defang completely the strict limitations on disclosure that Congress intended to
impose?).

23. Accordingly, the DC. Circuit has held that an agency ?may not so much as
collect information about an individual?s exercise of First Amendment rights except
under very circumscribed conditions,? and that Section 552a(e)(7) applies regardless
whether a record is maintained in an agency?s system of records. 631 F.2d at

919.

12

Case Document 21 Filed 09I13i17 Page 13 of 42

24. The Privacy Act incorporates the de?nition of ?agency? found in the Freedom of
Information Act, 5 U.S.C. 552a(a)(1), which in turn de?nes ?agency? as ?any executive
department, military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the Government (including
the Executive Of?ce of the President), or any independent regulatory agency.? id.

552(f)(1).

25. Whether a governmental entity is an ?agency? under the Privacy Act is a case-by-
case determination where ?the speci?c evidence bearing upon that question varies with
the entity in question.? v. Exec. Office cfthe President, 90 F.3d 553, 558-59
(D.C. Cir. 1996). Courts in this circuit look at several factors in making this
determination, including whether an entity?s sole function is to advise and assist the
President and whether the entity exercises substantial independent authority. Citizens for
Responsibility Ethics in Wash. v. Office ofAdmin., 566 F.3d 219, 222-23
(DC. Cir. 2009). Thus, depending on its speci?c ?mctions, a commission or other
governmental body can be deemed to be an agency to which the Privacy Act applies.

26. Although it was formed as a ?commission,? Defendant Commission is an
?agency? for the purposes of the Privacy Act.

actual Allegations

 

Candidate Donald J. Trump ?s Repeated, Unsubstantiated Claims of Voter Fraud
27'. Prior to his election, then?presidential candidate Donald J. Trump repeatedly

made unsubstantiated assertions of voter fraud.

13

Case Document 21 Filed 0911317 Page 14 of 42

28. On October 10, 2016, candidate Trump tweeted, ?Of course there is large scale
voter fraud happening on and before election day.?1

29. On October 17, 2016, candidate Trump told supporters at a campaign rally in
Wisconsin that ?voter fraud is very, very common,? including voting by ?people that
have died 10 years ago? and ?illegal immigrants.?2
30. On November 8, 2016, Donald J. Trump was elected as the forty??fth president of
the United States.

31. On November 27, 2016, president-elect Trump tweeted, ?In addition to winning
the Electoral College in a landslide, I won the popular vote if you deduct the millions of
people who voted illegally.?3
32. Three days later, Defendant Kobach echoed the president-elect?s assertion, stating
that, think the president-elect is absolutely correct when he says the number of illegal
votes cast exceeds the popular vote margin between him and Hillary Clinton.?4

33. In December 2016, addressing president?elect Trump?s claim that ?millions of

people voted illegally,? Trump senior advisor Kellyanne Conway stated that she has

 

@realDonaldTrump, Twitter (Oct. 17', 2016, 8:33 AM), 


2 Donald Tramp Campaign Event in Green Bay, Wisconsin, C-SPAN (Oct. 17, 2016),

3 @realDonaldTrump, Twitter (Nov. 27, 2016, 3:30 PM), 


4 Hunter Woodall, Kris Kobaeh Agrees with Donald Tramp Thar Voted
Iiiegaiiy Bat Offers No Evidence, Kansas City Star (Nov. 30, 2016), avaiiabie at
17957143.htm1.

14

Case Document 21 Filed 09I13tl7' Page 15 of 42

?been receiving information about the irregularities and about the illegal votes,
particularly from sources, officials like Kris Kobach.?5
34. Indeed, president-elect Trump met with Defendant Kobach in the days after the
election. Defendant brought to the meeting a document entitled ?Department of
Homeland Security: Kobach Strategic Plan for the First 365 Days," which outlined
various objectives for DHS in the ?rst year of the Trump Presidency, and mentioned
voter rolls.
35. In separate litigation challenging Kansas?s non-compliance with the National
Voter Registration Act Defendant Kobach has resisted releasing the
photographed document, which outlines proposed amendments to the NVRA, and
consequently he has been fined $1,000 by the court for ?deceptive conduct and lack of
candor.?6

Creation of the Presidential Advisory Commission on Election Integrity to Investigate
Voter rand

36. On January 20, 2017, Donald J. Trump was inaugurated as President of the United
States.

37. Five days later, President Trump tweeted on his of?cial Twitter account: will
be asking for a major investigation into VOTER FRAUD, including those registered to

vote in two states, those who are illegal and even, those registered to vote who are dead

 

5 Emily Shapiro, Keliyonne Conwoy Dodges Question on Trump ?s Claim That ?Miilions?
Voted Iiiegoiiy, ABC News (Dec. 2, 2016), 


6 Christopher Ingraham, Federoi Judge Upholds Fine Against Kris Koboehfor 'Pottern 
of ?Misieoding the Conrt? in Voter?ID Cases, Wash. Post, July 2016, 
.washingtonpo st. cominewsx?wonkiwpi?ZO 1 Ti 07! 2 s-
kobac h- 1b1d8491cf3 1 .

15

Case Document 21 Filed 09I13i17 Page 16 of 42

(and many for a long time). Depending on results, we will strengthen up voting
procedures!?
38. On January 25, 2017, President Trump reiterated his claims that allegedly
fraudulent votes were cast for his opponent: ?We?re gonna launch an investigation to find
out. And then the next time?and I will say this, of those votes cast, none of ?em come to
me. None of ?em come to me. They would all be for the other side. None of ?em come to
me. But when you look at the people that are registered: dead, illegal and two states and
some cases maybe three states?we have a lot to look into.? He vowed to ?make sure it
doesn?t happen again.?8
39. That same day, CNN reported that according to a senior administration of?cial,
?President Donald Trump could sign an executive order or presidential memorandum
initiating an investigation into voter fraud as early as Thursday.? The official further

informed CNN that ?[t]he investigation would be carried out through the Department of

- 1 9
Just1ce. 

 

@realDonaldTrump, Twitter (Jan. 25, 2017, TIIO AM and 7: 13 AM), 
and 
7408??lang=en.

3 TRAINSCRIPT: ABC News anchor David Muir interviews President Trump. ABC News
(Jan. 25, 2017), evaiiebie er 


9 Dan Meriea et al., Trump Considers Executive Order on Voter Fraud, CNN, Jan. 25,
2017, 


16

Case Document 21 Filed 0971317 Page 17 of 42

40. On May 11, 2017, the White House issued Executive Order No. 13,799
establishing the Commission, which President Trump has described as a ?Voter Fraud
Panel.?10
41. The Executive Order states that the Commission ?shall be solely advisory? and
that its ?[m]ission? is to study, ?consistent with applicable law,? the ?registration and
voting processes used in Federal elections.?ll
42. The Commission is chaired by Vice President Michael Pence and is to be
composed of up to 15 additional members having knowledge and experience in
?elections, election management, election fraud detection, and voter integrity efforts? or
having ?knowledge or experience that the President determines to be of value to the
Commission.?12
43. The Executive Order directs ?[r]e1evant? executive departments and agencies to
?endeavor to cooperate with the 
44. The Commission?s Charter provides for a dedicated, full-time staff of
approximately three employees; an annual budget of approximately $250,000 for Fiscal

Years 2017 and 2018; and ?administrative services, funds, facilities, staff, equipment, and

other support services? furnished by the General Services Administration.'4

 

10 See Exec. Order No. 13,799 (?Exec. Order?), 82 Fed. Reg. 22,389 (May 11, 2017);
@realDonaldTrump, Twitter (July 1, 2017, 9:07 AM) (capitalization omitted), 
si?881 13 7079958241280.

Exec. Order No. 13,799.

12 1d.

13 1d.

14 Charter ofihe Presidential Advisory Commission ofEleciion Integrity 1W 6-7
(?Charter?), White House, 
commission-cha?erpdf; Exec. Order 

17?

Case Document 21 Filed 09I13i17 Page 18 of 42

45. While the Charter of the Commission provides for three full-time staff members,
Defendant Kobach has publicly stated that the Commission?s staff is ?substantial? and
includes both full-time staff as well as individuals detailed from other federal agencies?)
46. Apart from the Chair and Vice-Chair, the Commission presently has ten
additional members, consisting of a current member of the United States Elections
Assistance Commission, present and former state election and judicial officials, the
President and General Counsel of the Public Interest Legal Foundation and an
employee of the Heritage Foundation who also serves on the board of 

47. According to its bylaws, the Commission acts by votes of its membership.?

48. The Charter for the Commission indicates that the Commission was established in
accordance with Executive Order 13,799 and the provisions of the Federal Advisory
Committee Act as amended (5 U.S.C. app. 2). However, the bylaws state that
the Commission only ?has voluntarily agreed to operate in accordance with 
Appointment ofDefeniinnt Kris Kobech us Vice-Choir oftne Commission

49. The Charter for the Commission permits the Vice President to appoint a Vice-

Chair of the Commission ?who may perform the duties of the chair if so directed by the

 

15 Sam Levine, Watchdog Groups Sue for Documents on Trump Voter Fraud Probe,
Huf?ngton Post, Aug. 22, 2017, 


16 Pam Fessler, Amid Skepticism and Scrutiny, Election lntegrity Commission Holds First
Meeting, NPR, July 19, 2017, 


1? Presidential Advisory Commission on Election in tegrity By?Lows and Operating
Procedure 5, White House, 


?t 103. 2.

18

Case Document 21 Filed 09I13t17 Page 19 of 42

Vice President.?19 Yet, President Donald Trump appointed the Vice-Chair of the
Commission.

50. In a press release on May 11, 2017, the White House announced that President
Trump had appointed Kris W. Kobach as Vice-Chair.20 Defendant Kobach is the only
Secretary of State in the nation with the power to prosecute voter fraud directly, and is
known as a drafter and proponent of many policies that disenfranchise racial and ethnic
minorities from the political process.

51. As Secretary of State of Kansas, Defendant Kobach has supported a multi-state
crosscheck program, the Interstate Voter Registration Crosscheck Program, that
compares names of individuals among several states to identify potential voter fraud. The
program has been accused of vastly over-identifying cases of alleged voter fraud and has
had the effect of erroneously removing eligible voters from the rolls. The press release
announcing Defendant Kobach?s appointment as Vice-Chair stated that the Commission
?will utilize all available data, including state and federal databases.?21

52. After being named Vice-Chair, Defendant Kobach described the Commission?s

?22

mission as focused on ?voter fraud more broadly, all forms of it, and has explained

that the Commission?s ?goal is to, for the first time, have a nationwide fact-finding

 

19Charter1i 11.

20 President Announces Formation ofBipnrtisnn Presidential Commission on iection
Integrity, White House (May 11, 2017), 
3'01 7i05i1 

1d.

22 Gary Moore, Tucker Carlson: Kris Kobocn Trump Executive Order Creates Voter
Fraud Commission: 5/11/2017, YouTube {May 11, 2017), 
watch?v=Fm0MmeYSJU.

19

Case Document 21 Filed 09I13t17 Page 20 of 42

effort" focused on assessing ?evidence? of ?different forms of voter fraud across the

?23

country.
53. Defendant Kobach has stated that the Commission intends to utilize databases
from federal agencies in order to ?crosscheck? against the names of individual voters to
determine if there are alleged fraudulently registered voters on the rolls. Defendant
Kobach has explained that the federal government has always prohibited states from
doing such a crosscheck, but that with the creation of the Commission, the government is
?going to be able to run [federal] database[s] against one or two states and see how many
people are known aliens residing in the United States and also on the voter rolls.?24
54. Yet, Defendant Kobach?s efforts go far beyond matching a federal database with
data from ?one or two states.? Defendant Kobach has expanded the scope of the
Commission?s data collection and crosscheck efforts?stating that the Commission ?for
the ?rst time in our country?s history . . . [will] be gathering data from all 50 states? and
using the ?federal government?s databases? to ?bounce[]? the data on individual voters
against the federal databases. He speci?cally referenced data on individuals in the hands

of Defendants DHS, indicating that such data could be checked against state voter rolls to

identify fraud.25 A spokesman for the Commission has con?rmed that the Commission

 

23 Tramp Forms Voter Fraud Commission, CNN (May 15, 2017), httpa?t


34 Moore, supra note 24.

25 Transcript: Kobaoh Talks Goals ofNew Voter Fraud Commission, Fox News (May 14,
2017), 


20

Case Document 21 Filed 09I13t17 Page 21 of 42

intends to run the voting data it receives on individuals through a number of different
databases to check for alleged fraudulent voter registrations.26

55. Defendant Kobach?s written public statements as a paid columnist for Breitbart
have discussed the Commission?s need to hear witness testimony concerning voter fraud
committed by speci?c individuals and that it will use data it collects from the states to
?confirm? the identity of individual American voters alleged to have committed fraud.2T
56. In a Breithart column posted on the Commission?s website, Defendant Kobach
has targeted and publicly accused a group of individual voters in New Hampshire of
fraud, indicating that he has found ?proof? within materials provided to the Commission
for its most recent meeting that these individuals committed voter fraud.?

Defendant Kobach has continually emphasized that the data comparison tactics
used by the Commission have never before been used by the federal government. He
bragged that as Secretary of State in Kansas, he implemented a similar program that was

challenged in court by the ACLU.

 

26 Jessica Huseman, Eiectton Experts See Fiaws in Tramp Voter Commission?s Pian to
Smoke Out rand, ProPublica (July 6, 2017), avaiiabte at 


27? Kris W. Kobach, Why States Need to Assist the Presidential Commission on Election
Integrity, Breitbart (July 3, 2017), avaiiabie at 

on-election-integrityt.

28 Kris W. Kobach, it Appears That Oat?ofLState Voters Changed the Outcome of'the New
Hampshire US Senate Race, Breitbart (Sept. 7, 2017), available at 
.comibi g? governm enti20 1 WOW 07! exclusive? kobach-out?of? state?voters-ch an ged?
Letter from Sec?y of State William Gardner and
Commissioner John Barthelmes to Hon. Shawn N. Jasper (Sept. 6, 2017), avaiiabte at

Speaker Receives Voter Registration Statistics
Requested ofDepartmertts ofState and Safew, State of New Hampshire House of
Representatives, (Sept. 7, 2017) availabie at 


21

Case Document 21 Filed 09I13i17 Page 22 of 42

The Commission ?3 First Meeting and Its Unprecedented and Unauthorized Request for
Personal and Voter Date

58. Despite the Executive Order?s directive and the requirements under FACA that
the Commission hold public meetings with prior notice, the Commission first convened
as a group on a June 28, 2017, call without any prior public notice. Following brief
welcoming remarks, Vice President Pence disconnected from the call.

59. Neither the Commission nor the White House provided the public with a
transcript of the teleconference. A brief ?readout? of the meeting supplied by the White
House stated that Defendant Kobach had informed the other Commission members that a
letter would be sent to all 50 states and the District of Columbia requesting data from
state voter rolls.

60. That same day, Defendant Kobach ?directed? that a letter be sent under his
signature to the Secretaries of State or other election officials in all 50 states and the
District of Columbia. Declaration of Kris W. Kobach 1i 4, Eiec. Privacy Info. Ctr.
v. Presidentioi AdvisoryI Comm ?n on Election Integrity, No. 17-1320 (D.D.C.
July 5, 2017). The other Commission members neither reviewed nor vetted the actual
language of the letter before it was sent. Nor did the members vote on sending out the
letter.

61. Defendant Kobach?s June 28 letter ?invite[d]? state officials, among other things,
to share ?evidence or information . . . you have regarding instances of voter fraud or
registration fraud in your state? and asked how the Commission could ?support? state

election officials ?with regard to information technology security and vulnerabilities.?29

 

29 See. Letter from Kris W. Kobach, Vice Chair, Presidential Advisory Comm?n on
Election Integrity, to Hon. Elaine Marshall, Sec?y of State, NC. 1 (June 28, 2017),

22

Case Document 21 Filed Page 23 of 42

62. The letter requested that the recipients provide by July 14, 2017, ?the publicly-
available voter roll data for [your state], including, if publicly available under the laws of
your state, the full ?rst and last names of all registrants, middle names or initials if
available, addresses, dates of birth, political party (if recorded in your state), last four
digits of social security number if available, voter history (elections voted in) from 2006
onward, aetiver?inactive status, cancelled status, information regarding any felony
convictions, information regarding voter registration in another state, information
regarding military status, and overseas citizen information.?30

63. The letter instructed recipients to ?submit your responses electronically to
or by utilizing the Safe Access File Exchange
which is a secure FTP site the federal government uses for transferring large
data ?les. You can access the SAFE site at 
Welcome.aspx.?3'
64. Shortly after Defendant Kobach sent the letter, one Commissioner, Luis Borunda,
Maryland?s Secretary of State, resigned from the Commission.

65. After reports indicated that certain state of?cials might decline to provide some or
all of the data requested by Defendant Kobach, President Trump tweeted: ?Numerous
states are refusing to give information to the very distinguished VOTER FRAUD

PANEL. What are they trying to hide-r63

 

available at 


3? 1d. at 1-2.

3' 1d. at 2.

32 @realDonaldTrump, Twitter (July 1, 2017', 9:07r AM), 


23

Case Document 21 Filed 09I13i17 Page 24 of 42

66. The same day that Defendant Kobach sent his letter, the Voting Section of the
Civil Rights Division of the Department of Justice sent its own letter to states
requesting their procedures for complying with the statewide voter registration list
maintenance provisions of the NVRA. DOJ requested that states provide their policies for
removing ineligible voters and identify the of?cials responsible for doing so}:5

The Commission ?s Second Meeting

67. At the Commission?s second meeting on July 19, 2017, the Commission?s
intentions to conduct an unauthorized investigation of alleged individual voter fraud
became even more clear.

68. Defendant Kobach described his operation of the Interstate Voter Registration
Crosscheck Program in Kansas, under which 30 states pool their voter data to identify
those who are registered in more than one state with the aim of removing duplicative
names from the voter rolls, including by criminal prosecution.34

69. The methodology and reliability of the Interstate Voter Registration Crosscheck
Program have been questioned, and concerns have been raised as to whether it is being
used as a tool for voter suppression. This notwithstanding, Defendant Kobach then stated
his hope that the Commission?s work would be ?equally successful on the national

35
level.?

 

33 See. Letter from T. Christian Herren, Jr., Chief, Voting Section, Civil Rights Div.,
U.S. Dep?t of Justice, to Hon. Kim Westbrook Strach, Exec. Dir., NC. State Bd. of
Elections (June 28, 2017).
34 White House, Presidential Advisory Commission on Election Integrig?, YouTube (July
3254, 2017), 

1d.

24

Case Document 21 Filed 09I13i17 Page 25 of 42

70. One Commission member described the objective of the Commission?s
investigation as ?deciding . . . how accurate . . . the voter rolls? are.36

71. Referring to the ?red tape? and other obstacles that have previously prevented
state efforts to obtain information on individuals held by the federal government as part
of voter list maintenance programs, Commission members discussed the following
information maintained by federal agencies on individuals that could aid the Commission
in its investigation:

Department of Homeland Security: information on all non?citizens both
legally and illegally within the United States as well as answers given by
applicants on naturalization forms regarding voting history;

US. Census Bureau: surveys on individuals who did not vote or did not
register to vote;

Federal district courts: information regarding individuals excused from jury
duty for being non-citizens;

Department of Justice: information regarding referrals for criminal
prosecution based on non-citizens excused from jury duty or admissions on
naturalization forms to having voted in an election as a non-citizen; and

ociai Security Administration: index of death records.?

72. Repeated references were made at the meeting to referrals of individuals

suspected of voter fraud to the for possible criminal prosecution. For exampleCase Document 21 Filed 09I13i17 Page 26 of 42

Commission member questioned whether agencies of the federal government and the
federal judiciary were forwarding data they collect to DOJ for criminal prosecution.38

73. In response to these comments, Defendant Kobach instructed Commission staff
between upcoming Commission meetings to ?start trying to collect whatever data there is
that?s already in the possession of the federal government? that ?might be helpful" to the
Commission?s unauthorized voter fraud investigation.?

The Broadening Scope of the Commission ?3 Unauthorized Investigation

74. The scope of the Commission?s investigation has broadened even further since the
issuance of the initial June 28, 2017 letter and since the two prior Commission meetings.
75. Although Defendant Kobach?s June 28 letter initially gave states a deadline of
July 14 to transmit their voters? data, the Commission put the data collection on hold
pending a decision on the temporary restraining order and preliminary injunction that was
filed in a separate lawsuit.

76. After preliminary motions in that suit were resolved, Defendant Kobach renewed
the data request by a letter dated July 26 to the states, citing to the requirement
that states maintain voter registration information and explaining that the Commission is
interested in ?gathering facts? and ?going where those facts lead.?40

77'. Defendant Kobach did not discuss his plans to issue the July 26 letter request with
the Commission at the July 19 meeting, nor were the plans to issue the request discussed

with Commission members thereafter. The lack of transparency has concerned

 

35? 1d.

39 1d.

40 See. Letter from Kris W. Kobach, Vice Chair, Presidential Advisory Comm?n on
Election Integrity, to NY. State Bd. of Elections 2 (July 26, 2017').

26

Case Document 21 Filed 09I13t17 Page 27 of 42

Commission members, causing at least one of them to question the validity of the
Commission?s work.

78. For example, after noting that the data request was not considered or discussed
with the full Commission, Commission member Matthew Dunlap stated in a public
statement after the July 19 meeting: ?If we?re going to act as a Commission, we should
really be considering the entire request for data as a body, and determining what it is
we?re researching and how to look for it.?41 Mr. Dunlap has refused to provide data from
citizens of his state (Maine) until there is clarity as to ?the Commission?s goal.?42
Commission member and Indiana Secretary of State Connie Lawson has stated that she
does not know what the Commission intends to do with the state voter roll data.43 West
Virginia county clerk, Mark Rhodes, who is also a Commission member, stated after the
July 19 meeting that he did not receive any information regarding the Commission?s

post-meeting activities. Rhodes was also not informed of Kobaeh?s July 26 request letter

prior to its being sent.44 Former Arkansas state legislator, David Dunn, who is also a

 

4' See Secretary Dnniap Reviewing Elections Commission is Second Request for Voter
Data, Dep?t of the Sec?y of State of Me, 
electioncommission2.html.

42 Scott Thistle, Maine ?5 See ?y of'State says he wilt Reject Second Requestfor Voter
Registration data, Portland Press Herald, 

(last modified Aug. 1, 2017).

43 Tony Cook and Kaitlin Lange, Indiana ?5 secretary ofstate conia' be check on Tramp
voter fraud commission, (July 9, 2017'), 
lawson?could-check-trump- voter-fraud-
commissiont442250001t.

44 Kira Lerner, Democrats on is voting commission iced out since. first meeting,
ThinkProgress (Aug. 22, 2017), 
ceec3ea98a33i.

27

Case Document 21 Filed Page 28 of 42

Commission member, similarly stated that he has not received information on the
Commission?s work after the July 19 meeting.45

79. This notwithstanding, a spokesman for the Commission con?rmed that the work
of the Commission was continuing and that Commission members would be informed of
that work at the next meeting.46 As discussed below, such a discussion did not occur at
the September 12 meeting, keeping the public and certain Commission members in the
dark as to the work that is ongoing.

80. Numerous states have complied andfor have plans to comply with the
Commission?s latest request for data?including the request for party af?liation and voter
history protected by the First Amendment. As of the ?ling of this Amended Complaint,
at least 17 states indicated they would provide data and 11 more have said they would do
so if the Commission ful?lled certain request requirements.

81. Although certain states have indicated that they may withhold their voters? data
from the Commission, President Trump stated at the July 19 meeting that data from the
rest of the states ?will be forthcoming,? observing that any state does not want to
share this information, one has to wonder what they?re worried abomim
82. The Commission has already shown that it will use other methods to obtain data
even in cases where state of?cials have declined to provide the information in response to

the request letter. For example, in New York, the Commission sought voter data through

a Freedom of Information Law request after state of?cials refused to provide their voter

 

White House, supra note 36.

28

Case Document 21 Filed Page 29 of 42

rolls to the Commission. To obtain New York?s data, the Commission had to certify that
it would not use the data, or information derived from it, for any ?non-election? purpose.
The Conrin Shi??ing affine Commission ?5 Plans to Store Voter Information

83. The Commission has not been transparent about where it intends to store the
personal voter data that it is collecting for its investigation of individual Americans but its
efforts have involved other federal agencies.

84. The initial June 28, 2017 voter data request issued by Defendant Kobach directed
states to submit their data to a ?.eop. gov? email address. Yet, Defendant Kobach stated
in a sworn declaration in a separate lawsuit over the Commission?s activities that he
?intended? that only ?narrative responses? provided in response to the letter be sent to the
cop. gov email address in the letter and that ?voter roll data? be uploaded onto the Safe
Access File Exchange (SAFE), which he described as a ?tested and reliable method of
secure file transfer used routinely by the military for large, unclassi?ed data sets? that
?also supports by individual users?? The SAFE website is operated by the
U.S. Army Aviation and Missile Research Development and Engineering Center, a
component within the US. Army and the Department of Defense.

85. After the court in a separate lawsuit inquired if the Department of Defense, by
virtue of its role in collecting and maintaining the data on the SAFE website, should be
joined as a defendant to that action, the Commission changed course on its storage plans.
In a subsequent sworn declaration, Kobach stated that order not to impact the ability
of other customers to use? SAFE, the Director of White House Information Technology

was ?repurposing an existing system? to collect the information ?within the White House

 

48 Declaration of Kris W. Kobach 1i 5, No. 17-1320.

29

Case Document 21 Filed 09I13I17 Page 30 of 42

Information Technology enterprise??

When asked by the same Court what other federal
agencies support the White House?s computer system, the Government stated that the
?mechanics? of the White House?s information technology program are ?something that

?50

may not be appropriate to say in a public setting. When asked by the coult whether

other agencies were cooperating with the Commission, it stated that none then were.5 I
86. A week later, another declarant, Charles Hemdon, the ?White House?s Director of
Information Technology, stated that no other federal agency will have a role in this initial
?data collection process? from the states, but left unaddressed the mechanics of the
upcoming data crosscheck project and the process for collecting, storing or using the data
maintained by the other federal agencies.52

87. The Commission?s second data request issued on July 26 by Defendant Kobach
described yet another system for collecting the voter data, stating that the ?Commission is
offering a new tool? to transmit the voter data to the ?White House computer system? and
that ?detailed instructions? would be provided after states reached out to an email address
provided in the letter.53 The July 26 letter once again left unaddressed any role other
federal agencies may have in the operation of this ?new tool.?

88. In the weeks since the Commission?s second request, at least two Commission

members have con?rmed that they have been using their personal email to communicate

 

49 Third Declaration of Kris W. Kobach 1i 1, EPIC, No. 17-1320 (D.D.C. July 10, 2017).
5? Transcript of Temporary Restraining Order Hearing, EPIC, No. 1711320 (D.D.C. July
7, 2017).

5' Id. at 30543.

52 Declaration of Charles Christopher Herndon 1] 6, EPIC, No. 17-1320 (D.D.C. July 17,
2017).

53 See Letter from Kobach to NY. State Bd. of Elections, supra note 42, at 2.

30

Case Document 21 Filed 09I13il? Page 31 of 42

about the Commission?s business.54 The Commission has not given any indication of
what security precautions accompanied the use of personal email for Commission
business and whether voter data has been transmitted in this manner.

The Commission ?s Third Meeting

89. The Commission convened for a third time on September 12, 2017.

90. The September 12 meeting was chaired by Defendant Kobach, not Vice President
Pence.

91. At the September 12 meeting, Defendant Kobach defended his Breitbort column,
in which he declared that he had ?proof? that individual voters in New Hampshire
committed fraud based on materials that were provided to the Commission by New
Hampshire state of?cials.

92. Defendant Kobach?s Breitbort column now appears on the Commission?s website.
93. During the meeting, Defendant Kobach also touted his authority as Kansas
Secretary of State to prosecute voter fraud, noting that he has prosecuted only 8 cases of
illegal voting due to his limited resources, but that he has more cases ?in the hopper.?

94. Commission member and Heritage Foundation Fellow Hans von Spakovsky
testi?ed regarding a database hosted by the Heritage Foundation that purportedly

?documents 1,0?1 proven incidents of election fraud.?55

 

5'4 Zoe Tillman, Members Of Trump 's Election Integrity Commission Used Personal
Emoii Ac?rcotints, BuzzFeed (Sept. 6, 2017), ovoiiobie at 



55 Hans Von Spakovsky, Presidentiei Advisory Commission on Election Integrity, The
Heritage Foundation, 
(last visited Sept. 11, 2017').

31

Case Document 21 Filed 09tl3tl? Page 32 of 42

95. The Commission also heard testimony from Dr. John Lott Jr., President of the
Crime Prevention Research Center, that every American voter should be subject to a
criminal background check through the federal National Instant Criminal Background
Check System and that the system should be updated to include certain immigration
information.56
96. The Commission received a written presentation by Commission member J.
Christian Adams, highlighting ?real life examples? of improper voter registration and
voting by named non?citizens, in part based on materials used in the citizenship process,
and recommending increased reliance on the SAVE database by state election officials as
well as opening ?new information?sharing channels? between Defendant DHS and state
of?cials in order to identify voter fraud more easily?

97. Other presentations to the Commission recommended, among other things, that
?8,471 cases of likely duplicate voting be investigated for possible wrongdoing? by the
Commission? and that increased reliance be placed on data crosscheck methodology to

identify alleged voter fraud.59

 

56 John R. Lott Jr., Presentation to Presidential Advisory Commission on Election
Integrity." A Suggestion and Some Evidence, Crime Prevention Research Center,

presentationpdf (last visited Sept. 13, 2017).

5? Submission from J. Christian Adams, Garden State Gotcha, 

(last visited Sept. 13, 2017).

5'8 Gov?t Accountability Inst, America The Vulnerable: The Problem of Duplicate
Voting, avaiiabte at 
(last visited
Sept. 13, 2017).

59 Data Miningfor 1'3'otentiatr Voter rand Findings and Recommendations, Simpatico
Software Systems, 
ken-block?presentationpdf (last visited Sept. 13, 2017).

32

Case Document 21 Filed 09I13t17 Page 33 of 42

98. At the September 12 meeting, the Commission was not transparent about the
work it had conducted since its previous meeting on July 19.

The Harmful Consequences of the Commission Unauthorized Voter Fraud
Investigation

99. As a result of the Commission?s unauthorized investigation, thousands of voters
have de-registered from the rolls, while others are gravely concerned about how their data
will be used by the Commission, making them hesitant to fully participate in the political
process.60 Inhibiting public participation in this way undermines public confidence in the
political process, creating direct harm to Plaintiffs.

100. As detailed above, Plaintiffs Kennedy, Gutierrez, Cantler, and Nakhnikian are all
registered voters whose data is at risk, given Defendants? unauthorized actions and
imminent plans. Plaintiffs are highly concerned and have experienced anxiety over the
Commission and Defendant Kobach?s investigation and collection of voting data as well
as how the Commission and Defendant Kobach will use their voter data. Plaintiffs are
also harmed by Defendants? efforts to crosscheck their individual data and face the
imminent prospect that these crosscheck efforts will hamper, impede, andtor suppress
their participation in the political process.

101. As detailed above, Plaintiff Common Cause and its members are and will be

harmed by the unauthorized investigation and data collection by Defendants Commission

 

6? See. Titoasonds Unregisterfrom Voter Roiis After Tramp Pane! ?s Dotti Requests,
NBC News, July 18, 2017', 
Brian Eason, More Than
3,000 Coiorodo Voters Hove Canceled Their Registrations Since Trump Election
Integrity Commission Request, Denver Post, July 13, 2017, 


33

Case Document 21 Filed Page 34 of 42

and Kobach and have already expended staff time and resources to counteract the

Commission?s unlawful activities.

102. As detailed above, Plaintiff Kennedy is and will be harmed by the unlawful

disclosure by DHS of his individually identi?able data without his consent.
Claims for Relief

Count One
(Ultra Vires Action Against Defendants Commission and Kobach)

103. Plaintiffs hereby reallege all allegations in the above paragraphs as if ?illy set
forth herein.

104. Plaintiffs have a right of action to enjoin and declare unlawful official action that
is ultra vires.

105. Executive Order No. 13,799 established the Commission as a ?solely advisory?
body charged to ?study" the registration and voting processes used in federal elections
?consistent with applicable law.?

106. Defendant Kobach and the Commission have taken multiple actions that lack any
authorization in the Constitution, federal law, or the Executive Order and related
documents establishing the Commission. Among them:

3. Notwithstanding the Commission?s authorization to be purely advisory, the
Commission, at Defendant Kobach?s direction, has undertaken a sweeping,
first-of-its-kind investigation into alleged voting misconduct by individual
American citizens that will affect their most fundamental rights.

b. Defendant Kobac-h alone ?directed? the unprecedented investigative action of

seeking from all 50 states and the District of Columbia on June 28, 2017, the

34

Case Document 21 Filed 09I13i17 Page 35 of 42

voting data of all American citizens without giving other members of the
Commission the opportunity to approve or vet the request.

c. Defendant Kobach did not consult with the other members of the
Commission?or propose for a vote at the Commission?s July 19 meeting?
before renewing the data request to the states on July 26, 2017.

(1. Defendant Kobach and the Commission intend to crosscheck the voting data
obtained from the states against other private information on individuals
maintained by agencies throughout the federal government (including
databases maintained by Defendants DHS) in order to identify individuals the
Commission believes are fraudulently registered to vote.

c. When states have previously requested that such a crosscheck be performed
with DHS databases in order to determine which of their residents may be
fraudulently registered to vote, Defendant Kobach has acknowledged that the
federal government has always prohibited such a check.

f. Defendant Kobach has discussed the Commission?s need to hear testimony
from witnesses concerning voter fraud committed by specific individuals.

g. The Commission has been presented with materials claiming that multiple
specific individuals have fraudulently registered or voted.

h. Defendant Kobach has accused individual voters in New Hampshire of voter
fraud based on materials presented to the Commission.

107. Commission member Luis Borunda, Maryland?s Deputy Secretary of State,

resigned following Defendant Kobach?s June 28. 2017. data request to the states.

35

Case Document 21 Filed 0911311? Page 36 of 42

108. Commission members Matthew Dunlap, Mark Rhodes, and David Dunn were
kept in the dark about the substance of the Commission?s activities following the July 19
meeting.

109. As a result, Commission member Dunlap has stated he will not comply by
sending the data of Maine?s voters to the Commission until he better understands ?the
Commission?s goal.?

110. Notwithstanding statements of non-compliance by state officials, President Trump
has declared that voting data on individuals will nevertheless be ?forthcoming? from
every state.

111. After New York of?cials declined to comply with the Commission?s data request,
the Commission obtained the data through other means, after certifying in a public
information request that the Commission would be not be using the data for a ?non?
election? purpose.

112. The allegations set forth above demonstrate that under Defendant Kobach?s
leadership, and at his direction, the Commission is engaged in a lawless and unbounded
investigation of individual voters for which there is no authorization in the Executive
Order, the Constitution, or any act of Congress.

113. The investigative actions taken by Defendant Kobach and the Commission are
completely unauthorized actions by a federal official and a governmental body that are
therefore ultra vfres.

114. Accordingly, the investigation is ultra vires and Plaintiffs are entitled to a
declaration that the Commission is without authority to investigate and maintain the

voting data of millions of American citizens, an order requiring that any and all such data

36

Case Document 21 Filed 09113117 Page 37 of 42

in the Commission?s possession or that comes into its possession be returned to the states
that furnished it, and an injunction preventing Defendant Kobach and the Commission
from undertaking this unauthorized investigation.
Count Two

(Violation of 5 U.S.C. 552a(e)(7) By Defendant Commission)
115. Plaintiffs hereby reallege all allegations in the above paragraphs as if fully set
forth herein.
116. Section 552a(e)(7) of the Privacy Act provides that an agency shall ?maintain no
record describing how any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the individual about whom the
record is maintained or unless pertinent to and within the scope of an authorized law
enforcement activity.?
117'. The Privacy Act de?nes ?maintain? to include ?maintain, collect, use, or
disseminate." 5 U.S.C. 552a(a)(3).
118. Through the collection, maintenance, use, andi?or dissemination of data on
individuals? voter history and party af?liation?activity that is protected by the First
Amendment?Defendants have violated, and will continue to violate, Section 552a(e)(7).
119. The collection, maintenance, use, andfor dissemination of these records was
unauthorized and does not fall within the scope of a valid law enforcement activity.
120. As described above, Plaintiffs have been adversely affected by Defendant?s
maintenance, use, andfor dissemination of their First Amendment-protected data.

Count Three
(Violation ofS U.S.C. 552a(b) by Defendant Department of Homeland Security)

121. Plaintiff Kennedy hereby realleges all allegations in the above paragraphs as if

fully set forth herein.

3?

Case Document 21 Filed 09I13il7' Page 38 of 42

122. Information regarding Plaintiff Kennedy is maintained by Defendant DHS in one
or more Privacy Act ?systems of records.?

123. Pursuant to 5 U.S.C. 552a(b), DHS may not ?disclose any record which is
contained in a system of records by any means of communication to any person, or to
another agency,? unless certain exceptions apply.

124. At the July 19, 2017, Commission meeting, Defendant Kobach instructed
Commission staff to obtain information that Defendant DHS maintains on individuals
including Plaintiff Kennedy, such as ?les on the immigration status and
citizenship applications of individuals including Plaintiff Kennedy.

125. On information and belief, DHS has?or imminently will?disclose to the
Commission andfor Commission staff information about individuals including Plaintiff
Kennedy contained in ?systems of records.?

126. At no time did Plaintiff Kennedy provide DHS either verbal or written consent to
disclose information concerning himself to the Commission and its staff.

127. Upon information and belief, this disclosure was or will be intentional and willful,
and no exception in 5 U.S.C. 552a(b) applies.

128. Plaintiff Kennedy has been adversely affected as a direct and proximate cause of
Defendant disclosure as described in the paragraphs above.

Count Four
(Violation of 5 U.S.C. 706 by Defendants Commission and DHS)

129. Plaintiffs hereby reallege all allegations in the above paragraphs as if fully set
forth herein.
130. In collecting, maintaining, using, andfor disseminating data on Plaintiffs? voter

history and party af?liation, activity that is protected by the First Amendment, in

38

Case Document 21 Filed 09I13i17 Page 39 of 42

violation of 5 U.S.C. 552a(e)(7), Defendants Commission and DHS have acted
arbitrarily, capriciously, in excess of statutory jurisdiction and authority, and otherwise
contrary to law, in violation of the APA, 5 U.S.C. 706.
131. In disclosing Plaintiff Kennedy?s data in violation of 5 U.S.C. 552a(b),
Defendant DHS has acted arbitrarily, capriciously, in excess of statutory jurisdiction and
authority, and otherwise contrary to law, in violation of the APA, 5 U.S.C. 706.
132. The collection, maintenance, use, dissemination, and disclosure of Plaintiffs? data
in violation of Sections 552a(e)(7) and 552a(b) of the Privacy Act by Defendants is a
final agency action that is not in accordance with law.
133. If relief is unavailable under the Privacy Act, Plaintiffs are entitled to declaratory
and injunctive relief under 5 U.S.C. 706 enjoining the Defendants from collecting,
maintaining, using and! or disseminating the voter history and party affiliation data in
violation of Section 552a(e)(7); directing Defendants to expunge any such voter history
and party af?liation data that is in their possession or comes into their possession;
enjoining Defendant DHS from disclosing individuals? Privacy Act-protected records in
violation of Section 552a(b); and directing Defendant Commission to expunge any such
data received on Plaintiff Kennedy and other individuals from Defendant DHS.
Prayer for Relief

WHEREFORE, Plaintiffs pray that this Court:

1. Declare that Defendant Kobach and the Commission are operating citrus vfres

because they are collecting and maintaining the voting data of millions of

Americans as part an investigation they have no legal authority to conduct;

39

Case Document 21 Filed Page 40 of 42

2. Enjoin Defendant Kobach and the Commission from undertaking the
unauthorized investigation of individual American voters;

3. Declare that the collection, maintenance, use, and dissemination of voter
history and party af?liation data by Defendant Commission violates Section
552a(e)(7) of the Privacy Act and, in the alternative, the 

4. Enjoin Defendant Commission from the collection, maintenance, use, and
dissemination of voter history and party af?liation data;

5. Order Defendant Commission to provide an accounting of all voter history
and party affiliation data in their custody, possession, or control; all copies
that have been made of that data; all persons and agencies with whom the
Commission has shared that data; and all uses that have been made of that
data;

6. Order Defendant Commission to return to any supplying state all voter history
and party af?liation data received from that state or otherwise securely and
permanently delete such data;

7. Declare that the disclosure of Plaintiff Kennedy?s data by Defendant DHS to
the Commission andfor Commission staff violates Section 552a(b) of the
Privacy Act and, in the alternative, the APA.

8. Enjoin Defendant DHS from the disclosure of individuals? Privacy Act-
protected data to the Commission in violation of Section 552a(b).

9. Order Defendant Commission to return to DHS the data of Plaintiff Kennedy

and any other data received on individuals in violation of Section 552a(b).

40

Case Document 21 Filed Page 41 of 42

10. Award Plaintiffs costs and reasonable attorneys" fees incurred in this action;
and
11. Grant such other relief as the Court may deem just and proper.
Dated: September 13, 2017 Respectfully submitted,

Skye L. Perrvman

Javier M. Guzman

(DC. Bar No. 462679)

Josephine Morse pro hac vice
Skye L. Perryman

(DC. Bar No. 984573)

Karianne M. Jones pro hoe vice
Democracy Forward Foundation
PO. Box 34553

Washington, DC. 20043

(202) 448-9090

guzman@democracyforward.org
jmorse@demoeracyforward.org
sperryman@demoeracyforward.org
kjones@demoeraeyfomard.org

 

41

Case Document 21 Filed 09(13Il7' Page 42 of 42

CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of September, 2017, the foregoing Amended
Complaint was served electronically on all parties of record via the Court?s CMIECF

system.

Dated: September 13, 2017 {sf Skye L. Perrvman

 

Case Document 40 Filed 12l15ll7 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA

 

COMMON CAUSE, at al.,
Plaintiffs,

v.
Civil Action No. 1:17-cv-l398 (RCL)
PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION
INTEGRITY, et al.,

Defendants.

 

 

OPPOSITION TO MOTION. IN THE
ALTERNATIVE, FOR JURISDICTIONAL DISCOVERY

 

Defendants have moved to dismiss plaintiffs? Amended Complaint for lack of subject-
matterjurisdiction (on the basis that plaintiffs lack standing), as well as for failure to state a
claim (on the basis that plaintiffs fail to state a claim under the Privacy Act, the Administrative
Procedure Act, or an ill-formed ultra vlres theory). In that motion, defendants have ?assume[d]
the veracity? of the factual allegations in the Amended Complaint, Ashcra? v. Iqbal, 556 US.
662, 679 (2009), and those documents referenced in the Amended Complaint, sea Slate v. Public
Def. Serv. jarD.C., 31 F. Supp. 3d 277, 287 (D.D.C. 2014), but have nonetheless argued that
those facts, if taken as true, do not establish plaintiffs? standing (or, for that matter, that they
have stated a claim). In other words, defendants have raised a facial challenge to plaintiffs?
standing. See Erby v. United States, 424 F. Supp. 2d 180, 182 (BBC. 2006).

Despite the nature of defendants? challenge to the Court?s jurisdiction at the motion to

dismiss stage, plaintiffs have filed an extraordinary motion for jurisdictional discovery. They do

Case Document 40 Filed 1215117 Page 2 of 8

not claim, and cannot claim, that defendants have made a factual challenge to the Court?s
subject-matter jurisdiction. Instead, they largely recast their factual allegations, yet again, and
argue that if this Court concludes that it lacks subject-matter jurisdiction based solely on the
allegations pled in the Amended Complaint, plaintiffs are nonetheless entitled to jurisdictional
discovery, aimed against a presidential commission, so that they may attempt to identify
additional facts to confirm their speculative theory of standing. There is no basis for this motion,
and it should be rejected.
STANDARD OF REVIEW

Jurisdictional discovery generally emerges in the contest of challenges to personal
jurisdiction. ?In order to engage in jurisdictional discovery, the plaintiff must have at least a
good faith belief that such discovery will enable it to show that the court has personal jurisdiction
over the defendant. Such a request for jurisdictional discovery cannot be based on mere
conjecture or speculation.? FC lav. Gm. LC v. IFX Miaa, Ltd, 529 F.3d 1087, 1093-93 (DC.
Cir. 2008) (citation and quotation marks omitted). Jurisdictional discovery may also be
appropriate if defendants make a challenge to ?the factual basis of subject-matter jurisdiction.?
Wyatt v. Syrian Arab Rapabiic, 225 F.R.D. 1, 2 (D.D.C. 2004). Where defendants raise a facial
challenge to the court?s subject-matter jurisdiction, as opposed to a factual challenge,
jurisdictional discovery is not appropriate. See id. (?There is no doubt that jurisdictional
discovery is permissible in cases where the defendant challenges the factual basis of the court?s
subject-matter jurisdiction. The question here, however, is whether, as plaintiffs allege, the
defendants have brought such a challenge, or if, as the defendants argue, the complaint is
de?cient an iisjaca and discovery cannot save {emphasis added and citation omitted);

Canyans v. Wasrphai, 235 F. Supp. 3d 72, 79 n.4 (D.D.C. 2017) {plaintiff not entitled to

Case Document 40 Filed 12115117 Page 3 of 8

jurisdictional discovery in response to facial jurisdictional challenge); see also Mc-Elmurray v.
Consul. Gov?r ofAugusta-Richmond Cry, 501 F.3d 1244, 1251 (11th Cir. 2007) (?Discovery was
not necessary? when district court considered facial jurisdictional attack); Lu v. Cent. Bank of
Republic ofChina (Taiwan), 610 F. App?x 674, 675 (9th Cir. 2015) (same).

ARGUMENT

JURISDICTIONAL DISCOVERY IS IMPROPER IN RESPONSE TO A RULE 12
MOTION ALLEGING A FACIAL PLEADING DEFICIENCY

Defendants have not raised a factual challenge to the Court? subject?matter jurisdiction 
and, indeed, plaintiffs never claim that they have. Accordingly, there is no basis for
jurisdictional discovery.

Defendants have raised two challenges to the Court?s subject-matter jurisdiction. First,
they argue that the plaintiffs have not alleged facts which, if taken as true, demonstrate that either
the individual plaintiffs have standing or that Common Cause has representational or
organizational standing. See Mem. in Supp. of Defs.? Mot. to Dismiss at 9-14, ECF
No. 27-1. Second, defendants have argued that, as to plaintiff Kennedy, plaintiffs? allegations
speculating that the Department of Homeland Security will share information in a manner that
injures him do not establish a sufficiently concrete and imminent injury for Article standing.
See MTD at 35-36; see also Clapper v. Amnesty Inr?f USA, 568 U.S.398, 401 (2013)
theory injury is too speculative to satisfy the well-established



requirement that threatened injury must be ?certainly impending. At no point in either
argument do defendants say that plaintiffs? facts are not true; rather, defendants argue that even
taking the facts in the Amended Complaint and the documents referenced in the Amended

Complaint as true, plaintiffs have not established the Court?s subject-matter jurisdiction. And

plaintiffs never assert that defendants have advanced such a factual argument. That resolves this

Case Document 40 Filed 1215117 Page 4 of 8

issue: because the jurisdictional part of defendants? motion does not turn on disputed facts, but
rather on whether plaintiffs? pled facts are sufficient to confer standing, there is no basis for
jurisdictional discovery. See, Wyatt, 225 F.R.D. at 2; Westphal, 235 F. Supp. 3d at 79 n4.

Instead, plaintiffs? motion is largely an exercise in re-arguing their standing or the merits
of their claims in a way that should have been con?ned to their opposition to defendants? motion
to dismiss. See Pl.s? Met, in the Alternative, for Jurisdictional Discovery ("Mot. Jurisdictional
Discovery?), at 2-5, 6-8, ECF No. 32. Plaintiffs also try to introduce new facts into the record 
facts which plaintiffs did not allege in their Amended Complaint and, thus, defendants did not
address in their motion. See id. at 10-12.

Indeed, plaintiffs? motion makes it clear that it is not a request for jurisdictional
discovery, but rather a hidden attempt for merits discovery. Plaintiffs admit that defendants have
argued that ?[p]laintiffs? factual allegations consist of mere ?speculat[ion] about what DHS and
the Commission might do in the future,?? but then state that they ?would propose to discover
these facts through a minimal number of interrogatories and document requests to Defendant
Commission and Defendant DHS, and short Fed. R. Civ. P. 30(b)(6) depositions of the
Commission and of Id. at 10. But if injury is speculative on the face of the complaint,
the remedy per Clapper, and decades of precedent is to dismiss plaintiffs? Amended
Complaint for lack of standing. The remedy is not to engage in a freestanding attempt to resolve
the speculation, in a way that would assert the Court?s judicial power before plaintiffs have
established that they have standing in a manner that would allow the Court to do so. See Stee!
C0. 12. t'tt'zerts for a Better Environment, 523 US. 83, 94 (1998) (?Without jurisdiction the court

cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to

Case Document 40 Filed 12t15117 Page 5 of 8

exist, the only function remaining to the court is that of announcing the fact and dismissing the
cause") (quoting Ex?parte McCardies, 7 Wall. 506, 514 (1868)).

None of the cases that plaintiffs cite calls this elementary proposition into question. See
Mot. Jurisdictional Discovery at 12?14. Investment Group LC, 529 F.3d at 1093?94, EI-Fadi
v. Centrai Bank afJardan, 75 F.3d 668, 676 (DC. Cir. 1996), and Diamond Chemicai Ca, Inc.
v. Ata?na Cinema, Inc, 268 F. Supp. 2d 1, 15-16 (D.D.C. 2003), concerned challenges to
personal jurisdiction. fgnatiev v. United States, 238 F.3d 464 (DC. Cir. 2001), involved a claim
under the Federal Tort Claims Act in which there was a question regarding the
existence of Secret Service guidelines, a fact necessary to establish a claim under the FTCA.
The Court held that, under this circumstance, where ?appellants wish to discover not facts, but
applicable rules,? discovery ?limited perhaps to the issue of whether such guidelines exist[]?
would be appropriate. Id. at 467'. Briscae v. United States, No. 16-cv-0809 (A81), 2017 WL
3188954, at *8-9 (DDC. July 25, 2017'), involved a similar type of FTCA claim, and a similar
type of discovery order. Here, of course, plaintiffs wish to discover facts, not written policies.

There is a more overriding reason why discovery is inappropriate at this stage. Plaintiffs?
discovery is explicitly targeted against the Commission, a presidential advisory commission
created by the President, chaired by the Vice President, and staffed by individuals employed by
the Office of the Vice President. The Supreme Court has cautioned that where ?discovery
requests are directed to the Vice President and other senior Government officials who served on
a [committee] to give advice and make recommendations to the President,? ?special
considerations control? regarding ?the Executive Branch? interests in maintaining the autonomy
of its office and safeguarding the confidentiality of its communications." Cheney v. U.S. Dist.

Conrtfar D. C., 542 U.S. 367, 385 (2004). In such circumstances, ?[t]he high respect that is

Case Document 40 Filed 1215117 Page 6 of 8

owed to the Office of the Chief Executive . . . is a matter that should inform . . . the timing and
scope of discovery . . . and . . the Executive?s constitutional responsibilities and status [are]
factors counseling judicial deference and Id. (internal citations and quotation marks
omitted). Plaintiffs seek discovery into the very operations of the Commission. Sec Mot.
Jurisdictional Discovery at 9-10. If Cheney is to have any meaning, it is that a party should not
be allowed to pursue a speculative claim against a presidential advisory commission through a
fishing expedition for jurisdictional discovery before a court has concluded that it has subject-
matter jurisdiction. See, rang, APP Dynamic ehf v. Vignissort, 87' F. Supp, 3d 322, 330-31
(D.D.C. 2015) (jurisdictional discovery cannot be based on a ?speculative ?shing expedition?).
CONCLUSION
For the reasons discussed above, plaintiffs? motion in the alternative for jurisdictional

discovery should be denied.

Case Document 40 Filed 12:?15117 Page 7 of 8

Dated: December 15, 2017 Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General
Civil Division

BRETT A. SHUMATE
Deputy Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Director

Joseph E. Borson

CAROL FEDERIGHI

Senior Trial Counsel

KRISTINA A. WOLFE

JOSEPH E. BORSON

Trial Attorneys

United States Department of Justice
Civil Division, Federal Programs Branch
PO. Box 883

Washington, DC 20044

Phone: (202) 514-1944

Email: joseph.borson@usdoj.gov

 

Counsel for Defendants

Case Document 40 Filed 12l15l17 Page 8 of 8

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 15, 2017', I have electronically filed the foregoing
with the Clerk of Court using the CMEECF system, which will send a noti?cation of electronic
filing to the parties.

is! Joseph E. Barron
JOSEPH E. BORSON

 

Case Document 40-1 Filed 12115117 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA

 

COMMON CAUSE, e: at,
Plaintiffs,

v.
Civil Action No. 1:17-ov-1398 (RCL)
PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION
INTEGRITY. er 

Defendants.

 

 

ORDER

 

Upon Consideration of Plaintiffs? Motion for Jurisdictional Discovery, it is ordered that

the motion is DENIED.

DATE:

 

 

THE HONORABLE ROYCE C. LAMBERTH
UNITED STATES DISTRICT JUDGE

Case Document 42 Filed 01IO3118 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA

 

COMMON CAUSE, at at,
Plaintiffs,

v.
Civil Action No. 1:17-cv-1398 (RCL)
PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION
INTEGRITY, et ai,

Defendants.

 

 

NOTICE OF EXECUTIVE ORDER
Today, the President signed an Executive Order terminating the Presidential Advisory
Commission on Election Integrity. See 
(last
visited Jan. 3, 2018) (copy attached hereto). Undersigned counsel will confer with counsel for
the plaintiffs about next steps for moving forward.
Dated: January 3, 2018 Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Director

ads/Joseph E. Bartram

CAROL FEDERIGHI

Senior Trial Counsel

KRISTINA A. WOLFE

JOSEPH E. BORSON

United States Department of Justice

 

Case Document 42 Filed 01!03!18 Page 2 of 2

Civil Division, Federal Programs Branch
PD. Box 883

Washington, DC. 20044

Tel: {202) 514-1944 Fax: (202) 616-8460
E-mail: Jeseph.Bersen@usdej.gev

Executive Order on the Termination of Presidential Advisory Commission on Election Page 1 of 2
Case Document 42-1 Filed Page 1 of 2

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Case Document 39 Filed lleSz?l? Page 1 Of 33

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA

 

COMMON CAUSE, at at,
Plaintiffs,

V.
Civil Action NO. 1:17-cv-1398 (RCL)
PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION
INTEGRITY, e: mi,

Defendants.

 

 

REPLY MEMORANDUM IN FURTHER SUPPORT OF
MOTION TO DISMISS

Case Document 39 Filed 1215117 Page 2 of 33

 

TABLE OF CONTENTS
INTRODUCTION 1
ARGUMENT 2
I. PLAINTIFFS LACK STANDING 2
A. The Individual Plaintiffs Lack Standing 2
B. Common Cause Lacks Representational Standing 5
C. Common Cause Lacks Organizational Standing 6

II. PLAINTIFFS CANNOT STATE A CLAIM UNDER THE PRIVACY ACT OR THE
APA 8

A. The Commission Does Not Exercise Substantial Independent Authority 8

1. Plaintiffs have not pied facts showing that the Commission has undertaken a
purported investigation into individual American citizens 8

2. Plaintiffs? claim that the Commission is conducting ?evaluation plus advice? is

not enough to surmount the agency bar 13
B. The Privacy Act Precludes the Injunctive Relief Plaintiffs Seek 14
C. Plaintiffs Cannot Obtain Injunctive Relief Through the APA 17
D. Common Cause, an Organization, Cannot Sue Under the Privacy Act 20

PLAINTIFF KENNEDY HAS NOT STATED A CLAIM AGAINST THE

DEPARTMENT OF HOMELAND SECURITY 21
IV. PLAINTIFFS HAVE NOT STATED AN ULTRA VIRES CLAIM 22
CONCLUSION 25

Case Document 39 Filed 121517 Page 3 of 33

 

TABLE OF AUTHORITIES

Cases Pagejsl
*Ashcro? It. Iqbai,

556 U.S. 662 (2009). 21
Aibrignt v. United States,

631 F.2d 915 (DC. Cir. 1980) 3, 16
Albright v. United States,

732 F.2d 181 (DC. Cir. 1984) 3
Alexander v. Sandoval,

532 US. 275 (2001) 16

Ass ?n of light Attendants-C WA v. Dep ?t of Transp,
564 F.3d 462 (DC. Cir. 2009) 5

Attias v. Care?rst, inc,
865 F.3d 620 (DC. Cir. 2017) 4

Bell Ati. Corp. v. Twombiy,
550 U.S. 544 (2007) 10, 12

*Ceii Assocs., Inc. v. Nat?i insts. of Heaitn,
579 F.2d 1155 (9th Cir. 1978) 14, 16, 18

Chang v. Dep?t ofJastice,
333 F.3d 273 (DC. Cir. 2003) 14, 17

Citizens for Ethics in Wash. v. O??iee ofAdmin.,
566 F.3d 219 (DC. Cir. 2009) 8

ity ofLos Angeies v. Lyons,
461 U.S. 95(1983) 21

Ciapper v. Amnesty Intern. USA,
568 US. 398 (2013) 4, 6, 7'

Comm. in Solidarity with Peopie ofEi Salvador v. Sessions,
738 F. Supp. 544 (DDC. 1990) 20

Diaz-Bernai v. Myers,
758 F. Supp. 2d 106 (D. Conn. 2010) 18

ii

Case Document 39 Filed 12115717 Page 4 of 33

Doe v. Chao,
540 US. 614 (2004) 3, 18, 19

Doe v. Stephens,
851 F.2d 1457 (DC. Cir. 1988) 14, 20

Edison Dep?t of the Army,
672 F.2d 840 (1 1th Cir. 1982) 14

Elec. Privacy Info. Ctr. v. Dep?t ofEdac.,
48 F. Supp. 3d 1 (BBC. 2014) 7

Energy Research Foundation v. Defense Nuclear Safety Board,
917 F.2d 581 (DC. Cir. 1990) 13, 14

FAA v. Cooper,
566 U.S. 284 (2012) 19

Food Water Watch, Inc. v. Viisack,
808 F.3d '905 (DC. Cir. 2015) 7

Haase v. Sessions,
893 F.2d 370 (DC. Cir. 1990) 15

Hinck v. United States,
550 US. 501 (2007) 16, 18

In re Cheney,
406 F.3d 723 (DC. Cir. 2005) (en banc) 8

In re Dep?t of 1Veterans Affairs (VA) Data Theft Litig.,
NO. 06-0506 (JR), 2007 WL 7621261 (D.D.C. NOV. 16, 2007) 20

In re United States v. Morris USA, Inc.,
396 F.3d 1190 (DC. Cir. 2005) 15

In re U.S. Q?ice ofPensonnei Mgtn?t Data Sec. Breach Litig,
NO. 15-1394 (ABJ), 2017 WL 4129193 (D.D.C. Sept. 19, 2017) 4, 6, 8

Judicial Watch v. Nat?i Poiicy Dev. Group,
219 F. Supp. 2d 20 (D.D.C. 2002) 24

Kokkonen v. Guardian Life Ins. Co. ofAm.,
511 15

Laird v. Tatam,
408 U.S. 1(1972) 4



Case Document 39 Filed 12715717 Page 5 of 33

Lake Rubin,
162 F.3d 113 (DC. Cir. 1998) 18

*Motoh-E?Be-Nosn-Sne-Wish Bond ofPottowotomi Indians Potenok,
567 US. 209 (2012) 17

Meghrig v. KF Western, Inc.,
516 U.S. 479(1996) 16

*Meyer Bush,
981 F.2d 1288 (DC. Cir. 1993) 8, 13, 14

Mittlemon v. US. Treasury,
773 F. Supp. 442 (D.D.C. 1991) 18

Monet! v. Dep?t Servs. ofCity of N. Y.,
436 U.S. 658 (1978) 25

NLRB. 12. SW Geri, Inc,
137 S. Ct. 929 (2017) 15

Nogei v. US. Dep?t ofHeoith, Edna, Webcore,
725 F.2d 1438 (DC. Cir. 1984) 16

Not?l Ass ?n of Home Bniiders 12. EPA,
667 F.3d Cir. 2011) 7

Not?i Ass?n of Letter Carriers, AFL-CIO v. U.S. Postal Service,
604 F. Supp. 2d 665 (S.D.N.Y. 2009) 20

Not?l Fed. ofFederai Emps. v. Greenberg,
789 F. Supp. 430 (D.D.C. 1992) 20

annt v. Chairman, Brood. Bd. of Governors,
589 F.3d 445 (DC. Cir. 2009) 24

Pennimrst State Sch. Hosp. v. Hoiderman,
465 U.S. 89 (1984) 25

People for the Ethical Treatment of Animals v. U.S. Dep?t ongrio.,
797 F.3d 1087 (DC. Cir. 2015) 7

Porter Warner Holding Co.,
328 U.S. 395 (1946) 15

Professional Dog Breeders Advisory Council v. Wol??,
N0. 09-cv-258, 2009 WL 2948527 (MD. Pa. Sept. 11, 2009) 20

iv

Case Document 39 Filed 12715717 Page 6 of 33

Radock v. US Dep?t of Justice,

402 F. Supp. 2d 99 (D.D.C. 2005) 18
Rushfortn v. Council on Econ. Advisers,

762 F.2d 1038 (DC. Cir. 1985) 14
Scott v. Conley,

937 F. Supp. 2d 60 (D.D.C. 2013) 15
Siote Public Def Serv. for D. C,

31 F. Supp. 3d 277 (D.D.C 2014) 24
Smith v. Nixon,

807 F.2d 197 (DC Cir. 1986) 16
Soucie v. David,

448 F.2d 1067 (DC. Cir. 1971) 14
ussman v. United States Marshals Service,

494 F.3d 1106 (DC. Cir. 2007) 17
Tronsomerico Mortg. Advisors, Inc. v. Lewis,

444 U.S 11 (1979) 16
United States 12. 

517 U.S. 456 (1996) 22
United States v. Chemicoi Found, Inc,

272 U.S. 1 (1926) 22
Wiison v. Libby,

535 F.3d 697 (DC Cir. 2008) 14
Woodened v. Lenope Regionui High School Dist,

535 F. App?x 164 (3d Cir. 2013) 5
Constitutions
US. Const. art 11 24
Statutes
5 U.S.C. 55221 passim
5 U.S.C. 702 17, 19

Other Authorities

Privacy Act Guidelines, 40 Fed. Reg. 28,948, 28,968 (July 9, 1975) 19



Case lzli-cv-Ol398-RCL Document 39 Filed 1215117 Page 7 of 33

Executive Order 13,799, 82 Fed. Reg. 22,389 (May 11, 2017) 9

Gary? Moore, Tucker arisen: Kris Kobaeit Trump Executive Order Creates Voter Fraud
Cemm?n (May 11, 2017),
9

Gov?t Accountability Inst., America the Vulnerable: The Problem of Duplicate Voting (2017),

12

HR. Rep. No 94-1656 (1976) 19

Kris W. Kobaeh, Why States Need to Assist the Presidentiat Comm ?n on Election Integrity,
Breitbart (July 3, 2017),

10

Presidential Advisory Commission on Election Integrity By-Laws 
25

vi

Case Document 39 Filed 1215117 Page 8 of 33

INTRODUCTION

 

In their Amended Complaint, plaintiffs allege that the Presidential Advisory Commission
on Election Integrity (the ?Commission?) and the Department of Homeland Security 
have violated the Privacy Act, such that broad injunctive relief is warranted. Plaintiffs also allege
that the Commission has taken ultra vfres action by purportedly conducting an investigation into
individual voters. Plaintiffs, however, fail in their opposition to show that they have established
their Article standing, or that they state a claim for which relief may be granted. The Amended
Complaint should be dismissed.

To begin, plaintiffs have not established their standing. The individual plaintiffs attach
new affidavits attempting to establish their injury, but they point to speculative harm that is not
suf?cient to establish injury-in-fact. Common Cause has also failed to show it has representational
or organizational standing. While it has for the first time in its opposition identified members, it
has not established that those members have been injured. Nor does its voluntary decision to
reallocate its resources from one advocacy activity to another establish standing. In any event,
plaintiffs fail to state a claim. The Commission is not an agency subject to the Privacy Act or
Administrative Procedure Act Plaintiffs concede in their opposition that the
Commission has not been tasked by its foundational Executive Order with exercising substantial
independent authority, which is the most important consideration in determining agency status,
but nonetheless claim that it has undertaken an investigation into individual Americans in a manner
that constitutes the functional exercise of such power. Their opposition points to no facts, however,
establishing such an investigation; rather, it twists facts in the Amended Complaint to speculate
that one might exist in a way that is not enough to surmount a motion to dismiss. Nor have

plaintiffs shown a right to relief. Plaintiffs have not rebutted defendants? arguments that broad

Case Document 39 Filed 1215117 Page 9 of 33

injunctive relief of the type they seek is not available under the Privacy Actor APA. Instead, they
rely on dicta to resist these conclusions, but such dicta are not binding legal authority, and in any
event have been superseded by more recent Supreme Court jurisprudence. Plaintiffs? claim against
DHS also fails because it is entirely speculative that the agency will take any action involving
plaintiffs? information; a conclusion plaintiffs do not seriously challenge in their opposition.
Finally, there is no basis for the extraordinary remedy of ultra vines relief, again because plaintiffs
have not pled facts showing that the Commission is at present conducting (or intending immensely
to conduct) an investigation into individual Americans.
ARGUMENT

I. PLAINTIFF LACK STANDING

A. The Individual Plaintiffs Lack Standing

Despite plaintiffs? attempt to supplement their averments, the individual plaintiffs in this
case still fail to allege a cognizable injury-in-fact sufficient to establish standing. Plaintiffs Cantler
and Nakhnikian allege only generally that there has been an ?invasion of . . . personal privacy,?
Cantler Decl. 1i l4, ECF No. 30-1; Nakhnikian Decl. 1] ll, ECF No. 30-6, a claim that collapses
back on the allegation that there has been a violation of the Privacy Act. See also Pls.? Opp?n to
Defs.? Mot. to Dismiss Am. Compl. at 8, 13, ECF No. 30. But the alleged violation
alone is not suf?cient to establish standing. Plaintiffs must allege some actual concrete or
imminent harm to themselves, apart from the violation standing alone. These plaintiffs have failed
to do so. The speculative and in?ated list of defendants possible activities plaintiffs posit on page
15 of their Opposition does not substitute for a description of actual or imminent harm to be

suffered by plai?nm??s.

Case Document 39 Filed 12(15il7 Page 10 of 33

Plaintiffs point to Albrigiir v. United States, 631 F.2d 915 (DC. Cir. 1980), to support their
position that the ?mere inquiry of the government into an individual?s First Amendment rights? is
sufficient to establish standing. See Opp?n at 14 (quoting Albrighr, 631 F.2d at 919). But that is
not the holding of Aibrigirt I. The quoted phrase was addressing the congressional concerns behind
enactment of the Privacy Act, not standing. Ultimately, Aibrigitt i decided the question of whether
a record not incorporated within a ?system of records? was covered by the Privacy Act; it did not
address standing. Indeed, the court noted that plaintiffs ?concede[d] that the district court did not
rule on th[e] question? of whether the plaintiffs had adequately pled facts demonstrating ?adverse
effect,? the statutory equivalent to standing. 631 F.2d at 921; see aim Doe v. Chap, 540 US. 614,
624 (2004) (Privacy Act plaintiff must have suffered an ?adverse effect,? which is a ?term of art
identifying a potential plaintiff who suffers the injury-in?fact and causation requirements of Article
standing?); 5 U.S.C. 552a(g)(1)(D). That latter question was addressed in v. United
States, 732 F.2d 181 (DC. Cir. 1984) (?Aibrighr There, the court concluded that ?emotional
trauma alone is sufficient to qualify? as an injury for the purposes of ?adverse effect,? id. at 186,
but then held that the plaintiffs had not established that their alleged emotional trauma was tied to
the defendants? conduct, id. at 186?88. Accordingly, the court ruled that plaintiffs had not
established that they had suffered an adverse effect, id, and therefore also did not have standing.
Had a statutory violation alone been enough for an ?adverse effect,? the case would have come out
differently.

Nor do Cantler?s and Nakhnikian?s alleged ?fears? of future consequences (such as being
wrongly identified as ineligible to vote) or loss of ?confidence? in the election process suf?cient
to establish the necessary injury. Opp?n at 13. Plaintiffs? speculations about future events are

insufficient to create the necessary ?certainly impending? injury to establish Article standing.

Case Document 39 Filed Page 11 of 33

Clapper v. Amnesty Intern. USA, 568 U.S. 398, 410 (2013). Indeed, plaintiffs? fears and loss of
con?dence are to some extent self-in?icted injuries of the type rejected in Clapper. Plaintiffs
?cannot manufacture standing merely by in?icting harm on themselves based on their fears of
hypothetical future harm that is not certainly impending.? Id. at 416; see also Laird v. Tatum, 408
US. 1, 13-14 (1972) (?Allegations of a subjective ?chill? are not an adequate substitute for a claim
of speci?c present objective harm or a threat of speci?c future harm?).

One plaintiff, Kennedy, states that the Commission?s maintenance of his data and 
alleged disclosure of other data has caused him ?emotional anguish? and to be ?highly concerned
and suffer anxiety.? Kennedy Dec]. 1111 12, 13, ECF No. 30-4. His anguish stems primarily from
his belief that the Commission intends to crosscheck his voter registration data against data about
him possessed by DHS. Id. 11 10; Opp?n at 15. But this claim is also too speculative to support
standing. The Amended Complaint alleges only facts showing an ?intention? to conduct such a
crosscheck activity, but does not assert there are concrete plans to do so in the immediate future.
Am. Complthere any evidence that such an endeavor will produce
mistakes or harm to voters. In the absence of concrete, immediate plans and of any evidence of
future misuse of the data, plaintiff Kennedy lacks standing as well. The case relied upon by
plaintiffs, Attics v. Care?rsr, Inc, 865 F.3d 620 (DC. Cir. 2017), for the proposition that standing
claims in a data-breach context can lie based on ?allegations of a substantial risk of future injury,?
Opp?n at 17, is inapplicable here. Unlike in Auras, neither Kennedy nor the other plaintiffs plead
facts from which a substantial risk of things going wrong could be inferred. Cf. Artists, 865 F.3d
at 628 (?nding a sufficient substantial risk of harm where ?an unauthorized party has already
accessed personally identifying data on CareFirst?s servers?); In re U.S. O?i?ce of Personnel 

Data Sec. Breach Ling. (?In re No. 15-1394 (ABJ), 2017 WL 4129193, at *25 (D.D.C.

Case Document 39 Filed 12151? Page 12 of 33

Sept. 19, 2017) (?Even an objectively reasonably likelihood of harm suf?cient to engender some
anxiety does not create standing?), appeals docketea?, Nos. 1715217 17-5232 (DC Cir. Sept.
27 Oct. 12, 2017), No. 18-1182 (Fed. Cir. Nov. 15, 2017').

B. Common Cause Lacks Representational Standing

Common Cause lacks representational standing, ta, it lacks standing to sue on behalf of
its members. See Ass?a of fight Attendants-CW4 v. Dep?t of Tramp, 564 F.3d 462, 464 (DC.
Cir. 2009). While plaintiffs do con?rm in their opposition that several of the individual plaintiffs
are themselves members of Common Cause, see Opp?n at 19 (referring to Gutierrez, Cantler, and
McClenaghan Declarations), they have not established that these members themselves have been
injured by the defendants, such that they have standing. Ms. Cantler, for example, stated that she
was injured by the Commission?s activities because those activities invaded her personal privacy,
put her personal data at risk for theft, hindered her ability to fully participate in the political process
without fear, and presented a ?substantial risk? that the collection of data would lead to the
suppression of her vote. Cantler Decl. 14-15, ECF No. 30-1. Mr. Gutierrez stated that he is
anxious ?over how the federal government is going to use [his] personal data," that the collection
of data ?undermines [his] con?dence in the electoral system,? and that he is fearful that the
collection of data will lead to suppression of his vote. Gutierrez Decl. 7-9, ECF No. 30-3. Ms.
McClenaghan raised similar concerns. McClenaghan Decl. 7-8, 12-13, ECF No. 30?5.

The ?rst allegation that the Commission has invaded the privacy of Common Cause?s
members is merely an allegation that the Commission has violated the Privacy Act, without
describing the injury alleged to have been caused by that harm. Second, the members allege that
their ability to ?fully participate in the political process? has been hindered. These members do

not show how their ability to participate in the political process has been frustrated, however, and

Case Document 39 Filed 12f15i'l? Page 13 of 33

so such complaints are ?conjectural.? See, Woodened v. Lenape Regional High School Dist,
535 F. App?x 164, 167 (3d Cir. 2013) {hypothetical fear of frustration of political panicipation
rights are not sufficient for standing). Third, the members state that there is a risk that the
collection of data would lead to the suppression of their vote. Such claims, however, stack
speculation on top of speculation: that the Commission will compare the public data it receives to
other data sources; that it will then find a ?false positive?; and that it will then take action against
the member. Such claims of speculative future injury are too attenuated to constitute injury-in-
fact. See Clapper, 568 U.S. at 410. Finally, the members claim that they are fearful of a future
breach of their information. This is merely a speculative fear of a future injury absent any showing
of a data breach; indeed, even had there been a breach, that would not be enough, as ?plaintiffs
cannot predicate standing on the basis of [data] breach alone.? In re 0PM, 2017 WL 4129193,
at *11.

C. Common Cause Lacks Organizational Standing

Common Cause also lacks standing to sue on its own behalf, because it has not itself been
injured. Rather, as it makes clear in its opposition, the organization has engaged in an advocacy
campaign against the Commission, which is in keeping with its mission of encouraging voting.
See Opp?n at 20-23. As Common Cause pleads, it is an organization that is focused on elections
and promoting the right to vote (though not, notably, privacy). See Opp?n at 21; Am. Comp]. 11 1.
The activities it claims it has undertaken in response to the Commission are in keeping with its
goals of promoting the right to vote, for example, conducting outreach, supporting voter
registration efforts, and engaging in direct counseling of individual voters. Opp?n at 22. Common

Cause also alleges that its other voter-related activities have ?suffered because Common Cause

Case Document 39 Filed 12l15tl7 Page 14 of 33

has had to divert resources from those efforts in order to try to counteract the effects of the
Commission?s investigation.? Id. at 22.

This diversion of resources, however, represents Common Cause?s voluntary decision to
reallocate its resources from one advocacy activity to another, neither of which involve the
protection of personal privacy the purpose of the Privacy Act. Such a voluntary reallocation
decision is not enough to establish organizational standing. In Food Water Watch, Inc. v.
thsack, 808 F.3d 905, 920 (DC. Cir. 2015), the plaintiffs made a similar argument: that they had
to spend additional time and money in response to a new federal policy, in order to educate and
advocate to the public. The DC. Circuit concluded that this was ?no more than an abstract injury
to [plaintiff's] interests.? Id; see also Nat ?l Ass ?tt ofHome Builders v. EPA, 667' F.3d 6, 12 (DC.
Cir. 2011) (an organization?s decision to ?redirect[]? resources ?is insuf?cient to impart standing
upon the organization?); Elec. Privacy Info. Ctr. v. Dep?t ofEdac., 48 F. Supp. 3d 1, 23 (D.D.C.
2014) (holding that the ?expenditures . . . EPIC . . . made in response to the [new regulation] have
not kept it from pursuing its true purpose as an organization but have contributed to its pursuit of
its purpose?). Nor is this a situation where defendants have taken a specific action that has
hindered plaintiff?s organizational interest. In People for the Ethical Treatment v. U. S.
Department ongrt'cultare, 797 F.3d 1087, 1093 (DC. Cir. 2015), for example, the defendant
denied the plaintiff ?access to an avenue for redress and denial of information,? Food Water
Watch, 808 F.3d at 920; here, by contrast, plaintiffs make no comparable claim. Indeed, were it
otherwise, an organization could create standing simply by re-allocating resources from one
advocacy activity to another, a conclusion that ?ies in the face of the Supreme Court?s admonition
that plaintiffs cannot ?manufacture standing merely by in?icting harm on themselves.? Clapper,

568 US. at 402.

Case Document 39 Filed 12l15ll? Page 15 of 33

II. PLAINTIFFS CANNOT STATE A CLAIM UNDER THE PRIVACY ACT OR
THE APA

A. The Commission Does Not Exercise Substantial Independent Authority

As plaintiffs acknowledge, the test of whether the Commission is an ?agency? for purposes
of the Privacy Act and the APA is whether it has ?wielded substantial authority independently of
the President.? Citizens for Responsibility d'k Ethics in Wash. v. O?i?ce ofAdmin., 566
F.3d 219, 223 (DC. Cir. 2009); see also Mot. to Dismiss at 16-24, ECP No. 27-1; Opp?n
at 24-32. Plaintiffs apparently concede that the Commission lacks defers substantial independent
authority based on its foundational documents, see Opp?n at 28, which ?is the most important
indication of the [Commission?s] role,? Meyer Bush, 981 F.2d 1288, 1294 (DC. Cir. 1993); cf.
In re Cheney, 406 F.3d 723, 728 (DC. Cir. 2005) (en banc) (construing whether an entity is subject
to FACA based on authority set out in the foundational document). But then they go on to claim
that the Commission has acquired and used such authority defer-r0 in a manner suf?cient for it to
constitute an agency. But the facts in the Amended Complaint, taken as true. do not establish such
a showing.I Accordingly, plaintiffs? Privacy Act and APA claims should be dismissed on this
threshold ground alone.

1. Plaintiffs have not pled facts showing that the Commission has
undertaken a purported investigation into individual American
citizens

Plaintiffs claim that the facts in their Amended Complaint ?demonstrate[] that . . . the

Commission has ?undertaken a sweeping, first-of?its?kind investigation into alleged voting

 

The proposed Amie-as Curiae brief filed by former National Security and Technology
Officials, ECF No. 38- 1, does not address the threshold issue of whether the Commission is an
agency, see id. at 12-20, and its speculation about potential future harms caused by a potential
future data breach would not, in any event, be sufficient to establish Article standing. See,
In re 0PM, 2017 WL 4129193, at *12.

Case Document 39 Filed 12t15il7 Page 16 of 33

misconduct by individual American citizens.? Opp?n at 28 (quoting Am. Compl. 105, 106(a)).
But the actual facts plaintiffs cite in their Amended Complaint do not support the existence of any
such investigation.

First, plaintiffs cite isolated statements by individual Commission or staff members about
their purported intentions. But these statements do not show that the Commission actually is
investigating individuals. Plaintiffs first allege that Vice Chair Kobach on the day the Executive
Order was issued and before the Commission had begun any work said that the Commission?s
goal was to have a ?nationwide fact-?nding effort focusing on assessing ?evidence? of different
forms of voter fraud across the country." Opp?n at 29 (quoting Am. Compl. 1i 52). Far from
declaring an intent to investigate individual allegations of voter fraud (which the statement says
nothing about), this statement shows a ?fact-finding effort? followed by a recommendation, which
is what the Executive Order contemplates. See Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May
11, 2017) (?The Commission shall, consistent with applicable law, study the registration and
voting processes used in Federal elections . . . and shall submit a report to the President?).

Plaintiffs next say that Vice Chair Kobach ?has stated that the Commission intends to
utilize databases from federal agencies in order to ?crosscheck? against the names of individual
voters to determine if there are alleged fraudulently registered voters on the rolls.? Opp?n at 29
(quoting Am. Comp]. 11 53). But Vice Chair Kobach?s interview, referred to in the Amended
Complaint, said nothing about investigating individual voters. Gary Moore, Tucker Cerise?: Kris
Kobacit Tramp Executive Order Creates 1lt'uter rattd (May 11, 2017),
(last visited Dec. 15, 2017) (cited in Am.
Comp]. 11 53 n.24). Moreover, the plaintiffs do not allege that the Commission is actually utilizing

federal government databases, much less that it is investigating or taking action against individual

Case Document 39 Filed 12t15tl7 Page 17 of 33

voters. Plaintiffs? effort to convert speculation about what the Commission could do into facts
showing what it is doing cannot surmount the plausibility standard required to defeat a motion to
dismiss. See Bell Atl. Corp. v. Twombty, 550 U.S. 544, 555 (2007) (?Factual allegations must be
enough to raise a right to relief above the speculative 

Plaintiffs? other allegations fail for similar reasons. They say that the Commission ?intends
to run the voting data it receives on individuals through a number of different databases to check
for alleged fraudulent voter registrations.? Opp?n at 29 (quoting Am. Compl. '11 54). But intent
does not mean that the Commission will actually do so, nor does the Amended Complaint say
anything in this section about whether the Commission even intends to look at individual
registrants, as opposed to drawing population?level conclusions. Plaintiffs also allege that
?Kobach has written that ?every investigation? the Commission undertakes will require
individuals? state voter roll data? so the Commission can ?use data it collects from the states to
?confirm? the identity of individual American voters alleged to have committed fraud.?? Opp?n at
29 (quoted Am. Compl. 11 55). This claim relies on and misquotes an article written by Vice
Chair Kobach. In that article, he said that, ?[f]or example, if a witness testifies before the
Commission that a certain person voted fraudulently in a given state, the Commission needs to
con?rm that such a person even exists on the voter rolls and actually cast a ballot in the relevant
election.? Kris W. Kobach, Why States Need to Assist the Presidential Contm?tt on Etectt?ott
Integrity, Breitbart (July 3, 2017), 
(last visited Dec. 13,
2017) (quoted in Am. Compl. 11 55 n27). The article describes a future hypothetical, and indeed,
there are no allegations that any witnesses have testified that a speci?c person voted fraudulently,

much less that the Commission is taking steps to determine whether that person voted fraudulently.

10

Case Document 39 Filed 12151? Page 18 of 33

Plaintiffs also state that Commission members have described the Commission?s mandate
as determining the ?accura[cy] of voter rolls,? Opp?n at 29 (citing Am. Compl. ll 70). but that has
nothing to do with purported investigations of individual voters. They also say in their opposition
that Commission members have ?discussed ?referrals of individuals suspected of voter fraud to the
for possible criminal prosecution.? Opp?n at 29 (quoting Am. Compl. 1i 72). What the
Amended Complaint actually says is that, ?one Commission member questioned whether agencies
of the federal government and the federal judiciary were forwarding data they collect to DOJ for
criminal prosecution.? Am. Compl. ll 72. In other words. plaintiffs allege that Commission
members discussed whether other entities made criminal prosecution referrals; not whether the
Commission itself could (or would) make referrals.

Plaintiffs next discuss the evidence that the Commission has purportedly collected or
evidence that has been presented to it. They state that Vice Chair Kobach has ?instructed

3?

Commission staff to ?start trying to collect federal government data. Opp?n at 29 (quoting Am.
Compl.1l But the fact that the Commission staff has been instructed to ?try? to collect federal
government data says nothing about whether they have collected such information or whether the
Commission has used such information to investigate individuals. Nor does the fact that the
Commission ?has received multiple forms of evidence,? including evidence of individual cases of
voter fraud. Opp?n at 29-30, mean that the Commission itself has actually investigated those cases,
much less taken action.

Three ?nal allegations in the opposition are worthy of special treatment. First. plaintiffs
assert that there are ?8,471 cases of likely duplicate voting [to] be investigated for possible

wrongdoing? by the Commission." Opp?n at 30 (quoting Am. Compl. 1i But as the

Amended Complaint makes clear, the reference to 8,471 cases of alleged duplicate voting refers

ll

Case Document 39 Filed 121517 Page 19 of 33

to report presented to the Commission at its September 12, 2017, meeting; the report did not
recommend that the Commission investigate these cases. See Gov?t Accountability Inst., America
the Vulnerable: The Problem of Duplicate Voting (2017), 

Plaintiffs also contend that the Commission has received ?information about individuals . . .
contained in system of records.? Opp?n at 29 (quoting Am. Compl. 11 125). But paragraph
125 of the Amended Complaint provides no facts to support the claim that DHS has transferred
such information to the Commission; rather, the paragraph merely speculates that DHS ?will?
transfer such information to the Commission. Am. Compl. 1i 125. This conclusory allegation does
not state a claim. See Twombly, 550 at 555 (?Factual allegations must be enough to rise a
right to relieve above the speculative Plaintiffs conclude by asserting that they ?allege
facts about the initial results of the Commission?s investigation.? Opp?n at 30 (quoting Am.
Compl. '11 56). But paragraph 56 of the Amended Complaint refers to a Breirbarr article written by
Vice Chair Kobach, which refers to a study conducted by the New Hampshire Departments of
State and Safety. See Am. Compl. 1i 56; MTD at 39-40. Neither that study, nor Vice Chair
Kobach?s article, identi?ed any specific individual voters, much less any action taken by the
Commission against individual voters.

In short, plaintiffs have alleged facts showing that the Commission is conducting a study
of voter fraud, and that it has been presented with evidence at its September 12, 2017, meeting
about the existence of voter fraud. But plaintiffs have not alleged facts showing that the
Commission itself is investigating individual voters, much less that it has (or could) take action
against them. Research activities undertaken in conjunction with the Commission?s direction to

study election integrity do not constitute the exercise of substantial independent authority

12

Case Document 39 Filed 12151? Page 20 of 33

sufficient to render a presidential entity an agency for purposes of the Privacy Act. See Meyer,
981 F.2d at 1294 (Presidential Task Force, which researched federal regulations, was not an agency
because there was no evidence that it ?directed anyone . . . to do anything?).

2. Plaintiffs? claim that the Commission is conducting ?evaluation
plus advice? is not enough to surmount the agency bar

As discussed above, plaintiffs have not pled facts showing that the Commission is
conducting an investigation into individual voters. In an effort to surmount this weakness,
plaintiffs rely on Energy Research Foundation v. Defense Nuciear Facilities Safety Board, 917
F.2d 581 (DC. Cir. 1990), for the proposition that an entity that conducts ?investigation[s]? or
offers ?evaluation plus advice? is an agency. Opp?n at 30?32. But this argument misconstrues
Energy Research Foundation to create a test that cannot be reconciled with this Circuit?s
precedent. In Energy Research Foundation, the DC. Circuit evaluated whether the Defense
Nuclear Facilities Safety Board was an ?agency.? It concluded that it was an agency, in part
because the Board ?has at its disposal the full panoply of investigative powers commonly held by
other agencies of government,? 917 F.2d at 584, including the power to ?conduct hearings, compel
testimony, require the production of documents . . . and to require the Secretary [of Energy] to
report to it classi?ed information and other information protected from disclosure,? id. at 582.
While the Commission has the power to research topics related to voter registration and voting
processes, there is no indication that it has, or has attempted to assert, any of these type of formal
investigative powers, and therefore Energy Research Foundation is inapposite.

Further, this Circuit?s precedent makes clear that ?evaluation plus advice? is not the test to
be applied for determining whether an entity within the Executive Of?ce of the President, such as
the Commission, is an agency. Opp?n at 30. In Meyer v. Bush, for example, the DC Circuit

concluded that President Reagan?s Task Force on Regulatory Relief,? which was instructed to

13

Case Document 39 Filed 12l15ll? Page 21 of 33

?review pending regulations, study past regulations with an towards revising them and
recommend appropriate legislative remedies,? 981 F.2d at 1289-90, was not an agency because it
lacked the power to direct others ?to do anything,? id. at 1294. But were the dispositive test
?evaluation plus advice" both of which the Task Force unquestionably did Meyer would have
come out differently. The Commission, which shares a similar role in researching and
recommending, but not compelling action, is similarly situated.2

B. The Privacy Act Precludes the Inj unctive Relief Plaintiffs Seek

As set forth in defendants? opening brief, see MTD at 24-28, the Privacy Act is a
?comprehensive remedial scheme? to regulate, inter alia, the management and dissemination of
private information about individuals. Wilson v. Libby, 535 F.3d 697, 703 (D.C. Cir. 2008) (citing
Chung v. Dep ?t ofJustice, 333 F.3d 273, 274 (DC. Cir. 2003)). It authorizes inj unctive relief only
in two circumstances: to compel an agency to amend or alter an individual?s record or to require
an agency to allow an individual access to her records. 5 U.S.C. 552a(g)(1), and
?The [Privacy] Act?s subsection on civil remedies authorizes entry of injunctive relief
in only [those] two specific situations. In so doing, as we have held, the Act precludes other forms
of declaratory and injunctive relief." Doe v. Stephens, 851 F.2d 1457, 1463 (DC. Cir. 1988); see
also, Cell Assocs., Inc. v. Nat?l of Health, 579 F.2d 1155, 1161-62 (9th Cir. 1978);

Edison v. Dep?t of the Army, 672 F.2d 840, 846-47 (11th Cir. 1982).

 

2 Energy Research Foundation referred to the D.C. Circuit?s holding in Soucie v. David,
448 F.2d 1067 (DC. Cir. 1971), that the Of?ce of Science and Technology is an agency for its
?evaluation plus advice? premise. Energy Research Found, 917 F.2d at 584-85. But the Of?ce
of Science and Technology had an explicit, congressionally conferred ?independent function of
evaluating federal programs,? which the Commission lacks. See Rushfortlt v. Council on Econ.
Advisem, 762 F.2d 1038, 1041 (DC. Cir. 1985).

14

Case Document 39 Filed 12i15il? Page 22 of 33

Contrary to plaintiffs? claims, this Circuit?s dicta in Home v. Sessions, 893 F.2d 370 (DC.
Cir. 1990), does not compel a different result. There, the court stated that is not at all clear to
us that Congress intended to preclude broad equitable relief (injunctions) to prevent 
violations . . . . And in the absence of such an explicit intention, by creating a general cause of
action (under for violations of the Privacy Act, Congress presumably intended the
district court to use its inherent equitable powers at least to remedy violations of id. at
374 n.6 (citing Porter v. Warner Holding Co, 328 US. 395, 398 (1946)) (?Unless otherwise
provided by statute, all the inherent equitable powers of the District Court are available for the
proper exercise of that These dicta does not control.

House relied on language from the Supreme Court?s decision in Porter Warner Holding
Co. that the Supreme Court and DC. Circuit have since cabined. In United States v. Philip Morris
USA, Inc, 396 F.3d 1190 (DC. Cir. 2005), the Court recognized the broad language in Porter that
Home cited, but held that this language was not to be broadly applied:

As the Supreme Court has repeatedly observed: ?Federal courts are courts of

limited jurisdiction. They possess only that power authorized by Constitution and

statute, which is not to be expanded by judicial decree. Kokkonen v. Guardian Life

ins. Co. ofAm., 511 U.S. 375, 377 (1994). Reading Porter in light ofthis limited

jurisdiction we must not take it as a license to arrogate to ourselves unlimited

equitable power. We will not expand upon our equitable jurisdiction if, as here, we

are restricted by the statutory language, but may only assume broad equitable

powers when the statutory or Constitutional grant of power is equally broad.
Id. at 1197. Here, Congress has not granted broad equitable powers to the courts to enforce the
Privacy Act. Rather, it expressly limited injunctive remedies to the amendment and access claims

discussed above. Under the interpretative canon of expressio nnins, ?expressing one item of an

associate group or series excludes another left unmentioned.? N.L.R.B. v. SW Gen, inc, 137 S.

 

3 Scott v. Coniey, 937 F. Supp. 2d 60, 81?82 (D.D.C. 2013) quoted Haase?s language, but
did not otherwise analyze the DC. Circuit?s dicta.

15

Case Document 39 Filed 12715717 Page 23 of 33

Ct. 929, 940 (2017) (brackets and citation omitted). Applying that principle here, Congress?s
decision to list two forms of injunctive relief as specifically available to individuals would exclude
other forms of injunctive relief. See Ceti Assoc-5., 579 F.2d at 1159 legislation expressly
provides a particular remedy or remedies, courts should not expand the coverage of the statute to
subsume other remedies?).

Second, since House was decided in 1990, the Supreme Court has further emphasized that
the expressio nnins principle applies when determining the availability of relief. ?The express
provision of one method of enforcing a substantive rule suggests that Congress intended to
preclude others.? Aiexonder v. Sandovoi, 532 U.S. 275, 290 (2001) (citing Transnmerica Mortg.
Advisors, Inc. v. Lewis, 444 US 11, 19?20 (1979)); see also Hinck v. United States, 550 US. 501,
506 (2007) (holding that it is a ?well-established principle? that ?a precisely drawn, detailed statute
preempts more general remedies?); Tronsnmericaelemental canon of
statutory construction that where a statute expressly provides a particular remedy or remedies, a
court must be chary of reading others into Meghrig v. KF Western, Inn, 516 1.1.3. 479, 488
(1996). Hearse, which did not consider this rule, should not be taken to control.

Plaintiffs? arguments to the contrary are unavailing. They cite to several cases for the
proposition that ?the DC. Circuit has recognized that damages are not the sole remedy for a
Privacy Act claim.? Opp?n at 34. But the cases they cite all discussed, often in cursory
form, the availability of amendment and access-type injunctive reliefs, not general injunctive
relief. See Smith v. Nixon, 807 F.2d 197, 204 (DC. Cir. 1986) (expungement); Nogei v. US. Dep ?t
of Heaith, Educ, Welfare, 725 F.2d 1438, 1441 (DC. Cir. 1984) (amendment andtor
expungement claim); Aibrignt, 631 F.2d at 921 (destruction of record claim). Nor, in any event,

do these cases engage with the clear authority from this Circuit that injunctive relief is not available

16

Case Document 39 Filed 12i15il? Page 24 of 33

outside the limited circumstances set forth in the Privacy Act. Moreover, while Sussman v. United
States Marshals Service, 494 F.3d 1106 (DC. Cir. 2007'), did recognize the House?s court?s
?subsequent suggestion that the district court retains ?inherent equitable powers? to issue
injunctions in cases predicated on violations of id. at 1122 n.10,
the court declined to adopt that holding. And reaffirmed the holding that ?only monetary
damages, not declaratory or injunctive relief,? are available for violations, like that of section
552a(e)(7), that are ?not described in Id. at 1122.

Finally, while plaintiffs make a general argument with reference to the purposes of the
Privacy Act, Opp?n at 35-36, they do not explain why those purposes cannot be satisfied through
the Act?s monetary relief provisions if the plaintiffs could show actual injury, a showing they
have not attempted to make. See MTD at 32-35.

C. Plaintiffs Cannot Obtain Injunctive Relief Through the APA

Plaintiffs cannot seek injunctive relief for alleged violations of the Privacy Act through the
APA. The APA does not waive the federal government?s sovereign immunity and thus does not
provide a cause of action when another statute ?expressly or impliedly forbids the relief which
is sought.? 5 U.S.C. 702. ?That provision prevents plaintiffs from exploiting the waiver
to evade limitations on suit contained in other statutes.? March-E-Be-Nash-She-Wish Band of
Portawai?omi Indians v. Parchak, 567 U.S. 209, 215 (2012). Rather, ?[w]hen Congress has dealt
in particularity with a claim and has intended a speci?ed remedy including its exceptions to be
exclusive, that is the end of the matter; the APA does not undo the judgment.? Id. at 216.

The Privacy Act is a ?comprehensive remedial scheme,? Chung, 333 F.3d at 275, which
only provides for injunctive relief, and thus waives the federal government?s sovereign immunity,

in two speci?c circumstances. ?Courts are more likely to hold that a statute has expressly or

17

Case Document 39 Filed 12115117 Page 25 of 33

impliedly foreclosed injunctive or declaratory relief, even under the APA, when that statute waives
immunity only over a speci?c class of cases.? Dias-Berna! v. Myers, 7'58 F. Supp. 2d 106, 119
(D. Conn. 2010). And as further discussed above, under the principle of expressfo unins, among
others, ?a precisely drawn, detailed statute preempts more general remedies.? Hinck, 550 at
506 (citation omitted); see also Lake v. Rubin, 162 F.3d 113, 116 (DC. Cir. 1998) (Internal
Revenue Code?s more speci?c disclosure provisions preempts Privacy Act); Cell Assess, 579 F.2d
at 1159 legislation expressly provides a particular remedy or remedies, courts should
not expand the coverage of the statute to subsume other remedies?).

Plaintiffs? APA claim is ?simply a restatement of [their] Privacy Act claims,? Mim'eman v.
US. Treasury, 723 F. Supp. 442, 449 (D.D.C. 1991): they state that defendants have violated
section of the Privacy Act, and therefore have violated the APA. The Privacy Act precludes
injunctive relief under the APA, and as stated in defendants? motion to dismiss, a plaintiff cannot
bring an APA claim to obtain injunctive relief for a Privacy Act violation. See MTD at 29-30
(collecting cases);I Their APA claim should thus be dismissed, in keeping with decades of case
law from this Circuit.

Plaintiffs? opposition brief does not call this conclusion into question. First, they point to
guidance from the Office of Management and Budget which states that subsection 
of the Privacy Act ?prescribes the circumstances under which an individual may seek court relief
in the event that a Federal agency violates any requirement of the Privacy Act or any rule or

regulation promulgated thereunder, the basis for judicial intervention, and the remedies which the

 

4 For the reasons stated in defendants? opening brief, Radnck v. US. Dep?r ofJusrice, 402
F. Supp. 2d 99, 103-04 (D.D.C. 2005), which held that it had authority under the APA to award
injunctive relief to redress a violation of the Privacy Act, is an outlier and should be rejected. MTD
at 30 n4; Opp?n at 39.

18

Case Document 39 Filed 12151? Page 26 of 33

courts may prescribe.? Privacy Act Guidelines, 40 Fed. Reg. 28,948, 28,968 (July 9, 1975), Opp?n
at 36-3 7. This guidance also states that individual may have grounds for action under other
provisions of the law in addition to those provided in this section,? including that individual
may seek judicial review under other provisions of the 40 Fed. Reg. at 28,968. That
guidance says nothing about whether the APA provides injunctive remedies beyond the Privacy
Act. Moreover, the provision in section 702 of the APA that states that courts lack ?authority to
grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief
which is sought,? 5 U.S.C. 702, was added to the APA in 1976, after the OMB guidance was
issued. H.R. Rep. No 94-1656, at 1 (1976), reprinted in 1976 U.S.C.C.A.N. 6121, 6122 (Sept. 22,
1976). Such OMB guidance, in this context, is of little help

Second, plaintiffs argue that the ?Supreme Court has likewise recognized . . . that the APA
provides an avenue to equitable relief.? Opp?n at 37. But this mischaracterizes what the Supreme
Court has held. The Court said that ?[t]he Privacy Act says nothing about standards of proof
governing equitable relief that may be open to victims of adverse determinations or effects,
although it may be that this inattention is explained by the general provisions for equitable relief
within the Choo, 540 US. at 619 n.1. But Choo was a case about monetary damage; the
Court did not need to reach, and thus did not reach, the issue of whether equitable relief was
otherwise available. This was made clear eight years later in FAA v. Cooper, 566 U.S. 284, 303
n. 12 (2012), where the Court noted that the Act ?possibly . . . allow[s] for injunctive relief under
the added), but, again, the Court did not reach the issue. Moreover, as discussed
earlier, the Court?s more recent jurisprudence indicates that a detailed remedial scheme preempts

alternative remedies.

19

Case Document 39 Filed 12i15il7 Page 27 of 33

Third, the DC. Circuit?s decision in Stephens is not to the contrary. See Opp?n at 38.
There, the court ?concluded that Doe is entitled to declaratory relief against future [Department of
Veteran?s Affairs disclosure unauthorized by the Veterans? Records Statute, and having
invalidated the ?routine use? regulation insofar as it is inconsistent with the interpretation of
that statute . . . we believe it is unnecessary to award Doe additional injunctive relief.? Stephens,
851 F.2d at 1467 (emphasis added). The DC. Circuit did not reach the issue of whether the Privacy
Act precluded APA relief.

D. Common Cause, an Organization, Cannot Sue Under the Privacy Act

The Privacy Act does not provide organizations with a right of action. See MTD at 31-32.
Only ?individuals" may bring a civil action against an agency to enforce the Privacy Act, 5 U.S.C.
and an individual is de?ned narrowly as ?a citizen of the United States or an alien
lawfully admitted for permanent residence,? id. 552a(a)(2). Organizations, therefore, cannot sue
under the Privacy Act, either on their own behalf or on behalf of their members. See, e. g, In re
Dep?t of Veterans A?airs (VA) Data The?? Litig, No. 06-0506 (JR), 2007 WL 7621261, at *3
(D.D.C. Nov. 16, 2007) (organizations cannot sue under the Privacy Act on their own behalf or on
behalf of their members); Comm. in Soiidarity with Peopie ofEi Saivador (CISPES) v. Sessions,
738 F. Supp. 544, 547 (D.D.C. 1990) Privacy Act does not confer standing upon
organizations on their own or purporting to sue on behalf of their members?).

The cases plaintiffs cite are not to the contrary. See Opp?n at 19 n.5. The courts in Nationai
Association of Letter Carriers, AFL-CIO v. U.S. Postai Service, 604 F. Supp. 2d 665, 672
(S.D.N.Y. 2009), Professionai Dog Breeders Advisory Counciil v. Woi?f, No. 09-cv-258, 2009 WL
2948527, at *5 (MD. Pa. Sept. 11, 2009), and National Federation ofFederai Entoioyees v.

Greenberg, 789 F. Supp. 430, 433 (D.D.C. 1992), rev ?d on other grounds, 983 F.2d 286 (DC. Cir.

20

Case Document 39 Filed 1211511? Page 28 of 33

1993), did not consider whether an association had statutory standing to sue under 5 U.S.C. 
552a(g)( 1). And while plaintiffs suggest that courts certify class actions under the Privacy Act,
see Opp?n at 19 n.5, plaintiffs have, of course, not brought a class complaint here. Accordingly,

Common Cause?s Privacy Act claims must be dismissed.

PLAINTIFF KENNEDY HAS NOT STATED A CLAIM AGAINST THE
DEPARTMENT OF HOMELAND SECURITY

The sole basis for a claim against the Department of Homeland Security is plaintiff
Kennedy?s theory that DHS might share information with the Commission in violation of section
552a(b) of the Privacy Act. But, as stated in defendants? opening brief, see MTD at 35-3 7, while
the Amended Complaint conclusorily asserts that has or imminently will disclose to the
Commission andfor Commission staff information about individuals including Plaintiff Kennedy
contained in ?system of records,?? Am. Compl. 11 125, the Amended Complaint alleges no
facts that support such a claim. Instead, it alleges that the Commission sought or is seeking such
information, without any allegations about whether DHS will actually disclose such information.
MTD at 35-37. Such theory that an entity will violate the law in the future is not suf?cient for
standing under ity efLes Angeies v. Lyons, 461 US. 95, 106 (1983) and Clapper. Moreover, the
speculative allegation that a defendant has violated the law, without more, is simply a ?legal
conclusion? or ?formulaic recitation of the elements? that is insufficient to state a claim under
Ashem? v. Iqbal. 556 US. 662, 680 (2009).

Plaintiffs do not rebut this argument. Instead, they double-down on their claim that Vice
Chair Kobach has directed Commission staff to seek out information from other government
agencies, and note that the Executive Order directs executive agencies to ?endeavor to cooperate
with the Commission.? Opp?n at 15. But plaintiffs? argument amounts to a claim that DHS will

intentionally violate the Privacy Act, without any facts to support such a theory. The Executive

21

Case Document 39 Filed 12151? Page 29 of 33

Order does not compel agencies to cooperate with the Commission in violation of the law. Rather,
the Executive Order speci?cally states that its directives ?shall be implemented consistent with
applicable law.? Exec. Order 13,799. Further, the fact that the Commission might seek
information does not mean that the DHS will provide it. That is particularly true here, as ?in the
absence of clear evidence to the contrary, courts presume that [public of?cials] have properly
discharged their of?cial duties.? United States 517 US. 456, 464 (1996) (quoting
United States v. Chemical Found, Inc, 272 US. 1, 14-15 (1926)). Plaintiffs put forward no facts
that call that presumption into question.5

IV. PLAINTIFFS HAVE NOT STATED AN ULTM VIRES CLAIM

Plaintiffs have not stated a claim that the Commission has acted vireo by requesting
data from the states that, plaintiffs speculate, will be used to ?engage[] in a lawless and unbounded
investigation of individual voters for which there is no authorization in the Executive Order, the
Constitution, or any act of Congress.? Am. Comp]. 11 112; MTD at 37-41.

To begin, the facts pled in the Amended Complaint, taken as true, do not establish that the
Commission is investigating alleged voting misconduct by individual American citizens. See
MTD at 38?40. Plaintiffs do not show otherwise in their opposition; rather, they contort their own
Amended Complaint to draw conclusions not supported by their actual averrnents. For example,

in

they state that the Commission has ?undertaken an . . . investigation into alleged voting

 

5 Plaintiffs rely, for the ?rst time, on allegations that the Commission and DHS have
communicated with each other. See Opp?n at 4. But these communications, which were disclosed
in another case, only show that the Commission and DHS have communicated; they do not show
(nor is there a basis to conclude) that DHS has agreed to share information. Moreover, while
plaintiffs state that defendants could submit evidence to rebut their claim, Opp?n at 15-16, this
?ips the burden: it is plaintiffs? obligation to state facts plausibly showing a legal violation, not
defendants? responsibility to factually rebut a conclusory claim. Indeed, were it otherwise, Lyons
and Clapper would have come out differently.

22

Case Document 39 Filed 12i15il? Page 30 of 33

misconduct? . . . ?in order to crosscheck the voting data obtained from the states against other
private information on individuals maintained by agencies throughout the federal government . . .
in order to identify individuals the Commission believes are fraudulently registered to vote.?
Opp?n at 41?42 (quoting, ?rst, Am. Compl. 11 106, and second, id. 11 106(d)). But paragraph 106(d)
of the Amended Complaint says that the Commission ?intend[s] . . . to crosscheck? voting data
against other data from the federal government. Am. Comp]. 1 106(d). The word ?intend? which
plaintiffs omit in their opposition is critical, because it indicates that plaintiffs have not pied that
defendants have carried out a purported aitra wires action; rather, they speculate that the
Commission may do so in the future. And that allegation is not sufficient to state a present claim
of ultra vines injury.

Second, plaintiffs note that Commission staff has been instructed to collect data that is in
the possession of the federal government that ?might be helpful.? Opp?n at 42 (quoting Am.
Comp]. 1 42). These allegations, of course, say nothing about what that data will be used for,
much less whether it will, if collected, be used to investigate individuals (as opposed to making
broader statistical conclusions).

Third, plaintiffs state that ?[t]he Commission has already compiled ?materials claiming that
multiple speci?c individuals have fraudulently registered or voted.? Opp?n at 42 (quoting Am.
Comp]. 1 106(g)). But as stated earlier, these averments apparently refer to a study conducted by
the New Hampshire Departments of State and Safety in September 2017, see MTD at 39-40; Am.
Compl.11 56 8: n.28, or a third-party study that was presented to the Commission at its September
12, 2017, meeting which referenced ?8,471 cases of likely duplicate voting,? Am. Comp]. 1 97 
n.58. But neither of these studies identified individual voters. Instead, they referred to aggregate

cases or cases that are already in the public record as this Court can assure itself upon review of

23

Case Document 39 Filed 12151? Page 31 of 33

the materials referenced in the Amended Complaint. See State v. Public Def. Serv. for D. C, 31 F.
Supp. 3d 277, 287' (D.D.C 2014) (court can consider documents that were referenced in a
complaint when resolving a motion to dismiss). Moreover, this is not a case of defendants
challenging the facts alleged in the complaints, as plaintiffs? claim. Opp?n at 43. This is a case
where plaintiffs have mischaracterized the facts they rely on in their own Amended Complaint.
Iqbat?s plausability standard does not allow plaintiffs to draw legal conclusions not supported by
their own factual allegations.

In other words, plaintiffs have pled facts showing that the Commission has an interest in
voter fraud, including looking at cases of alleged voter fraud. But they have not shown that the
Commission is investigating an individual, much less that it is taking any action against any
individual voter. It cannot be that researching public information constitutes an error that is ?so
extreme that one may view it as jurisdictional or nearly so.? Mutant Chairman, Broad. Bd. of
Governors, 589 F.3d 445, 449 (DC. Cir. 2009). And contrary to plaintiffs? claim, see Opp?n at
42, this research power fits within the President?s broad power to collect information and make
recommendations. See, US. Const. art 11, 3, cl. 2 (?[The President] shall recommend to
[Congress?s] Considerations such Measures as he shall judge necessary and expedient?); Judicial
Watch, 219 F. Supp. 2d 20, 50 n.15 (D.D.C. 2002) (?Article II re?ect[s] an understanding that
the President will have access to information and the power to acquire 

Plaintiffs? other objections similarly fail. They first argue that the Commission is ?engaged
in a voter fraud investigation without ?any authorizationm Opp?n at 42. But as discussed above,
the President has broad power to collect information and make recommendations. Nor have
plaintiffs pled facts showing the existence of such an investigation. Next, plaintiffs state that

?[d]efendants apparently conceded that [p]laintiffs have stated a plausible claim for ultra vires

24

Case Document 39 Filed 1211517 Page 32 of 33

conduct against Kobach,? referring to the fact that the motion to dismiss? header referenced ultra
vires action only by the Commission and the fact that the brief supposedly ?makes only stray
mention of allegations pertaining to Kobach.? Opp?n at 43. Not so. Plaintiffs have brought suit
against Mr. Kobach in his o??icial capacity as Vice Chair of the Commission. Am. Compl. 11 12.
As ?of?cial-capacity suits generally represent only another way of pleading an action against an
entity of which an of?cer is an agent,? Mortal! v. ofSocia! Servs. of City of N. Y., 436 US.
658, 690 n.55 (1978), plaintiffs? claims are against the Commission (and so too must be their ulrra
vires claim). Moreover, defendants? opening brief extensively discussed allegations against Mr.
Kobach in his capacity as Vice Chair of the Commission. See MTD at 38-40. Finally, plaintiffs
claim that the Commission has taken actions without a vote by the Commission?s members. See
Opp?n at 43-44 (citing Am. Comp]. 11 47). By the Commission?s by-laws do not specify when a
vote is required. see Presidential Advisory Commission on Election Integrity By-Laws 
gov nor do
plaintiffs show how, even if a vote was required, the error would be so extreme as to amount to
the Commission ?act[ing] without any authority whatever." Pennhursr Stare Sch. Hosp. v.
Halderman, 465 US. 89, 101 11.11 (1984).
CONCLUSION
For the aforementioned reasons, and those stated in defendants? opening brief. this Court

should grant defendants? motion to dismiss the Amended Complaint.

25

Case Document 39 Filed 12151? Page 33 of 33

Dated: December 15, 2017

Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General
Civil Division

BRETT A. SHUMATE
Deputy Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Director

rit/ Joseph E. Barron

CAROL FEDERIGHI

Senior Trial Counsel

KRISTINA A. WOLFE

JOSEPH E. BORSON

Trial Attorneys

United States Department of Justice
Civil Division, Federal Programs Branch
PO. Box 883

Washington, DC 20044

Phone: (202) 514-1944

Email: joseph.borson@usdoj.gov

Coronet for Defendants

26

Case Document 42 Filed 01IO3118 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA

 

COMMON CAUSE, at at,
Plaintiffs,

v.
Civil Action No. 1:17-cv-1398 (RCL)
PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION
INTEGRITY, et ai,

Defendants.

 

 

NOTICE OF EXECUTIVE ORDER
Today, the President signed an Executive Order terminating the Presidential Advisory
Commission on Election Integrity. See 
(last
visited Jan. 3, 2018) (copy attached hereto). Undersigned counsel will confer with counsel for
the plaintiffs about next steps for moving forward.
Dated: January 3, 2018 Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Director

ads/Joseph E. Bartram

CAROL FEDERIGHI

Senior Trial Counsel

KRISTINA A. WOLFE

JOSEPH E. BORSON

United States Department of Justice

 

Case Document 42 Filed 01!03!18 Page 2 of 2

Civil Division, Federal Programs Branch
PD. Box 883

Washington, DC. 20044

Tel: {202) 514-1944 Fax: (202) 616-8460
E-mail: Jeseph.Bersen@usdej.gev

Executive Order on the Termination of Presidential Advisory Commission on Election Page 1 of 2
Case Document 42-1 Filed Page 1 of 2

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From: OQC LCD atlon 


3(6)
"Palmer David 3(6)


Gene 

CC:
LCD Li

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Subject: 

Date: ZCIISIDIJCIS 15:31:00
Priority: Normal
Type: Note

 

Good Afternoon,

 



 

 

Thank you,

 

M15)

 

 

 

Attorney?Adviser (Privacy)

Legal Counsel Division,

Of?ce of the General Counsel

U.S. Department of Homeland Security

 

?133(5)

(Of?ce)
(Mobile)

 

 

 

E-Inail: 033(5)

 

 

 

From: OGC LCD Litigation

Sent: Tuesday, August 8, 2017' 3:38 PM

To: Palmer, Davile?} 

low) Hamilton, Gene (his)

more ILapan, David


lose I
(WEE)
M6) OGC LCD Liti ation
3
Face 
Subjectzl?bm

 

torbin, Susan

 

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Good afternoon,

 



 

 

Thank you,



 

 

 

 

Attorney?Advisor (Privacy)

Legal Counsel Division,

Office ofthe General Counsel

US. Department of Homeland Security
033(6) (Of?ce)

(Mobile)

 

 

 

 

 

 

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Case Document 1 Filed 0711417 Page 1 Of 22

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

COMMON CAUSE
805 15L11 Street NW.
Washington, DC. 20005,

Plainrr??, Case No.

VS.

PRESIDENTIAL ADVISORY COMMISSION ON
ELECTION INTEGRITY

The White House

1600 Avenue, NW.

Washington, DC. 20405,

and

US. DEPARTMENT OF HOMELAND SECURITY
245 Murray Lane, SW.

Washington, DC. 20528,

and

U.S. SOCIAL SECURITY ADMINISTRATION
6401 Security Boulevard

Baltimore, MD 21235,

Defendants.



COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Plaintiff, Common Cause, hereby sues Defendants, Presidential Advisory
Commission on Election Integrity or the ?Commission?), the US. Department
of Homeland Security and the US. Social Security Administration 

and alleges as follows.
Introduction
1. This is an action under the Privacy Act of 1974, 5 U.S.C. and the

Administrative Procedure Act (APA), 5 U.S.C. 706, to halt the unlawful collection,

Case Document 1 Filed 0711411? Page 2 of 22

maintenance, use, and dissemination of the sensitive and personal voting data of millions
of Americans by the Commission.

2. In the wake of the Watergate scandal and revelations that the White House had
compiled information on individuals with opposing political viewpoints, Congress passed
the Privacy Act to regulate the collection, maintenance, use, and dissemination of
sensitive personal information by federal agencies. Among other safeguards, the Act
proscribes the collection of information that ?describ[es] how any individual exercises
rights guaranteed by the First Amendment.? 5 U.S.C. 552a(e)(7).

3. After campaigning on unsubstantiated claims of voter fraud and rigged elections,
President Donald J. Trump asserted that he ?won the popular vote if you deduct the
millions of people who voted illegally.? Within days of his inauguration, President
Trump called for ?a major investigation into VOTER 

4. The Commission was created with the aim of examining this purported voter
fraud and has opened a broad and unprecedented investigation into Americans? voting
habits and political affiliations. The Commission?s ?rst project is to assemble a national
voter file and compare this information to data sets maintained by other federal agencies
(including the Department of Homeland Security and the Social Security Administration)
in order to discover the names of individuals that it believes are ineligible to vote. To
carry out this review, it initially gave all 50 states and the District of Columbia a deadline
of July 14, 2017 to comply with a sweeping request for their residents? voting and other
personal data, including information regarding the quintessentially First Amendment?

protected activities of voting history and party affiliation.

Case Document 1 Filed O't'll4l17 Page 3 of 22

5. The Commission initially sought to have states upload the voting data to a
Department of Defense website, from which the data would then be transferred to White
House computers. But after the Court in a separate lawsuit filed against the Commission
inquired of the Government if the Department of Defense should be joined as a
defendant, the Commission abruptly shifted course to ?repurpos[e]? a computer system
within the White House?s Information Technology ?enterprise? to collect, maintain, and
use the data. See Elect. Privacy Info. Ctr. v. Presidential Advisory Contm?n on Election
Integrity, No. 1:17-cv-l320 (CKK) (D.D.C.) (EPIC lawsuit). And when asked by the
Court to describe the involvement of other federal agencies in this enterprise, the
Government stated that the ?mechanics? of it were ?something that may not be
appropriate to say in a public setting.? See id.

6. The Privacy Act?s protections?designed to curb this very type of encroachment
on citizens? First Amendment activities by an earlier White House?cannot be so
circumvented. The Commission?s collection, maintenance, and use of this data in
cooperation with DHS and SSA, among other federal agencies either within or outside
the White House,] violates both the Privacy Act and the APA. Plaintiff therefore seeks to
enjoin Defendants from collecting, maintaining, using, or disseminating this data and to
destroy or return any such data that has already been collected and is being maintained in

violation of the law.

 

Plaintiff intends to seek discovery from the federal defendants and third?parties, if necessary, to determine
whether additional agencies should be added as defendants based on their activities with regard to the
electronic databases described herein. Bailey v. US. Marshal Sara, 584 F. Supp. 2d 128, 134 (D.D.C.
2008) is generally proper to allow discovery to determine the identity of unknown defendants?).

Case Document 1 Filed 0711411? Page 4 of 22

Parties
Plaintiff, Common Cause, is a nonpro?t corporation organized and existing under
the laws of the District of Columbia. Common Cause is one of the nation?s leading
democracy reform organizations and has over 900,000 members nationwide. Common
Cause also has a strong presence in 30 states, with either staff or volunteer boards. Since
its founding in 1970, Common Cause has been dedicated to the promotion and protection
of the democratic process, such as the right of all citizens, including its eligible members,
to be registered for and vote in fair, open, and honest elections. Common Cause brings
this action on behalf of itself and its members.
8. Common Cause conducts significant nonpartisan voter-protection, advocacy,
education, and outreach activities to ensure that voters are registered to vote and have
their ballots counted as cast. Common Cause also advocates for policies, practices, and
legislation such as automatic and same-day registration that facilitate voting for
eligible voters and ensure against disenfranchisement. Common Cause opposes efforts
that burden registration andfor voting, including restrictive voter identification laws,
partisan gerrymandering, and any other effort that could potentially chill citizens? rights
to register or stay registered. Common Cause advocates the safeguarding of personal
information, in keeping with the dictates of both state and federal law.
9. Common Cause and its members have been and will be injured by the
Defendants? activities, including the efforts to obtain personal and private information
regarding voter affiliation, vote history, and other related details. Common Cause has
already expended staff time and resources to engage in non-litigation related outreach and

communications efforts to oppose the impermissible collection of voter information as

Case Document 1 Filed 0711411? Page 5 of 22

sought by the Commission, diverting resources from its core activities. These
expenditures are aimed at counteracting the harm that the Commission?s impermissible
attempt to collect voter information will cause to Common Cause?s mission of
encouraging and facilitating voter participation and engagement.

10. The Commission?s attempt to collect voter information will also harm Common
Cause?s and its members? efforts to encourage voter registration and participation. For
voters and prospective voters facing political polarization, the threat that the federal
government will monitor their electoral participation and even their party af?liations is
deeply troubling and has deterred and will continue to deter the exercise of their First
Amendment-protected rights to express their views through the ballot box. Further, the
Commission?s effort to collect voter information may cause registrants and voters,
including Common Cause members, to cancel their registration status (as has already
occurred in Florida and Colorado) or forgo registering and voting altogether. Such
actions would directly undo the work to which Common Cause has devoted itself over
the past few decades and would limit voter engagement and participation in our
democracy.

Defendant PACEI is a federal agency within the meaning of 5 U.S.C. 552a(a)(1)
and 5 U.S.C. 551(1) that is headquartered in Washington, DC.

12. Defendant U.S. Department of Homeland Security is a federal agency within the
meaning of 5 U.S.C. 552a(a)(1) and 5 U.S.C. 551(1) that is headquartered in

Washington, DC).

Case Document 1 Filed 0711411? Page 6 of 22

13. Defendant U.S. Social Security Administration is a federal agency within the
meaning of 5 U.S.C. 552a(a)(1) and 5 U.S.C. 551(1) that is headquartered in
Baltimore, MD.
Jurisdiction and Venue
14. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
1331, because this action arises under federal law, speci?cally the Privacy Act, 5
U.S.C. 552a(e)(7), and the APA, 5 U.S.C. 701-706.
15. Venue is proper in this district pursuant to 28 U.S.C. 1391(e), because at least
one of Defendants is headquartered in Washington, DC. and a substantial part of the
events or omissions giving rise to Plaintiff?s claims occurred here.
Factual Allegations
Candidate Donald J. Trump ?3 Repeated, Claims of Voter Fraud
16. Prior to his election, then-presidential candidate Donald J. Trump repeatedly
made unsubstantiated assertions of voter fraud.
17'. On October 10, 2016, Candidate Trump tweeted that, ?Of course there is large
scale voter fraud happening on and before election day.? @realDonaldTrump, Twitter
(Oct. 10, 2016, 8:33 AM), avaifabie a: 

18. On October 17, 2016, candidate Trump told supporters at a campaign rally in
Wisconsin that ?voter fraud is very, very common,? including voting by ?people that
have died 10 years ago? and ?illegal immigrants.? C-SPAN, Danaid Tramp Campaign
Event in Green Bay, Wisconsin (Oct. 17, 2016), avaiiabie at 



Case Document 1 Filed 07l14l1? Page 7 of 22

19. On November 8, 2016, Donald J. Trump was elected as the forty-fifth president of
the United States.

20. On November 27, 2016, president?elect Trump tweeted that, ?In addition to
winning the Electoral College in a landslide, I won the popular vote if you deduct the
millions of people who voted illegally.? @realDonaldTrump, Twitter (Nov. 27, 2016,
3:30 PM), available at 
802972944532209664.

21. Three days later, Kansas Secretary of State Kris W. Kobach echoed the president-
eleet?s assertion, telling reporters that, think the president?elect is absolutely correct
when he says the number of illegal votes cast exceeds the popular vote margin between
him and Hillary Clinton.? Hunter Woodall, Kris Kobaelt Agrees With Donald Tramp
That 'Millions? Voted Illegallv Bat Offers No Evidence, Kansas City Star (Nov. 30,
2016), available at 

article] 17957143.html.

22. Asked in a televised interview on December 2, 2016 about president?elect
Trump?s claim that ?millions of people voted illegally,? Trump senior adviser
Kellyanne Conway said that she has ?been receiving information about the irregularities
and about the illegal votes, particularly from sources, of?cials like Kris Kobach.? Emily
Shapiro, Kellyanne Conway Dodges Question on Tramp ?s Claim That 'Millions? Voted
illegally, ABC News (Dec. 2, 2016), available at 


Creation the Presidential Advisory Commission on Election Integrity

 

Case Document 1 Filed OTil4ilT Page 8 of 22

23. On January 20, 2017, Donald J. Trump was inaugurated as President of the United
States.

24. Five days later, President Trump tweeted on his of?cial Twitter account: will
be asking for a major investigation into VOTER FRAUD, including those registered to
vote in two states, those who are illegal and even, those registered to vote who are dead
(and many for a long time). Depending on results, we will strengthen up voting
procedures!? @realDonaldTrump, Twitter (Jan. 25, 2017, 7:10 AM and 7:13 AM),
available at and


25. In a televised interview on January 25, 2017, President Trump reiterated his
claims that allegedly fraudulent votes were cast for his opponent: ?We?re gonna launch
an investigation to find out. And then the next time?and I will say this, of those votes
cast, none of ?em come to me. None of ?em come to me. They would all be for the other
side. None of ?em come to me. But when you look at the people that are registered: dead,
illegal and two states and some cases maybe three states?we have a lot to look into.? He
vowed to ?make sure it doesn?t happen again.? TRANSCRIPT: ABC News anchor David
Mair interviews President Tramp, ABC News (Jan. 25, 2017), avaiiabie ai? http:ii
abcnews . go. comiPol ir-interv iews-
presidentistory??id245047602.

26. That same day, CNN reported that according to a senior administration of?cial,
?President Donald Trump could sign an executive order or presidential memorandum
initiating an investigation into voter fraud as early as Thursday.? Dan Merica, Eric

Bradner, and Jim Acosta, Tramp considers executive order on voierfraiid, CNN (Jan. 25,

Case Document 1 Filed 07ll4ll? Page 9 of 22

2017), available at 
The official further informed CNN that ?[t]he
investigation would be carried out through the Department of Justice.? Id.

27. On May 11, 2017, the White House issued Executive Order No. 13,799
establishing the Commission, which President Trump has described as a ?Voter Fraud
Panel.? See Executive Order No. 13,799, 82 Fed. Reg. 22389 (May 2017);
@realDonaldTrump, Twitter (July 1, 2017, 9:07 AM) available at 


28. The Commission?s stated ?mission? is studying, ?consistent with applicable law,"
the ?registration and voting processes used in Federal elections.? Id.

29. The Commission is chaired by Vice President Michael Fence and is to be
composed of up to 15 additional members having knowledge and experience in
?elections, election management, election fraud detection and voter integrity efforts? or
having ?knowledge or experience that the President determines to be of value to the
Commission.? Id.

30. On the same day that the Commission was established, Kansas Secretary of State
Kobach was appointed as a member and Vice Chair. Kobach is the only Secretary of
State in the nation with the power to prosecute voter fraud directly. See Interview afKris
W. Kabaclr on Fox News Channel (May 11, 2017), available a: 
comlwatch?v=Fm0MmeYSJU.

The Commission presently has ten additional members, consisting of a current

member of the United States Elections Assistance Commission, present and former state

Case Document 1 Filed 07t14t17 Page 10 of 22

of?cials, and an employee of the Heritage Foundation. It will also have a staff of
approximately three full-time equivalent employees.

32. The Executive Order directs ?relevant? executive departments and agencies to
?endeavor to cooperate with the Commission.? Executive Order No. 13799, 82 Fed. Reg.
22389 (May 11,2017).

33. The Commission?s estimated annual operating costs for Fiscal Years 2017 and
2018 are approximately $250,000.

34. Consistent with President Trump?s description of the Commission as a voter fraud
panel, Kobach has described the Commission?s focus as ?voter fraud more broadly, all
forms of it,? see Gary Moore, Tucker Carlson: Kris Kabaeh - Tramp Executive Order
Creates Voter Commission: 5/11/2017, YouTube (May 11, 2017'), avat'labfe at
U, and has explained that the
Commission?s ?goal is to, for the first time, have a nationwide fact-finding effort, to see
what evidence there is of different forms of voter fraud across the country.? See
Transcript of Interview W. Kabaeh on New Day, CNN (May 15, 2017), availabte
at 

35. Asked how the Commission would prove President Trump?s unsubstantiated
claims of widespread voter fraud, Kobach explained that, ?The federal government has a
database of every known alien who has a greencard or a temporary visa. States have in
the past asked, ?can we please run our voter rolls against that database, and see if any of
those aliens are on our voter rolls?? The federal government has always said no. Well,
now we?re going to be able to run that database against one or two states and see how

many people are known aliens residing in the United States and also on the voter rolls.?

10

Case Document 1 Filed 07t14t17 Page 11 of 22

Gary Moore, Tucker Carlson: Kris Kobocit - Trump Executive Order Creates Voter
Fraud Commission: 5/11/2017, YouTube (May 11, 2017), ovoiiobie ot 
U.

36. Describing in further detail which other agencies? data the Commission would be
working with on its voter fraud investigation, Kobach explained that ?what we?ll be
doing is for the ?rst time in our country?s history, we?ll be gathering data from all 50
states and we?ll be using the federal government?s databases which can been very
valuable. The Social Security Administration has data on people when they pass away.
The Department of Homeland Security knows of the millions of aliens who are in the
United States legally and that data that?s never been bounced against the state?s voter
rolls to see whether these people are registered.? Kobociz toiks goofs ofitew voter frond
commission, Fox News, Sunday Morning Futures {May 14, 2017), ovoiiobie oi http?
7i05i 


The Commission ?s Sweeping and Unprecedented Request for Personal and Voter Doro
37?. Despite the Executive Order?s directive that the Commission hold public
meetings, it convened as a group for the first time on June 28, 2017' without any prior
public notice. A brief ?readout? of the meeting supplied by the White House later that
day stated Kobach had informed the other commissioners that a letter would be sent to all
50 states and the District of Columbia requesting data from state voter rolls. See Press
Release, The White House, Readout of the Vice President?s Call with the Presidential

Advisory Commission on Election Integrity (June 28, 2017), available or 

ll

Case Document 1 Filed 07t14t17 Page 12 of 22




38. On June 28, 2017, Kobaeh ?directed? that a letter be sent under his signature to
the Secretaries of State or other election officials in all 50 states and the District of
Columbia. Declaration of Kris W. Kobach ?11 4 (July 5, 2017'). The other commissioners
neither reviewed nor vetted the actual language of the letter before it was sent. Sam
Levine, Tramp Voter raad Commission Was Coationea? Seeking Sensitive Voter
ln?annation, Huf?ngton Post (July 5, 2017'), available at 
1fe4b02e9bdb0a073d; Celeste Kata,
Tramp election integrity commission member: ?We should have predicted the backlash,
Mic (July 5, 2017), available at 


39. Kobaeh?s letter ?invite[d]? state of?cials, among other things, to share ?evidence
or information . . . you have regarding instances of voter fraud or registration fraud in
your state? and asked how the Commission could ?support? state election of?cials ?with
regard to information technology security and vulnerabilities.? See, Letter from Kris
W. Kobach, Vice Chair, PACEI to the Honorable Matt Dunlap Secretary of State of
Maine, at 1 (June 28, 201?).

40. The letter requested that the recipients provide by July 14, 2017 ?the publicly
available voter roll data for [your state], including, if publicly available under the laws of
your state, the full first and last names of all registrants, middle names or initials if
available, addresses, dates of birth, political party (if recorded in your state), last four

digits of social security number if available, voter history (elections voted in) from 2006

12

Case Document 1 Filed 07ll4i17 Page 13 of 22

onward, activelinactive status, cancelled status, information regarding any felony
convictions, information regarding voter registration in another state, information
regarding military status, and overseas citizen information.? Id. at 1-2.

The letter instructed recipients to ?submit your responses electronically to
or by utilizing the Safe Access File Exchange
which is a secure FTP site the federal government uses for transferring large
data files. You can access the SAFE site at 
Welcomeaspx.? Id. at 2.

42. The letter closed by warning that ?any documents that are submitted to the full
Commission will also be made available to the public.? la'.

43. After reports indicated that certain state of?cials might decline to provide some or
all of the personal and voter data requested by Kobach, President Trump tweeted:
?Numerous states are refusing to give information to the very distinguished VOTER
FRAUD PANEL. What are they trying to hide?? @realDonaldTrump, Twitter (July 1,
2017, 9:07 AM) available at 
88113707?9958241280.

44. Kobach has stated that the purpose of his request is ?to have the best data
possible? to support the Commission?s ?purpose . . . to quantify different forms of voter
fraud and registration fraud and offer solutions.? Bryan Lowry, Kris Kabaclz Wants
Every US. Voter?s Personal Informationjor Trump ?5 Commission, Kansas City Star
(June 29, 2017'), available at 

article158871959.html.

13

Case Document 1 Filed 07l14l17 Page 14 of 22

45. The Vice President?s office has con?rmed that the Commission intends to run the
data it receives ?through a number of different databases? to check for potential
fraudulent registration. Jessica Huseman, Election Experts See Flaws in Tramp Voter
Commission ?s Plan to Smoke On: Fraud, ProPublica (July 6, 2017), available as

plan-to-smoke-out-fraud.

46. The same day that Kobach sent his letter, the Voting Section of the Civil Rights
Division of the Department of Justice sent its own letter to states requesting their
procedures for complying with the statewide voter registration list maintenance
provisions of the National Voter Registration Act. DOJ stated that under the NVRA
states must make reasonable efforts to remove from voter rolls the names of voters who
have become ineligible by reason of death or change of address. DOJ requested that
states provide their policies for removing ineligible voters and identify the officials
responsible for doing so. See, 6.3., Letter from to Hon. Kim Westbrook Strach,
Executive Director, NC. State Bd. of Elections (June 28, 2017).

The Commission Shifts It?s Plans to House the Personal and Voting Dara

 

47'. In a declaration filed on July 5, 2017 in the EPIC lawsuit against the Commission
for failure to comply with federal privacy laws, Kobach stated that he ?intended? that
only ?narrative responses? provided in response to the letter be sent to the eop.gov email
address in the letter and that ?voter roll data? be uploaded onto the Safe Access File
Exchange (SAFE), which he described as a ?tested and reliable method of secure file
transfer used routinely by the military for large, unclassified data sets? that ?also supports

by individual users.? Declaration of Kris W. Kobach ?ll 4.

l4

Case Document 1 Filed 07t14t17 Page 15 of 22

48. The SAFE website is operated by the U.S. Army Aviation and Missile Research
Development and Engineering Center, a component within the US. Army.

49. After the Court in the EPIC lawsuit inquired at a July 2017 hearing if the
Department of Defense, by virtue of its role in collecting and maintaining the data on the
SAFE website, should be joined as a defendant the Commission changed course on its
storage plans. In a subsequent declaration filed on July 10, 2017, Kobach stated that 
order not to impact the ability of other customers to use? SAFE, the Director of White
House Information Technology was ?repurposing an existing system? to collect the
information ?within the White House Information Technology enterprise.? Third
Declaration of Kris W. Kobach (II 1.

50. Asked by the Court at the same July 7 hearing what other federal agencies support
the White House?s computer system, the Government stated that the ?mechanics? of the
White House?s information technology program are ?something that may not be
appropriate to say in a public setting.? Transcript, Temporary Restraining Order Hearing
in Elect. Privacy Info. Ctr. v. Presidentioi Advisorv Comm ?n on Election Integrity, 1:17-
cv-1320 (CKK) (D.D.C.) (July 7, 2017).

Severoi States Jntend to Provide Voter History and Party Data

 

51. As of July 5, 2017, ?20 states have agreed to provide the publicly available
information requested by the Commission and another 16 states are reviewing which
information can be released under their state laws.? Press Release, The White House,
Statement from Kris Kobach, Kansas Secretary of State and Vice Chair of the

Presidential Advisory Commission on Election Integrity (July 5, 201?) ovoiiobie at

15

Case Document 1 Filed Gill-M17 Page 16 of 22

govlthe-press-offieeiZU 7l0?lUSistatement-kris-kobaeh-


52. The State of Arkansas had provided the Commission voter history and party
af?liation through the SAFE website. In light of the pending motion for a temporary
restraining order in the EPIC lawsuit, the Commission advised the Court that the
Arkansas data would not be downloaded to White House computers and would be
deleted from the SAFE website.

53. Several states intend to provide the Commission with voter history and party
af?liation data. This group includes Arkansas, Colorado, Florida, North Carolina, and
Ohio. See, ?Arkansas to give partial voter information to Voter Integrity
Commission,? 40i29 NEWS (July 5, 2017'), available at 

10261303; ?News Release: Secretary Williams? Response to request for public voter
?les," COLORADO SECRETARY OE STATE (June 29, 2017), available

at from Ken
Detzner, Florida Secretary of State to Kris W. Kobaeh (July 6, 2017), available

at 

Request Voter Registration Data, OF ELECTIONS, BREVARD
COUNTY available at 
registration-data; North Carolina: Qci'eA: Eieetion Integrity Commission ?3 Data
Request, NORTH CAROLINA STATE BOARD OF ELECTIONS AND ETHICS

ENFORCEMENT (July 10, 2017), available at 

Statement from

16

Case Document 1 Filed Page 17 of 22

Secretary Hasred, OHIO SECRETARY OF STATE (June 30, 2017), available
at Dana Branham,
?Ohio?s Jon Husted to Trump election commission: We won?t turn over con?dential
voter info,? CINCINNAT1.COM (June 30, 2017), available at 

mulls-overf442492001f.
54. The Commission has directed states not to provide the requested voter data
while the motion for a temporary restraining order is pending in the EPIC lawsuit.

The Privacy Act
55. The Privacy Act of 1974 regulates the government?s collection, maintenance, use,
and dissemination of sensitive personal information.
56. Congress, which passed the Act following revelations during Watergate that the
White House had collected information on its political adversaries, was ?concerned with
curbing the illegal surveillance and investigation of individuals by federal agencies that
had been exposed during the Watergate scandal.? Department of Justice, Overview of the
Privacy Act of 1974 (2015 edition), available at 
objectives.
Section 552a(e)(7) of the Act provides that an agency shall ?maintain no record
describing how any individual exercises rights guaranteed by the First Amendment unless
expressly authorized by statute or by the individual about whom the record is maintained
or unless pertinent to and within the scope of an authorized law enforcement activity."
58. As the DC Circuit has explained: ?The legislative history of the Act reveals

Congress? own special concern for the protection of First Amendment rights, as borne out

17

Case Document 1 Filed Page 18 of 22

by statements regarding ?the preferred status which the Committee intends managers of
information technology to accord to information touching areas protected by the First
Amendment of the Constitution.? Albrighr v. United States, 631 F.2d 915, 919 (DC.
Cir. 1980) (citing S. Rep. No. 1183, 93d Cong, 2d Sess, reprinted in (1974) U.S. Code
Cong. 8: Admin. News, pp. 6916, 6971.)). That same legislative history also ?reveals a
concern for unwarranted collection of information as a distinct harm in and of itself.? Id.
In particular, Congress directed Section 5523(e)(7) at ?inquiries made for research or
statistical purposes which, even though they may be accompanied by sincere pledges of
confidentiality are, by the very fact that government make (sic) the inquiry, infringing on
zones of personal privacy which should be exempted from unwarranted Federal inquiry.?
Id. (citing S. Rep. No. 1183, (1974) U.S. Code Cong. Admin. News at 6971-72)).

59. The initial implementation guidelines for the Act promulgated by the Office of
Management and Budget (OMB) underscore the special status accorded by the Act to
records concerning individuals? First Amendment-protected activities. According to
guidelines, Section 552a(e)(7) established a ?rigorous standard governing the
maintenance of records regarding the exercise of First Amendment rights,? including
?political beliefs? and ?freedom of assembly,? and asked agencies to ?apply the broadest
reasonable interpretation? in determining whether a particular activity is protected by
Section 5523(e)(7). 0MB, Responsibilities for the Maintenance of Records About
Individuals by Federal Agencies, 40 Fed. Reg. 28,948, 28,965 (July 9, 1975).

60. Accordingly, the DC. Circuit has held that an agency ?may not so much as
collect information about an individual?s exercise of First Amendment rights except

under very circumscribed conditions? and that Section 552a(e)(7) applies regardless

18

Case Document 1 Filed Page 19 of 22

whether a record is maintained in an agency?s system of records. Albrr?ghr, 631 F.2d at
919.
The Privacy Act incorporates the de?nition of ?agency? found in the Freedom of
Information Act, id. 552a(a)(1), which in turn de?nes ?agency" as ?any executive
department, military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the Government (including
the Executive Of?ce of the President), or any independent regulatory agency.? Id.
552(f).
62. The Commission is an agency. In cooperation with an as-yet?unknown number of
other federal agencies, the Commission will function as a federal investigative body with
a dedicated staff and budget to conduct a widescale and first-of?its-kind investigation into
alleged voter fraud. Presently, the Commission is amassing the personal and voting data
of millions of American citizens and will cross-check this information against databases
maintained by other federal agencies, including the Department of Homeland Security
and the Social Security Administration, to identify and ultimately have removed
individuals whom it believes have fraudulently registered to vote.
63. The Commission?s functions and actions therefore go well beyond solely advising
and assisting the President, and its structure shows that it is self-contained, is not
operationally close to the President, and exercises substantial independent authority.
Claims for Relief

Count One (Violation of5 U.S.C. 5523(e)(7))

64. Plaintiff hereby realleges all allegations in the above paragraphs as if fully set

forth herein.

l9

Case Document 1 Filed Page 20 of 22

65. Section of the Privacy Act provides that an agency shall ?maintain no
record describing how any individual exercises rights guaranteed by the First
Amendment unless expressly authorized by statute or by the individual about whom the
record is maintained or unless pertinent to and within the scope of an authorized law
enforcement activity.?
66. The Privacy Act de?nes ?maintain? to include ?maintain, collect, use, or
disseminate.? 5 U.S.C. 552a(a)(3).
67. Through the collection, maintenance, use, andfor dissemination of data on
individuals? voter history and party affiliation, activity that is protected by the First
Amendment, Defendants have violated, and will violate, Section 552a(e)(7).
68. The collection, maintenance, use, andfor dissemination of these records was not
within the scope of a valid law enforcement activity.
69. Defendants? violation has caused and continues to cause ongoing harm to
Plaintiff.

Count Two (Violation of APA Arbitrary and Capricious Action)
70. Plaintiff hereby realleges all allegations in the above paragraphs as if fully set
forth herein.
In collecting, maintaining, using, andfor disseminating data on individuals? voter
history and party affiliation, activity that is protected by the First Amendment, in
violation of 5 U.S.C. Defendants have acted arbitrarily, capriciously, in
excess of statutory jurisdiction and authority, and otherwise contrary to law, in violation

of the APA, 5 U.S.C. 706.

20

Case Document 1 Filed Page 21 of 22

Prayer for Relief

WHEREFORE, plaintiff pray that this Court:

1.

Declare that Defendants? collection, maintenance, use, and dissemination of
voter history and party affiliation data violates the Privacy Act and the 
Enjoin Defendants from the collection, maintenance, use, and dissemination
of voter history and party affiliation data;

Order Defendants to provide an accounting of all voter history and party
af?liation data in its custody, possession, or control; all copies that have been
made of that data; all persons and agencies with whom Defendants have
shared that data; and all uses that have been made of that data;

Order Defendants to return to any supplying State all voter history and party
af?liation data received from that state or otherwise securely delete such data;
and

Award Plaintiff its costs and reasonable attomeys? fees incurred in this action;
and

Grant such other relief as the Court may deem just and proper.

21

Case 

Dated: July 14,2017

Document 1 Filed Page 22 of 22

22

Respectfully submitted,

{sf Javier Guzman

Javier M. Guzman

(DC. Bar No. 462679)

Karianne M. Jones (pro hac vice motion
to be ?led)*

Democracy Forward Foundation

PD. Box 34553

Washington, DC. 20043

(202) 448-9090

guzman@demoeraeyforwardorg
kjones@dernoeracyforwardorg

*Admitted in the State of Minnesota;
practicing under the supervision of firm
principals.

Case Document 22

JOON H. KIM

Acting United States Attorney for the
Southern District of New York

By: CASEY K. LEE

Assistant United States Attorney

86 Chambers Street, Third Floor
New York, New York 10007

Tel.: (212) 637?2714

Fax: (212) 637?2686
casey.lee@usdoj.gov

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Filed Page 1 of 18

 

BRENNAN CENTER FOR JUSTICE, and
THE PROTECT DEMOCRACY PROJECT,

Plaintiffs,
V.

US DEPARTMENT OF JUSTICE,
US. DEPARTMENT OF HOMELAND SECURITY,

U.S. GENERAL SERVICES ADMINISTRATION, and

OFFICE OF MANAGEMENT AND BUDGET,

Defendants.

17 Ciy. 6335 (KBF)

ANSWER TO THE
AMENDED COMPLAINT

 

 

Defendants US. Department of Justice US. Department of Homeland Security

US. General Services Administration and Of?ce of Management and

Budget (together, ?Defendants?), by their attorney, Joon H. Kim, Acting United States

Attorney for the Southern District of New York, hereby answer the amended complaint (Dkt.

No. 12) of Plaintiffs Brennan Center for Justice and The Protect Democracy Project (together,

uPlaintiffs?) on information and belief as follows:

The allegations contained in the unnumbered paragraph on pages 1-2 of the amended

complaint consist of Plaintiffs? characterization of this action, to which no response is required.

To the extent a response is required, Defendants deny the allegations in the unnumbered

Case Document 22 Filed Page 2 of 18

paragraph on pages 1-2 of the amended complaint, except admit that this action is putatively
brought under the Freedom of Information Act 5 U.S.C. 552 et seq.
JURISDICTION AND VENUE1

1. Paragraph 1 of the amended complaint states a legal conclusion regarding
jurisdiction, to which no response is required.

2. Paragraph 2 of the amended complaint states a legal conclusion regarding venue,
to which no response is required.

PARTIES

3. Deny knowledge or information suf?cient to form a belief as to the truth or falsity
of the allegations set forth in Paragraph 3 of the complaint.

4. Deny knowledge or information suf?cient to form a belief as to the truth or falsity
of the allegations set forth in Paragraph 4 of the complaint.

5. Admit and aver that is an agency of the executive branch of the United
States government, and that the Office of Information Policy and Of?ce of Legal
Counsel are components of Admit that is headquartered at 950
Avenue NW, Washington, DC 20530. Admit that is an ?agency? within the
meaning of 5 U.S.C. 552(f). Deny knowledge or information suf?cient to form a belief as to
the truth or falsity of the remainder of the third sentence of Paragraph 5, as searches and
analyses related to Plaintiffs? FOIA requests are ongoing.

6. Admit and aver that DHS is an agency of the executive branch of the United
States government. Admit that DHS is headquartered at 245 Murray Lane NW, Washington, DC

20528. Admit that DHS is an ?agency? within the meaning of 5 U.S.C. 552(1). Deny

 

1 Defendants replicate the headings from Plaintiffs1 complaint solely for ease of reference, without admitting the
allegations set forth thereunder.

Case Document 22 Filed 1011111? Page 3 of 18

knowledge or information suf?cient to form a belief as to the truth or falsity of the remainder of
the third sentence of Paragraph 6, as search and analyses related to Plaintiffs? FOIA
requests are ongoing.

7. Aver that GSA is an independent agency of the United States government, see 40
U.S.C. 101 et seq. Admit that GSA is headquartered at 1800 Street NW, Washington, DC
20405. Admit that GSA is an ?agency" within the meaning of 5 U.S.C. 5526). Deny
knowledge or information suf?cient to form a belief as to the truth or falsity of the remainder of
the third sentence of Paragraph 7, as searches and analyses related to Plaintiffs? FOIA
requests are ongoing.

8. Admit that OMB is an agency of the executive branch of the United States
government. Admit that OMB is headquartered at 725 17th Street NW, Washington, DC 20503.
Admit that OMB is an ?agency? within the meaning of 5 U.S.C. 552(f). Deny knowledge or
information sufficient to form a belief as to the truth or falsity of the remainder of the third
sentence of Paragraph 8, as search and analyses related to Plaintiffs? FOIA requests are
ongoing.

STATEMENT OF FACTS
A. President Trump?s Advisory Commission on Election Integrity

9. Admit that on or about May 11, 2017, the President issued Executive Order
13799, entitled ?Presidential Executive Order on the Establishment of Presidential Advisory
Commission on Election Integrity,? and respectfully refer the Court to that Executive Order for a
complete and accurate description of its contents.

10. Admit that Vice President Mike Pence chairs the Presidential Advisory
Commission on Election Integrity (?Commission?), and that Kris Kobach serves as the

Commission?s vice chair.

Case Document 22 Filed Page 4 of 18

11. Admit that Hans yon Spakovsky, J. Christian Adams, and Ken Blackwell are
members of the Commission. The remainder of Paragraph 11 sets forth characterizations of the
subject of Plaintiffs? FOIA requests, allegedly published articles, andi?or allegations unrelated to
Plaintiffs? legal claims under FOIA, to which no response is required. To the extent a response
to the remainder of Paragraph 11 is deemed required, Defendants admit only the existence of the
two articles cited in footnotes 2-4 in Paragraph 11; respectfully refer the Court to those articles
for complete and accurate descriptions of their contents; and deny knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in Paragraph 11.

12. Paragraph 12 sets forth characterizations of the subject of Plaintiffs? FOIA
requests, allegedly published articles, andi?or allegations unrelated to Plaintiffs? legal claims
under FOIA, to which no response is required. To the extent a response is deemed required,
Defendants admit only the existence of the three articles cited in footnotes 5-7 in Paragraph 12;
respect?Jlly refer the Court to those articles for complete and accurate descriptions of their
contents; and deny knowledge or information suf?cient to form a belief as to the truth of the
allegations in Paragraph 12.

13. Paragraph 13 sets forth characterizations of the subject of Plaintiffs? FOIA
requests, an allegedly published article, andfor allegations unrelated to Plaintiffs? legal claims
under FOIA, to which no response is required. To the extent a response is deemed required,
Defendants admit only the existence of the article cited in footnote 8 in Paragraph 13;
respect?Jlly refer the Court to that article for a complete and accurate description of its contents;
and deny knowledge or information sufficient to form a belief as to the truth of the allegations in
Paragraph 13.

14. Paragraph 14 sets forth characterizations of the subject of Plaintiffs? FOIA

requests andi?or allegations unrelated to Plaintiffs? legal claims under FOIA, to which no

4

Case Document 22 Filed Page 5 of 18

response is required. To the extent a response is deemed required, Defendants deny knowledge
or information suf?cient to form a belief as to the truth of the allegations in Paragraph 14.

15. Paragraph 15 sets forth characterizations of the subject of Plaintiffs? FOIA
requests andfor allegations unrelated to Plaintiffs? legal claims under FOIA, to which no
response is required. To the extent a response is deemed required, Defendants deny knowledge
or information suf?cient to form a belief as to the truth of the allegations in Paragraph 15.

16. Admit that the Commission held its ?rst meeting on or about July 19, 2017. The
remainder of Paragraph 16 sets forth characterizations of the subject of Plaintiffs? FOIA requests,
an allegedly published article, andfor allegations unrelated to Plaintiffs? legal claims under
FOIA, to which no response is required. To the extent a response to the remainder of Paragraph
16 is deemed required, Defendants admit only the existence of the article cited in footnote 9 in
Paragraph 16; respectfully refer the Court to that article for a complete and accurate description
of its contents; and deny knowledge or information suf?cient to form a belief as to the truth of
the allegations in the remainder of Paragraph 16.

Paragraph 17 sets forth characterizations of the subject of Plaintiffs? FOIA
requests andfor allegations unrelated to Plaintiffs? legal claims under FOIA, to which no
response is required. To the extent a response is deemed required, Defendants deny knowledge
or information suf?cient to form a belief as to the truth of the allegations in Paragraph 17'.

18. Admit and aver that the Commission has announced that it will hold a meeting on
September 12, 2017. Admit the existence of the article cited in footnote 10 in Paragraph 18, and
respectfully refer the Court to that article for a complete and accurate description of its contents.

19. Paragraph 19 sets forth characterizations of the subject of Plaintiffs? FOIA
requests, allegedly published articles, andfor allegations unrelated to Plaintiffs? legal claims

under FOIA, to which no response is required. To the extent a response is deemed required,

5

Case Document 22 Filed Page 6 of 18

Defendants admit only the existence of the two articles cited in footnotes 11-12 in Paragraph 19;
respectfully refer the Court to those articles for complete and accurate descriptions of their
contents; and deny knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 19.

20. Paragraph 20 sets forth characterizations of the subject of Plaintiffs? FOIA
requests, an allegedly published article, andfor allegations unrelated to Plaintiffs? legal claims
under FOIA, to which no response is required. To the extent a response is deemed required,
Defendants admit only the existence of the article cited in footnote 13 in Paragraph 20;
respectfully refer the Court to that article for a complete and accurate description of its contents;
and deny knowledge or information suf?cient to form a belief as to the truth of the allegations in
Paragraph 20.

21. The ?rst sentence of Paragraph 21 sets forth characterizations of the subject of
Plaintiffs? FOIA requests andfor allegations unrelated to Plaintiffs? legal claims under FOIA, to
which no response is required. To the extent a response is deemed required, Defendants deny
knowledge or information suf?cient to form a belief as to the truth of the allegations in the ?rst
sentence of Paragraph 21. The second sentence of Paragraph 21 sets forth characterizations of
the subject of Plaintiffs? FOIA requests, an allegedly published article, andfor allegations
unrelated to Plaintiffs? legal claims under FOIA, to which no response is required. To the extent
a response is deemed required, Defendants admit only the existence of the article cited in
footnote 14 in Paragraph 21 and respectfully refer the Court to that article for a complete and
accurate description of its contents.

22. Paragraph 22 sets forth characterizations of the subject of Plaintiffs? FOIA

requests andfor allegations unrelated to Plaintiffs? legal claims under FOIA, to which no

Case Document 22 Filed Page 7' of 18

response is required. To the extent a response is deemed required, Defendants deny knowledge
or information suf?cient to form a belief as to the truth of the allegations in Paragraph 22.

23. Paragraph 23 sets forth characterizations of the subject of Plaintiffs? FOIA
requests andfor allegations unrelated to Plaintiffs? legal claims under FOIA, to which no
response is required. To the extent a response is deemed required, Defendants deny knowledge
or information suf?cient to form a belief as to the truth of the allegations in Paragraph 23.

24. Paragraph 24 sets forth characterizations of the subject of Plaintiffs? FOIA
requests andfor allegations unrelated to Plaintiffs? legal claims under FOIA, to which no
response is required. To the extent a response is deemed required, Defendants deny knowledge
or information suf?cient to form a belief as to the truth of the allegations in Paragraph 24.

25. Deny knowledge or information suf?cient to form a belief as to the truth of the
allegations in Paragraph 25.

B. Plaintiffs? FOIA Requests and Defendants? Responses

26. Deny the allegations in Paragraph 26 and aver that Plaintiffs submitted at least
nine FOIA requests to Defendants.

Office oflnformarion Policy and Of?ce ofLegal Comma!

27. Admit that on or about May 15, 2017, Plaintiffs sent FOIA requests to OIP and
OLC, and respectfully refer the Court to those requests for complete and accurate descriptions of
their contents.

28. Deny knowledge or information suf?cient to form a belief as to the truth or falsity
of the ?rst sentence of Paragraph 28, as searches and analyses related to Plaintiffs? FOIA
requests are ongoing. The remainder of Paragraph 28 sets forth characterizations of the subject
of Plaintiffs? FOIA requests, allegedly published articles, andfor allegations unrelated to

Plaintiffs? legal claims under FOIA, to which no response is required. To the extent a response

7'

Case Document 22 Filed 10711117 Page 8 of 18

is deemed required, Defendants admit only the existence of the articles cited in footnotes 15-16
in Paragraph 28; respectfully refer the Court to those articles for complete and accurate
descriptions of their contents; and deny knowledge or information sufficient to form a belief as
to the truth of the allegations in the remainder of Paragraph 28.

29. Paragraph 29 consists of excerpts andfor characterizations of Plaintiffs? May 15,
2017, FOIA requests to OIP and OLC. Defendants admit the existence of these May 15, 2017,
FOIA requests and respectfully refer the Court to those requests for complete and accurate
descriptions of their contents.

30. Admit that Plaintiffs requested expedited processing in their May 15, 2017, FOIA
requests to OIP and OLC, and respectfully refer the Court to those requests for complete and
accurate descriptions of their contents.

31. Admit that Plaintiffs requested fee waivers in their May 15, 2017, FOIA requests
to OIP and OLC, and respectfully refer the Court to those requests for complete and accurate
descriptions of their contents.

32. Paragraph 32 consists of excerpts andfor characterizations of May 25, 2017,
letter to Plaintiffs acknowledging receipt of Plaintiffs? May 15, 2017, FOIA request. Defendants
admit the existence of this May 25, 2017, letter and respectfully refer the Court to that letter for a
complete and accurate description of its contents.

33. Paragraph 33 consists of excerpts andfor characterizations of June 8, 2017,
letter to Plaintiffs acknowledging receipt of Plaintiffs? May 15, 2017 FOIA request. Defendants
admit the existence of this June 8, 2017, letter and respectfully refer the Court to that letter for a

complete and accurate description of its contents.

Case Document 22 Filed 10711717 Page 9 of 18

34. Admit that on or about July 25, 2017, Plaintiffs sent FOIA requests to OIP, OLC,
and Civil Rights Division and respectfully refer the Court to those requests for
complete and accurate descriptions of their contents.

35. Paragraph 35 consists of excerpts andi?or characterizations of Plaintiffs? July 25,
2017, FOIA requests to OIP, OLC, and CRT. Defendants admit the existence of these July 25,
2017, FOIA requests and respectfully refer the Court to those requests for complete and accurate
descriptions of their contents.

36. Admit that Plaintiffs requested expedited processing in their July 25, 2017, FOIA
requests to OIP, OLC, and CRT, and respectfully refer the Court to those requests for complete
and accurate descriptions of their contents.

37. Admit that Plaintiffs requested fee waivers in their July 25, 2017, FOIA requests
to OIP, OLC, and CRT, and respectfully refer the Court to those requests for complete and
accurate descriptions of their contents.

38. Paragraph 38 consists of excerpts andfor characterizations of August 2,
2017, letter to Plaintiffs acknowledging receipt of Plaintiffs? July 25, 2017, FOIA request.
Defendants admit the existence of this August 2, 2017, letter and respectfully refer the Court to
that letter for a complete and accurate description of its contents.

39. Paragraph 39 sets forth legal conclusions, to which no response is required.

40. Paragraph 40 sets forth legal conclusions, to which no response is required. To
the extent a response is deemed required, Defendants deny the allegations in Paragraph 40 and
aver that efforts in response to Plaintiffs? FOIA requests are ongoing.

it. DHS
41. Admit that on or about May 17, 2017, Plaintiffs sent a FOIA request to DHS, and

respect?Jlly refer the Court to that request for a complete and accurate description of its contents.

9

Case Document 22 Filed 10111717 Page 10 of 18

42. Deny knowledge or information suf?cient to form a belief as to the truth or falsity
of the ?rst sentence of Paragraph 42, as search and analyses related to Plaintiffs? FOIA
requests are ongoing. The remainder of Paragraph 42 sets forth characterizations of the subject
of Plaintiffs? FOIA requests, allegedly published articles, andi?or allegations unrelated to
Plaintiffs? legal claims under FOIA, to which no response is required. To the extent a response
is deemed required, Defendants admit only the existence of the articles cited in footnotes 17-20
in Paragraph 42; respectfully refer the Court to those articles for complete and accurate
descriptions of their contents; and deny knowledge or information suf?cient to form a belief as
to the truth of the allegations in the remainder of Paragraph 42.

43. Paragraph 43 consists of excerpts andfor characterizations of Plaintiffs? May 17,
2017, FOIA request to DHS. Defendants admit the existence of this May 17, 2017, FOIA
request and respectfully refer the Court to that request for a complete and accurate description of
its contents.

44. Admit that Plaintiffs requested expedited processing in their May 17, 2017, FOIA
request to DHS, and respectfully refer the Court to that request for a complete and accurate
description of its contents.

45. Admit that Plaintiffs requested fee waivers in their May 17, 2017, FOIA request
to DHS. and respectfully refer the Court to that request for a complete and accurate description
of its contents.

46. Paragraph 46 consists of excerpts andfor characterizations of May 19,
2017, letter to Plaintiffs acknowledging receipt of Plaintiffs? May 17, 2017, FOIA request.
Defendants admit the existence of this May 19, 2017, letter and respectfully refer the Court to

that letter for a complete and accurate description of its contents.

10

Case Document 22 Filed 10711717 Page 11 of 18

47. Admit that on or about July 25, 2017, Plaintiffs sent a second FOIA request to
DHS, and respectfully refer the Court to that request for a complete and accurate description of
its contents.

48. Paragraph 48 consists of excerpts andi?or characterizations of Plaintiffs? July 25,
2017, FOIA request to DHS. Defendants admit the existence of this July 25, 2017, FOIA request
and respectfully refer the Court to that request for a complete and accurate description of its
contents.

49. Admit that Plaintiffs requested expedited processing in their July 25, 2017, FOIA
request to DHS, and respectfully refer the Court to that request for a complete and accurate
description of its contents.

50. Admit that Plaintiffs requested fee waivers in their July 25, 2017, FOIA request to
DHS, and respectfully refer the Court to that request for a complete and accurate description of
its contents.

51. Paragraph 51 consists of excerpts andfor characterizations of July 28,
2017, letter to Plaintiffs acknowledging receipt of Plaintiffs? July 25, 2017, FOIA request.
Defendants admit the existence of this July 28, 2017, letter and respectfully refer the Court to
that letter for a complete and accurate description of its contents.

52. Paragraph 52 consists of characterizations of August 7, 2017, letter to
Plaintiffs acknowledging receipt of Plaintiffs? July 25, 2017, FOIA request. Defendants admit
the existence of this August 7, 2017, letter and respectfully refer the Court to that letter for a
complete and accurate description of its contents. Defendants aver that DHS mistakenly
assigned an additional case reference number (ending in 1158) to Plaintiffs? July 25, 2017, FOIA
request, and that DHS has since closed that additional case.

53. Paragraph 53 sets forth legal conclusions, to which no response is required.

11

Case Document 22 Filed Page 12 of 18

54. Paragraph 53 sets forth legal conclusions, to which no response is required. To
the extent a response is deemed required, Defendants deny the allegations in Paragraph 53 and
aver that efforts in response to Plaintiffs? FOIA requests are ongoing.

GSA

55. Admit that on or about May 17', 2017, Plaintiffs sent a FOIA request to GSA, and
respectfully refer the Court to that request for a complete and accurate description of its contents.

56. Deny knowledge or information suf?cient to form a belief as to the truth or falsity
of the ?rst sentence of Paragraph 56, as searches and analyses related to Plaintiffs? FOIA
requests are ongoing. The remainder of Paragraph 56 sets forth characterizations of the subject
of Plaintiffs? FOIA requests, the President?s Executive Order establishing the Commission,
andfor allegations unrelated to Plaintiffs? legal claims under FOIA, to which no response is
required. To the extent a response is deemed required, Defendants admit the existence of the
President?s Executive Order establishing the Commission; respectfully refer the Court to that
Order for a complete and accurate description of its contents; and deny knowledge or
information sufficient to form a belief as to the truth of the allegations in the remainder of
Paragraph 56.

57. Paragraph 57 consists of excerpts andfor characterizations of Plaintiffs? May 17,
2017', FOIA request to GSA. Defendants admit the existence of this May 17, 2017, FOIA
request and respectfully refer the Court to that request for a complete and accurate description of
its contents.

58. Admit that Plaintiffs requested expedited processing in their May 17, 2017, FOIA
request to GSA, and respectfully refer the Court to that request for a complete and accurate

description of its contents.

12

Case Document 22 Filed Page 13 of 18

59. Admit that Plaintiffs requested fee waivers in their May 17, 2017, FOIA request
to GSA, and respectfully refer the Court to that request for a complete and accurate description
of its contents.

60. Deny the allegations in Paragraph 60 of the amended complaint, and aver that on
or about July 18, 2017, GSA sent a letter to Plaintiffs acknowledging receipt of Plaintiff" May
17, 2017, FOIA request.

61. Deny the allegations in Paragraph 61 of the amended complaint, and aver that
efforts in response to Plaintiffs? FOIA requests are ongoing.

62. Deny the allegations in Paragraph 62 of the amended complaint, and aver that
efforts in response to Plaintiffs? FOIA requests are ongoing.

63. Deny the allegations in Paragraph 63 of the amended complaint, and aver that
efforts in response to Plaintiffs? FOIA requests are ongoing.

64. Paragraph 64 sets forth legal conclusions, to which no response is required.

65. Paragraph 65 sets forth legal conclusions, to which no response is required. To
the extent a response is deemed required, Defendants deny the allegations in Paragraph 65 and
aver that efforts in response to Plaintiffs? FOIA requests are ongoing.

66. Paragraph 66 consists of excerpts andfor characterizations of Plaintiffs? July 25,
2017', FOIA request to GSA. Defendants admit that, on or about July 25, 2017, Plaintiffs sent
GSA a second FOIA request, and respectfully refer the Court to that request for a complete and
accurate description of its contents.

67. Admit that Plaintiffs requested expedited processing in their July 25, 2017, FOIA
request to GSA, and respectfully refer the Court to that request for a complete and accurate

description of its contents.

13

Case Document 22 Filed 10711717 Page 14 of 18

68. Admit that Plaintiffs requested fee waivers in their July 25, 2017, FOIA request to
GSA, and respectfully refer the Court to that request for a complete and accurate description of
its contents.

69. The first sentence of Paragraph 69 consists of a characterization of July
27, 2017, letter to Plaintiffs acknowledging receipt of Plaintiffs? July 25, 2017 FOIA request.
Defendants admit the existence of this July 27, 2017, letter and respectfully refer the Court to
that letter for a complete and accurate description of its contents. Admit that GSA subsequently
granted Plaintiffs? request for expedited processing and fee waivers.

70. Paragraph 70 sets forth legal conclusions, to which no response is required.

71. Paragraph 71 sets forth legal conclusions, to which no response is required. To
the extent a response is deemed required, Defendants deny the allegations in Paragraph 71 and
aver that efforts in response to Plaintiffs? FOIA requests are ongoing.

iv. 0MB

72. Admit that on or about May 17, 2017, Plaintiffs sent a FOIA request to OMB, and
respectfully refer the Court to that request for a complete and accurate description of its contents.

73. Deny knowledge or information suf?cient to form a belief as to the truth or falsity
of the ?rst sentence of Paragraph 73, as search and analyses related to Plaintiffs? FOIA
requests are ongoing. The remainder of Paragraph 73 sets forth legal conclusions,
characterizations of the subject of Plaintiffs? FOIA requests andlor allegations unrelated to
Plaintiffs? legal claims under FOIA, to which no response is required.

74. Paragraph 74 consists of excerpts andfor characterizations of Plaintiffs? May 17,
2017, FOIA request to OMB. Defendants admit the existence of this May 17, 2017, FOIA
request and respectfully refer the Court to that request for a complete and accurate description of

its contents.

14

Case Document 22 Filed 10111117 Page 15 of 18

75. Admit that Plaintiffs requested expedited processing in their May 17, 2017, FOIA
request to OMB, and respectfully refer the Court to that request for a complete and accurate
description of its contents.

76. Admit that Plaintiffs requested fee waivers in their May 17, 2017, FOIA request
to OMB, and respectfully refer the Court to that request for a complete and accurate description
of its contents.

77. Admit that on or about May 18, 2017, OMB sent an e-mail to Plaintiffs
acknowledging receipt of Plaintiffs? May 17, 2017, FOIA request, and respectfully refer the
Court to that e-mail for a complete and accurate description of its contents. Admit that OMB has
not yet responded to Plaintiffs? requests for expedited processing or for a fee waiver.

78. Paragraph 78 consists of excerpts andfor characterizations of Plaintiffs? July 25,
2017, FOIA request to OMB. Defendants admit the existence of this July 25, 2017, FOIA
request and respectfully refer the Court to that request for a complete and accurate description of
its contents.

79. Admit that Plaintiffs requested expedited processing in their July 25, 2017, FOIA
request to OMB, and respectfully refer the Court to that request for a complete and accurate
description of its contents.

80. Admit that Plaintiffs requested fee waivers in their July 25, 2017, FOIA request to
OMB, and respectfully refer the Court to that request for a complete and accurate description of
its contents.

81. Admit that on or about July 27, 2017, OMB sent an e-mail to Plaintiffs
acknowledging receipt of Plaintiffs? July 25, 2017, FOIA request, and respectfully refer the
Court to that e-mail for a complete and accurate description of its contents. Admit that OMB has

not yet responded to Plaintiffs? requests for expedited processing or for a fee waiver.

15

Case Document 22 Filed Page 16 of 18

82. Paragraph 82 sets forth legal conclusions, to which no response is required.
83. Paragraph 83 sets forth legal conclusions, to which no response is required. To
the extent a response is deemed required, Defendants deny the allegations in Paragraph 83 and

aver that efforts in response to Plaintiffs? FOIA requests are ongoing.

COUNT I
84. Defendants reallege and incorporate their answers to Paragraphs 1 through 83 as
though fully set forth herein.
85. Paragraph 85 sets forth legal conclusions, to which no response is required. To

the extent a response is deemed required, Defendants deny the allegations set forth in Paragraph

85.
COUNT II
86. Defendants reallege and incorporate their answers to Paragraphs 1 through 85 as
though fully set forth herein.
Paragraph 87 sets forth legal conclusions, to which no response is required. To

the extent a response is deemed required, Defendants deny the allegations set forth in Paragraph
87.
REQUESTED RELIEF

The remainder of the amended complaint sets forth Plaintiffs? requested relief, to which
no response is required. To the extent a response is required, Defendants deny that Plaintiffs are
entitled to the relief sought, or to any relief whatsoever from Defendants.

a: a: a:

Except to the extent explicitly admitted or qualified above, Defendants deny each and

every allegation of the complaint. Defendants further deny that Plaintiffs are entitled to any

relief whatsoever.

16

Case Document 22 Filed Page 17' of 18

DEF ENSES
FIRST DEFENSE
Plaintiffs fail to state a claim upon which relief can be granted.
SECOND DEFENSE
Plaintiffs are not entitled to compel the production of records protected from disclosure
by any applicable FOIA exemption or exclusion, see 5 U.S.C. 552(b).

THIRD DEFENSE

 

Some or all of the requested records are not agency records subject to FOIA, see 5 U.S.C.


FOURTH DEFENSE

Defendants are exercising due diligence in processing Plaintiffs? FOIA requests and
acting in good faith, with justi?cation, and pursuant to authority, and exceptional circumstances
exist that necessitate additional time for Defendants to process Plaintiffs? FOIA requests.

FIFTH DEFENSE

The Court lacks subject matter jurisdiction over Plaintiffs? requests for relief that exceed

the relief authorized under FOIA, 5 U.S.C. 552.

SIXTH DEFENSE

 

Plaintiffs? FOIA requests do not reasonably describe the records sought.

SEVENTH DEFENSE

 

Plaintiffs are not entitled to expedited processing under 5 U.S.C. 

EIGHTH DEFENSE

 

Plaintiffs are not entitled to fee waivers under 5 U.S.C. 



l?

Case Document 22 Filed Page 18 of 18

Defendants may have additional defenses which are presently unknown but ascertained

through discovery. Defendants reserve the right to assert each and every af?rmative or other

defense that may be available, including any defenses available pursuant to Federal Rules of

Civil Procedure 8 and 12.

WHEREFORE, Defendants respectfully request that the Court: (1) dismiss the amended

complaint with prejudice; (2) enter judgment in favor of Defendants; and (3) grant such further

relief as the Court deems just and proper, including costs and disbursements.

Date: New York, New York
October 11, 2017

JOON H. KIM

Acting United States Attorney for the
Southern District of New York
Arromeyfor the a! irea? States of A merfee

{sf Casey K. Lee

CASEY K. LEE

Assistant United States Attorney
86 Chambers Street, Third Floor
New York, New York 10007
Tel.: (212) 637?2714

Fax: (212) 637-2686
casey.lee@usdoj. gov

18

1) In testimony on April 5, 2017 you assured me that you would ?absolutely? provide the
Committee with a copy of the requests made by Border Patrol sector chiefs regarding where
additional infrastructure and technology should be deployed along the Southwest border as soon
as you received the requests. A month later, in a May 5 letter, I again requested ?full copies of
the prioritized operational requirements for border barrier that the Border Patrol has identified.?
According to US. Customs and Border Protection?s Fiscal Year (FY) 2018
Congressional Justi?cation, the very same document I requested and you assured me you would
provide the Committee the Southwest Border Capability Roadmap was completed by U.S.
Border Patrol in April 2017. According to CBP, the roadmap ?identifies updated operational
requirements needed to achieve operational control of the southern border? and was used to
inform decision to spend $2.6 billion on 74 miles of border barrier along the Southwest
border in addition to high-priority tactical infrastructure and border security technology
improvements in FY 2018.

Is Congressional Justification accurate? Was the Southwest Border Capability Roadmap
completed in April 2017? If so, when will you provide the Committee with a copy of the
Southwest Border Capability Roadmap?

2) As it relates to land at issue in the placement of new border wall identified in the FY 2018
budget, how many parcels of unacquired land have been identi?ed? Have the affected property
owners been contacted and, if so, how?

3) In March, an internal CBP memo regarding the hire of an additional 5,000 Border Patrol
Agents referenced plans for staff distribution that were either ?Threat Need Based? or for the
?Southwest Border Only.? While I understand that most new Border Patrol Agents begin their
careers at the southern border for training purposes, I am concerned that this memo contemplates
a scenario where no additional new or existing agents are deployed to the northern border.

Has CBP selected either the ?Threat Need Based? or ?Southwest Border Only? staffing
option? Given an additional 5,000 Border Patrol Agents as called for in Executive Order 13767,
how many additional Agents will Border Patrol assign to the northern border?

4) On March 2, 2017, I requested all reports generated by Executive Orders 13767, ?Border
Security and Immigration Enforcement Improvements,? 13768, ?Enhancing Public Safety in the
Interior of the United States,? and 13769, ?Protecting the Nation from Foreign Terrorist Entry
into the United States? as soon as they are finalized. These reports include but are not limited to
90-day progress reports to the President regarding implementation of Executive Orders 13767
and 13768, both of which were due no later than April 25, 2017. To date, no reports required by
the executive orders have been provided to the Committee. You stated in a letter dated June 9,
2017 that no reports have been generated under Executive Order 13769. You explained in your
testimony that the ongoing litigation over Executive Order 13769 prevented the Department from
completing these reports.

With regard to Executive Orders 13767 and 13768, you stated that will work with the
Committee to exchange information in a timely and appropriate manner.?

Has DHS generated any reports, including but not limited to the 90-day progress reports that
were required by Executive Orders 13767 and 13768? If so, for each report that has been
generated in adherence with Executive Orders 13767 and 13768, please provide the date on
which the reports were transmitted to the President.

Will you commit to providing the Committee with copies of all reports that have already been
generated under Executive Orders 13767 and 13768, and will you commit to providing the
Committee with cOpies of all future reports required by Executive Orders 13767 and 13768 when
they are transmitted to the President?

5) On April 12, 2017, The Washington Post published an article citing a draft version of the 90-
day progress report required under Executive Order 13767. The draft report described CB P's,
Immigration and Customs Enforcement?s and U.S. Citizenship and Immigration
Services? progress in updating operational programs, deploying additional detention
facilities, hiring 15,000 Border Patrol agents and immigration of?cers, entering into 287(g)
agreements with state and local law enforcement agencies, and responding to requests for
asylum.

Regarding progress in implementing Executive Order 13767, I ask for:

A description of the initiatives CBP is implementing in order to expedite the hiring of additional
personnel;

A description of plans for hiring additional CBP officers at our nation?s ports of entry,
given the statement in the draft progress report that ?improving border security to prevent illegal
immigration, drug and human trafficking, and acts of terror, also necessitates the hiring of
additional CBP Officers?; and

The CBP-wide agency plan to expand the 287(g) program and enhance border security efforts
with state and local law enforcement agencies.

6) On April 12, 2017, The Washington Post published an article citing a draft version of the 90-
day progress report required under Executive Order 13767. The draft report described 
Immigration and Customs Enforcement?s and U.S. Citizenship and Immigration
Services? progress in updating operational programs, deploying additional detention
facilities, hiring 15,000 Border Patrol agents and immigration of?cers, entering into 287(g)
agreements with state and local law enforcement agencies, and responding to requests for
asylum.

Regarding progress in implementing Executive Order 13767, I ask for:

The field guidance ICE issued to each of its operational programs on February 21, 2017;

A list of each detention facility where capacity has been added since January 25, 2017, the
number of detention beds that have been added at each facility, and the name of each entity that
operates each detention facility;

A list of the 27 potential locations capable of providing 21,000 additional bed spaces that ICE
has identified;

7) On April 12, 2017, The Washington Post published an article citing a draft version of the 90-
day progress report required under Executive Order 13767. The draft report described CBP's,
Immigration and Customs Enforcement?s and US. Citizenship and Immigration
Services? progress in updating operational programs, deploying additional detention
facilities, hiring 15,000 Border Patrol agents and immigration officers, entering into 287(g)
agreements with state and local law enforcement agencies, and responding to requests for
asylum.

Regarding progress in implementing Executive Order 13767, I ask for:

The revised and unrevised instructions on the proper application of the Trafficking Victims
Protection Reauthorization Act 

The report on the ?vulnerabilities in the asylum program and steps to be taken to
mitigatefeliminate such vulnerabilities" that was referenced in the draft progress report.

8) The President's FY 2018 budget request would increase overall net discretionary
budget authority by $2.8 billion or 6.8 percent compared to annualized levels contained in the
FY 2017 Continuing Resolution (CR) while signi?cantly reducing staffing and spending at the
Office of Inspector General (016). The President requested a reduction of $3.2 million or 2.3
percent for the OIG compared to the FY 2017 CR. Compared to spending levels contained in
the FY 2017 omnibus spending bill Congress approved in May, the President?s request would
reduce funding for the OIG by $17 million or 9.7 percent.

Do you support the President?s request to reduce funding for the OIG in FY 2018? Why or why
not?

Do you believe that when the overall budget authority at DHS increases, the budget for the 016
should grow proportionally?

9) The President?s budget request would reduce funding by more than $500 million for DHS
programs intended to build state and local resilience to terrorist attacks. The proposed cuts
include $156.1 million to the Urban Area Security Initiative $117.6 million to the State
Homeland Security Program (SHSP), $70.7 million to the Emergency Management Performance

Grant (EMPG) program, $52.2 million to the Port Security Grant Program (PSGP), $52.2 million
to the Transit Security Grant Program (TSGP), $45 million to the Law Enforcement Officer
Reimbursement Program, $43 million for Visible Interrnodal Prevention and Response (VIPR)
teams, $39 million for the Complex Coordinated Terrorist Attacks (CCTA) program, and $10
million for the Countering Violent Extremism (CVE) grant program.

Given the number and magnitude of threats facing our country, do you support the President?s
request to reduce funding for these counterterrorism programs in FY 2018? Why or why not?

10) The President?s FY 2018 budget request would reduce funding for the Federal Emergency
Management Agency's (FEMA's) Pre-Disaster Mitigation (PDM) grant program by $41.1
million. This is a program that supports various initiatives aimed at mitigating against natural
disasters before they occur, such as retrofitting public buildings against hurricane-force winds or
seismic damage, acquiring and relocating properties out of ?ood-prone areas, elevating
structures that lie within a ?oodplain, ?ood-proo?ng public buildings, managing vegetation to
mitigate against wildfires, and constructing or converting public spaces into safe rooms in
tornado-prone areas. Discretionary funding for the National Flood Insurance Program?s
Flood Hazard Mapping and Risk Analysis Program (Risk MAP) would also be reduced
by $189.6 million. Based on map inventory, 98.8% of the US. population is covered
by an existing ?ood map; however, many of the maps do not account for recent population
growth and development and were produced using outdated technology.

Do you support the President?s request to reduce funding for the PDM grant program and Risk
MAP in FY 2018? Why or why not?

11) To which countries has the Federal Air Marshal Service provided training to develop or
enhance their own Air Marshal program? Please list the countries that have participated in the
last year and the countries that will participate through 2018 and describe the training.

12) On June 12, 2017, Governor Eric Greitens signed legislation aimed at bringing the state of
Missouri into compliance with the REAL ID Act of 2005. As DHS Secretary, you have the
authority, once an extension is requested, to grant extensions to non-compliant states that have
taken legislative action to come into compliance with the provisions of the REAL ID Act.

Have you or other DHS officials reviewed the legislation that Governor Greitens signed into law
on June 12,2017?

Do you intend to grant an extension to the state of Missouri once a request is made?

13). Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on May 
201?r as saying that the Presidential Advisory Commission on Election Integrity, created by

Executive Order 13799, would have full?time staff from the Office of the Vice President and the
Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election Integrity
with DHS employees? If so, what of?ce within DHS will staff the Commission, how many DHS
employees will staff the Commission, and what is anticipated annual budget for the
Commission?

14) Under Section 543 of Division of the FY 2017 omnibus spending legislation, you were
given the authority, after consultation with the Secretary of Labor and upon determining that
there are not American workers who are willing, qualified, and able to perform nonagricultural
labor, to raise the annual cap on visas by an amount not exceeding the number of
?returning workers? who were exempted from the H-2B cap in any previous ?scal year.

Have you determined whether you will raise the visa cap for the remainder of FY 2017'? If
so, how many additional H-2B visas will be available for the remainder of the ?scal year?

15) The US Customs and Border Protections (CBP) complex mission to provide security,
facilitate operations, and manage 328 ports of entry (POEs) throughout the country in partnership
with the General Services Administration (GSA). In both 2010 and 2014, CBP provided the
House Committee on Homeland Security, Subcommittee on Border and Maritime Security with
a report, National Land Border Ports ofEmry Assessment, which lists current POE infrastructure
and explains their various needs.

Please provide an updated report if it is available. Please provide the below information if it is
not provided in the updated report:

A list of all land POEs that includes:

Modes of access (truck or rail crossings) and current infrastructure (number of lanes or rail lines)
Annual commercial traf?c volume by mode (truck and rail)

Average traffic crossing wait time (truck and rail)

Ownership structure (CBP, GSA, state or local government, private partnership)

A prioritized list of land POE commercial traffic infrastructure needs that includes:
Estimated costs for completion

Age of infrastructure since last refurbishment

Ongoing infrastructure projects

Land POE commercial traffic funding in the last 10 years, including:
Spending at CBP and GSA sites
Appropriations for CBP and GSA sites.

16) Please provide a list of all electronic device search software that the Department has
purchased from 2007 through the present. State the contract number for each purchase, the date
of the purchase, and the name of the developer and seller of the software.

For all electronic device search software that DHS has purchased from 2007 to the present,
please provide a detailed explanation of the Department?s intended purpose in using the
software, as well as any policies and guidelines that govern the potential use of the software.

17) Secretary Kelly, do you agree that a wall to secure the southern border of the United States
may consist of fences, drones, towers, personnel, andfor hardware and software technologies to
prevent illegal immigration, drug and human trafficking and acts of terrorism? How will $1.59
billion investment in a physical wall advance this definition?

18) $197.2 million is proposed to provide southwest border technology, which is approximately
12% of $1.59 billion budget for a physical wall. According to your assessment, is this sufficient
to provide the technological surveillance necessary to achieve a virtual wall that will more
effectively secure our border?

19) There are 18,000 Border Patrol agents. Last month, there were 12,000 apprehensions. That is
less than 1 apprehension per agent over the entire month. With the number of apprehensions
dropping, do we need an additional 5,000 Border Patrol agents rather than use those resources
elsewhere to prevent the entry of manufactured narcotics? With an increase in CBP officers, has
there been an increase in effectiveness in preventing manufactured heroin from crossing the
border and ports of entry?

20) In ?scal year 2016, $750 million was appropriated to address root causes to deter and
prevent children and families in the Northern Triangle from illegally immigrating to the U.S.
Although a budget was drafted, there is no public data as to the effectiveness of the program and
how the fund was allocated. How will the $7.94 billion budget request for immigration and
customs enforcement address the issue of unaccompanied minors in the United States?

21) Our greatest collective frustration has been the lack of any direction from this administration
or the lack on how we should be deterring our adversaries in cyberspace. With $971.3 million
being budgeted for cyber activities, how could an overly strict interpretation of sovereignty limit
or impair the Department of Defense's ability to plan or employ offensive cyber capabilities?

22) Additional $42.3 million is allocated to allow the National Cybersecurity and
Communications Integration Center (NCCIC) to protect private sector entities through the
Enhanced Cybersecurity Services program. What is the intersection between the civilian hub,
National Cybersecurity and Communications Integration Center (NCCIC), Federal entities, and
non-Federal entities, including the private sector?

23) The President?s budget states that Science and Technology Directorate assesses that
capabilities at the National Biodefense Analysis and Countermeasures Center (NBACC) can be
replicated at other facilities. If NBACC is closed as proposed in the President?s budget, which
specific agencies or organizations will assume responsibility for supporting the threat
characterization currently conducted by Has DHS coordinated with these entities?
Were similar determinations and plans made for the Chemical Security Analysis Center


24) I understand NBACC has already received notification that the organization should begin
developing a closure plan. Given the dependency of any such closing on Congressional action,
what steps are you planning to take, if any, regarding the closure of NBACC following the
completion of the closure plan and prior to the completion of the Congressional authorization
and appropriations process for 

25) At the hearing you stated that the Coast Guard plans to buy six icebreakers, three heavy and
three medium. Does the current acquisition plan of record for the Polar Icebreaker Program
re?ect this intention?

The Coast Guard Authorization Act of 2015 (Public Law 114-120), Section 207, POLAR
ICEBREAKERS, states: INCREMENTAL FUNDING AUTHORIZED FOR POLAR
ICEBREAKERS In ?scal year 2016 and each ?scal year thereafter, the Commandant of the
Coast Guard may enter into a contract or contracts for the acquisition of Polar Icebreakers and
associated equipment using incremental This authorization provides the
Coast Guard with the ability to enter into a contract or contracts to acquire as many new Polar
Icebreakers as are required as long as the Coast Guard uses the incremental funding acquisition
process. I understand that the current Polar Icebreaker acquisition process now being executed
by the Coast Guard does not take advantage of this authorization. What evaluation process
occurred prior to the Coast Guard decision not to enter into a contract or contracts to acquire as
many Polar Icebreakers as are required using the incremental acquisition process? Was a formal
cost-evaluation completed to compare the existing Polar Icebreaker acquisition process and a
block buy incremental acquisition process? If not, why not?

26) I understand that FEMA is conducting a review of the risk methodology used to determine
Urban Area Security Initiative (UASI) allocations. What is the schedule for that review and
what is the plan to incorporate Congressional and stakeholder input?

27) For the last several years, I have been a strong advocate for the Department of Homeland
Security?s Headquarters Consolidation at St Elizabeths. I firmly believe that finishing the DHS
headquarters would improve our national security, increase morale and productivity at the
Department, and save money for the taxpayers.

The President? budget proposes $135 million for portion of DHS Consolidation at St
Elizabeths but does not include DHS funding for new development at the site.

As you know, GSA is largely responsible for infrastructure investments at the site, while DHS is
responsible for tenant renovations and improvements.

Can you please share your vision for Headquarters consolidation? Is the current funding request
enough to keep the project on schedule?

Have other Administration infrastructure priorities for DHS, such as building a border wall,
shifted resources away from DHS Headquarters consolidation at St. Es?

28) Cybersecurity breaches, such as the ?WannaCry? ransomware attack last month, are
becoming more common and increasingly rely not on expensive or sophisticated technology, but
on a combination of common software bugs and user error.

It is important that the Department have the resources it needs?including qualified
cybersecurity professionals?to help work with private sector partners and federal agencies to
detect, mitigate, and respond to such attacks.

Please provide an update on the Department?s progress in hiring and training qualified
cybersecurity professionals.

What portion of the increased cybersecurity funding will go to building up cyber
workforce?

29) Last year in the wake of the attacks on the airport in Brussels, the Senate voted 91 to 5 for an
amendment to double the number of TSA Visible Intermodal Prevention and Response, or VIPR
teams. These teams patrol our airports and public transit spaces in order to deter and respond to
terrorist attacks. The provision, which I worked on with a number of my colleagues including
Senator Heinrich, was ultimately signed into law.

Instead of funding the doubled teams, the President?s FY2018 budget request cuts the number of
VIPR teams to eight.

Please explain how this proposed cut is justi?ed in light of increased attacks on soft targets.

30) Senator Harris and I sent a letter to DHS last month asking a number of questions about
use of private, for-profit detention facilities.

As you know, an outside panel last year reviewed these facilities and found that these facilities
are generally less safe than publicly run facilities, and made a number of recommendations for
their improvement.

I believe we requested a reply to that letter by next week (June 12th). I have not a question for
you but a request. Can you please commit to reviewing our letter carefully and providing a
thorough reSponse to our questions?

 

From:

 

To:

(W35)

 

 

 

Subject:

SIGNIFICANT CORRESPONDENCE REPORT: 1.23.18

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date: 2013101123 15:29:13
Priority: Normal
Type: Note
Date 
Control Number Received To From Summary
Matthew Chrastek
Coordinator
1156533 01.19.18 3.1 The American Writes regarding TP
18-0240 Rex . . .
Rehef Coahtlon
for Syria
Adhikaar for
1156569 81 . . .
18-0414 01.23.18 Rex Tillerson Human Rights and ertes TP
Soelal Justlee .
Sl Writes regarding con?ict
1156581 Rep. Gowdy former employee of the
18-0259 01'12'18 Rip" (so) Oversight and Governmer
Cummings
now an attorney at the
Rep. Thompson
1 156585 (MS) Write regarding DHS r:
18-0351 01.23.18 31 related to the defunct
Rep. Brady Commission on Electi
(PA)

 

Regards,

 

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Administrative Officer

US. Department of Homeland Security

Of?ce of the Executive Secretary

 

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Sent Date: 2018f01f23 15:29:1?

 

 

Delivered Date: 2018f01/23 15:29:18

 

 

 

Signi?cant Correspondence Report

 

1/23/2018

 

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@ungreaa of the ?niteh States
Washington. B6 211515

January 23, 2018

The Honorable Kirstjen Nielsen
Secretary

U.S. Department of Homeland Security
245 Murray Lane SW

Washington, D.C. 20528

US Ele?il??iUZ
33

Dear Secretary Nielsen:

We write seeking clari?cation regarding the Department of Homeland Security's (the Department
or DHS) responsibilities related to the defunct Presidential Commission on Election Integrity (the
Commission).

On May I I, 2017, President Trump signed Executive Order 13799, Establishment of Presidential
Advisory Commission on Election Integrity to investigate allegations ?improper voter
registrations and improper voting, including fraudulent voter registrations and fraudulent voting,"
substantiated by nothing more than the President's active imagination and frustration that he did
not receive the majority of the popular votes cast in the 2016 presidential election. The
Commission was the subject of Criticism from the start. Advocacy organizations ultimately took
legal action on multiple occasions, alleging violations of several federal laws, including the i?h
Amendment to the 1.3.8. Constitution, the Privacy Act, the Hatch Act, and of multiple state laws,
among other things.2

On January 3, 2013, fewer than nine months after he established it. the President abruptly
terminated the tCommission.3 To the best of our knowledge, the Commission was unable to
produce any evidence of improper voter registrations and improper voting, including fraudulent
voter registrations and fraudulent voting. Indeed, we understand that, contrary to the
Administration?s initial statements, the Commission did not develop any ?preliminary ?ndings"
that would be transferred to DHS.4 Moreover, all of the voter data it collected will, rightfully, be
destroyed.5

 

I Exec. Order No. [3799, 32 Fed. Reg. 22389 (May. 16, 2017), available at 


I See Legal Actions Taken Against Trump?s ?Voter Fraud" Commission, Brennan Canterfor Justice (Dec. 26,
2011?), 
(last accessed Jan. 10, 2018}.

3 Exec. Order No. l3820, 83 Fed. Reg. 969 (Jan. 3, ZOIB), (amiable at 


4 Josh Gerstein, "White House Plans to Destroy Trump Election Fraud Commission?s Voter Data," Politico (Jan. 9,
20 7), available at 
voter-data-332745.

5 id.

PRINIED ON REC I't'.l FD PAPER

In the meantime, to its credit, the Department of Homeland Security has continued its work to
carry out its responsibilities related to the designation of election infrastructure as a critical
infrastructure subsector. Then-Secretary Jeh Johnson made the designation on January 6, 2017,
following the Intelligence Community's assessment that ?Russian efforts to in?uence the 2016 US
presidential election represent the most recent expression of Moscow?s longstanding desire to
undermine the US-led liberal democratic order, but these activities demonstrated a signi?cant
escalation in directness, level of activity, and scope of effort compared to previous operations.?l5
Over the course of the past year, nothing has occurred to suggest that Russia has any less interest
in undermining confidence in our democratic processes. Accordingly, helping states secure their
election infrastructure against credible foreign threats should remain one of the Department?s top
priorities.

When he terminated the Commission, the President directed DHS to examine ?its initial ?ndings
and determine next courses of action.?7 It is unclear how the Department will carry out this charge
given that the Commission never produced any ?ndings. Moreover, we are concerned that
directing DHS essentially to take over where the Commission left off could distract the Department
from its pressing obligation to protect US election systems from foreign interference and may
undermine the burgeoning relationships DHS is building with state election of?cials.

Public statements from the Department have been somewhat reassuring that DHS will not divert
resources from its ongoing election security work, but they are not conclusive.8 Accordingly,
pursuant to Rule and Rule XI of the Rules of the House of Representatives, we respectfully
request you provide a written response to the following information, and whatever supplementary
information you deem responsive, by January 26, 2013:

I According to the President, the Department will take over the work of the Commission.
We understand that all voter data collected will be destroyed and that the Commission
never made any ?ndings. If that is the case, what wiil the Department be taking over?
Please identify any documents, ?les. electronic records, or information that the Department
has received or anticipates receiving from the Commission.

0 What new activities, if any, will the Department undertake pursuant to the President?s
decision to terminate the Commission and transfer its responsibilities to What

 

5 Of?ce of the Director of National Intelligence, Assessing Russian Activities and Intentions in Recent US.
EiecriOns, ICA 2017-010 (Jan. 6, 20 IT), Ol_.p_df.

7 Press Release, The White House, Statement by the Press Secretary on the Presidential Advisory Commission on
Election Integrity (J an. 3, 2018), availabie at 


3 Dustin Volz St Julia Harte, Election Unit Has No Plans for Probing Voter Fraud: Sources,? Renter's (Jan 5,
20] 8). mraiinbie at 
I EU I (citing a DHS of?cial who said
that the Department would continue ??to work in support of state governments who are responsible for administering
elections, with efforts focused on securing elections against those who seek to undennine the election system or its

integrity?).

information will inform actions? Will these new activities, if any, require the
Department to divert resources from existing activities?

0 Some state election of?cials have expressed concern that charging DHS with investigating
voter fraud allegations may undermine the cooperative relationships between the
Department and the states that are necessary to keep elections secure."l What are you doing
to preserve those important relationships?

Thank you for your attention to this matter. If you have any questions or require additional
information, please contact Alison Chief Director for Oversight, at

Sincerely,



BENNIE G. THOM ROBERT A. BRADY
Ranking Member Ranking Member
Committee on-Homeland Security Committee on House Administration

 

9rd.

 

Question#: 13

 

Topic: Voter Integrity Commission

 

Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request

 

Primary: The Honorable Claire McCaskill

 

 

Committee: HOMELAND SECURITY (SENATE)

 

 

 

Question: Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on
May 11, 2017 as saying that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13799, would have full-time staff from the Office of the Vice
President and the Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election
Integrity with DHS employees? If so, what office within DHS will staff the Commission,
how many DHS employees will staff the Commission, and what is DHS's anticipated
annual budget for the Commission?

 

 

Res ponse: W5)

 

 

(W15)

 

 

 

6
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0321(5)

 

 

 

CC:

 

 

 

 

Auth QFR - 51 Senate Budget (30) #1145221 Set #1 of 2 - Ready For Front Of?ce
Review

Date: 201?]08f08 12:34:24
Importance: High
Priority: Urgent

Subject:

 

 

 

 

 

 

 

Type: Note

 

Good Afternoon,

Attached for Front Of?ce review are draft responses to the ?rst of two sets of Questions

For the Record (QFRs) from the June 6th, 2017' hearing before the Senate Committee on
Homeland Security and Governmental Affairs titled The Department of Homeland
Security Fiscal Year? 2018 Budget Request in which DHS Secretary John Kelly testi?ed.
This set of QFRs has been reviewed by DHS of?ces and Components, including OGC,
and is ready for Front Office review. Responses need only be current as of the hearing

date of June 6th, 2017 since theQFRs are included as part of the hearing record.

 

 

 

 

 

 

QFR Componenti'Topic Counselor(s)

Number

1 CBP Congressional Gene Hamilton
Justi?cation

2 CBP Unacquired Land Gene Hamilton

3 CBP Northern Border Gene Hamilton

4 PLCY Executive Order Reports Tiffany Cissna

5 CBP CBP Progress Gene Hamilton. Tiffany

Cissna

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6 ICE ICE Progress Gene Hamilton, Tiffany
Cissna
7 USCIS USCIS Progress Gene Hamilton, Tiffany
Cissna
8 MGMT OIG Funding M6) Tiffany Cissna
9 FEMA Counterterrorism Grants Chris Krebs
10 FEMA FEMA Grants Chris Krebs
1 1 TSA Federal Air Marshalls (ms)
12 PLCY Missouri REAL ID
Legislation
13 MGMT Voter Integrity Commission Tiffany Cissna
14 USCIS H-2B Visa Cap Gene Hamilton
15 CBP Land Ports of Entry Report Gene Hamilton
16 MGMT Electronic Device Search Tiffany Cissna
Software
17 CBP Physical Wall Investment Gene Hamilton
18 CBP Surveillance Technology Gene Hamilton
19 CBP Border Patrol Agents Gene 
20 ICE Unaccompanied Minors Gene Hamilton
21 NPPD Cyber Activities Chris Krebs
22 NPPD NCCIC Chris Krebs
23 National Biodefense Analysis Chris Krebs
and Countermeasures Center
24 NBACC Closure Chris Krebs
25 USCG Polar Icebreaker Programs Gene Hamilton, Chris Krebs,
and (are
26 FEMA Urban Area Security Chris Krebs
Initiative Allocations
27 MGMT St. Elizabeths Tiffany Cissna
28 NPPD Cybersecurity Hearing Chris Krebs
29 TSA TSA VIPR Funding [we?l
30 ICE ICE Private Prisons Gene Hamilton and


 

 

 

 

Respectfully, your comments or clearance is requested as soon as possible and no later

than 1:00 pm on Thursday August 10th, 2017. This QFR set still must complete Chief

of Staff Review and OMB clearance process prior to submission to the Hill.

 

(133(5)

 

 

Executive Secretariat
Of?ce oftke Secretary
Department of Homeland Security

 


phone
cell
(202} 612-19?5fax

 

 

 

C: Excellent Service Endless Commitment?



 

Sender:

 

 

 

 

?Hamilton, Gene 

 

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Recipient

 

Sent Date: ZOIFIDSJOB 12:34:23

 

 

 

 

Delivered Date: ZOITIDSJUB 12:34:24

 

 

 

 

 

Questions for the Record
Set 1 of2 Main IQ WP 1145721
Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request
Witness: Secretary John Kelly
Panel: Committee on Homeland Security and Governmental Affairs
Due to l2noon Thursday June 29, 2017
MGMT Consolidated QFRs

1. (Question 8 of QFR set from Senator Clair MeCaskill) OCFO Sub IQ WF 1145733
The President?s FY 2018 budget request would increase overall net discretionary budget
authority by $2.8 billion or 6.8 percent compared to annualized levels contained in the FY
2017 Continuing Resolution (CR) while signi?cantly reducing staffing and spending at the
Office of Inspector General (DIG). The President requested a reduction of $3.2 million or 2.3
percent for the OIG compared to the FY 2017 CR. Compared to spending levels contained in
the FY 2017 omnibus spending bill Congress approved in May, the President?s request would
reduce funding for the 01G by $17 million or 9.7 percent.

Do you support the President?s request to reduce funding for the 01G in FY 2018?? Why or why
not?

 

?b ?5
Responsei )1 

 

 

(13715)

 

Do you believe that when the overall budget authority at DHS increases, the budget for the 01G
should grow proportionally?

 

i

 

 

?129(5)

 

 

2. (Question 13 onFR set from Senator Claire MeCaskill) OCHCO - Sub IQ WF
1145738

Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on May 11, 2017 as
saying that the Presidential Advisory Commission on Election Integrity, created by Executive
Order 13799, would have full-time staff from the Office of the Vice President and the
Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election Integrity
with DHS employees? Ifso, what office within DHS will staff the Commission, how many DHS
employees will staff the Commission, and what is anticipated annual budget for the
Commission?

 

Response?wi)

 

70(5)

 

 

 

 

Questions for the Record
Set 1 of2 Main IQ WP 1145721
Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request
Witness: Secretary John Kelly
Panel: Committee on Homeland Security and Governmental Affairs
Due to l2noon Thursday June 29, 2017
MGMT Consolidated QFRs

3. (Question 16 of QFR set from Senator Claire McCaskill) OCIO Sub 1Q WF 1145741
Please provide a list of all electronic device search software that the Department has purchased
from 2007 through the present. State the contract number for each purchase, the date of the
purchase, and the name of the developer and seller of the software.

For all electronic device search software that DHS has purchased from 2007 to the present,
please provide a detailed explanation of the Department?s intended purpose in using the
software, as well as any policies and guidelines that govern the potential use of the software.

 

Responsei?b?)

 

(W15)

 

 

 

4. (Question 27 of the QFR set from Senator Thomas Carper) OCRSO Sub IQ WF
1145752

For the last several years, I have been a strong advocate for the Department of Homeland
Security?s Headquarters Consolidation at St Elizabeths. I ?rmly believe that finishing the DHS
headquarters would improve our national security, increase morale and productivity at the
Department, and save money for the taxpayers.

The President?s budget proposes $135 million for portion of DHS Consolidation at St
Elizabeths but does not include DHS funding for new development at the site.

As you know, GSA is largely responsible for infrastructure investments at the site, while DHS is
responsible for tenant renovations and improvements.

Can you please share your vision for Headquarters consolidation? Is the current funding request
enough to keep the project on schedule?

 

Res po nsezi?b?)

 

 

7:015)

 

 

Questions for the Record
Set 1 of2 Main IQ WP 1145721
Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request
Witness: Secretary John Kelly
Panel: Committee on Homeland Security and Governmental Affairs
Due to l2noon Thursday June 29, 2017
MGMT Consolidated OFRs

 

 

(E015)

 

 

Have other Administration infrastructure priorities for DHS, such as building a border wall,
shifted resources away from DHS Headquarters consolidation at St. Es?

 

 

Resoonse: W115)

 



 

 

 

 

 

13

Voter Integrity Commission

Question#:
The Department ol? Homeland Security Fiscal Year Budget Request

 

'l'opie:

 

Hearing:

 

 

Primary: The Honorable (.?laire McCaskill

 

Committee: HOMELAND SECURITY (SENATE)

 

 

Question: Kansas Secretary of State Kris Kobaeh was quoted in The Kansas City Star on
May 111 2017 as sayingr that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13i99, would have full?time staff from the Of?ce ofthe Vice

President and the Department of Homeland Security.
Are you aware of any plans to staffthe Presidential Advisory Commission on Eleetion
Integrity with DHS employees? If so. what of?ce within DHS will staff the Commission
how many DHS employees will staffthe Commission, and what is DHS's anticipated

annual budget for the Commission?



 

(W5)

 

 

 

 

 

Chm)

 

 

 

 

 

13

Voter lnteg rity Commission

Question#:
The Department ol? Homeland Seourity Fiscal Year 2?lH Budget Request

 

'l'opic:

 

 

Hearing:

 

The Honorable Claire McCasl-cill

Primary:
HOMELAND SECURITY (SENATE)

 

Committee:

 

 

Question: Kansas Secretary of State Kris Kobaeh was quoted in The Kansas City Star on
May 1 l? 2017 as sayingr that the Presidential Advisory Commission on Election Integrity,
created by Executive Order l3'i'99, would have full-time staff from the Office ofthe Vice
President and the Department of Homeland Security.
Are you aware of any plans to staffthe Presidential Advisory Commission on Eleetion
Integrity with DHS employees? If so. what of?ce within DHS will staff the Commission
how many DHS employees will staffthe Commission, and what is DHS's anticipated

annual budget for the Commission?



 



 

 

 

 

(W5)

 

 

 

 

 

Question#: 13

 

Topic: Voter Integrity Commission

 

Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request

 

Primary: The Honorable Claire McCaskill

 

Committee: HOMELAND SECURITY (SENATE)

 

 

 

 

Question: Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on
May 11, 2017 as saying that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13799, would have full-time staff from the Office of the Vice
President and the Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election
Integrity with DHS employees? If so, what office within DHS will staff the Commission,
how many DHS employees will staff the Commission, and what is DHS's anticipated
annual budget for the Commission?

 

Response: W5)

 



 

 

 

 

Question#: 13

 

Topic: Voter Integrity Commission

 

Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request

 

Primary: The Honorable Claire McCaskill

 

Committee: HOMELAND SECURITY (SENATE)

 

 

 

 

Question: Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on
May 11, 2017 as saying that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13799, would have full-time staff from the Office of the Vice
President and the Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election
Integrity with DHS employees? If so, what office within DHS will staff the Commission,
how many DHS employees will staff the Commission, and what is DHS's anticipated
annual budget for the Commission?

 

Response: 11:95)

 

?1:06)

 

 

 

 

Question#: 13

 

Topic: Voter Integrity Commission

 

Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request

 

Primary: The Honorable Claire McCaskill

 

Committee: HOMELAND SECURITY (SENATE)

 

 

 

 

Question: Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on
May 11, 2017 as saying that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13799, would have full-time staff from the Office of the Vice
President and the Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election
Integrity with DHS employees? If so, what office within DHS will staff the Commission,
how many DHS employees will staff the Commission, and what is DHS's anticipated
annual budget for the Commission?

 



 

Response:

 

(WE)

 

 

 

Question#: 13

 

Topic: Voter Integrity Commission

 

Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request

 

Primary: The Honorable Claire McCaskill

 

Committee: HOMELAND SECURITY (SENATE)

 

 

 

 

Question: Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on
May 11, 2017 as saying that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13799, would have full-time staff from the Office of the Vice
President and the Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election
Integrity with DHS employees? If so, what office within DHS will staff the Commission,
how many DHS employees will staff the Commission, and what is DHS's anticipated
annual budget for the Commission?

 

Res ponsezlfb?i?)

 

(13125)

 

 

 

 

 

Question#: 13

 

Topic: Voter Integrity Commission

 

Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request

 

Primary: The Honorable Claire McCaskill

 

Committee: HOMELAND SECURITY (SENATE)

 

 

 

Question: Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on
May 11, 2017 as saying that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13799, would have full-time staff from the Office of the Vice
President and the Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election
Integrity with DHS employees? If so, what office within DHS will staff the Commission,
how many DHS employees will staff the Commission, and what is DHS's anticipated
annual budget for the Commission?

 

Res 

 

(MG)

 

 

 

 

Question#: 13

 

Topic: Voter Integrity Commission

 

Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request

 

Primary: The Honorable Claire McCaskill

 

Committee: HOMELAND SECURITY (SENATE)

 

 

 

 

Question: Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on
May 11, 2017 as saying that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13799, would have full-time staff from the Office of the Vice
President and the Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election
Integrity with DHS employees? If so, what office within DHS will staff the Commission,
how many DHS employees will staff the Commission, and what is DHS's anticipated
annual budget for the Commission?

 

Res music-$315)

 

0315)

 

 

 

 

6
From: (bx 

 

 

To:

 

 

CC:

 

 

 

 

RE: Auth QFR - 51 Senate Budget McCaskill (30) #1145221 Set #1 of 2 - Ready for Front Of?ce
Review

Date: 201?;f08116 13:05:38
Priority: Normal

Subject:

 

 

 

 

 

 

Type: Note

 

 

Small edits and one question: 

 

 

ICONS)

From:

Sent: Wednesdav, August 16, 2017? 10:1? AM
new I

 

 

Cc: QFR Group fbii5i

 

Itbit?) 
Subject: RE: Auth QFR 51 Senate Budget McCaskill {30} #1145721 Set #1 of 2 Ready for Front Office
Review

Could we please get an update on the status ofthese 51 Thanks!

 

Item) 
Legislative Affairs Specialist
Executive Secretariat
Office of the Secretary
Department of Homeland Security
M6) Jhone
:ell
[202] 612-1975 fax

 

 

 

 

Excellent Service Endless Commitment"

From 003(5)
Sent: Tuesday, August 15, 201? 10:23 AM
Toltbit?i

 

 

 

 

Cc: OFR 

Subject: RE: Auth OFR - 51 Senate Budget McCaskill {30] #1145721 Set #1 of 2 - Ready for Front Office
Review

 

 

Good Morning 

 

Could we please get an update on the status of these 51 please? Thanks!

 

(1:116)

 

 

 

Legislative Attalrs Spec alist
Executive Secretariat

Office of the Secretary
Department of Homeland Security
phone

cell

{202) 612-19?5 fax

 

 

 

 

Excellent Service Endless Commitment"

 



Sent: Monday, August 14, 2013l 10:31 AM

To: Cissna, Tiffany W6)

Cc: QFR Group 10345)

Subject: RE: Auth QFR 51 Senate Budget McCaskill {30} #1145721 Set #1 of 2 Ready for Front Office
Review

 

 

-cleared for Gene on Thursday in the attached email.

 

PIKE) I
Legislative Affairs Specialist
Executive Secretariat
Office of the Secretary
Department of Homeland Security
0:005) phone
cell
{202) 612?1975 fax

 

 

 

 

Excellent Service Endless Commitment?

From: Cissna, Tiffany
Sent: Monday, August 14, 2017 9:54 AM
Tozlbx?)
lib??) I
Cc: OFR Group {axe}

 

 

Subject: RE: Auth QFR - 81 Senate Budget McCaskill {30] #1145721 Set #1 of 2 - Ready for Front Office
Review

Fine from me. 2 questions/comments.

 



 

 

 

From?

Sent: Monday, August 14, 2017 9:14 AM

 

 

Tic-$1345) Cissna, 

Cc: OFR Group F345)

Subject: RE: Auth OFR - 51 Senate Budget McCaskill {30] #1145721 Set #1 of 2 - Ready for Front Office
Review

 

Good Morning-nd Tiffany;

We just wanted to check on the status ofthese 51 please. Thanks!

 

tots) 

Legislative Affairs Specialist
Executive Secretariat

Office of the Secretary
Department of Homeland Security
03126) shone

:ell

{202) 612-1975 fax

 

 

 

 

 

Excellent Service Endless Commitment"

 

 

 

 

 

 

 

 

 

Fram?
Sent: Tuesday, Aug as: 5. 2912 12:34 EM
To: Hamilton, Genew?) rebs, Christopher
m6) ICissna, Tiffany
Taylor, Miles {Miles.Taylor@hq.dhs.gov>
Cc: Front Office Review CC Group lfbx?) I


 

Subject: Auth QFR 51 Senate Budget McCaskill {30) #1145721 Set #1 of 2 Ready for Front Office
Review
Importance: High

Good Afternoon,

Attached for Front Office review are draft responses to the first of two sets of Questions For the

Record (QFRS) from the June 6th, 2017 hearing before the Senate Committee on Homeland

Security and Governmental Affairs titled The Department of Homeland Security Fiscal Year 2018
Budget Request in which DHS Secretary John Kelly testified. This set of QFRs has been reviewed

by DHS offices and Components, including OGC, and is ready for Front Office review.

Responses need only be current as of the hearing date of June 6th, 2017 since theQF Rs are
included as part of the hearing record.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

QFR Component/Topic Counselor{s}
Number
1 CBP Congressional Justification Gene Hamilton
2 CBP - Unacquired Land Gene Hamilton
3 CBP Northern Border Gene Hamilton
4 PLCY Executive Order Reports Tiffany Cissna
5 CBP CBP Progress Gene Hamilton, Tiffany Cissna
6 ICE ICE Progress Gene Hamilton, Tiffany Cissna
7 USCIS USCIS Progress Gene Hamilton, Tiffany Cissna
8 OIG Funding Miffany Cissna
9 Counterterrorism Grants Chris Krebs
10 FEMA - FEMA Grants Chris Krebs
11 TSA Federal Air Marshalls 093(5)
12 PLCY Missouri REAL ID Legislation
13 MG MT Voter Integrity Commission Tiffany Cissna
14 USCIS H-ZB Visa Cap Gene Hamilton
15 Land Ports of Entry Report Gene Hamilton
16 MGMT Electronic Device Search Tiffany Cissna
Software
17 CBP Physical Wall Investment Gene Hamilton
18 CBP - Surveillance Technology Gene Hamilton
19 CBP Border Patrol Agents Gene Hamilton, Ifbm
20 ICE Unaccompanied Minors Gene Hamilton
21 NPPD Cyber Activities Chris Krebs
22 NPPD NCCIC Chris Krebs
23 National Biodefense Analysis and Chris Krebs
Countermeasures Center
24 NBACC Closure Chris Krebs
25 USCG Polar Icebreaker Programs Gene Hamilton, Chris Krebs, and
(B05)
26 FEMA Urban Area Security Initiative
Allocations
27 Elizabeths Tiffany Cissna
28 NPPD Cybersecurity Hearing Chris Krebs

 

 

 

 

 

 

 

29 VIPR Funding 03(6) I
3'3 ICE Private Prisons Gene Hamilton and M6)

 

 

 

 

 

Respectfully, your comments or clearance is requested as soon as possible and no later than

1:00 pm on Thursrjavlr August 10th, 2017. This QFR set still must complete Chief of Staff Review
and OMB clearance process prior to submission to the Hill.

 

FENCES) 

Executive Secretariat

Of?ce ofthe Secretary
Department of Homeland Security
(WEE) phone

cell

(202) 612-19?5?1x

 

 

 

 

C: Excellent Service Endless Commitment?

iKrebs, Christopher 

Sender (billi?)

 

 

Recipient

 

 

 

 

Sent 13:05:33

 

 

Question#: 13

 

Topic: Voter Integrity Commission

 

Hearing: The Department of Homeland Security Fiscal Year 2018 Budget Request

 

Primary: The Honorable Claire McCaskill

 

 

Committee: HOMELAND SECURITY (SENATE)

 

 

Question: Kansas Secretary of State Kris Kobach was quoted in The Kansas City Star on
May 11, 2017 as saying that the Presidential Advisory Commission on Election Integrity,
created by Executive Order 13799, would have full-time staff from the Office of the Vice
President and the Department of Homeland Security.

Are you aware of any plans to staff the Presidential Advisory Commission on Election
Integrity with DHS employees? If so, what office within DHS will staff the Commission,
how many DHS employees will staff the Commission, and what is DHS's anticipated
annual budget for the Commission?

 

 

Res ponsdibxi)