Bednasek v. Kobach

259 F.Supp.3d 1193

Parker BEDNASEK, Plaintiff,

v.Kris KOBACH, Kansas Secretary of State, Defendant.

Case No. 15–9300–JAR–JPO

United States District Court, D. Kansas.

Signed May 4, 2017

Curtis E. Woods, Pro Hac Vice, Mark P. Johnson, Samantha Jo Wenger, Dentons US, LLP, Kansas City, MO, Jennifer M. Walrath, Pro Hac Vice, Dentons US, LLP, Washington, DC, Paul Treanor Davis, Fagan Emert & Davis LLC, Lawrence, KS, William R. Lawrence, IV, State of Kansas–Legislative Branch, Topeka, KS, for Plaintiff.

Bryan J. Brown, Bryan Brown, Garrett Robert Roe, Kris Kobach, Kansas Secretary of State, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

Plaintiff Parker Bednasek challenges the Kansas Documentary Proof of Citizenship law and a related regulation under 42 U.S.C. § 1983, claiming that they violate the Equal Protection and Privileges or Immunities Clauses of the Fourteenth Amendment to the United States Constitution. Before the Court are cross motions for summary judgment (Docs. 141, 142). Defendant moves for summary judgment on both of Plaintiff's remaining claims. Plaintiff moves on the right to travel claim. The Court heard oral argument on these motions on March 3, 2017.¹ Having fully considered the arguments and evidence presented by the parties on the briefs and at the hearing, the Court grants in part and denies in part Defendant's motion for summary judgment. Defendant's motion for summary judgment is denied on the right to vote claim and granted on the right to travel claim. Plaintiff's motion for summary judgment is denied.

I. The Kansas Documentary Proof of Citizenship Law

Under Kansas law, legally qualified voters must register in order to be eligible to vote,² and only United States citizens over the age of eighteen are eligible to register to vote.³ Before 2013, Kansas voter registration applicants met the citizenship requirement by signing an attestation of United States citizenship on the registration application. The Secure and Fair Elections Act ("SAFE Act") became law in April 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.⁴

In addition to this DPOC requirement, each registration application in Kansas requires an attestation by the applicant as to the applicant's residence, age of majority, and United States citizenship, signed under penalty of perjury.

The DPOC requirement was made effective on January 1, 2013.⁵ A person already registered to vote on the Act's effective date is not required to submit evidence of citizenship.⁶ Defendant later promulgated K.A.R. § 7–23–14(c), which provides that "[a] registered voter who has previously provided sufficient evidence of United States citizenship with a voter registration application in this state shall not be required to resubmit evidence of United States citizenship with any subsequent voter registration application."

If an applicant is a United States citizen but unable to provide one of the thirteen forms of identification listed in subsection (l), the statute allows that applicant to submit another form of citizenship documentation by directly contacting the Secretary of State's Office. In these cases, the state election board shall give the applicant an opportunity for a hearing before assessing the evidence of citizenship to determine whether it is satisfactory.⁷ The state election board is composed of the Secretary of State, the Attorney General, and the Lieutenant Governor.⁸

If an incomplete voter registration applicant fails to submit the requisite DPOC before the registration deadline in Kansas, that applicant can still submit DPOC to the county election office in person, by mail, or electronically (including by text message) before midnight on the day before an election.⁹

On June 25, 2015, Defendant Kobach promulgated K.A.R. § 7–23–15, which became effective on October 2, 2015. The regulation applies to registration applications that have been deemed "incomplete." Such applications are "cancelled" if they do not produce DPOC, or otherwise cure the deficiency in the application, within 90 days of application. The applicant must submit a new, compliant voter registration application in order to register to vote.

On July 1, 2015, the legislature granted the Secretary of State authority to prosecute election crimes, including attempts by noncitizens to register to vote, or cast a ballot.¹⁰

II. Uncontroverted Facts

The following material facts are either uncontroverted or stipulated to for purposes of summary judgment. The Court construes the facts in the light most favorable to the nonmoving party.

Implementation and Enforcement of DPOC Law

Since the DPOC law went into effect in Kansas, 382,895 individuals have successfully registered to vote. For the presidential election in 2016, over 1.8 million Kansans were registered to vote, which is a record high number. Kansans may apply to register to vote in person, by mail, through a voter registration agency, in conjunction with applying for a Kansas driver's license, or "by delivery to a county election officer to be registered."¹¹ The Kansas Election Voter Information System ("ELVIS") is a database that contains 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.¹² Neither the registration application nor ELVIS contain fields for an applicant's place of birth.

The Secretary of State's office recommends to each of the 105 county election officials that they provide at least three notices of the deficiency to an incomplete applicant by mail within the 90–day window of time before the application is cancelled. Individuals who are cancelled after the 90–day window passes without compliance are not notified of the cancellation. All of the notices provided by the counties are sent pre-cancellation.

Defendant and county election officers may accept DPOC at a different time or in a different manner than an application for voter registration, as provided in (l), "so long as the applicant's eligibility can be adequately assessed by the secretary of state or county election officer as required by this section."¹³ Under this authority, Defendant has established interagency agreements for verifying whether one of the thirteen forms of DPOC listed in § 25–2309(l) may be on file with two Kansas agencies. First, on January 7, 2014, Defendant and Robert Moser, MD, Secretary of the Kansas Department of Health and Environment...