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No. 16-3147
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
STEVEN WAYNE FISH, et al.,
Plaintiffs-Appellees,
v.
KRIS KOBACH,
Defendant-Appellant.
On Appeal from the United States District Court for the
District of Kansas, No. 16-2105
The Honorable Julie A. Robinson, Presiding
PLAINTIFFS-APPELLEES’ BRIEF IN OPPOSITION TO
DEFENDANT-APPELLANT’S STAY APPLICATION
STEPHEN DOUGLAS BONNEY
ACLU Foundation of Kansas
6701 W. 64th Street, Suite 210
Overland Park, Kansas 66202
(913) 490-4102
NEIL A. STEINER
REBECCA KAHAN WALDMAN
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036-6797
Phone: (212) 698-3500
DALE E. HO
R. ORION DANJUMA
SOPHIA LIN LAKIN
American Civil Liberties Union
Foundation, Inc.
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2693
ANGELA M. LIU
Dechert LLP
35 West Wacker Drive, Suite 3400
Chicago, IL 60601-1608
Phone: (312) 646-5800
Attorneys for Plaintiffs-Appellees
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................... ii
BACKGROUND AND PROCEDURAL HISTORY ......................................................... 1
LEGAL STANDARD ......................................................................................................... 4
ARGUMENT ....................................................................................................................... 5
I. APPELLANT IS NOT LIKELY TO SUCCEED ON THE MERITS. .............. 5
Section 5 of the NVRA Prohibits States from Imposing a A.
Documentary Proof of Citizenship Requirement on Motor-Voter
Applicants. ..................................................................................................... 6
The Supreme Court Has Rejected Appellant’s Position that “There Is B.
No Constraint in the NVRA” on Information that States Can
Require. ......................................................................................................... 9
The District Court’s Findings Confirm that a DPOC Requirement C.
Exceeds the Minimum Amount of Information Necessary Under
Section 5. ..................................................................................................... 10
II. THE BALANCE OF EQUITIES DOES NOT WEIGH IN
APPELLANT’S FAVOR. ................................................................................ 13
Appellant Will Not Suffer Any Serious Harm Absent a Stay. .................... 13 A.
A Stay Would Disenfranchise the Appellees and Thousands of B.
Motor-Voter Applicants, Irreparably Injuring Them. ................................. 15
A Stay Would Perpetuate Voter Confusion and Hinder Election C.
Administration. ............................................................................................ 18
CONCLUSION ................................................................................................................. 20
CERTIFICATE OF SERVICE .......................................................................................... 22
ECF CERTIFICATE OF COMPLIANCE ........................................................................ 23
ii
TABLE OF AUTHORITIES
Cases
Arizona v. Inter Tribal Council of Arizona,
133 S. Ct. 2247 (2013) ................................................................................................. 6, 9
Belenky v. Kobach,
No. 2013CV1331 (Shawnee Cty. Dist. Ct. Jan. 15, 2016) ............................................ 14
Campbell v. City of Spencer,
777 F.3d 1073 (10th Cir. 2014) ....................................................................................... 6
Crawford v. Marion County Election Board,
553 U.S. 181 (2008) ....................................................................................................... 13
Ex parte Siebold,
100 U.S. 371 (1880) ......................................................................................................... 6
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) ......................................................................................................... 8
Heideman v. South Salt Lake City,
348 F.3d 1182 (10th Cir. 2003) ....................................................................................... 5
Hobby Lobby Stores, Inc. v. Sebelius,
No. 12-cv-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012) ...................................... 6
Homans v. City of Albuquerque,
264 F.3d 1240 (10th Cir. 2001) ....................................................................................... 5
Kobach v. United States Election Assistance Commission,
772 F.3d 1183 (10th Cir. 2014) ......................................................... 2, 6, 8, 9, 11, 12, 17
McCrory v. Harris,
136 S. Ct. 1001 (2016) (mem.) ...................................................................................... 19
Nken v. Holder,
556 U.S. 418 (2009) ......................................................................................................... 5
O Centro Espirita Beneficiente Uniao De Vegetal v. Ashcroft,
314 F.3d 463 (10th Cir. 2002) ......................................................................................... 4
Obama for America v. Husted,
697 F.3d 423 (6th Cir. 2012) ......................................................................................... 16
iii
Prairie Band of Potawatomi Indians v. Pierce,
75 F. Supp. 2d 1186 (D. Kan. 1999) .............................................................................. 17
Purcell v. Gonzalez,
549 U.S. 1 (2006) ................................................................................................. 4, 18, 19
RoDa Drilling Co. v. Siegal,
552 F.3d 1203 (10th Cir. 2009) ................................................................................. 5, 10
Smiley v. Holm,
285 U.S. 355 (1932) ......................................................................................................... 6
Verlo v. Martinez,
No. 15-1319, 2016 WL 1395205 (10th Cir. Apr. 8, 2016) ........................................ 5, 18
Williams v. Salerno,
792 F.2d 323 (2d Cir. 1986) .......................................................................................... 16
Wittman v. Personhuballah,
136 S. Ct. 998 (2016) (mem.) ........................................................................................ 20
Young v. Fordice,
520 U.S. 273 (1997) ................................................................................................... 9, 10
Statutes
52 U.S.C. § 20501 ......................................................................................................... 6, 12
52 U.S.C. § 20504 ..................................................................................................... 2, 7, 12
Kan. Stat. Ann. § 25-2309(l) ............................................................................................... 1
Legislative History
139 Cong. Rec. S2897-04,
1993 WL 73164 (Mar. 16, 1993) ..................................................................................... 8
H.R. Conf. Rep. No. 103-66 (1993) .................................................................................... 8
Other Authorities
Hancock, Peter,
“Douglas County Clerk Ready to Comply with Court Order on Voter
Registration,” Lawrence Journal-World, May 18, 2016 ............................................... 14
1
BACKGROUND AND PROCEDURAL HISTORY
Kansas is one of only two states that require documentary proof of citizenship
(“DPOC”), such as a birth certificate or passport, for voter registration. See Kan. Stat.
Ann. § 25-2309(l) (the “DPOC Law”).1 After carefully considering the record, the
District Court found that Kansas’s DPOC Law, as applied to individuals who register to
vote in conjunction with a driver’s license application (“motor-voter applicants”), is
“burdensome, confusing, and inconsistently enforced,” and that Plaintiffs made “a strong
showing … that the Kansas DPOC Law violates the [National Voter Registration Act].”
Mem. & Order, May 17, 2016, ECF No. 129 (“Op.”), at 37, 65-66. “[O]ver 18,000
otherwise eligible motor voter applicants in Kansas have been prohibited from registering
to vote,” id. at 41, including the five individual Plaintiffs bringing this action, whose
experiences the District Court found are “illustrative of the burdensome enforcement
scheme” imposed by the DPOC law, see id. at 15-19, 60. The Court further found that
absent immediate preliminary relief, these voters—whose U.S. citizenship is not
disputed—will be disenfranchised in the upcoming August 2 Kansas primary and
November 8 general election. See id. at 56.
1 Four states have a DPOC Law: Kansas, Alabama, Arizona, and Georgia. Kobach
admitted in a different case with respect to Alabama and Georgia that “neither State is yet
enforcing its proof-of-citizenship law.” See Kobach Resp. to Mot. for TRO & Prelim. Inj.
at 11, League of Women Voters v. Newby, No. 1:16-cv-00236 (D.D.C. Feb. 21, 2016),
ECF No. 27. Arizona is enforcing its DPOC law with respect to some registration
applicants, but, unlike Kansas, does not require that motor-voter applicants submit any
information beyond what is already required to complete a driver’s license transaction in
that state.
2
Section 5 of the National Voter Registration Act (“NVRA”), 52 U.S.C. § 20504,
provides that States “may require only the minimum amount of information necessary to
… enable State election officials to assess the eligibility of the applicant,” and sets forth
the proof by which motor-voter applicants establish their eligibility: an attestation under
penalty of perjury that the applicant is a U.S. citizen. 52 U.S.C. §§ 20504 (c)(2)(B)-(C)
(emphasis added). The statute prohibits additional proof of citizenship requirements
beyond that “minimum amount of information”: as this Court previously recognized,
“[b]oth houses of Congress debated and voted … and ultimately rejected[] a proposal” to
permit states to require DPOC from voter registration applicants under the NVRA.
Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183, 1195 n.7 (10th Cir. 2014)
(“EAC”). No state other than Kansas currently requires that motor-voter applicants
submit information beyond what is required to complete a driver’s license transaction in
order to become registered to vote.
Plaintiffs filed suit on February 18, 2016 and moved for a preliminary injunction
one week later, on February 26. Compl., ECF No. 1; Mot. for Prelim. Inj., ECF No. 19.
After seeking multiple extensions, Defendant-Appellant Kobach (“Kobach”) filed his
opposition, arguing that States have unfettered discretion to impose any documentary
proof requirements on motor-voter applicants, and that blocking more than 18,000
Kansans from registering to vote is “necessary” to prevent noncitizen registration, citing
evidence purporting to show that, out of hundreds of thousands of voter registrations in
Kansas, up to 30 noncitizens had registered since 2003. Op. at 34-36, 42-43.
3
The District Court disagreed, and on May 17, 2016, issued a detailed 67-page
decision and order granting the preliminary injunction. The Court found that “Plaintiffs
have made a strong showing of irreparable harm” absent immediate relief, and “a strong
showing that they are likely to succeed on their claim that the NVRA preempts the
Kansas DPOC law as it applies to motor voter registrants under § 5.” Op. at 55, 51. The
Court further found that the rate of noncitizen registration prior to the DPOC Law was “at
best nominal,” and that the State had other methods at its disposal to prevent noncitizen
registration, including the attestation of citizenship, better training of DMV employees,
and criminal prosecutions. Id. at 43-45. The Court directed Kobach to register the more
than 18,000 Kansans whose motor-voter registrations had been suspended or canceled
under the DPOC Law, and barred continued enforcement of it with respect to future
motor-voter applicants. The Court acknowledged some “administrative burden” on the
State, but found it was not “unduly burdensome” and was outweighed by the
disenfranchisement of more than 18,000 Kansans. Id. at 62. The Court also, sua sponte,
stayed implementation of the injunction for 14 days, until May 31, 2016, “to allow the
State time to coordinate enforcement efforts, and to file any appeal to the Tenth Circuit
Court of Appeals and obtain emergency relief from that Court, if desired.” Id. at 66-67.
On May 20, 2016, Kobach moved for a stay in the District Court, which, in a 15-
page decision on May 25, denied the motion. See Kobach Mot. for Stay, ECF No. 137;
Mem. & Order Denying Stay, ECF No. 145 (“Stay Op.”). The District Court noted that
“early voting for the August primary begins in less than 2 months, on July 13,” and held
that a stay pending even an expedited appeal would “irreparably harm those applicants
4
who seek to vote in the August primary” and also “would not ultimately allow the State
adequate time to comply” for the November general election. Stay Op. at 14, 9. With
respect to the burden on the State, the District Court noted that new evidentiary
submissions relied on by Kobach in support of a stay—including several exhibits
attached to Kobach’s motion in this Court, see Kobach Exs. D (Caskey Aff.), G (Lehman
Aff.) and O (von Spakovsky Rep.)—were untimely and inappropriately filed, and thus
“were not part of the record submitted to the Court.” Stay Op. at 4, 6, 12. It held that
“[e]ven assuming” Kobach’s new evidence were true, “the Court cannot find” the
administrative work to comply “so burdensome as to be irreparable.” Id. at 7. As to voter
confusion, the District Court reiterated its holding that “the DPOC law as currently
enforced is extremely confusing,” but expressed confidence that Kobach can “fashion a
conspicuous, easily understood notice that will apprise voters of the status of their
registrations and their right to vote in federal elections in 2016.” Id. at 8-9. The District
Court extended the existing stay for an additional 14 days to permit Kobach to seek relief
from this Court. This application for a stay pending appeal followed.
LEGAL STANDARD
This Court may grant a stay only if the district court abused its discretion or made
“an error of law or clearly erroneous factual findings.” O Centro Espirita Beneficiente
Uniao De Vegetal v. Ashcroft, 314 F.3d 463, 466 (10th Cir. 2002); see also Purcell v.
Gonzalez, 549 U.S. 1, 4-5 (2006) (dissolving Ninth Circuit’s injunction pending appeal,
and admonishing it for failing “as a procedural matter” to “give deference to the
discretion of the District Court”). A stay is inappropriate if the district court “clearly
5
set[s] forth its reasoning for granting the injunction,” and its reasoning is not “arbitrary,
capricious, whimsical, or manifestly unreasonable.” RoDa Drilling Co. v. Siegal, 552
F.3d 1203, 1208 (10th Cir. 2009) (citation omitted). Where evidence was not presented to
the district court at the preliminary injunction hearing, this Court “will not hold that the
district court abused its discretion based on evidence not before it when it ruled.” Verlo v.
Martinez, No. 15-1319, 2016 WL 1395205, at *7 (10th Cir. Apr. 8, 2016).
In hearing a stay application, the Court “makes the same inquiry as it would when
reviewing a district court’s grant or denial of a preliminary injunction,” Homans v. City of
Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001), considering four factors:
(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent
a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.
Nken v. Holder, 556 U.S. 418, 426 (2009) (citation omitted).
ARGUMENT
I. APPELLANT IS NOT LIKELY TO SUCCEED ON THE MERITS.
Kobach has not established the requisite strong showing of a “likelihood of
success” on the merits. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189-91 (10th Cir.
2003) (citation omitted).2
2 Kobach is not entitled to a “relaxed” standard because, as explained below, he has not
made the requisite showing that the three equitable factors governing stay applications
“tip decidedly in [hi]s favor,” Heideman, 348 F.3d at 1188-89. Moreover, “the less
rigorous fair-ground-for-litigation standard should not be applied” because Kobach seeks
to stay action “taken in the public interest pursuant to a statutory or regulatory scheme”—
here, the NVRA’s motor-voter provisions. Id. (citation omitted); see also Hobby Lobby
6
Section 5 of the NVRA Prohibits States from Imposing a Documentary Proof A.
of Citizenship Requirement on Motor-Voter Applicants.
The Elections Clause grants Congress plenary “authority to provide a complete
code for federal elections,” including “regulations relating to ‘registration.’” Arizona v.
Inter Tribal Council of Ariz., 133 S. Ct. 2247, 2253 (2013) (“ITCA”) (quoting Smiley v.
Holm, 285 U.S. 355, 366 (1932)). Pursuant to that plenary authority, Congress found,
inter alia, that “unfair registration laws and procedures can have a direct and damaging
effect on voter participation,” and enacted the NVRA with the express purpose of
“increas[ing] the number of eligible citizens who register to vote in elections for Federal
office.” 52 U.S.C. §§ 20501(a)-(b). Because “the power the Elections Clause confers is
none other than the power to pre-empt,” where a state law conflicts with the NVRA, the
state law is preempted and “ceases to be operative.” ITCA, 133 S. Ct. at 2257, 2254
(quoting Ex parte Siebold, 100 U.S. 371, 384 (1880)). Kobach erroneously asserts that
the “plain statement” rule from Supremacy Clause jurisprudence applies in this context,
see Kobach Mot. for Expedited Consideration & Stay, May 28, 2016 (“Stay Mot.”) at 16-
18—an argument he did not raise below and therefore has waived on appeal, see, e.g.,
Campbell v. City of Spencer, 777 F.3d 1073, 1080 (10th Cir. 2014). In any event, this
Court has already rejected that argument: because the NVRA was enacted pursuant to
Congress’s authority under the Elections Clause (and not the Supremacy Clause), “courts
should not assume reluctance to preempt state law.” EAC, 772 F.3d at 1195.
Stores, Inc. v. Sebelius, No. 12-cv-6294, 2012 WL 6930302, at *2 (10th Cir. Dec. 20,
2012). In any event, even if the “relaxed” standard applied here—and it does not—
Kobach has failed to establish a “serious, substantial, difficult and doubtful” legal issue.
7
The NVRA is frequently referred to as the “Motor-Voter Law” because of its well-
known provision (“Section 5”) requiring that every application for a driver’s license,
including renewals, “shall serve as an application for voter registration with respect to
elections for Federal office” (hereinafter a “motor-voter application”). 52 U.S.C.
§ 20504(a)(1). Section 5 provides that States “may require only the minimum amount of
information necessary to … enable State election officials to assess the eligibility” of
motor-voter applicants. 52 U.S.C. § 20504(c)(2)(B). The District Court correctly held that
“the word ‘minimum’ in the NVRA should be given its ordinary meaning of ‘least
possible’ to quantify the information necessary for State election officials to assess an
applicant’s citizenship eligibility.” Op. at 37; see also id. at 32 (“Black’s Law Dictionary
defines ‘minimum’ as: ‘Of, relating to, or constituting the smallest acceptable or possible
quantity in a given case.’ Similarly, Merriam Webster defines ‘minimum’ as ‘the least
quantity assignable, admissible, or possible.’”). Although Kobach asserts that “[t]he
NVRA does not mention proof of citizenship at all,” Stay Mot. at 2, Section 5’s plain text
sets forth the requisite proof a motor-voter applicant shall provide to establish eligibility
(including citizenship). The statute provides that a motor-voter registration application
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;
52 U.S.C. § 20504(c)(2)(C). Kansas’s requirement of a citizenship document such as a
passport or birth certificate constitutes additional proof of citizenship beyond this
“minimum amount” permissible under the statute, and is therefore prohibited.
8
Kobach also asserts that “[n]o member of Congress described the NVRA as
having this effect,” Stay Mot. at 2, but this Court previously recognized that “[b]oth
houses of Congress debated and voted … and ultimately rejected … a proposal” to allow
states to require documentary proof of citizenship from NVRA applicants, EAC, 772 F.3d
at 1195 n.7. In the House-Senate Conference Committee Report to the NVRA, Congress
clearly stated that it was rejecting an amendment to the NVRA (“the Simpson
Amendment”)—which sought “to ensure that States will continue to have the right … to
require documents to verify citizenship,” 139 Cong. Rec. S2897-04, 1993 WL 73164
(Mar. 16, 1993)—because Congress expressly determined that permitting states to require
such documents was “not necessary or consistent with the purposes of this Act,” and
“could effectively eliminate, or seriously interfere with, the mail registration program”
and “adversely affect the administration of the other registration programs as well.” H.R.
Conf. Rep. No. 103-66, at 23 (1993); see also Op. at 5-6. Here, “Congress’[s] rejection of
the very language that would have achieved the result the [Kansas] urges here weighs
heavily against the [Kansas’s] interpretation.” Hamdan v. Rumsfeld, 548 U.S. 557, 579-
80 (2006).
Kobach’s contention that Section 5 does not prohibit the DPOC requirement
because it requires information “separate from” the motor-voter form, Stay Mot. at 15
(emphasis altered), is therefore unavailing. As the District Court correctly noted, “[t]he
statute does not distinguish between information required to be provided on the form
itself, and information required by the application form that must be produced separate
from the form.” Op. at 36. States cannot evade the NVRA’s prohibition against requiring
9
more than the “minimum amount of information” necessary to assess a motor-voter
applicant’s citizenship by imposing additional requirements that are purportedly
“outside” of the motor-voter form; otherwise, there would be no limit to the additional
eligibility information that States could require from such applicants.
The Supreme Court Has Rejected Appellant’s Position that “There Is No B.
Constraint in the NVRA” on Information that States Can Require.
Kobach’s assertion that “there is no constraint in the NVRA over what additional
information a State may request,” Stay Mot. at 15, is not only squarely contradicted by
the text of the statute, it has also been rejected by the Supreme Court. Construing a
different provision of the NVRA, the Supreme Court held that the “NVRA forbids States
to demand that an applicant submit additional information beyond that required by the
Federal [mail-in voter registration] Form,” which requires nothing more than a sworn
attestation to establish an applicant’s citizenship. ITCA, 133 S. Ct. at 2257. Justice Alito,
in dissent, expressed a contrary view—essentially identical to Kobach’s in this case—
“that the [NVRA] lets the States decide for themselves what information ‘is necessary …
to assess the eligibility of the applicant.’” Id. at 2274. But the Supreme Court rejected
that view, and, as this Court has explained, ITCA is “one of those instances in which the
dissent clearly tells us what the law is not.” EAC, 772 F.3d at 1188.3
Young v. Fordice, 520 U.S. 273 (1997), on which Kobach relies, see Stay Mot. at
3 Kobach’s assertion that the preliminary injunction creates a “special privilege” for
motor-voter registrants over “people who apply by mail,” Stay Mot. at 2, is irrelevant,
because mail registration is governed under a different provision of the NVRA. As the
District Court observed, “the word ‘minimum’ appears in § 5, but not in § 9, which
suggests that Congress intended for a stricter standard to apply in § 5.” Op. at 33.
10
14, is not to the contrary. As the District Court correctly observed, Young “did not say
that the States have unfettered discretion under the NVRA to request information in
conjunction with a motor voter registration application.” Op. at 35. Young makes no
mention whatsoever of whether States may impose citizenship documentation
requirements; it simply observes that “[t]he NVRA does not list … all the other
information the State may—or may not—provide or request.” 520 U.S. at 286. As the
District Court explained, the NVRA “is silent as to some information that a State may or
may not require,” such as information about a motor-voter applicant’s race, and thus does
not prohibit states from requesting that information. Op. at 36. But “the NVRA is not
silent about information needed by State officials to assess eligibility on the motor voter
application”: it places specific, detailed restrictions in that regard, namely, an attestation
of citizenship, and nothing more. Id.
The District Court’s Findings Confirm that a DPOC Requirement Exceeds C.
the Minimum Amount of Information Necessary Under Section 5.
The District Court’s findings—which are entitled to deference, see RoDa Drilling
Co., 552 F.3d at 1208—compel denial of a stay. Based on Plaintiffs’ undisputed
testimony, the District Court found that “the process of submitting DPOC for motor voter
applicants is burdensome, confusing, and inconsistently enforced.” Op. at 37. As a result,
“[a]pproximately 18,000 otherwise qualified motor voter applicants have not been
processed solely because they have failed to produce DPOC.” Id. at 61. The District
Court further observed that the DPOC Law is entirely unnecessary, finding that, during
an approximately ten-year period from 2006 through 2016, “860,604 people registered to
11
vote in the State of Kansas,” compared to “evidence that [since 2003,] thirty noncitizens
registered to vote, about three noncitizens per year.” Id. at 42-43. Rejecting Kobach’s
unsubstantiated speculation that these incidents are indicative of a larger problem, the
Court found that the number of noncitizens who have registered “pales in comparison to
the number of people not registered as a result of the DPOC law.” Id. at 61. That finding
is consistent with this Court’s previous ruling, based on a materially identical record, that
Kansas had “failed to meet [its] evidentiary burden of proving that [it] cannot enforce
[its] voter qualifications because a substantial number of noncitizens have successfully
registered.” EAC, 772 F.3d at 1197-98.
The District Court further concluded that there are multiple alternatives for
assessing the eligibility of motor-voter applicants. First, there is an attestation of
citizenship, which is prescribed by the terms of the statute itself. “Kobach himself [has]
made a strong case [that the attestation] is the minimum amount of information necessary
for Kansas election officials to assess an applicant’s citizenship,” because he employs a
procedure that enables some individuals who lack citizenship documents to register using
a “declaration of citizenship.” Op. at 45.4 Second, given that DMV employees are
4 The District Court found that this is not an adequate “safety net,” but rather constitutes
an “additional burdensome layer in the Kansas enforcement scheme”: a voter must “learn
about the existence of the procedure; … generate some alternative form of proof of
citizenship;” and “obtain a hearing date with three very busy high-level state officials”
Op. at 58, 42. The Court thus found that “[t]he fact that only three individuals in more
than three years have availed themselves of this procedure, out of the thousands of
applicants rejected for lack of DPOC, is evidence that the average voter does not view
this as an easy and obvious choice when they otherwise lack DPOC.” Id. at 59.
12
required under the NVRA to ask motor-voter applicants whether they are U.S. citizens,
see 52 U.S.C. § 20504(c)(2)(C), and are already prompted to do so, see Op. at 11, Kansas
can simply train its employees to follow the law. See Op. at 44. Every instance in the
record of noncitizen registration through the DMV “involve[d] mistaken understandings
of the eligibility requirements.” Id. Third, “the State can prosecute noncitizens who
register,” id. at 42, which this Court has described as one of “five alternatives to requiring
documentary evidence of citizenship … to ensure that noncitizens do not register.” EAC,
772 F.3d at 1197. The District Court noted that Kobach has such authority, but “has not
prosecuted any cases of noncitizen voter fraud.” Op. at 45.
In holding that the DPOC requirement is unnecessary, the District Court did not,
as Kobach suggests, “select[] a subjective definition, rather than an objective
[definition],” of the word “necessary.” Stay Mot. at 18. Rather, the District Court’s
findings simply confirmed the objective standard set forth by Congress: an attestation of
citizenship. The dispositive question is not whether the word “necessary” is subject to an
“objective” or “subjective” understanding, but whether the federal government
determines what is “necessary” to assess the eligibility of registrants for federal elections.
And Congress was clear on this: it enacted the NVRA not to defer to States’ registration
preferences, but with the express purpose of overriding State barriers to voter registration.
See 52 U.S.C. § 20501 (finding that “discriminatory and unfair registration laws and
procedures can have a direct and damaging effect on voter participation in elections for
Federal office and disproportionately harm voter participation by various groups”).
13
II. THE BALANCE OF EQUITIES DOES NOT WEIGH IN APPELLANT’S
FAVOR.
Appellant Will Not Suffer Any Serious Harm Absent a Stay. A.
The District Court appropriately exercised its discretion in rejecting Kobach’s
assertions that a stay is necessary to prevent irreparable harm in the form of potential
noncitizen registration, administrative work for state and local election officials, and
voter confusion. First, as explained supra, the purported harm of potential noncitizen
registration and/or voting in the absence of a stay is illusory. Moreover, the injunction
applies only to people who have sworn an attestation of U.S. citizenship under penalty of
perjury, and the record contains no evidence—or even an assertion—that any of the
individuals who will be registered pursuant to the injunction are noncitizens.5
Second, the alleged administrative work in complying with the injunction are, as
the District Court concluded, not “so burdensome as to be irreparable.” Stay Op. at 7.
Kobach complains that his office would have to endure “half a day” of work, and that
county-level election officials would have to spend many hours manually changing the
status of wrongly-disenfranchised voters from “canceled” or “suspended” to “active.” But
Kobach’s primary evidence is a single conclusory statement from someone he appointed,
supervises, and represents as counsel: Sedgwick County Election Commissioner Tabitha
Lehman, and, as the District Court noted, her statement was not “properly submitted to
the Court before it rendered its decision on the motion for preliminary injunction” and
5 Kobach’s reliance on Crawford v. Marion County Election Board, 553 U.S. 181 (2008),
is misplaced, insofar as Crawford says nothing about whether a de minimis risk of
noncitizen registration constitutes irreparable harm sufficient to merit a stay.
14
therefore is not in the record. Id. at 4, 6. In any event, this improper evidence does not
establish irreparable harm. The District Court found that Ms. Lehman did not dispute that
“it is possible for Sedgwick County’s five employees to accomplish this task.” Id. at 7.
The Court acknowledged that “there is a manual component” to complying with the
injunction, but noted that Kobach conceded that “[i]f a court were to so order, it would be
possible” to effectuate relief. Id. at 6; see also Op. at 62. Indeed, another local elections
official indicated his office is already prepared to implement the preliminary injunction:
the Douglas County Clerk recently stated in the media that “his office is prepared to
register … between 900 and 1,000 Douglas County residents” affected by the order.6
The Court also correctly noted that any burdens associated with maintaining
different registration lists for state and federal elections and with mailing notices to voters
are “of the State’s own making,” as a result of “voter registration laws that directly
contradict the provisions of the NVRA.” Op. at 63.7 Finally, any work to complete the
registrations of the 18,000 cancelled and suspended motor-voter applicants is a one-time
cost. Going forward, there is no administrative burden in ceasing enforcement of the
6 Peter Hancock, “Douglas County Clerk Ready to Comply with Court Order on Voter
Registration,” Lawrence Journal-World, May 18, 2016,
http://www2.ljworld.com/news/2016/may/18/douglas-county-clerk-ready-comply-court-
order/.
7 Kobach complains that he will now operate a two-tiered registration system (which
separates out NVRA registrants as eligible to vote in federal elections only), but omits
that such a system has already been declared to violate Kansas state law. See Belenky v.
Kobach, No. 2013CV1331 (Shawnee Cty. Dist. Ct. Jan. 15, 2016). In any event, the
District Court found “no evidence of significant administrative burdens with the 2016
election stemming from the dual forms of registration that would outweigh Plaintiffs’
irreparable harm.” Op. at 63.
15
DPOC Law with respect to future motor-voter applicants and ensuring they are registered
in accordance with the NVRA. In fact, the Court found the injunction “may end up
saving the State money otherwise spent repeatedly contacting the applicants to notify
them that their applications are incomplete and directing them to submit DPOC.” Op. at
62-63.
Third, with respect to voter confusion, Kobach does not dispute the District
Court’s finding “that Kansas motor voters are already confused about the current DPOC
law and how to meet its requirements,” Op. at 62, including “[t]wo Plaintiffs [who] tried
to vote in the 2014 election and did not have their ballots counted,” Stay Op. at 8-9. This
is particularly the case for those renewing driver’s licenses, all of whom “were
automatically placed on the suspense list because the DMV did not request DPOC from
those applicants at the time of application.” Id. at 8. Thus, while “the State has a strong
interest in preventing voter confusion,” the District Court held that it “cannot find that the
status quo enforcement efforts further that State interest.” Op. at 62.
A Stay Would Disenfranchise the Appellees and Thousands of Motor-Voter B.
Applicants, Irreparably Injuring Them.
Appellees, by contrast, will be irreparably harmed if this Court were to grant a
stay. “[T]he individual Plaintiffs … are ‘motor voter registrants’: that is, they submitted
voter registration applications at DMV offices in Kansas,” signed an attestation of
citizenship, and would be registered to vote but for the DPOC requirement. Op. at 14.
The District Court found that Appellees Stricker and Boynton were disenfranchised in
2014: they “believed they had successfully registered, tried to vote in the 2014 election,
16
but were only allowed to cast provisional ballots that were not counted.” Id. at 56. In
addition, like thousands of other motor voter applicants, the registrations of Appellees
have been cancelled. As a result, they “run the risk of losing the right to vote for federal
offices in the 2016 primary and general election.” Id. The District Court found that this
disenfranchisement is the epitome of irreparable harm. See id.; see also Williams v.
Salerno, 792 F.2d 323, 326 (2d Cir. 1986) (the denial of right to vote is unquestionably
“irreparable harm”); Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).8
In this sense, the stay issued in EAC, on which Kobach relies, see Stay Mot. at 8,
is inapposite. There, the district court ordered the addition of a DPOC requirement to the
federal mail-in voter registration form, which would have tightened the registration rules
and increased the risk of disenfranchisement while the appeal was pending. See Stay Op.
at 13-14. The stay in EAC therefore “ensured that [the relevant] registrants would not be
disenfranchised in the 2014 election cycle” while it considered the merits of the appeal.
Id. at 13-14. Denying a stay would have a similar effect here.
8 Kobach argues that a stay should be granted because Appellees purportedly delayed in
moving for preliminary relief, asserting that Appellees should have brought suit when the
DPOC Law was enacted in April 2011, Stay Mot. at 8-9, but the District Court properly
rejected that argument. Four of the five Appellees either did not live in Kansas, or did not
attempt to register until sometime in 2014. Op. at 14-19, 59. Two learned that there was a
problem with their voter registrations for the first time when they tried vote in the
November 2014 election; others only learned that their registrations were suspended in
2015. Id. at 59. Moreover, it was not until October 2015 that a new administrative rule
became effective that canceled the registrations of voters who failed to provide DPOC
within 90 days of their applications, which dramatically changed Appellees’ status. See
id. at 59-60. Appellees sent their NVRA notice letter one month later, waited the requisite
90 days under the NVRA’s notice provision and filed suit on the first day possible in
February 2016. See id. at 59; Compl., ECF No. 1.
17
Indeed, the timeline of the EAC appeal reveals that a stay is entirely inappropriate
here, because it suggests that, even with an expedited appeal, a stay would “completely
undermine the effectiveness of the relief sought” by the Plaintiff-Appellees. Prairie Band
of Potawatomi Indians v. Pierce, 75 F. Supp. 2d 1186, 1188 (D. Kan. 1999), aff’d, 253
F.3d 1234 (10th Cir. 2001). In EAC, this Court granted a stay on May 19, 2014, see
Kobach Ex. H—a date that, this year, is already almost three weeks in the past—and
issued a decision on the merits on November 7, 2014, i.e., after the 2014 midterms,
which were held on November 4, see Stay Op. at 13; EAC, 772 F.3d at 1183. That is
obviously far too late for resolution before the August 2 primary, and likely too late for
the November general election as well. Indeed, according to Kobach, this Court would
have to render a decision in this appeal by October 21, 2016, to “ensure compliance” for
the November general election. Stay Mot. at 8. The District Court therefore found that,
given the timeline in EAC, Kobach’s reliance on the stay in that case was
“disingenuous[],” as granting a stay would all but ensure the disenfranchisement of
Appellees (and over 18,000 other voters) in the upcoming elections. Stay Op. at 13-14.
Nevertheless, Kobach argues that a stay would not harm Appellees because “the
only thing that is preventing them from registering to vote (and voting in the upcoming
elections) is their stated decision not to register to vote at this time.” Stay Mot. at 7. But,
as the District Court observed, Appellees’ disenfranchisement does not result from any
action or inaction on their part; rather they “have been entirely precluded from registering
to vote based solely on the DPOC law.” Op. at 57. Appellee Bucci’s inability to afford a
birth certificate so she can register underscores this point. Id. at 16, 57. And although
18
Kobach claims that she can still register using an affidavit,9 Stay Mot. at 7, this is exactly
the remedy Appellees seek for all Kansas voters, except in a form that is actually
accessible to voters, see supra p. 11 n.4, as mandated by the NVRA.
A Stay Would Perpetuate Voter Confusion and Hinder Election C.
Administration.
The District Court appropriately exercised its discretion in holding that the public
interest weighs against a stay, observing that the public interest favors enfranchisement,
and holding that immediate relief is necessary to prevent the disenfranchisement of more
than 18,000 “otherwise qualified applicants [who] run the risk of losing the right to vote
for federal offices in the 2016 primary and general election.” Op. at 56.10
Nevertheless, Kobach again invokes the specter of “voter confusion,” citing
Purcell v. Gonzalez, 549 U.S. 1 (2006), to warn against changing the rules of an
9 Kobach incorrectly claims that “after learning of this safety net,” Appellee Bucci “no
longer opposed the [DPOC] requirement.” Stay Mot. at 7. To the contrary, Ms. Bucci
confirmed that she wanted a court to “strike down [the] … Kansas proof of citizenship
law … [a]s far as having to provide the birth certificate” and that she did not want the
DPOC law to “cause anybody financial burden.” Kobach Ex. M (Bucci Dep.) at 115:17 –
116:4. The District Court therefore found that “Ms. Bucci’s deposition testimony in fact
illustrates that citizens are not aware of this option, nor what is required of them to meet
the DPOC law under this alternative provision.” Stay Op. at 11.
10 Kobach claims that a survey by a partisan polling firm “strongly supports” his position
that a stay would not disenfranchise Kansans. Stay Mot. at 7. But the District Court
appropriately exercised its discretion not to consider this survey because it was not
presented prior to the preliminary injunction hearing or otherwise properly submitted to
the District Court. Stay Op. at 11-12, 4 & n.9 (citing Verlo, 2016 WL 1395205, at *7).
Regardless, the District Court concluded that “[t]here are no survey questions or results
that controvert the clear statistics … that thousands of individuals in Kansas have applied
to register to vote when applying for or renewing a driver’s license, and would be
registered but for the DPOC requirement and its flawed execution.” Stay Op. at 12-13.
19
upcoming election. Stay Mot. at 8, 10. But as noted, supra, the preliminary injunction
reduces voter confusion. Indeed, the District Court found that the DPOC Law “has
caused a chilling effect, dissuading those who try and fail at navigating the motor voter
registration process from reapplying in the future.” Op. at 56. Thus, while Purcell
cautions that “voter confusion” may cause eligible voters “to remain away from the
polls,” 549 U.S. at 4-5, the preliminary injunction mitigates that concern.
In any event, Purcell does not stand for an unequivocal rule against legal changes
for a pending election, such that a losing litigant with little chance of on appeal is always
entitled to continue holding elections under an unlawful regime. In dissolving the Ninth
Circuit’s entry of an injunction pending appeal, the Supreme Court in Purcell
admonished the Court of Appeals for failing, “as a procedural matter,” to “give deference
to the discretion of the District Court.” 549 U.S. at 4-5. Given the District Court’s
extensive findings in this case, granting a stay would replicate the Ninth Circuit’s error in
Purcell. And, even taking Kobach’s assertions about voter confusion at face value, the
District Court found that it was “unpersuaded that the State’s interest in ensuring that
Kansas voters are not confused is strong enough to counterbalance the irreparable harm
that thousands of disenfranchised voters will suffer if the DPOC [law] prevents them
from voting in federal elections.” Op. at 61-62. “Voter confusion” does not trump all
other equitable considerations, and the Supreme Court has recently rejected claims of
potential “mass confusion” and denied stays where lower courts ordered relief involving
major electoral changes to prevent violations of federal rights, even where elections were
imminent or already underway. See McCrory v. Harris, 136 S. Ct. 1001 (2016) (mem.)
20
(denying stay pending appeal of redistricting decision even though absentee balloting had
already begun); Wittman v. Personhuballah, 136 S. Ct. 998 (2016) (mem.) (denying stay
pending appeal of redistricting decision even though election cycle had begun).
In arguing that the preliminary injunction comes too late in the game to be
administered without confusion, Kobach is trying to have it both ways. Kobach “claims
to be unable to comply with the [District] Court’s Order without undue hardship before
the August primary,” Stay Op. at 9, but in the same breath, he asserts that if a stay were
granted, there would still be adequate time to implement a remedy, id. at 13. As the
District Court observed, if complying with the preliminary injunction now will cause
undue hardship for the State, “it is difficult to understand how the State could comply in a
matter of days or hours before the November general election.” Id. at 9. In sum, any
concerns about election administration and voter confusion weigh against a stay.
CONCLUSION
Kansas is an outlier. The preliminary injunction, far from causing “an earthquake
upsetting the administration of elections across the country,” Stay Mot. at 2, brings
Kansas’s registration practices into line with federal law and prevailing practices in
virtually every other State. The only risk of an “earthquake” would be from a stay, which
would guarantee the disenfranchisement of more than 18,000 Kansas in the upcoming
elections. Kobach’s application for a stay pending appeal should be denied.
21
Dated this 8th day of June, 2016.
Respectfully submitted,
STEPHEN DOUGLAS BONNEY
ACLU Foundation of Kansas
6701 W. 64th Street, Suite 210
Overland Park, Kansas 66202
(913) 490-4102
NEIL A. STEINER
REBECCA KAHAN WALDMAN
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036-6797
Phone: (212) 698-3500
/s/ Dale E. Ho
DALE E. HO
R. ORION DANJUMA
SOPHIA LIN LAKIN
American Civil Liberties Union Foundation,
Inc.
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2693
ANGELA M. LIU*
Dechert LLP
35 West Wacker Drive, Suite 3400
Chicago, IL 60601-1608
Phone: (312) 646-5800
Attorneys for Plaintiffs
22
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on the 8th day of June, 2016, I
electronically filed the foregoing document using the CM/ECF system, which
automatically sends notice and a copy of the filing to all counsel of record.
/s/ Dale E. Ho
DALE E. HO
Attorney for Plaintiffs
23
ECF CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing document complies with the required privacy
redactions. I further certify that any hard copies submitted of this filing will be exactly
the same as the electronic copy. Finally, I certify that this document was scanned for
viruses with Symantec Endpoint Protection version 12.1.1101.401, last updated June 3,
2016. According to the virus scan, this file is free of viruses.
/s/ Dale E. Ho
DALE E. HO
Attorney for Plaintiffs
