Maine Secretary of State Dunlap Election Commission Lawsuit

Update

On November 16, Maine Secretary of State Matt Dunlap filed a motion asking a federal court for a preliminary injunction as part of his ongoing lawsuit against President Trump’s election commission, of which he is a member.

Dunlap originally sued on November 9 to force the Presidential Advisory Commission on Election Integrity (PACEI) to stop withholding key information needed to fulfill his role as a commissioner. In response, members of the commission, including Vice Chair Kris Kobach and commissioner Hans von Spakovsky have launched hyperbolic attacks and called on Dunlap to be removed from the PACEI.

The motion filed today asks the U.S. District Court Judge Colleen Kollar-Kotelly to order the PACEI to immediately provide the requested documents and enable Dunlap to participate in PACEI business.

Dunlap’s motion is below, followed by more information about the lawsuit.

Nov. 16, 2017: Initial complaint

Nov. 30, 2017: Transcript of Nov. 17, 2017 confrence

Dec. 8, 2017: Reply brief

Dec. 23, 2017: Opinion

Jan. 17, 2018: DOJ response to opposition to motion for preliminary injunction

Jan. 17, 2018: Defendants motion against preliminary injunction

Jan. 18, 2018: Reply brief in support of temporary restraining order

Jan. 31, 2018: Motion for leave to issue subpoena

Jan. 28, 2019: Order to release additional documents

Motion for Preliminary Injunction

Overview and Fact Sheet

On November 9, Maine Secretary of State Matt Dunlap filed suit in the U.S. District Court for the District of Columbia to enforce his rights as a member of the Presidential Advisory Commission on Election Integrity (PACEI).

Read Secretary Dunlap’s press release here.

The lawsuit alleges that the commission, led by Vice President Mike Pence and Kansas Secretary of State Kris Kobach, has violated the Federal Advisory Committee Act (FACA) by denying Dunlap and other commissioners access to key documents and excluding them from much of the commission’s work. The Executive Office of the President (EOP) is also a named defendant, as the commission’s electronic records are believed to be maintained on the EOP’s computer network.

FACA requires the PACEI to provide all commissioners with equal information as the group makes decisions and conducts its inquiry. Dunlap has repeatedly sought access to commission records – including meeting materials, witness invitations, and correspondence with other commissioners – but has been rebuffed on each occasion.

As a last resort, Dunlap is filing the lawsuit to force the PACEI to comply with FACA and provide the information and documents necessary for him to meaningfully participate as a commissioner. Dunlap’s suit is based on the 1999 DC Circuit Court decision in Cummock v. Gore, in which the court held that commissioners may not be denied access to information. Dunlap is represented by nonpartisan ethics watchdog American Oversight and the law firm of Patterson Belknap, based in New York City.

Background

On May 11, 2017, President Trump issued an Executive Order creating the PACEI, designating Vice President Pence as chair and Kansas Secretary of State Kris Kobach as vice chair. Dunlap was appointed to the commission the same day, and he is currently one of four Democratic members of the now 11-member body.

In a February email sent before the PACEI was announced, commissioner Hans von Spakovsky advocated for excluding Democrats and even “mainstream Republicans” from the body, arguing that they would obstruct the commission’s work. Even though Democrats were ultimately appointed to the commission, Dunlap’s experience demonstrates that the PACEI is effectively excluding them.

The PACEI Has Repeatedly Denied Key Information to Dunlap

Dunlap, despite serving as a commissioner, has been denied access to documents, plans, and schedules of the PACEI, preventing him from participating in its work. He has made repeated efforts to take part in substantive discussions of the PACEI, but he has been rebuffed and provided only the barest logistical information he needs to physically participate in meetings of the commission.

On June 28, the PACEI sent a letter to all 50 states and the District of Columbia requesting voter roll information. Dunlap was informed of the letter only a few hours before it was sent, without being provided any advance opportunity to consult with the other commission members about it.

Dunlap was given only minimal details before PACEI’s first two formal meetings – on July 19 and September 12 – and was not provided with information on key topics, including how witnesses were selected or the objective of the meetings.

Dunlap has received no notice of any future meetings of the commission, even though an outside activist group, the Minnesota Voters Alliance, has already sent out a fundraising email announcing its leader would be testifying at a December meeting of the commission.

The PACEI has not provided Dunlap with the identities or assignments of any staff working for the commission, apart from executive director Andrew Kossack, and it did not inform Dunlap when a staff researcher working for the commission was arrested on child pornography charges.

On October 17 and November 1, Dunlap wrote to Kossack requesting copies of commission records, including correspondence between commissioners, communications with federal agencies, and information regarding meetings, witnesses, and staff. According to a PACEI court filing in another pending lawsuit, the commission has generated at least 800 such documents to which Dunlap should be entitled access. To date, the commission has not shared this information with Dunlap.

The Federal Advisory Committee Act and the PACEI

FACA requires that “records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents made available to or prepared for or by each advisory committee shall be available for public inspection and copying.” Under the law, the commission is obligated to make these same materials available to all commissioners.

By withholding all but the most basic details, the leadership of the PACEI is depriving Dunlap of the resources and information he needs to carry out his duties, which violates the FACA regulations by which the commission must act.

Complaint: Dunlap v. PACEI et.al