After the Firings, Election Officials Need a Plan B for the EAC

After the Firings, Election Officials Need a Plan B for the EAC On July 9th, President Trump fired the two Democratic commissioners of the U.S. Election Assistance Commission and accepted the resignation of its lone remaining Republican, leaving the agency with zero sitting commissioners four months before the midterms. The White House cited last month’s Supreme Court decision in Trump v. Slaughter, which overturned decades of precedent limiting the president’s power to remove leaders of independent agencies, as its legal basis. The reporting on what happened and what the EAC can still technically do are already thorough. What hasn’t been said clearly enough is this: if upheld, the dismissal of the EAC’s commissioners calls into question whether the agency’s original purpose can be met at all. At its founding, legislators charged the EAC with focusing on assistance rather than enforcement and prioritized guardrails against partisanship; admirable goals that depended on the agency being insulated enough from the White House that its independence was more than a paper guarantee. If Slaughter applies to the EAC as the administration claims, that insulation is vaporized. Everything downstream of the commissioners’ firings — the quorum fights, the grant conditions, the standards disputes — will now take place in the context of an agency operating without the structural premise on which it was designed. Election officials, civil society, and the election law community need to reckon with that shift now, not after the next crisis makes it undeniable. What happened, briefly Commissioners Thomas Hicks and Benjamin Hovland, both Democrats, were notified by email Thursday night that their positions were “terminated, effective immediately.” Republican Christy McCormick was allowed to resign. The fourth seat had already been vacant since April, when Republican Donald Palmer left for the Heritage Foundation. In a statement, the White House pointed directly to Slaughter, saying the decision gives the president “precedence” to remove commissioners not “totally aligned” with the administration’s election priorities. It’s a striking citation: Slaughter was a case about the FTC, and whether its removal-power holding extends to a commission Congress designed explicitly around bipartisan balance is an open legal question. What the EAC is, and what a missing quorum does (and doesn’t) mean The EAC is a small, four-member bipartisan commission created by the Help America Vote Act (HAVA) in 2002 in the aftermath of the 2000 Florida recount. Its job has always been support, not enforcement: distributing federal election security grants, certifying voting systems against national technical standards, running the national mail voter registration form, and acting as a clearinghouse for best practices. It has no power to run elections or direct how states run theirs, and Congress never gave it widespread rulemaking authority. The Commission needs three affirmative votes to conduct official business, a structure known as a fixed numerosity voting rule, deliberately designed to force bipartisan buy-in on anything consequential. With zero commissioners, that vote is impossible. But it’s worth being precise about what can still happen and what can’t. This isn’t the first time the EAC has gone without a quorum; it has operated for extended stretches with vacancies before, including a period with no commissioners at all from 2011 to 2014. Career staff, led by the Executive Director (or, absent one, the General Counsel and then the Chief Operating Officer in succession), retain delegated authority to keep existing programs running: disbursing already-appropriated HAVA grants, certifying voting systems against current standards, maintaining the national registration form, publishing guidance, and convening the EAC’s advisory boards. What staff cannot do without Commission approval is adopt new standards (e.g. an updated Voluntary Voting Standards and Guidelines (VVSG), which includes voting machine testing and certification guidance), expand or add conditions to existing programs, process formal decertification appeals, or hire a new executive director or general counsel. On paper, in other words, the trains can keep running even if no new track can be laid. That used to be an accurate picture of what happened without a quorum of commissioners, but it’s not anymore. The Trump Administration has, consistently and over many months, sought to undermine independence across federal agencies. Under these conditions, and with the Slaughter decision further opening the door to political interference, we can no longer rely on the assumption that career staff can independently exercise their existing authority. Look at what’s already happened at CISA, the other federal agency with an election security mission. Over the past year, DOGE-driven cuts and workforce pressure gutted CISA’s election security programs, and over time, remaining staff have reportedly grown hesitant to assist election officials at all, out of fear of professional retribution. The result is that election officials now say their relationship with CISA may be permanently broken, not because the legal authority to help disappeared, but because the people with that authority no longer trust that using it is safe. The administration has already shown its willingness to use adjacent levers to pressure the agency’s substantive priorities. The executive order Preserving and Protecting the Integrity of American Elections this spring directed changes to the national registration form and pushed for decertification of QR-code tabulators. When those did not materialize through swift EAC action, the administration ordered the Postal Service to end-run the proof of citizenship question by requiring states to provide citizenship lists for all voters casting mail ballots. Moreover, a pattern of increasingly aggressive conditions attached to federal election security grants has also implicated the ability of states to get federal dollars, leverage the administration may also seek from HAVA funds in future. A workforce watching its own commissioners get fired by email overnight and seeing other agency staff experience threats and intimidation is a workforce with every incentive to read every ambiguous instruction from the White House as one it can’t afford to resist. The statutory limits on what the EAC “cannot” do without a quorum matter far less if the people executing what it “can” do no longer feel free to exercise independent judgment about those boundaries. The deeper problem: Congress wouldn’t build this agency today The EAC’s independence was central to its mandate and design. The Carter-Ford Commission that shaped HAVA explicitly called for a new agency separated from enforcement, run by bipartisan, independent commissioners with “a reputation for integrity,” precisely so election administration support wouldn’t be captured by whichever party held the White House. Congress built in partisan balance requirements, a three-vote quorum threshold, and recommendation authority split between both parties’ congressional leadership; it also, as HAVA’s chief House architect put it at the time, deliberately stripped the agency of power to “dictate solutions or hand down bureaucratic mandates” to states in order to ensure the agency could operate apolitically. The whole point was to create an agency that states could trust because it was structurally hard for any single administration to bend to its will. Applying Slaughter-like reasoning to the EAC breaks that bargain at the root. If the president can remove any commissioner for any reason as he claims, “bipartisan balance” stops being a structural guarantee. The three-vote quorum requirement, designed to force cross-party consensus, is meaningless if a future president can simply fire whoever supplies the inconvenient vote — or fire everyone, as happened this week, and leave the agency in a kind of extended limbo. It’s the same dynamic CDT flagged when the administration first moved to assert control over independent agencies broadly: the arrangement subverts the very purpose of independent agencies, which is to operate as experts on specific topics without being subject to politics. The EAC is a particularly stark example, because unlike the FTC or FCC its entire reason for existing (rather than folding election assistance into DOJ or an existing agency) was to keep election administration insulated from exactly this kind of pressure. Put plainly: the version of the EAC that Congress created in 2002 was a bet that structural independence was durable. If Slaughter truly does apply (which remains an open question that legal experts believe has not been tested in the context of explicitly bipartisan commissions like the FEC and EAC), then following the administration’s baseless firings this week, the agency that exists on paper and the agency Congress actually designed are no longer the same institution, even though the text of HAVA hasn’t changed a word. What this requires going forward Of course, the EAC’s remaining functions continue to matter – perhaps more than ever as election officials face new technical threats and challenges. Grant dollars still need to reach states; certification work still needs to happen; the clearinghouse function still remains useful (at least for now). But election officials, civil society groups, and the election law community shouldn’t keep acting as if the EAC is still an independent agency, even if the commissioners challenge their firings. The reality is that administration pressure will be a critical factor in the administration of HAVA grants, how and whether updates are made to the national voter registration form, or how testing and certification guidelines are updated. The severity of the firings at the EAC call for different thinking than “wait for a quorum” or “watch for illegal rulemaking.” It means building alternative channels, such as state-level standards work and alternative routes for testing that don’t depend on the assumption of federal insulation. And it means being honest, in public, that the debate over the EAC can no longer be whether the agency is following HAVA but whether HAVA’s structural premises survived this moment at all.