League of Women Voters of U.S. v. Newby

• Decision Date: 26 September 2016
• Docket Number: No. 16–5196,16–5196
• Citation: 838 F.3d 1
• Parties: League of Women Voters of the United States, et al., Appellants v. Brian D. Newby, in his capacity as the Executive Director of the United States Election Assistance Commission, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

838 F.3d 1

League of Women Voters of the United States, et al., Appellants

v.Brian D. Newby, in his capacity as the Executive Director of the United States Election Assistance Commission, et al., Appellees

No. 16–5196

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2016

Decided September 26, 2016

Joel T. Dodge, Chelsea Goulet, Michael Courtney Keats, Attorneys, Stroock & Stroock & Lavan LLP, Wendy Weiser, Brennan Center for Justice, Director, New York, NY, Jonathan D. Janow, Attorney, Kirkland & Ellis LLP, Washington, DC, for Plaintiffs–Appellants League of Women Voters of the United States, League of Women Voters of Georgia, League of Women Voters of Kansas.

Jason Adam Abel, Errol Ramon Patterson, Linda S. Stein, Steptoe & Johnson LLP, Jon M. Greenbaum, Esquire, Director, Lawyers Committee for Civil Rights, Washington, DC, Dale Ho, Director, ACLU Foundation, New York, NY, for Plaintiffs–Appellants Georgia State Conference of the NAACP, Georgia Coalition for the People's Agenda.

Jon M. Greenbaum, Esquire, Director, Lawyers Committee for Civil Rights, Washington, DC, Dale Ho, Director, ACLU Foundation, New York, NY, for Plaintiffs–Appellants Marvin Brown, Joann Brown.

John A. Freedman, Esquire, R. Stanton Jones, Elisabeth Susan Theodore, Andrew Mercer Treaster, Attorney, Arnold & Porter LLP, Washington, DC, for Plaintiff–Appellant Project Vote.

Daniel Tenny, Alisa B. Klein, Mark B. Stern, Attorneys, Beth S. Brinkmann, Esquire, U.S. Department of Justice (DOJ), Civil Division, Appellate Staff, Benjamin Charles Mizer, Solicitor, U.S. Department of Justice (DOJ), Office of the Assistant Attorney General, Channing Phillips, Esquire, U.S. Attorney, U.S. Attorney's Office (USA), Civil Division, Washington, DC, for Defendants–Appellees Brian D. Newby, United States Election Assistance Commission.

Garrett Robert Roe, Kris W. Kobach, Esquire, Office of the Kansas Secretary of State, Topeka, KS, Dale Lee Wilcox, Immigration Reform Law Institute, Washington, DC, Intervenor for Defendant–Appellee Kris W. Kobach.

Noel Henry Johnson, Kaylan Lytle Phillips, Public Interest Legal Foundation, Plainfield, IN, Public Interest Legal Foundation, Intervenor for Defendant–Appellee Public Interest Legal Foundation.

Eugene F. Chay, Senior Attorney, Asian Americans Advancing Justice AAJC, Washington, DC, Amicus Curiae for Appellants American–Arab Anti–Discrimination Committee, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice—AAJC, Asian

Americans Advancing Justice—Asian Law Caucus, Asian Americans Advancing Justice—Atlanta, Asian Americans Advancing Justice—Chicago, Asian Americans Advancing Justice—Los Angeles, Campaign Legal Center, Common Cause, Demos, Fair Elections Legal Network, Mexican American Legal Defense and Educational Fund, National Asian Pacific American Bar Association, National Association of Latino Elected and Appointed Officials Educational Fund, National Council of Jewish Women, People for the American Way Foundation, Service Employees International Union, Southern Coalition for Social Justice.

Lawrence J. Joseph, Attorney, Law Office of Lawrence J. Joseph, Washington, DC, Amicus Curiae for Appellee Eagle Forum Education & Legal Defense Fund.

Brittnie Ryan Baker, Jonathan Lee Sherman, Counsel, Fair Elections Legal Network, Washington, DC, Adam Martin Sparks, Esquire, Attorney, Krevolin & Horst, LLC, Atlanta, GA, Amicus Curiae for Appellant Fair Elections Legal Network.

Before: Rogers, Circuit Judge, and Williams and Randolph, Senior Circuit Judges.

Dissenting opinion by Senior Circuit Judge Randolph.

Rogers, Circuit Judge and Williams, Senior Circuit Judge:

In order to increase participation in federal elections, the National Voter Registration Act requires states to register eligible citizens who submit a complete and valid federal registration form. Although some states in recent years have enacted voter-registration laws that require documentary proof of U.S. citizenship, historically the federal form, which includes a list of state-specific voter-registration instructions, has never included such a requirement. That changed earlier this year, when a member of the staff of the Election Assistance Commission, which has the responsibility for prescribing the contents of the form, approved requests by Alabama, Georgia, and Kansas to add their proof-of-citizenship requirements to the form. Two individuals and several voting-rights organizations sought a preliminary injunction against this decision, which the district court denied after finding a lack of irreparable harm. This opinion provides the analysis underlying our expedited judgment reversing the district court. League of Women Voters of U.S. v. Newby , No. 16–5196, ––– Fed.Appx. ––––, 2016 WL 4729502 (D.C. Cir. Sept. 9, 2016) (“Judgment ”).

I.

The Elections Clause of the United States Constitution directs states to regulate the “Times, Places and Manner” of congressional elections, but empowers Congress to preempt those regulations. U.S. CONST. art. I, § 4, cl. 1 ; see also Arizona v. Inter Tribal Council of Ariz., Inc. (“ITCA ”), ––– U.S. ––––, 133 S.Ct. 2247, 2253–54, 186 L.Ed.2d 239 (2013). In 1993, Congress, in an exercise of that power, enacted the National Voter Registration Act (“the NVRA”), Pub. L. No. 103–31, 107 Stat. 77 (codified as amended at 52 U.S.C. §§ 20501 et seq. ); see also ITCA , 133 S.Ct. at 2251. The NVRA requires states to permit voters to register for federal elections (1) when applying for a driver's license, (2) by mail, and (3) in person. 52 U.S.C. § 20503(a)(1)–(3). This appeal concerns only the second requirement—registration by mail.

The NVRA directs each state to “accept and use” a federally prescribed national mail voter registration form, often called “the Federal Form.” Id. § 20505(a)(1).

Whatever methods of voter registration a state uses for its own elections, it cannot decline to register for federal elections an applicant who completes and timely submits a valid Federal Form. See id. § 20507(a)(1)(B); ITCA , 133 S.Ct. at 2254–57. The NVRA at once requires and restricts the inclusion of certain information on the Federal Form. The form

may require only such identifying information (including the signature of the applicant) and other information (including data relating to previous registration by the applicant), as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.

52 U.S.C. § 20508(b)(1) (emphasis added). It must, however, “specif[y] each eligibility requirement (including citizenship)” and require registrants to sign, under penalty of perjury, an attestation that he or she meets each eligibility requirement. Id. § 20508(b)(2). In addition, the Federal Form must contain state-specific voter-eligibility requirements. Id. § 20508(b)(4)(i) ; see also id. § 20507(a)(5)(A). The Federal Form thus consists of three parts: (1) a voter registration application; (2) instructions for how to complete the application; and (3) state-specific instructions. 11 C.F.R. § 9428.3(a). The state-specific instructions must contain certain information for each state: “the address where the application should be mailed and information regarding the state's specific voter eligibility and registration requirements.” Id. § 9428.3(b) ; see also id. § 9428.4(b)(1).

Although the NVRA was originally administered by the Federal Election Commission, Congress, in the Help America Vote Act of 2002, Pub. L. No. 107–252, § 802, 116 Stat. 1666, 1726, transferred to the newly created Election Assistance Commission (“the Commission”) the power, “in consultation with the chief election officers of the States,” to “develop” the Federal Form and to promulgate regulations needed to carry out that task. 52 U.S.C. § 20508(a)(1)–(2) ; see also id. § 21132. The Commission is to be composed of four commissioners, appointed for a term, two from each party, id. § 20923(a)(1), (b)(2), and to act requires a vote of three Commissioners, id. § 20928. The Commission's staff includes an executive director, id. § 20924(a).

In recent years, several states, including Alabama, Georgia, and Kansas, have enacted laws requiring that anybody who wishes to register to vote must provide documentary proof of United States citizenship. See Ala. Code § 31–13–28(c) –(l ) ; Ga. Code Ann. § 21–2–216(g) ; Kan. Stat. Ann. § 25–2309(l ) –(t). Not surprisingly, the enforcement of these proof-of-citizenship laws proved contentious, and litigation ensued. In 2005, Arizona requested that its state-specific instructions be changed by the Commission to reflect its proof-of-citizenship requirement and renewed its request in 2007 after it had been denied. In 2012, Kansas made a similar request of the Commission regarding its own proof-of-citizenship law. In 2013, the Supreme Court resolved the Arizona litigation, holding in ITCA , 133 S.Ct. 2247, that the NVRA forbids a state from demanding that registrants who submit a Federal Form provide information not required by the form itself. Id . at 2260. The Court noted that Arizona remained free to renew its request to alter the Federal Form and, if necessary, challenge the Commission's denial under the Administrative Procedure Act (“APA”). Id. at 2259.

The next day, Kansas renewed its request, and Arizona followed suit the following day. Ultimately, the Commission's Acting Executive Director denied the requests and the Tenth Circuit affirmed their denial.

See Kobach v. U.S. Election Assistance Comm'n , 772 F.3d 1183, 1188–99 (10th Cir. 2014).

In November 2015, the Commission hired Brian Newby as its executive director. The day after Newby became executive director, the Kansas Secretary of State's office sent him a letter again asking that the Commission add the proof-of-citizenship requirement to the Federal Form's Kansas-specific instructions. Newby subsequently became aware of...