Hearing Today in Lawsuit Against Election Integrity Commission's Request for Public Voter Data

On Monday, the Electronic Privacy Information Center (EPIC) filed a motion for a temporary restraining order in the U.S. District Court for the District of Columbia to prevent the Presidential Advisory Commission on Election Integrity from collecting publicly available voter registration data from the states, claiming that the "collection and aggregation of state voter roll data by a federal commission is without precedent" and would threaten voters' privacy (even though the data to be collected is already publicly available).  

On Wednesday, the Department of Justice responded, strongly opposing the granting of a TRO:

As a threshold matter, the Court lacks jurisdiction to issue a temporary restraining order because EPIC failed to establish its standing. EPIC alleged no facts that the organization itself has suffered any injury, nor did it identify a single member who is suffering injury. In any event, EPIC’s members could not possibly be injured by the transfer of public information from one sovereign to another. Its concerns about a possible data breach at some point in the future by unknown third parties fall well short of an imminent and concrete injury that is traceable to the Commission and redressable by this Court. 

Even assuming the Court has jurisdiction, EPIC has not established its entitlement to emergency injunctive relief. EPIC has not shown that it will suffer any harm – much less irreparable harm – in the absence of a temporary restraining order. The voter data that EPIC seeks to enjoin the Commission from collecting is already made publicly available by the states. . . .  

Nor has EPIC established a substantial likelihood of success on the merits because it has no viable claims. Both the Administrative Procedure Act (“APA”) and the E-Government Act of 2002 apply only to “agencies,” but the Commission is not an “agency” within the meaning of these statutes because its sole purpose is to provide advice to the President. EPIC’s claim that the voluntary collection of publicly available voter information violates a constitutional right to informational privacy is meritless. Neither the Supreme Court nor the D.C. Circuit has held that such a right even exists. Even if such a right did exist, it would not apply to information that is already publicly available.

Finally, the public interest weighs against emergency injunctive relief. The President established the Commission “in order to promote fair and honest Federal elections.” Executive Order No. 13,799, 82 Fed. Reg. 22,389, 22,389 (May 11, 2017). By collecting voter data from the states, the Commission seeks to “enhance the American people’s confidence in the integrity of the voting processes used in Federal elections.” Id. EPIC seeks to halt this important work with meritless claims and a baseless fear about the states voluntarily submitting publicly available voter data to the federal government. Accordingly, EPIC’s motion for a temporary restraining order should be denied. 

Judge Colleen Kollar-Kotelly ordered a hearing for 4:00 today, outlining seven specific issues the parties should be prepared to address and ordering supplemental briefing on the issue of informational standing to be filed today as well.  During the hearing (which lasted over an hour), Judge Kollar-Kotelly announced she would not rule from the bench, and following the hearing, EPIC filed an amended complaint naming the Department of Defense as an additional defendant.

This story is obviously developing, and RNLA will be following it closely and posting updates here and on its Facebook page and Twitter feed.  The outcome of this suit could halt some of the Election Integrity Commission's important work before it has really even started, and at the very least, the litigation could be a distraction.