A Partisan DOJ Just Provided a Brief Lesson on How to Befuddle and Irritate a Federal Judge

Yesterday, this blog addressed the EAC's purpose and its duty to the states. The DOJ is responsible for representing the EAC in legal matters, or at least that is the way it is supposed to work. The National Review released an article describing the hearing that occurred yesterday where that behavior was as far away from that expectation as possible.

The judge opened the hearing by reading into the record an astonishing letter he had just received from the chair of the EAC, Christie McCormick. It informed the court that DOJ had told the EAC that it would not defend the agency, and that it would not allow the EAC to hire its own counsel. McCormick informed the judge that she believed DOJ was not fulfilling its duty and obligation to defend the EAC and had a potential conflict of interest.

This certainly foreshadowed the DOJ’s biased approach to the issue at hand and this was almost immediately addressed by the judge.

The DOJ sought to not fight a lawsuit against the federal Election Assistance Commission (EAC), conceding to a temporary restraining order and preliminary injunction filed by the League of Women voters and other activist groups. The EAC had decided to allow Kansas, Arizona, Georgia, and other states “to enforce state laws ensuring that only citizens” would be able to register to vote when they use the federally designed voter registration form.
Judge Leon called the pleading “unprecedented” and “extraordinary.” He said he had never seen such a document in his entire experience as a lawyer or a judge. He was obviously astonished that the Justice Department was not defending the agency, and it was soon clear he was not going to allow DOJ to just roll over.

As the hearing progressed, it was obvious that it was plunging further down the rabbit hole of judicial disbelief and astonishment. The DOJ, a federal entity charged with protecting other federal entities, was refusing to do so and in actuality was advocating and assisting the plaintiff?

[. . . ]Judge Leon was shocked at what DOJ had done. While he gave the plaintiffs 20 minutes to argue their case, he gave the lawyer from the Federal Programs Branch of DOJ only five minutes because he said that DOJ was obviously on the same side as the plaintiffs. He also said almost immediately that he would not grant a PI without a complete briefing and arguments on the case — despite DOJ wanting to consent to the PI. Judge Leon made clear that there was “no chance at all — zero” that he would do what the plaintiffs and the Justice Department wanted him to do on that issue.

The judge seemed literally flabbergasted at what was occurring in the court. "I've never heard of it in all my years as a lawyer," the judge said and yet, he was not quite finished expressing his disbelief.

It was clear that this hearing did not go the way the plaintiffs’ lawyers and DOJ had tried to arrange it to go. They thought the fix was in. In fact, it went so badly, particularly with DOJ being called on the carpet by Judge Leon, that at the end when the plaintiffs’ lawyer got up to try to repair all the holes that Kobach had knocked in their case, the lawyer tried to compare the EAC action to Nazi Germany. He waved the EAC opinion at issue in the air and said “this is what Nazis do behind closed doors!”  You know a lawyer is desperate when he tries to equate a dispute over an election administration issue to Nazi Germany.

Judge Leon will likely decide on the TRO today and "set a hearing for the PI on March 9, 2016."  The DOJ's behavior is potentially unethical and clearly partisan. At a minimum, the plaintiffs have learned that these are two things that Judge Leon views in a very negative light.