Fish v. Kobach

259 F.Supp.3d 1218

Steven Wayne FISH, et al., Plaintiffs,

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

Case No. 16–2105–JAR–JPO

United States District Court, D. Kansas.

Signed May 4, 2017

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

Kris Kobach, Bethany J. Lee, Garrett Robert Roe, Susan Becker, Kansas Secretary of State, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

The individual Plaintiffs in this case are United States citizens who attempted to register to vote at the time they applied for a Kansas driver's license. Under a 2011 Kansas Documentary Proof of Citizenship ("DPOC") law, Plaintiffs' voter registration applications were deemed "incomplete," and under a 2015 regulation passed by Kansas Secretary of State Kris Kobach, some of these applications were cancelled in the Kansas voter registration database. These Plaintiffs, along with the Kansas League of Women Voters, bring several claims against Secretary Kobach for constitutional violations under 42 U.S.C. § 1983, and for statutory violations of the National Voter Registration Act ("NVRA"). On May 17, 2016, the Court issued an extensive Memorandum and Order granting in part Plaintiffs' motion for a preliminary injunction barring enforcement of the Kansas DPOC law until this case could be decided on the merits.¹ It was effective on June 14, 2016.² The Tenth Circuit affirmed that ruling on October 19, 2016.³

After the Tenth Circuit's decision, the court reopened discovery. Although the parties' dispositive motions are not due until July, Plaintiffs filed a Motion for Partial Summary Judgment (Doc. 267) on the Fourteenth Amendment Right to Travel claim, arguing that the DPOC law on its face, and as enforced, violates the Privileges or Immunities clause. That motion is fully briefed, and the Court heard oral argument on March 3, 2017.⁴ Having fully considered the arguments and evidence presented by the parties on the briefs and at the hearing, the Court denies Plaintiffs' motion for summary judgment, as explained more fully below.

I. The Kansas Documentary Proof of Citizenship Law

Under Kansas law, legally qualified voters must register in order to be eligible to vote,⁵ and only United States citizens over the age of eighteen are eligible to register to vote.⁶ 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.⁷

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 registration application does not contain fields for an applicant's place of birth, maiden name, or mother's maiden name.

The DPOC requirement was made effective on January 1, 2013.⁸ A person already registered to vote on the Act's effective date is not required to submit evidence of citizenship.⁹ 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.¹⁰ The state election board is composed of the Secretary of State, the Attorney General, and the Lieutenant Governor.¹¹

If a 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.¹²

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.¹³

II. Uncontroverted Facts

The following material facts are either uncontroverted or viewed in the light most favorable to Defendant as the nonmoving party.

Implementation and Enforcement of DPOC Law

As of January 1, 2013, there were 1,762,330 registered voters in Kansas. Between January 1, 2013, the day the DPOC law went into effect, and January 3, 2017, 389,058 Kansans successfully registered to vote. For the Presidential election in 2016, the number of registered voters in Kansas was over 1.8 million, a new record.

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."¹⁴ The individual Plaintiffs in this case all applied to register at the time they applied for a Kansas driver's license.

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 deemed "incomplete," and designated with a reason code of "in suspense" until the application is completed. After 90 days, an incomplete application is cancelled under K.A.R. § 7–23–15.¹⁵

Defendant and county election...