Kobach v. U.S. Election Assistance Comm'n
| Decision Date | 07 November 2014 |
| Docket Number | Nos. 14–3062,14–3072.,s. 14–3062 |
| Citation | 772 F.3d 1183 |
| Parties | Kris W. KOBACH, Kansas Secretary of State; Ken Bennett, Arizona Secretary of State; State of Kansas; State of Arizona, Plaintiffs–Appellees, v. UNITED STATES ELECTION ASSISTANCE COMMISSION; Alice Miller, in her capacity as acting Executive Director and Chief Operating Officer of the United States Election Assistance Commission, Defendants–Appellants, and Inter Tribal Council of Arizona, Inc.; Arizona Advocacy Network ; League of United Latin American Citizens Arizona; Steve Gallardo; Project Vote, Inc. ; League of Women Voters of The United States; League of Women Voters of Arizona ; League of Women Voters of Kansas ; Valle Del Sol; Southwest Voter Registration Education Project ; Common Cause; Chicanos Por La Causa, Inc.; Debra Lopez, Defendant Intervenors–Appellants. Representatives Nancy Pelosi, Steny H. Hoyer, James E. Clyburn, Xavier Becerra, Marcia L. Fudge, Ruben Hinojosa, Judy Chu, Robert A. Brady; Rock The Vote; Voto Latino ; Protecting Arizona's Family Coalition; Nonprofit Vote; Fair Share Education Fund; Fair Share; American Unity Legal Defense Fund; Allied Educational Foundation; Judicial Watch, Inc.; Eagle Forum Education & Legal Defense Fund; The States of Georgia and Alabama, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bonnie I. Robin–Vergeer (Jocelyn Samuels, Acting Assistant Attorney General, and Diana K. Flynn and Sasha Samberg–Champion, attorneys, with her on the briefs), United States Department of Justice Civil Rights Division–Appellate Section, Washington, D.C., for the Defendants–Appellants.
Kris W. Kobach, Secretary of State of Kansas (Thomas E. Knutzen and Caleb D. Crook, Kansas Secretary of State's Office, Topeka KS; Thomas C. Horne, Attorney General of Arizona and Michele L. Forney, Arizona Attorney General's Office, Phoenix, AZ; and Derek Schmidt, Attorney General of Kansas and Stephen R. McAllister and Jeffrey A. Chanay, Kansas Attorney General's Office, Topeka, KS, with him on the brief), Kansas Secretary of State's Office, Topeka, KS for the Plaintiffs–Appellees.
Susan Davies, Jonathan Janow, and Rachel B. Funk, Kirkland & Ellis LLP, Washington, D.C.; Michael C. Keats, Bonnie L. Jarrett, and Adam Teitcher, Kirkland & Ellis LLP, New York, New York; David G. Seely, Fleeson, Gooing, Coulson & Kitch LLC, Wichita, KS; and Wendy R. Weiser, Tomas Lopez, and Jonathan Brater, Brennan Center for Justice at NYU School of Law, New York, New York, Michelle Kanter Cohen, Project Vote, Inc., Washington, D.C.; Lee Thompson, Erin C. Thompson, Thompson Law Firm, LLC, Wichita, KS; and Robert N. Weiner, John A. Freedman, Andrew W. Beyer, and Andrew Treaster, Arnold & Porter, LLP, Washington, D.C.; Nina Perales, Ernest Herrera, Mexican American Legal Defense and Education Fund, San Antonio, TX; Jeffrey J. Simon and Judd M. Treeman, Husch Blackwell LLP, Kansas City, MO; Linda Smith, Adam P. KohSweeney, and J. Jorge deNeve, O'Melveny & Myers LLP, Los Angeles, CA; Lane Williams and Kip Elliot, Disability Rights Center of Kansas, Topeka, KS; Mark A. Posner and Erandi Zamora, Lawyers' Committee for Civil Rights Under Law, Washington, D.C.; Linda Stein, Errol R. Patterson, and Jason A. Abel, Steptoe & Johnson, LLP, Washington, D.C.; Joe P. Sparks, Laurel A. Herrmann, and Julia M. Kolsrud, The Sparks Law Firm, P.C., Scottsdale, AZ; David B. Rosenbaum, Thomas L. Hudson, and Anna H. Finn, Osborn Maledon, P.A., Phoenix, AZ; and Daniel B. Kohrman, AARP Foundation Litigation, Washington, D.C., submitted a brief on behalf of Intervenors–Appellants League of Women Voters of the United States, League of Women Voters of Arizona, League of Women Voters of Kansas, Project Vote, Inc., Southwest Voter Registration Education Project, Common Cause, Chicanos Por La Causa, Inc., Debra Lopez, and Inter Tribal Council of Arizona, Inc., Arizona Advocacy Network, League of United Latin American Citizens Arizona, and Steve Gallardo.
Nina Perales, Ernest Herrera, Mexican American Legal Defense and Education Fund, San Antonio, TX; Jeffrey J. Simon and Judd M. Treeman, Husch Blackwell LLP, Kansas City, MO; Linda Smith, Adam P. KohSweeney, and J. Jorge deNeve, O'Melveny & Myers LLP, Los Angeles, CA, submitted a brief on behalf of Intervenor–Appellant Valle Del Sol.
Bradley J. Schlozman, Hinkle Law Firm, LLC, Wichita, Kansas, and Robert D. Popper and Chris Fedeli, Judicial Watch, Inc., Washington, D.C., filed an amicus curiae brief for Judicial Watch, Inc. and Allied Educational Foundation.
Lawrence J. Joseph, Washington, D.C., filed an amicus curiae brief for Eagle Forum Education & Legal Defense Fund.
Edith Hakola, American Unity Legal Defense Fund, Warrenton, VA, and Barnaby Zall, Weinberg, Jacobs Tolani, Bethesda, MD, filed an amicus curiae brief for American Unity Legal Defense Fund.
Luther Strange, Alabama Attorney General, Samuel S. Olens, Georgia Attorney General, and Dennis Dunn, Deputy Attorney General, Georgia Department of Law, Atlanta, GA, Montgomery, AL, filed an amicus curiae brief for the States of Georgia and Alabama.
Karl J. Sandstrom, Perkins Coie, LLP, Washington, D.C., and Joshua L. Kaul, Perkins Coie, LLP, Madison, WI, filed an amicus curiae brief for Representatives Nancy Pelosi, Steny H. Hoyer, James E. Clyburn, Xavier Becerra, Marcia L. Fudge, Ruben Hinojosa, Judy Chu, and Robert A. Brady.
Stuart C. Naifeh, Demos, New York, NY, and Brenda Wright and Lisa J. Danetz, Demos, Brighton, MA, filed an amicus curiae brief for Community Voter Registration Organizations.
Before LUCERO, HOLMES, and PHILLIPS, Circuit Judges.
Arizona Secretary of State Ken Bennett and Kansas Secretary of State Kris Kobach sought, on behalf of their respective states, that the Election Assistance Commission (“EAC”) add language requiring documentary proof of citizenship to each state's instructions on the federal voter registration form (“Federal Form”). The EAC concluded that the additional language was unnecessary and denied their requests. After Kobach and Bennett filed suit challenging the EAC's decision, the district court concluded that the agency had a nondiscretionary duty to grant their requests. We hold that the district court's conclusion is in error in that it is plainly in conflict with the Supreme Court's decision in Arizona v. Inter Tribal Council of Arizona, Inc., ––– U.S. ––––, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013) (ITCA ). Were the agency's duty “nondiscretionary,” the ITCA majority would have so concluded and arrived at an opposite result. This would, of course, have rendered the Court's suggested option of Administrative Procedure Act (“APA”) appellate review both unnecessary and inapplicable. It would also have made the Justice Thomas dissenting opinion endorsing the theory Arizona and Kansas bring to us in this appeal the majority not the dissent. This is one of those instances in which the dissent clearly tells us what the law is not. It is not as if the proposition had not occurred to the majority of the Court. Applying traditional APA review standards, our thorough reading of the record establishes that Kobach and Bennett have failed to advance proof that registration fraud in the use of the Federal Form prevented Arizona and Kansas from enforcing their voter qualifications. Exercising jurisdiction under 28 U.S.C. § 1291, we therefore reverse the grant of judgment favoring Kobach and Bennett, and remand with instructions to vacate.
The present appeal is the latest installment in a long-running dispute over the Federal Form. In 2004, Arizona passed Proposition 200, which requires documentary proof of citizenship for voter registration. On December 12, 2005, Arizona asked the EAC to add language to the Federal Form's state-specific instructions indicating a documentary proof of citizenship requirement. The EAC's Executive Director denied the request, leading Arizona to ask the EAC commissioners to reconsider the denial. By a 22 vote, the commissioners effectively confirmed the Executive Director's denial.
Meanwhile, various organizations and individuals, many of them Intervenor–Appellants in this case, challenged Proposition 200 in federal court. Their suit culminated in the Supreme Court holding that the National Voter Registration Act (“NVRA”) “precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself.” ITCA, 133 S.Ct. at 2260. Anticipating this case, the Court stated: “Arizona may, however, request anew that the EAC include such a requirement among the Federal Form's state-specific instructions, and may seek judicial review of the EAC's decision under the [APA].” Id.
Just two days after the ITCA decision, Arizona again asked the EAC to include documentary proof of citizenship language as a state-specific instruction on the Federal Form. Kansas, which had enacted legislation similar to Proposition 200, made a similar contemporaneous request. Both petitions were deferred on the basis that the EAC lacked a quorum of commissioners. Kobach and Bennett then sued the EAC in the U.S. District Court for the District of Kansas, alleging that the EAC's failure to act violated the APA and that the NVRA is unconstitutional as applied. The district court ordered the EAC to issue a final agency action by January 17, 2014.
After receiving and reviewing 423 public comments, including comments from Arizona, Kansas, and each of the Intervenor–Appellants, the EAC's Executive Director issued a memorandum on January 17, 2014, denominated as final agency action, denying the states' requests. Kobach and Bennett then renewed their previous demand for relief. This request was granted by the district court and the EAC was ordered to add the subject language to the Federal Form on the district court's conclusion that the NVRA did not preempt state laws requiring proof of citizenship, and that the EAC had a nondiscretionary duty to grant Kobach's and Bennett's petitions. We stayed the order. The merits...
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