Cromwell v. Kobach

• Decision Date: 29 July 2016
• Docket Number: Case No. 15-9300-JAR-JPO
• Citation: 199 F.Supp.3d 1292
• Parties: Alder CROMWELL, Cody Keener, and Parker Bednasek, Plaintiffs, v. Kris KOBACH, Kansas Secretary of State, and Jamie Shew, Douglas County Clerk, Defendants.
• Court: U.S. District Court — District of Kansas

199 F.Supp.3d 1292

Alder CROMWELL, Cody Keener, and Parker Bednasek, Plaintiffs,

v.Kris KOBACH, Kansas Secretary of State, and Jamie Shew, Douglas County Clerk, Defendants.

Case No. 15-9300-JAR-JPO

United States District Court, D. Kansas.

Signed July 29, 2016

Curtis E. Woods, Mark P. Johnson, Samantha Jo Wenger, Dentons US, LLP, Kansas City, MO, Paul Treanor Davis, William R. Lawrence, IV, Fagan Emert & Davis LLC, Lawrence, KS, for Plaintiffs.

Garrett Robert Roe, Kris Kobach, Kansas Secretary of State, Bryan J. Brown, Topeka, KS, Bradley R. Finkeldei, John T. Bullock, Stevens & Brand, LLP, Lawrence, KS, for Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

This case is brought on behalf of a putative class of Plaintiffs challenging the Kansas Documentary Proof of Citizenship law and a related regulation under the National Voter Registration Act and the United States Constitution. Before the Court is Defendant Kansas Secretary of State Kris Kobach's Motion to Dismiss (Doc. 94), raising justiciability challenges to Plaintiffs' claims. The motion is fully briefed and the Court is prepared to rule. As described more fully below, Defendant's motion is granted in part and denied in part. Plaintiffs Cromwell and Keener's claims are dismissed as moot. And Plaintiff Bednasek's NVRA claims are dismissed for failure to comply with the NVRA notice requirement. The Court proceeds to consider Plaintiffs' Motion for Class Certification (Doc. 60), which is also fully briefed. The Court heard oral argument on this motion on June 14, 2016. Having fully considered the arguments and evidence presented by the parties on the briefs and at the hearing, the Court denies this motion.

I. Background

Under Kansas law, only United States citizens are eligible to register to vote.¹ And legally qualified voters must register in order to be eligible to vote.² The Secure and Fair Elections Act ("SAFE Act") became law in 2011. It requires voter registration applicants to submit documentary proof of citizenship ("DPOC") at the time they apply to register to vote:

(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 paragraphs (1) through (13) of subsection (l) 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. Evidence of United States citizenship shall be satisfied by providing one of the following, or a legible photocopy of one of the following documents:

(1) The applicant's driver's license or nondriver's identification card issued by the division of vehicles or the equivalent governmental agency of another state within the United States if the agency indicates on the applicant's driver's license or nondriver's identification card that the person has provided satisfactory proof of United States citizenship;

(2) the applicant's birth certificate that verifies United States citizenship to the satisfaction of the county election officer or secretary of state;

(3) pertinent pages of the applicant's United States valid or expired passport identifying the applicant and the applicant's passport number, or presentation to the county election officer of the applicant's United States passport;

(4) the applicant's United States naturalization documents or the number of the certificate of naturalization. If only the number of the certificate of naturalization is provided, the applicant shall not be included in the registration rolls until the number of the certificate of naturalization is verified with the United States bureau of citizenship and immigration services by the county election officer or the secretary of state, pursuant to 8 U.S.C. § 1373(c) ;

(5) other documents or methods of proof of United States citizenship issued by the federal government pursuant to the immigration and nationality act of 1952, and amendments thereto;

(6) the applicant's bureau of Indian affairs card number, tribal treaty card number or tribal enrollment number;

(7) the applicant's consular report of birth abroad of a citizen of the United States of America;

(8) the applicant's certificate of citizenship issued by the United States citizenship and immigration services;

(9) the applicant's certification of report of birth issued by the United States department of state;

(10) the applicant's American Indian card, with KIC classification, issued by the United States department of homeland security;

(11) the applicant's final adoption decree showing the applicant's name and United States birthplace;

(12) the applicant's official United States military record of service showing the applicant's place of birth in the United States; or

(13) an extract from a United States hospital record of birth created at the time of the applicant's birth indicating the applicant's place of birth in the United States.³

The DPOC requirement was made effective January 1, 2013.⁴ A person already registered to vote before January 1, 2013, is not required to resubmit evidence of citizenship.⁵

The Kansas Election Voter Information System ("ELVIS") database contains a statewide list of every registered voter, every voter registration applicant, and everyone who used to be a registered voter but was subsequently cancelled. If an applicant has not provided DPOC, or if the application is otherwise missing required information, the record is designated as "in suspense" or "incomplete" until the application is completed.

Defendant Kobach promulgated K.A.R. § 7–23–15, which became effective on October 2, 2015. The regulation applies where individuals whose registration applications have been deemed "incomplete." Such applications are deemed "cancelled" from the State list of applicants if they do not produce DPOC, or otherwise cure the application, within 90 days of applying.⁶ When an application is cancelled due to lack of DPOC, that record is not removed from the ELVIS database. If an applicant is in either incomplete or cancelled status, that individual is ineligible to vote.

Deputy Assistant Secretary of State Bryan Caskey submitted a declaration, explaining that part of his job responsibility is to verify the citizenship status of incomplete voter registration applicants. Approximately once per month, the Secretary provides a list of names to the Department of Vital Statistics ("DVS") to compare to its database of birth certificates on file in Kansas. The DVS shares its information on any matches with the Secretary of State, which then transmits the information to county election officials. When the county election officials receive such citizenship information, they are authorized to change the applicants' status to "active," which adds them to the official list of registered voters. The Secretary of State engages in a similar process with the Department of Motor Vehicles ("DMV"), periodically sending it a list of names to determine whether it possess DPOC for those individuals in its database.⁷

Plaintiff Alder Cromwell is a United States citizen, a Kansas resident, and a duly qualified elector for local, state and federal elections in Kansas. On or about March 27, 2015, Cromwell applied to register to vote in Kansas by filling out the Kansas Voter Registration Form and attesting under penalty of perjury to his United States citizenship and eligibility to vote. On or around April 17, 2015, his application was received by the Douglas County Clerk's office. Cromwell did not submit the requested documentation proving citizenship and received notification on or about April 27, 2015, that his application was designated "in suspense." On October 7, 2015, approximately one week after this case was filed, Caskey sent a list of incomplete applicants to the DMV that included Cromwell. On October 8, 2015, the DMV confirmed that it possessed DPOC for Cromwell; this information was transmitted to the Douglas County Election office. On November 10, 2015, ELVIS indicated that Cromwell was an active, registered voter.

Plaintiff Cody Keener is a United States citizen, a Kansas resident, and a duly qualified elector for local, state and federal elections in Kansas. On or about December 22, 2014, Keener went to the DMV to renew his driver's license. While he was there he opted to register to vote. His information was transmitted electronically to the Secretary of State's office, which then transmitted it to the Douglas County Clerk's office. On or about December 29, 2014, Keener was notified by the Douglas County Clerk's office that he had been placed in the statewide voter registration database and marked as "in suspense" because he had not submitted documentation of his United States citizenship. On October 1, 2015, one day after this case was filed, Caskey sent a list of incomplete applicants to the DVS that included Keener. On October 2, 2015, the DVS confirmed that it possessed a Kansas birth certificate for Keener. On October 6, 2015, ELVIS indicated that Keener was an active, registered voter.

Plaintiff Parker Blake Bednasek is a United States citizen, who recently moved to Kansas in August 2014 to attend school at the University of Kansas ("KU"). His family moved from Oklahoma to Tarrant County, Texas around the same time Bednasek entered KU. He pays non-resident tuition rates at KU. Like many students, Bednasek lived with his parents during the summer between his freshman and sophomore years, from June to mid-August 2015. In August 2015, he registered for the first time to vote in Texas. Bednasek also obtained...