The American Civil Liberties Union sued President Trump, the Presidential Advisory Commission on Election Integrity and Vice President Michael Pence (who is Chair of the Commission) on July 10th, 2017 in the United States District Court for the District of Columbia. The Plaintiffs seek two forms of relief: 1) the Plaintiffs ask the court to “compel the Defendants to abide by the Federal Advisory Committee Act” (FACA) and 2) the Plaintiffs ask the court to declare that the Defendants violated FACA.
Plaintiffs argue that in 1972, Congress passed FACA “because of the congressional concern with the number and utility of advisory committees” and to ensure that the committee meetings be open to the public. Congress wanted to ensure that presidential advisory committees are created only when “essential.” The lawsuit claims that the Defendants violated FACA in two ways.
First, the Plaintiffs argue that the Defendants violated, and continue to violate, the “non-discretionary transparency and public access requirements” of FACA. The Commission held their first meeting (a telephonic meeting) on June 28th, 2017 in private; the public was not notified of the meeting, nor was the meeting open to the public. According to FACA, even if committee members meet via phone, the meeting still must be open to the public. Moreover, the meeting was not properly added to the Federal Register as statutorily required by FACA.
After the meeting, the Commission failed to release relevant documents from the meeting including “records, reports, transcripts, minutes…” to the public. Thus, Plaintiffs argue the meeting was unlawful. The Commission has scheduled a second meeting, for July 19th, in the Eisenhower Executive Office Building—a building which is “not generally open to the public,” although the meeting “would be available to the public through an internet livestream.”
Second, the Plaintiffs contend that the Defendants violated the FACA requirement that “an advisory committee’s membership be ‘fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee.’” Not only must the committee have members with diverse opinions, but “appropriate provisions must be made” to prevent the committee from being “inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee’s independent judgement.”
The Defendants violated this FACA requirement by filling the Commission with individuals who have not only publicly supported President Trump’s “false” claims of widespread noncitizen voting, but also have a history of enacting polices to preclude citizens from voting. For example, the Vice Chair of the Commission, Kansas Secretary of State Kris Kobach, was admonished by an Appeals Court for the “mass denial of a fundamental constitutional right” after he disenfranchised voters in his state.
The Plaintiffs maintain that the composition of the Commission, along with the lack of any provision that shield the Commission’s work from ‘inappropriate influence,’ demonstrate that the Commission exists to provide a “veneer of legitimacy” to Trump’s claims that widespread illegal voting during the election cost him the popular vote.