League of Women Voters of the U.S. v. Newby
| Decision Date | 29 June 2016 |
| Docket Number | Civil Case No. 16-236 (RJL) |
| Citation | 195 F.Supp.3d 80 |
| Parties | LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, et al., Plaintiffs, v. Brian D. NEWBY, in his capacity as the Executive Director of the United States Election Assistance Commission, and United States Election Assistance Commission, Defendants, Kansas Secretary of State Kris W. Kobach and Public Interest Legal Foundation, Defendant-Intervenors. |
| Court | U.S. District Court — District of Columbia |
Amelia J. Schmidt, Stroock & Stroock & Lavan, Jonathan D. Janow, Kirkland & Ellis LLP, Ezra David Rosenberg, Jon M. Greenbaum, Lawyers' Committee for Civil Rights, John Arak Freedman, Arnold & Porter LLP, Michelle E. Kanter Cohen, Project Vote, Washington, DC, Michael Keats, Stroock, Stroock & Lavan, Dale E. Ho, American Civil Liberties Union Foundation, Wendy Robin Weiser, New York, NY, for Plaintiffs.
Galen Nicholas Thorp, Julie Straus Harris, U.S. Department of Justice, Washington, DC, for Defendants.
Dale L. Wilcox, John Michael Miano, Washington, DC, Kris W. Kobach, State of Kansas, Topeka, KS, Kaylan L. Phillips, Public Interest Legal Foundation, Plainfield, IN, J.C. Adams, Public Interest Legal Foundation, Alexandria, VA, for Defendant-Intervenors.
On January 29, 2016, the Executive Director of the United States Election Assistance Commission ("EAC" or "Commission") Brian Newby granted Kansas's, Georgia's, and Alabama's requests to modify the instructions on the National Mail Voter Registration Form ("the Federal Form") to direct voter registration applicants in those three states to submit proof of their United States citizenship in accordance with the states respective laws and regulations. Shortly thereafter, a modified version of the Federal Form was posted on the EAC's website. Plaintiffs argue Newby acted outside the scope of his authority and in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Presently before the Court is plaintiffs' Motion for a Preliminary Injunction [Dkt. # 11], requesting that I void Newby's changes to the Federal Form and vacate the letters granting Kansas's, Georgia's, and Alabama's requests by ordering defendants to immediately reverse the changes on the Federal Form and on the EAC website, to immediately withdraw the letters, and to instruct election officials in those states to replace physical copies of the modified Federal Form with reinstated, unmodified versions that do not include the documentary proof of citizenship requirements at issue. See Pls. Proposed Order 1–2 [Dkt. # 11-22], Upon consideration of the parties' pleadings and oral arguments, the brief of Amicus Curiae Landmark Legal Foundation, the relevant law, and the entire record herein, plaintiffs' Motion is DENIED.
The Elections Clause of the Constitution states, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." U.S. Const. art. I, § 4, cl. 1. Acting under its Elections Clause authority, and in order to "increase the number of eligible citizens who register to vote in elections for Federal office," Congress directed the Federal Election Commission ("FEC"), "in consultation with the chief election officers of the States," to create a single federal voter registration form that "[e]ach State shall accept and use" to register voters for elections for federal office via mail.1 National Voter Registration Act of 1993 ("NVRA"), 52 U.S.C. §§ 20501(b)(1) ; 20505(a)(1); 20508(a)(1). That responsibility has since been conferred upon the EAC. Id. §§ 20508, 20929. The NVRA set certain requirements for the contents of the Federal Form. Id. § 20508(b). Of relevance here, the Federal Form "may require only such identifying information ... and other information ... 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." Id. § 20508(b)(1). Moreover, the form is to "include a statement that—(A) specifies each eligibility requirement (including citizenship), (B) contains an attestation that the applicant meets each such requirement, and (C) requires the signature of the applicant, under penalty of perjury." Id. § 20508(b)(2). Finally, states must "ensure that any eligible applicant" who submits a complete Federal Form by the relevant deadlines "is registered to vote" in an election for federal office.2 Id. § 20507(a)(1).
Pursuant to authority granted in the NVRA, the FEC promulgated further requirements regarding the Federal Form through regulations, including that the Federal Form "shall list U.S. Citizenship as a universal eligibility requirement, 11 C.F.R § 9428.4(b)(1), and must also "[p]rovide a field on the application for the signature of the applicant, under penalty of perjury, and the date of the applicant's signature," Id. § 9428.4(b)(3). The Federal Form must also "include a statement that incorporates by reference each state's specific additional eligibility requirements (including any special pledges) as set forth in the accompanying state instructions." Id. § 9428.4(b)(1). Examples of state-specific instructions are those explaining "what type of voter identification number, if any, is required or requested by the applicant's state," and whether "the applicant's state is a closed primary state." Id. § 9428.4(a)(6)(i); (7)(i).
Congress established the Election Assistance Commission through The Help America Vote Act of 2002 ("HAVA"). The HAVA specified that the "Commission shall have four members appointed by the President, by and with the advice and consent of the Senate."3 52 U.S.C. §§ 20921, 20923(a)(1). Among other functions, the HAVA transferred authority over the Federal Form from the FEC to the newly formed EAC. Id. §§ 20508, 20929. The HAVA specifies that "[a]ny action which the Commission is authorized to carry out under this Act, may be carried out only with the approval of at least three of its members." 116 Stat. 1666, 1678.4 The NVRA, the HAVA, and the associated regulations do not, however, set forth a particular process for EAC review of proposed state-specific instructions. Instead, the practice has varied over the years and at times has been "entirely informal." Arizona v. Inter Tribal Council of Arizona, Inc. [hereinafter "ITCA "], ––– U.S. ––––, 133 S.Ct. 2247, 2260 n. 10, 186 L.Ed.2d 239 (2013) ; see also Defs.' Resp. to Pls.' Mot. for TRO and Prelim. Inj. 5-6 [Dkt. # 28].
In essence, the Federal Form is a voter registration application for would-be voters to fill out. Notably, the first question on the application is, "Are you a citizen of the United States of America?" Federal Form 5 [Dkt. # 11-16]. Applicants may check either a box for "Yes" or "No." Id. at 5. A statement next to the signature box at the end of the application reads, "I have reviewed my state's instructions and I swear/affirm that: I am a United States citizen ... [and t]he information I have provided is true to the best of my knowledge, under penalty of perjury." Id. at 5. The application is attached to both general instructions for all applicants and a state-by-state guide that includes state-specific instructions "which tell residents of each State what additional information they must provide and where they must submit the form." ITCA , 133 S.Ct. at 2252. "Each state-specific instruction must be approved by the EAC before it is included on the Federal Form." Id. Some states, including Kansas, Georgia, Alabama, and Arizona, additionally list U.S. citizenship as a requirement in their respective state-specific instructions. Federal Form 9–10, 12–15.
On November 17, 2015, Kansas submitted a request that the EAC modify its state-specific instructions to include its proof of citizenship requirement.5 Letter from Bryan Caskey to Brian Newby [hereinafter "Kansas Request"] [Dkt. # 11-11]. The request included a proposed instruction setting forth the requirement under Kansas law that voter registration applicants prove their U.S. Citizenship by submitting one of thirteen types of acceptable documentary evidence, Kan. Stat. Ann. § 25–2309(l ), or through an alternative process that involves the use of witnesses, id. § 25–2309(m). Kansas Request 1-2. The request noted that Kansas's regulations had recently been amended and that applicants now have 90 days from the date they submit their application to provide the necessary documentation of citizenship. Kansas Request 1 (citing Kan. Admin. Regs. § 7–23–15 ). Kansas also provided the EAC with a spreadsheet identifying instances of noncitizens registering or attempting to register to vote in Sedgwick County, Kansas. Kansas Request 4-5. On November 19, 2015, Newby wrote to Kansas's Election Director to report that the request was under review. Letter from Brian Newby to Bryan Caskey [Dkt. # 11-12].
Also pending before the EAC at the time was a request made by Alabama on December 18, 2014 that its state-specific instructions be amended, inter alia , to provide that "an applicant may not be registered until the applicant has provided satisfactory evidence of United States citizenship." Letter from Jim Bennett to EAC Commissioners 2 [Dkt. # 11-17]. Under Alabama law, voter registration applicants must submit one of thirteen forms of documentary evidence of citizenship, or prove citizenship by submitting alternative evidence at a hearing before the county board. Ala. Code § 31–13–28(k) -(l ). Georgia's request, submitted on August 1, 2013, asked the EAC to modify its state-specific instructions to inform applicants they must "be found eligible to vote by supplying satisfactory evidence of citizenship."6 Letter from Brian P. Kemp to Alice Miller [Dkt. # 11-18]. Georgia law states that voter registration...
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