Fish v. Kobach

• Citation: 840 F.3d 710
• Decision Date: 19 October 2016
• Docket Number: No. 16-3147,16-3147
• Parties: Steven Wayne Fish; Donna Bucci; Charles Stricker ; Thomas J. Boynton; Douglas Hutchinson; League of Women Voters of Kansas, Plaintiffs–Appellees, v. Kris W. Kobach, in his official capacity as Secretary of State for the State of Kansas, Defendant–Appellant, and Nick Jordan, Defendant. English First Foundation ; English First ; U.S. Justice Foundation; Public Advocate of The United States ; Gun Owners Foundation; Gun Owners of America; Conservative Legal Defense and Education Fund; U.S. Border Control Foundation; Policy Analysis Center ; and Common Cause, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

840 F.3d 710

Steven Wayne Fish; Donna Bucci; Charles Stricker ; Thomas J. Boynton; Douglas Hutchinson; League of Women Voters of Kansas, Plaintiffs–Appellees,
v.
Kris W. Kobach, in his official capacity as Secretary of State for the State of Kansas, Defendant–Appellant,
and
Nick Jordan, Defendant.

English First Foundation ; English First ; U.S. Justice Foundation; Public Advocate of The United States ; Gun Owners Foundation; Gun Owners of America; Conservative Legal Defense and Education Fund; U.S. Border Control Foundation; Policy Analysis Center ; and Common Cause, Amici Curiae.

No. 16-3147

United States Court of Appeals, Tenth Circuit.

October 19, 2016

840 F.3d 715

Dale Ho (Rodkangyil Orion Danjuma and Sophia Lin Lakin, American Civil Liberties Union Foundation, Inc., New York, New York; Stephen Douglas Bonney, ACLU of Kansas and Western Missouri, Overland Park, Kansas; Neil A. Steiner and Rebecca Kahan Waldman, Dechert LLP, New York, New York; Angela M. Liu, Dechert LLP, Chicago, Illinois, with him on the briefs), American Civil Liberties Union, New York, New York, for Plaintiffs–Appellees.

Kris W. Kobach, Secretary of State of Kansas (Garrett R. Roe, Kansas Secretary of State's Office, Topeka, Kansas, with him on the brief), Kansas Secretary of State's Office, Topeka, Kansas, for Defendant–Appellant.

Herbert W. Titus of William J. Olson, P.C. (William J. Olson, Jeremiah L. Morgan, John S. Miles, and Robert J. Olson, William J. Olson, P.C., Vienna, Virginia; Marc A. Powell, Powell Law Office, Wichita, Kansas; Michael Connelly, U.S. Justice Foundation, Ramona, California, with him on the brief), filed an amicus curiae brief for the English First Foundation, English First, the U.S. Justice Foundation, Public Advocate of the United States, the Gun Owners Foundation, the Gun Owners of America, the Conservative Legal Defense and Education Fund, the U.S. Border Control Foundation, and the Policy Analysis Center, in support of Defendant–Appellant.

Debo P. Adegbile of Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York (Jason D. Hirsch, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Joshua M. Koppel, Tyeesha Dixon, and Derek A. Woodman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, District of Columbia, with him on the brief), filed an amicus curiae brief for Common Cause in support of Plaintiffs–Appellees.

Before BRISCOE, HOLMES, an d McHUGH, Circuit Judges.

HOLMES, Circuit Judge.

INTRODUCTION

In this case, we must resolve whether section 5 of the National Voter Registration Act (the “NVRA”), 52 U.S.C. § 20504, preempts a Kansas law requiring documentary proof of citizenship (“DPOC”) for voter registration, Kan. Stat. Ann. § 25–2309(l ), as applied to the federally mandated voter-registration form that must be a part of any application to obtain or renew a driver's license (the “motor voter” process).¹ Section 5 of the NVRA mandates that states include a voter-registration form as part of the application for a driver's license, and provides that this voter-registration form “may require only the minimum amount of information necessary to”² prevent duplicate registrations and to

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“enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.”³ 52 U.S.C. § 20504(c)(2)(B). Section 5 further mandates that motor voter forms include the following: a statement of the criteria for eligibility, “including citizenship”; an attestation that the applicant meets those criteria; and the applicant's signature “under penalty of perjury.” § 20504(c)(2)(C).⁴

Granting a motion for a preliminary injunction against enforcement of Kansas's DPOC requirements, the U.S. District Court for the District of Kansas held that the Plaintiffs–Appellees had made a strong showing that Kansas's DPOC law was preempted by NVRA section 5, insofar as DPOC was more than the “minimum amount of information necessary” to achieve the purposes set forth by the statute. Defendant–Appellant Kansas Secretary of State Kris Kobach appeals from the district court's entry of the preliminary injunction, which required him to register to vote any applicants previously unable to produce DPOC and to cease enforcement of Kansas's DPOC requirement with respect to individuals who apply to register to vote at the Kansas Department of Motor Vehicles (“DMV”) through the motor voter process.

Exercising jurisdiction pursuant to 28 U.S.C. § 1292,⁵ we hold that the district court did not abuse its discretion in granting the preliminary injunction because the NVRA preempts Kansas's DPOC law as enforced against those applying to vote while obtaining or renewing a driver's license. Specifically, section 5 of the NVRA provides, as most relevant here, that the state motor voter form “may require only the minimum amount of information necessary to ... enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” 52 U.S.C. § 20504(c)(2)(B)(ii). Section 5 also requires motor voter forms to include a signed attestation under penalty of perjury that the applicant meets the state's eligibility criteria, including citizenship. § 20504(c)(2)(C). We hold that this attestation

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under penalty of perjury is the presumptive minimum amount of information necessary for state election officials to carry out their eligibility-assessment and registration duties. As it pertains to the citizenship requirement, the presumption ordinarily can be rebutted (i.e., overcome) only by a factual showing that substantial numbers of noncitizens have successfully registered to vote under the NVRA's attestation requirement. Having determined that Secretary Kobach has failed to make this showing, we conclude that the DPOC required by Kansas law is more than the minimum amount of information necessary and, therefore, is preempted by the NVRA. We affirm the grant of a preliminary injunction.

I. BACKGROUND

A. Kansas's DPOC Requirement and Prior Litigation

Unremarkably, in Kansas, only citizens may vote in state and federal elections. KAN. CONST. art. V, § 1. The Kansas Constitution also requires the legislature to “provide by law for proper proofs of the right to suffrage.” Id. art. V, § 4. Kansas adopted its DPOC requirement for voter registration on April 18, 2011. Secure and Fair Elections (“SAFE”) Act, ch. 56, § 8(l ), 2011 Kan. Sess. Laws 795, 806, 809–11 (codified at Kan. Stat. Ann. § 25–2309(l ) ). The requirement took effect January 1, 2013. Id. at § 8(u), 2011 Kan. Sess. Laws at 812. The SAFE Act requires that

(l) The county election officer or secretary of state's office shall accept any completed application for registration, but an applicant shall not be registered until the applicant has provided satisfactory evidence of United States citizenship. Evidence of United States citizenship as required in this section will be satisfied by presenting one of the documents listed ... in person at the time of filing the application for registration or by including a photocopy of one of the following documents with a mailed registration application. After a person has submitted satisfactory evidence of citizenship, the county election officer shall indicate this information in the person's permanent voter file.

Kan. Stat. Ann. § 25–2309(l ). The statute then lists thirteen forms of documentation acceptable to prove U.S. citizenship, including a birth certificate or passport. See § 25–2309(l )(1)–(13). For citizens unable to present DPOC, subsection (m) provides an alternate means to prove citizenship by the submission of evidence to the state election board followed by a hearing. See § 25–2309(m). The state election board is composed of “the lieutenant governor, the secretary of state and the attorney general.” § 25–2203(a).

Secretary Kobach promulgated regulations for the DPOC requirement on October 2, 2015. Kan. Admin. Regs. § 7–23–15 (the “90–day regulation”). Those regulations provide that applications unaccompanied by DPOC are deemed to be “incomplete.” § 7–23–15(a). Once an application is designated as incomplete, a voter has ninety days to provide DPOC or else the application is canceled and a new voter-registration application is required to register. See § 7–23–15(b)–(c).

We believe that it will provide useful context for our subsequent discussion of the procedural history of the present case for us to briefly refer to Kansas's prior litigation before our court involving the DPOC issue. Some groundwork must be laid first, however. In 2013, an Arizona DPOC requirement was challenged as running afoul of sections 6 and 9 of the NVRA. Arizona v. Inter Tribal Council of Ariz., Inc. (Inter Tribal) , ––– U.S. ––––, 133 S.Ct. 2247, 2252–53, 186 L.Ed.2d 239 (2013). Section 9 provides for a universal

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mail-in form for voter registration for federal elections (the “Federal Form”) and entrusts the creation and administration of that form to the Election Assistance Commission (the “EAC”) in consultation with the chief election officers of the states. See 52 U.S.C. § 20508(a). Section 6...