Fish v. Kobach

304 F.Supp.3d 1027

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 January 3, 2018

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

Bethany J. Lee, Shawnee County District Attorney's Office, Garrett Robert Roe, Kris Kobach, Susan Becker, Kansas Secretary of State, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, CHIEF 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 after January 1, 2013. They failed to present Documentary Proof of Citizenship ("DPOC") as required by the 2011 Kansas Secure and Fair Elections Act.¹ Under a 2015 regulation passed by Defendant Kansas Secretary of State Kris Kobach,² Plaintiffs' voter registration applications were deemed "incomplete," and some of these applications were cancelled in the Kansas voter registration database due to the failure to submit DPOC.

These Plaintiffs, along with the Kansas League of Women Voters, bring claims against Secretary Kobach for a Fourteenth Amendment violation 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.³ It was effective on June 14, 2016.⁴ The Tenth Circuit affirmed that ruling on October 19, 2016, providing significant guidance on Plaintiffs' preemption claim that § 5 of the NVRA displaces the Kansas DPOC law.⁵

After the Tenth Circuit's decision, the Court reopened discovery, which is now complete. According to the Pretrial Order, three claims remain in this matter: (1) Count 1 alleges a violation of § 5 of the NVRA based on preemption under the Election Clause in Article 1 of the United States Constitution; (2) Count 4 alleges a violation of § 10 of the NVRA; and (3) Count 6 alleges a violation of 42 U.S.C. § 1983, based on the Fourteenth Amendment's privileges or immunities clause. Before the Court are cross-motions for summary judgment (Docs. 366, 382), and Plaintiffs' motions to exclude evidence related to defense experts Jesse T. Richman and Hans von Spakovsky (Docs. 389 and 391), to the extent Defendant relies on those expert opinions on summary judgment. These motions are fully briefed, and the Court has considered the parties' arguments and evidence. As explained more fully below, the Court grants in part and denies in part the motions to exclude. The Court also grants in part and denies in part the parties' motions for summary judgment.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.⁶ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.⁷ "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party."⁸ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁹ An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party."¹⁰

To prevail on a motion for summary judgment on a claim upon which the moving party also bears the burden of proof at trial, the moving party must demonstrate "no reasonable trier of fact could find other than for the moving party."¹¹ The facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."¹² Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹³ The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.¹⁴ "Where, as here, the parties file cross-motions for summary judgment, we are entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts."¹⁵

Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."¹⁶ In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."¹⁷

II. NVRA Claims

The parties have filed cross-motions on the remaining NVRA claims in this matter brought under §§ 5 and 10. Shortly after this case was filed, Plaintiffs successfully moved for a preliminary injunction based on their likelihood of success on the merits of their § 5 claim. Defendant appealed, and the Tenth Circuit affirmed, providing guidance on whether the Kansas DPOC law is preempted by § 5's mandate that a motor-voter registration application contain the minimum-amount of information necessary for the state to exercise its eligibility-assessment and registration duties. This is the first time this Court has been called upon to consider Plaintiffs' § 5 claim since the Tenth Circuit's remand. Thus, before the Court addresses the uncontroverted facts or the Daubert motions, the Court finds it helpful to set forth the Kansas DPOC law, and the standards that will apply to the § 5 claim under the Tenth Circuit's binding precedent.¹⁸

A. Preemption under the Elections Clause and § 5 of the NVRA

Section 5 of the NVRA requires that every application for a driver's license, "shall serve as an application for voter registration with respect to elections for Federal office."¹⁹ Subsection (c)(2)(B)–(C) of section 5 provides:

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

....

(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.²⁰

Under Kansas law, legally qualified voters must register in order to be eligible to vote,²¹ and only United States citizens over the age of eighteen may register to vote.²² Before January 1, 2013, Kansas voter registration applicants met the citizenship requirement by signing an attestation of United States citizenship on the registration application. The SAFE Act became law in April 2011. In addition to an attestation, the SAFE Act requires that voter registration applicants submit DPOC at the time they apply to register to vote, and lists thirteen forms of acceptable documentation, including a birth certificate and a passport.²³ The DPOC requirement was made effective on January 1, 2013.²⁴

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 ("SOS") 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.²⁵ The state election board is composed of the Secretary of State, the Attorney General, and the Lieutenant Governor.²⁶

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.²⁷

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 October 19, 2016, the Tenth Circuit Court of Appeals issued a lengthy decision in this case affirming the Court's preliminary injunction ruling.²⁸ In its opinion, the Tenth Circuit set forth the applicable rules of statutory interpretation and preemption under the Elections Clause, interpreted the NVRA's requirements under § 5, and applied that interpretation to the facts as found by this Court in its preliminary injunction order.

In the course of its detailed analysis, the Tenth Circuit "rejected Secretary Kobach's readings of the NVRA."²⁹ Defendant spends significant time in his summary judgment briefs rearguing the legal issues resolved by the Tenth Circuit, and suggests that they may not be binding on this Court since they were...