Fish v. Schwab

957 F.3d 1105

Steven Wayne FISH, on behalf of himself and all others similarly situated; Donna Bucci, on behalf of herself and all others similarly situated; Charles Stricker, on behalf of himself and all others similarly situated; Thomas J. Boynton, on behalf of himself and all others similarly situated; Douglas Hutchinson, on behalf of himself and all others similarly situated; League of Women Voters of Kansas, Plaintiffs - Appellees,

v.Scott SCHWAB, in his official capacity as Secretary of State for the State of Kansas, Defendant - Appellant.

State of Texas; State of Arkansas; State of Oklahoma; State of West Virginia; Paul LePage,

Governor of Maine; State of Missouri; Eagle Forum Education & Legal Defense Fund, Amici Curiae.

Cody Keener; Alder Cromwell, Plaintiffs,

and

Parker Bednasek, Plaintiff - Appellee,

v.Scott Schwab, Kansas Secretary of State, Defendant - Appellant.

State of Texas; State of Arkansas; State of Oklahoma; State of West Virginia; Paul LePage, Governor of Maine; State of Missouri; Eagle Forum Education & Legal Defense Fund, Amici Curiae.

No. 18-3133

No. 18-3134

United States Court of Appeals, Tenth Circuit.

FILED April 29, 2020

Toby Crouse, Solicitor General of Kansas, (Derek Schmidt, Attorney General of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Bryan C. Clark, Assistant Solicitor General, Dwight R. Carswell, Assistant Solicitor General, with him on the briefs), Office of Attorney General, Topeka, Kansas, for Defendant-Appellant.

Dale Ho, American Civil Liberties Union Foundation, New York, New York, (R. Orion Danjuma and Sophia Lin Lakin, American Civil Liberties Union Foundation, New York, New York; Mark P. Johnson, Curtis E. Woods and Samantha Wenger, Dentons US LLP, Kansas City, Missouri; Neil A. Steiner and Rebecca Kahan Waldman, Dechert LLP, New York, New York; Angela M. Liu, Dechert LLP, Chicago, Illinois; Lauren Bonds and Zal K. Shroff, ACLU Foundation of Kansas, Overland Park, Kansas; Lino S. Lipinsky De Orlov, Dentons US LLP, Denver, Colorado; Mark T. Emert, Fagan, Emert & Davis LLC, Lawrence, Kansas; Shannon Wells Stevenson, Davis Graham & Stubbs LLP, Denver, Colorado, with him on the brief), for Plaintiffs-Appellees.

Ken Paxton, Attorney General of Texas, Jeffrey C. Mateer, First Assistant Attorney General, Kyle D. Hawkins, Solicitor General, Matthew H. Frederick, Deputy Solicitor General, Beth Klusmann, Assistant Solicitor General, filed an amicus curiae brief for the States of Texas, Arkansas, Missouri, Oklahoma, West Virginia and Paul R. LePage, Governor of Maine, in support of Defendant-Appellant.

Lawrence J. Joseph, Washington, D.C., filed an amicus curiae brief on behalf of Eagle Forum Education & Legal Defense Fund, in support of Defendant-Appellant.

Before BRISCOE, McKAY,^* and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

In these two consolidated appeals, we must determine whether a Kansas law requiring documentary proof of citizenship ("DPOC") for voter registration is preempted by section 5 of the National Voter Registration Act ("NVRA"), 52 U.S.C. § 20504, or violates the Fourteenth Amendment’s Equal Protection Clause.

We addressed the first of these questions, i.e., whether Kansas’s DPOC requirement is preempted by section 5 of the NVRA, in Fish v. Kobach ("Fish I "), 840 F.3d 710 (10th Cir. 2016). Section 5 of the NVRA mandates that a voter-registration form must be a part of any application to obtain or renew a driver’s license. Such a registration form " ‘may require only the minimum amount of information necessary to’ prevent duplicate registrations and to ‘enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.’ " Id. at 715–16 (footnotes omitted) (quoting 52 U.S.C. § 20504(c)(2)(B) ). In Fish I , we held that—on the factual record then before this court—"the DPOC required by Kansas law [was] more than the minimum amount of information necessary [to perform the Kansas Secretary of State’s eligibility-assessment and registration duties] and, therefore, [was] preempted by the NVRA." Id. at 717. Thus, we held that "the district court did not abuse its discretion in granting [a] preliminary injunction [against the enforcement of the DPOC law] because the NVRA preempts Kansas’s DPOC law as enforced against those applying to vote while obtaining or renewing a driver’s license." Id. at 716. We remanded for a trial on the merits where Kansas’s Secretary of State would have an opportunity to demonstrate that the DPOC requirement was not more than the minimum amount of information necessary to perform his eligibility-assessment and registration duties.

On remand, the district court consolidated that statutory challenge with a related case that raises the second aspect of this appeal, i.e., whether the DPOC requirement violates the Fourteenth Amendment’s Equal Protection Clause. The Supreme Court and this court have evaluated challenges to state-voter-identification requirements under the Equal Protection Clause. See Crawford v. Marion Cty. Election Bd. , 553 U.S. 181, 189–91, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (plurality opinion of Stevens, J.); ACLU of N.M. v. Santillanes , 546 F.3d 1313, 1320 (10th Cir. 2008). Proceeding under that framework, the Equal Protection Clause challenge to the DPOC requirement is predicated on the idea that the DPOC requirement unconstitutionally burdens the right to vote because the interests asserted by the Kansas Secretary of State ("the Secretary") are insufficient to justify the burden it imposes on that right.

After holding a joint bench trial, the district court entered a permanent injunction against the enforcement of the DPOC requirement under both section 5 of the NVRA and the Equal Protection Clause. The Secretary has appealed. His appeal raises the two fundamental questions outlined above. First, in Bednasek v. Schwab , No. 18-3134, does the DPOC requirement violate the Equal Protection Clause? Second, in Fish v. Schwab , No. 18-3133, does section 5 of the NVRA preempt the DPOC requirement? Exercising jurisdiction under 28 U.S.C. § 1291, we answer both questions in the affirmative and thus affirm the district court’s judgment enjoining enforcement of the DPOC requirement. In doing so, we summarize the relevant background, assure ourselves that the challengers possess standing, and then discuss both challenges to the DPOC requirement, taking up first (for organizational convenience) the constitutional challenge.

I. Background

A. Kansas’s DPOC Requirement

Both suits on appeal challenge Kansas’s DPOC requirement, and so we start by recounting Fish I ’s summary of the statute and regulations that constitute Kansas’s DPOC requirement:

Kansas adopted its DPOC requirement for voter registration on April 18, 2011. Secure and Fair Elections ("SAFE") Act, ch. 56, § 8(l), 2011 Kan. Sess. Laws 795, 806, 809–11 (codified at Kan. Stat. Ann. § 25–2309(l) ). The requirement took effect January 1, 2013. Id. at § 8(u), 2011 Kan. Sess. Laws at 812. The SAFE Act requires that

(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 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.

Kan. Stat. Ann. § 25–2309(l). The statute then lists thirteen forms of documentation acceptable to prove U.S. citizenship, including a birth certificate or passport. See § 25–2309(l)(1) S(13). For citizens unable to present DPOC, subsection (m) provides an alternate means to prove citizenship by the submission of evidence to the state election board followed by a hearing. See § 25–2309(m). The state election board is composed of "the lieutenant governor, the secretary of state and the attorney general." § 25–2203(a).

[Then-serving Kansas] Secretary [of State Kris W.] Kobach promulgated regulations for the DPOC requirement on October 2, 2015. Kan. Admin. Regs. § 7–23–15 (the "90-day regulation"). Those regulations provide that applications unaccompanied by DPOC are deemed to be "incomplete." § 7–23–15(a). Once an application is designated as incomplete, a voter has ninety days to provide DPOC or else the application is canceled and a new voter-registration application is required to register. See § 7–23–15(b) S(c).

840 F.3d at 717.

B. Factual Background

1. Bednasek v. Schwab , No. 18-3134

Mr. Parker Bednasek—the only remaining plaintiff in Bednasek v. Schwab , No. 18-3134—moved from Texas to Kansas in order to attend the University of Kansas. While he was a full-time student at the University of Kansas, he canceled his Texas voter registration and applied to register to vote in Kansas. He did so because he "considered [him]self to be a resident in Kansas, and [he] wanted to vote in Kansas elections." Aplt.’s App., Vol. 38, at 9339 (Tr. of Bench Trial, Day 2, P.M. Session, filed Mar. 30, 2018). In applying, he swore that he was a Kansas resident and that he had abandoned his former residence. He later swore that he had "no intent to leave Kansas in the future." Id. , Vol. 48, at 11692 (Aff. of Parker Bednasek, filed Apr. 21, 2016). While at the University of Kansas, Mr. Bednasek paid out-of-state tuition, had a vehicle that he jointly owned with his parents that was registered in Texas, had a car insurance policy on that vehicle registered to his parents’ Texas home, and applied for and received a Texas driver’s license.

When he submitted his application to register to vote, Mr....