Fish v. Kobach

• Decision Date: 17 May 2016
• Docket Number: Case No. 16-2105-JAR-JPO
• Citation: 189 F.Supp.3d 1107
• Parties: Steven Wayne Fish, et al., Plaintiffs, v. Kris Kobach, in his official capacity as Secretary of State for the State of Kansas, et al., Defendants.
• Court: U.S. District Court — District of Kansas

189 F.Supp.3d 1107

Steven Wayne Fish, et al., Plaintiffs,

v.Kris Kobach, in his official capacity as Secretary of State for the State of Kansas, et al., Defendants.

Case No. 16-2105-JAR-JPO

United States District Court, D. Kansas.

Signed May 17, 2016

Angela M. Liu, Dechert LLP, Chicago, IL, Dale E. Ho, R. Orion Danjuma, Sophia Lin Lakin, American Civil Liberties Union Foundation, Neal A. Steiner, Rebecca Kahan Waldman, Dechert, LLP, New York, NY, Stephen D. Bonney, ACLU Foundation of Kansas, Overland Park, KS, for Plaintiffs.

Bryan J. Brown, Bryan Brown, Garrett Robert Roe, Kris Kobach, Secretary of State, Christopher M. Ray, M. J. Willoughby, Office of Attorney General, Joseph Brian Cox, Kansas Department of Revenue, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

This lawsuit challenges the Kansas documentary proof of citizenship requirement as it applies to those who apply to register to vote in federal elections during the driver's license application or renewal process. The individual plaintiffs filed their Complaint on February 18, 2016, on behalf of themselves and others similarly situated, against Kansas Secretary of State Kris Kobach, and Kansas Secretary of Revenue Nick Jordan. The Complaint alleges that the Kansas documentary proof of citizenship requirement and a related regulation are preempted by the National Voter Registration Act of 1993, and violate 42 U.S.C. § 1983 because they are unconstitutional under the Elections Clause and Privileges and Immunities Clause of the United States Constitution.¹ Before the Court is Plaintiffs' Motion for Preliminary Injunction, filed on February 25, 2016 (Doc. 19). Plaintiffs request a preliminary injunction barring Defendants from enforcing K.S.A. § 25–2309(l), which requires voters to provide proof of United States' citizenship when they apply to register to vote at the same time they apply for or renew a driver's license, and K.A.R. § 7–23–15, which allows cancellation of voter registration applications that are incomplete for more than 90 days after application due to failure to prove United States' citizenship, until the case can be determined on the merits.

The Court allowed the parties to conduct limited, expedited discovery, and heard evidence and argument on the motion on April 14, 2016. At this time, the Court also considers Defendant Secretary of Revenue Nick Jordan's Motion to Dismiss (Doc. 64) to the extent it asserts lack of subject matter jurisdiction. These matters are fully briefed. The Court has considered the parties' briefs, the evidence adduced at the hearing, and the parties' oral arguments, and is prepared to rule. As explained more fully below, Plaintiffs' motion for preliminary injunction is granted in part and denied in part.

I. Background

In 1993, Congress passed the National Voter Registration Act ("NVRA"). The NVRA has four stated purposes:

(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;

(2) to make it possible for Federal, State, and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;

(3) to protect the integrity of the electoral process; and

(4) to ensure that accurate and current voter registration rolls are maintained.²

The NVRA seeks to achieve these objectives by creating national registration requirements for federal elections through three methods: simultaneously with a driver's license application ("motor-voter"), by mail using the federal form approved by the Election Assistance Commission ("EAC"), or in person.³ This case deals with the first option only—applying to register simultaneously when applying for a driver's license.

Section 5 of the NVRA requires that every application for a driver's license, including license renewals, "shall serve as an application for voter registration with respect to elections for Federal office."⁴ Subsection (c) of section 5 provides:

(1) Each State shall include a voter registration application form for elections for Federal office as part of an application for a State motor vehicle driver's license.

(2) The voter registration application portion of an application for a State motor vehicle driver's license—

(A) may not require any information that duplicates information required in the driver's license portion of the form (other than a second signature or other information necessary under subparagraph (C));

(B) may require only the minimum amount of information necessary to—

(i) prevent duplicate voter registrations; and

(ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process;

(C) shall include a statement that—

(i) states each eligibility requirement (including citizenship);

(ii) contains an attestation that the applicant meets each such requirement; and

(iii) requires the signature of the applicant, under penalty of perjury;

(D) shall include, in print that is identical to that used in the attestation portion of the application—

(i) the information required in section 20507(a)(5)(A) and (B) of this title;

(ii) a statement that, if an applicant declines to register to vote, the fact that the applicant has declined to register will remain confidential and will be used only for voter registration purposes; and(iii) a statement that if an applicant does register to vote, the office at which the applicant submits a voter registration application will remain confidential and will be used only for voter registration purposes; and

(E) shall be made available (as submitted by the applicant, or in machine readable or other format) to the appropriate State election official as provided by State law.⁵

Section 8 of the NVRA provides for the administration of voter registration. Under this section, each State shall

(1) ensure that any eligible applicant is registered to vote in an election—

(A) in the case of registration with a motor vehicle application under section 20504 of this title, if the valid voter registration form of the applicant is submitted to the appropriate State motor vehicle authority not later than the lesser of 30 days, or the period provided by State law, before the date of the election.⁶

Each State shall also:

(3) provide that the name of a registrant may not be removed from the official list of eligible voters except—

(A) at the request of the registrant;

(B) as provided by State law, by reason of criminal conviction or mental incapacity; or

(C) as provided under paragraph (4);

(4) conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of—

(A) the death of the registrant; or

(B) a change in the residence of the registrant, in accordance with subsections (b), (c), and (d).⁷

The NVRA was passed after the House and Senate each passed voter registration bills and proceeded to conference committee. The Senate's bill contained several Republican-proposed amendments, referred to as a "core" package of amendments that allowed the bill to pass the Senate.⁸ Another amendment to the Senate bill, which was not part of the core amendments, but was in the Senate bill that went to conference, was a rule of construction that had been proposed by Senator Simpson ("the Simpson Amendment").⁹ That amendment provided "that nothing in this Act shall prevent a State from requiring presentation of documentation relating to citizenship of an applicant for voter registration."¹⁰ At the time the amendment was debated in the Senate, before it went to conference, Senator Ford, who sponsored the legislation, stated that the amendment was redundant because the bill did not preclude States from requiring documentary proof of citizenship.¹¹ But the conference decided to follow the House bill instead, which did not include this provision. The conference report explains:

It is not necessary or consistent with the purposes of this Act. Furthermore, there is concern that it could be interpreted by States to permit registration requirements that could effectively eliminate, or seriously interfere with, the mail registration program of the Act. It could also adversely affect the administration of the other registration programs as well. In addition, it creates confusion with regard to the relationship of this Act to the Voting Rights Act. Except for this provision, this Act has been carefully drafted to assure that it would not supersede, restrict or limit the application of the Voting Rights Act. These concerns lead the conferees to conclude that this section should be deleted.¹²

When submitting the conference committee report on the Senate floor, Senator Ford discussed the amendment. After citing the same concerns raised in the report, he stated:

Mr. President, every State mandates that you must be a citizen of the United States to be eligible to vote. This bill requires that, on every application for registration, the requirements for eligibility must be clearly set forth, including citizenship. And every applicant signs a statement that they meet each and every requirement, and that statement is signed under penalty of perjury.¹³

The NVRA was ultimately passed without the proposed rule of construction amendment.

In 2007, Kansas amended its driver's license statute to require all applicants to provide documentary proof of lawful presence.¹⁴ As part of this requirement, the division of vehicles

shall require valid documentary evidence that the applicant: (A) Is a citizen or national of the United States; (B) is an alien lawfully admitted for permanent or temporary residence in the United States; (C) has conditional permanent resident status in the United States; (D) has an approved application for asylum in the United States or has entered into the United States in refugee status; (E) has a valid, unexpired nonimmigrant

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