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Eac m2limit

Eac m2limit

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Published by arizonaspolitics
U.S. Election Assistance Commission motion to limit Court to reviewing administrative record, 1/14. Arizona and Kansas
U.S. Election Assistance Commission motion to limit Court to reviewing administrative record, 1/14. Arizona and Kansas

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Published by: arizonaspolitics on Feb 05, 2014
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10/13/2014

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KRIS W. KOBACH,
et al.
 
Plaintiffs,
v. UNITED STATES ELECTION ASSISTANCE COMMISSION,
et al.,
 
 Defendants.
CIVIL ACTION NO. 5:13-CV-4095-EFM-DJW
DEFENDANTS’ MOTION TO LIMIT COURT’S REVIEW TO THE AGENCY RECORD, TO LIMIT THE FEBRUARY 11-12, 2014 HEARING TO ORAL ARGUMENT, AND TO HOLD A STATUS CONFERENCE, AND MEMORANDUM IN SUPPORT THEREOF
Defendants United States Election Assistance Commission (“EAC”) and Alice Miller, Acting Executive Director of the EAC, respectfully move: (1) to limit the Court’s review of the EAC’s final agency action in this matter, ECF No. 129-1, to the administrative record, ECF Nos. 79, 80, 95, 82, 132; (2) to limit the previously noticed February 11-12, 2014, hearing, ECF No. 131, to oral argument; and (3) to hold a telephone status conference.
1
 In support of their motion, Defendants state as follows:
INTRODUCTION
This case involves a straightforward challenge to agency action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”). Plaintiffs Arizona and Kansas (collectively, “Plaintiffs” or “States”) requested that the U.S. Election Assistance Commission (“EAC”) amend
1
 Counsel for the Defendants have notified the other parties of Defendants’ intention to file this motion. Counsel for Plaintiffs indicated that they opposed cancellation of the evidentiary hearing. Counsel for the ITCA, Project Vote, and Valle del Sol groups of Defendant-Intervenors indicated that they join in the motion as to the relief requested, but reserve the right to take different positions on the specific issues that the Defendants raise. Counsel for the League of Women Voters group of Defendant-Intervenors indicated that they take no position on the motion.
Case 5:13-cv-04095-EFM-TJJ Document 135 Filed 01/27/14 Page 1 of 13
 
2 the National Mail Voter Registration Form (“Federal Form”) to require that registrants for federal elections in those states provide additional proof of their United States citizenship as a  precondition to voter registration. The EAC, through its Acting Executive Director, originally opted to defer ruling on those requests until a quorum of EAC commissioners was established. But on December 13, the Court found that the EAC had unreasonably delayed acting on the States’ requests and “remand[ed] the matter to the EAC with instructions that it render a final agency action no later than January 17, 2014.” Order of Dec. 13, 2013, ECF No. 114, at 2. In accordance with the Court’s order, the agency issued a decision on January 17, 2014, rejecting the States’ requests. ECF No. 129-1. That decision is now subject to judicial review  pursuant to well-settled APA principles and procedures. Specifically, the APA empowers the Court to examine the administrative record submitted by the EAC and determine whether the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Court cannot, consistent with controlling Supreme Court and Tenth Circuit authority, render a decision based on a “new record made initially in the reviewing court.”’
 Bar MK Ranches v. Yuetter 
, 994 F.2d 735, 739 (10th Cir. 1993) (
quoting
 
Camp v. Pitts
, 411 U.S. 138, 142 (1973)). In light of this bedrock APA principle, Defendants respectfully request that the Court cancel the evidentiary hearing it has scheduled for February 11-12, 2014. Instead, the Court should limit its review to the administrative record, the arguments presented by the parties in their briefs due on January 31 and February 7,
see
 Order of Jan. 22, 2014, ECF No. 130, and any oral argument the Court wishes to hear. At a minimum, prior to ordering an evidentiary hearing, the Court should require, first, that any party demonstrate in its brief supporting a petition for review of the final agency
Case 5:13-cv-04095-EFM-TJJ Document 135 Filed 01/27/14 Page 2 of 13
 
3 decision (which is due January 31,
see
 ECF No. 130) that its attempt to supplement the agency’s record fits under one of the limited exceptions to APA record review, identifying the specific ways in which the record needs to be supplemented. If this Court finds, after reviewing the  parties’ briefs, that there are legitimate reasons to consider evidence beyond the administrative record, it should at that point direct the agency to supplement the record as needed or, if appropriate, provide for a reasonable discovery period and an evidentiary hearing with respect to the limited scope of issues for which the Court determines that supplementation of the record is necessary. The current path that the Court has ordered—an evidentiary hearing to occur only three weeks after the Court’s January 22 Scheduling Order and only four days after the parties have completed their briefing—is both contrary to Supreme Court and Tenth Circuit precedent for APA cases and, in its timing, unfairly prejudicial to the Defendants. Defendants respectfully request that the Court reconsider its approach and adhere to customary and required procedures for reviewing agency action.
2
 The Court heard oral argument on Plaintiffs’ preliminary injunction motion on December 13, 2013. After concluding that the EAC had unreasonably delayed action on Plaintiffs’ requests within the meaning of the APA, Hearing Tr. 12/13/2013 at 76:6, the Court determined that “under [its] procedural rules, [it] need[ed] a final agency action,”
id.
 at 140:19-20, and appeared to accept defense counsel’s representation “that even in the absence of any commissioners, the EAC can consider and act upon the States’ requests.” December 13, 2013 Order, ECF No. 114
PROCEDURAL BACKGROUND
2
 Given the press of time, Defendants ask, in the alternative, that if the Court decides to proceed with a two-day evidentiary hearing starting on February 11, it schedule a telephone status conference to take place on or before February 3, 2014, to discuss the conduct of the hearing (
e.g.,
 the number of witnesses it will hear, the time allotted to each party for oral argument, etc.), the timeframe for disclosing witnesses and evidence, and the terms and conditions of any pre-hearing discovery.
Case 5:13-cv-04095-EFM-TJJ Document 135 Filed 01/27/14 Page 3 of 13

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