Site icon JONATHAN TURLEY

Slaughter Leaves Zombie Commission: Trump Fires Election Assistance Commissioners After Major Ruling

jonathanturley

With the recent decision in  Trump v. Slaughter affirming the right of presidents to fire members of the “independent” commissions, President Donald Trump took out the newly recognized power for a spin by removing the members of the Election Assistance Commission (EAC). He removed the commissioners over their failure to implement voter identification and security policies. The question now is how the EAC will operate as a zombie commission without active commissioners. It turns out that this is not the first time that the EAC has been devoid of living members, though critics are likely to say that the EAC has always been moribund.

The EAC is a bipartisan, independent commission established under the Help America Vote Act (HAVA) in 2002.

On Thursday, the Commission’s two Democratic members, Thomas Hicks and Benjamin Hovland, were fired by email. The Republican commissioner, Christy McCormick, resigned. That leaves no active commissioner since a fourth commissioner, Don Palmer, stepped down in April.

The Administration made clear that it wanted to expedite policies to “safeguard elections from fraud and abuse” ahead of November’s midterm elections. The tensions with the Administration have been building over the failure to move forward with a proof-of-citizenship requirement for national elections, updated guidelines on voting machines, and other election policies.

In the recent decision, a 6–3 majority overruled Humphrey’s Executor v. United States, the 1935 decision that upheld the authority of Congress to shield certain independent agency commissioners from presidential removal.

Chief Justice John Roberts wrote for the majority and declared that:

“the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”

The move is the first use of the power recognized in Slaughter, and it was expressly cited in the termination notice:

 “The President, and head of the Executive Branch, reserves the right to remove individuals that may not be totally aligned with the important task of securing America’s elections and ensuring ​every legal vote is counted. The Slaughter decision gives the President precedence to do so.”

The absence of active members creates an obvious power vacuum, as the Commission rules require an affirmative vote by at least three commissioners to conduct official business. Notably, the Commission has previously had no active members or a working quorum.

Until the Senate confirms new commissioners (which statutorily has meant an evenly divided partisan makeup), the EAC can continue to function even if it cannot establish new rules or policies. For example, it can continue to certify equipment and disburse grants through its Executive Director, General Counsel, Chief Operating Officer, Chief Financial Officer, and staff.

It can even hold hearings and meetings to gather new information and data.

Moreover, it is the states that continue to administer elections for the most part under our constitutional system. Congress does have concurrent jurisdiction for federal elections and this move is likely to refocus attention on the pending legislative reforms being pushed by the Trump Administration.

Given the current state of affairs in Congress and the late date of the move, this is unlikely to make material differences in the midterm elections. However, it is the first salvo from a newly invested president over such independent commissions.

 

Exit mobile version