ORAL ARGUMENT SCHEDULED

No. 16-3147

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STEVEN WAYNE FISH, et al.,

Plaintiffs-Appellees,

v.

KRIS KOBACH, in his official

capacity as Secretary of State for

the State of Kansas

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS, NO. 16-cv-2105-JAR-JPO

THE HONORABLE JULIE ROBINSON

REPLY BRIEF OF APPELLANT KANSAS SECRETARY OF STATE

KRIS W. KOBACH, Secretary of State, #17280

GARRETT R. ROE, #26867

Kansas Secretary of State’s Office

120 S.W. 10th Avenue

Topeka, Kansas 66612

Tel. (785) 296-4575

Fax. (785) 368-8032

Attorneys for Appellant

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................ iii

ARGUMENT ........................................................................................................ 1

I. False or Misleading Statements in Appellees’ Description of Facts ... 1

A. Four States Are Implementing Proof-of-Citizenship Laws ....... 1

B. The Appellees Omit Crucial Words in the NVRA.................... 4

C. Appellees Misstate Their Factual Circumstances ..................... 5

II. Appellees’ 30-Month Delay Prevents any Finding of Irreparable

Harm .................................................................................................. 8

III. Appellees Are Unlikely to Prevail on the Merits .............................. 11

A. Appellees Misquote ITCA Regarding the Plain Statement

Rule ....................................................................................... 11

B. Appellees Offer no Answer to the Fact that the Relevant Text

of the NVRA Refers to Information Written on the Form,

Not to Documents Required Outside of the Form .................. 14

C. Appellees Cannot Escape Young v. Fordice ........................... 16

D. Appellees’ Interpretation Raises Constitutional Doubt ........... 18

1. The States’ Sole Authority to Set and Enforce

Qualifications .............................................................. 19

2. Different Qualifications for Federal and State

Elections ...................................................................... 21

E. Appellees’ Interpretation of the Text is Unsustainable ........... 23

F. Appellees’ Use of Legislative History is Misleading and is

Foreclosed by ITCA ............................................................... 26

CONCLUSION ................................................................................................... 30

ii

CERTIFICATE OF COMPLIANCE ................................................................... 31

CERTIFICATE OF DIGITAL SUBMISSION .................................................... 32

CERTIFICATE OF SERVICE ............................................................................. 33

iii

TABLE OF AUTHORITIES

Cases

Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247 (2013) ........ passim

Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) .................................. 13

Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011) ........................... 27

Clark v. Martinez, 543 U.S. 371 (2005) ................................................................ 18

Dunn v. Board of Comm’rs of Morton County, 165 Kan. 314 (1948) .............. 20, 21

Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005) ................... 27

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ................................ 18

Foster v. Love, 522 U.S. 67 (1997) ....................................................................... 14

Foundry Networks v. Lucent Techs., Inc., 2005 WL 6217420 (E.D. Tex. 2005) .... 18

Gregory v. Ashcroft, 501 U.S. 452 (1991) ............................................................. 13

GTE Corp. v. Williams, 731 F.2d 676 (10th Cir. 1984) ..................................... 9, 11

Howard v. Zimmer, Inc., 711 F.3d 1148 (10th Cir. 2012) ....................................... 3

Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005) .................... 25

Jeman v. Carlisle, McNellie, Rini, Kramer, Ulrich LPA, 559 U.S. 573 (2010) ........ 8

Kobach v. Election Assistance Commission,

772 F.3d 1183 (10th Cir. 2014), cert. denied,

135 S.Ct. 2891 (2015) ........................................................... 5, 21, 25, 27, 28

Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012) ..................................................... 7

League of Women Voters v. Newby,

No. 16-236(RJL), WL 3636604 (D.D.C. June 29, 2016) ......................... 3, 25

iv

Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995) ................................. 12

Lucas County Democratic Party v. Blackwell,

341 F. Supp.2d 861 (N.D. Ohio 2004) ........................................................ 10

Purcell v. Gonzalez, 549 U.S. 1 (2006) ................................................................... 1

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .......................................... 13

Rice v. United States, 428 F.2d 1311 (Ct. Cl. 1970) .............................................. 18

Ron Peterson Firearms, LLC v. Jones, 760 F.3d 1147 (10th Cir. 2014) .................. 8

Shelby County v. Holder, 133 S. Ct. 2612 (2013) .................................................... 3

Taylor v. Angarano, 652 F. Supp. 827 (S.D.N.Y. 1986) ....................................... 10

Tancogne v. Tomjai Enterprises Corp., 408 F. Supp. 2d 1237 (S.D. Fla. 2015) .... 11

Tex. Cent. Bus. Lines Corp. v. City of Midlothian,

669 F.3d 525 (5th Cir. 2012) ....................................................................... 13

Tough Traveler, Ltd. V. Outbound Products, 60 F.3d 964 (2d Cir. 1995) ............... 9

Turner v Woodson County Com’rs, 27 Kan. 314 (Kan. 1882) ................................. 8

United States v. Johnson, 529 U.S. 53 (2000) ....................................................... 12

United States v. Smalls, 605 F.3d 765 (10th Cir. 2010) ........................................... 3

United States v. Stewart, 472 F.2d 1114 (1st Cir. 1973) .......................................... 8

United States Postal Service v. Gregory, 534 U.S. 1 (2004) .................................... 7

Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013) ...................... 14, 24

Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001) ........................ 15

Will v. Michigan Dep’t. of State Police, 491 U.S. 58 (1989) ................................. 11

v

Young v. Fordice, 520 U.S. 273 (1997) .......................................................... passim

Constitutional Provisions and Statutes

U.S. Const. Art. I, § 2 ............................................................................... 19, 21, 23

U.S. Const. Art. I, § 2, cl. 1 ............................................................................. 21, 23

U.S. Const. Art. I, § 4, cl. 1 ....................................................................... 13, 19, 24

U.S. Const. Amend. XVII ..................................................................................... 19

52 U.S.C. § 20504 ........................................................................................... 21, 26

52 U.S.C. § 20504(c) ............................................................................................ 15

52 U.S.C. § 20504(c)(2) .................................................................................. 14, 18

52 U.S.C. § 20504(c)(2)(A) .................................................................................. 25

52 U.S.C. § 20504(c)(2)(B)..................................................................... 4, 5, 12, 26

52 U.S.C. § 20504(c)(2)(C)................................................................................... 15

52 U.S.C. § 20508 ........................................................................................... 21, 26

52 U.S.C. § 20508(b)(1) ....................................................................................... 24

52 U.S.C. § 20508(b)(2) ....................................................................................... 25

52 U.S.C. § 20508(b)(3) ....................................................................................... 25

Ala. Code 1975 § 31-13-28 ..................................................................................... 3

Ariz. Rev. Stat. § 16-112......................................................................................... 2

Ariz. Rev. Stat. § 16-112(A) ................................................................................... 2

vi

Ariz. Rev. Stat. § 16-152......................................................................................... 2

Ariz. Rev. Stat. § 16-166(F) ................................................................................ 1, 2

Ariz. Rev. Stat. § 28-3153 ....................................................................................... 2

Kan. Const. art. V, § 1 .......................................................................................... 20

Kan. Const. art. V, § 4 .......................................................................................... 20

K.S.A. § 8-240(b)(2) ............................................................................................... 2

K.S.A. § 8-240(b)(3) ............................................................................................... 2

K.S.A. § 25-2309 .................................................................................................. 21

K.S.A. § 25-2309(l) ....................................................................................... passim

K.S.A. § 25-2309(l)(1) ............................................................................................ 3

K.A.R. § 7-23-15 .................................................................................................... 6

O.C.G.A. § 21-2-216 .............................................................................................. 4

Help America Vote Act of 2002, 116 Stat. 1666, as amended,

42 U.S.C. § 15301, et seq., recodified at 52 U.S.C. § 20901 et seq. ............ 10

National Voter Registration Act of 1993, 107 Stat. 77, as amended,

42 U.S.C. § 1973gg, et seq., recodified at 52 U.S.C. § 20501 et seq. ... passim

Voting Rights Act of 1965, 79 Stat. 437, as amended,

42 U.S.C. §§ 1971 and1973-1973bb-1. ....................................................... 16

Legislative History

H.R. Rep. No. 103-9 (1993) ................................................................................. 29

H.R. Rep. No. 103-66 (1993)(Conf. Rep.) ............................................................ 28

vii

Other Sources

Ariz. Op. Att’y Gen. No. I13-011 (Oct. 7, 2013) .................................................... 2

The Federalist No. 60 (Hamilton) ......................................................................... 19

1

ARGUMENT

I. False or Misleading Statements in Appellees’ Description of Facts

In their Statement of the Case, Appellees make multiple misleading or false

statements. The following are the most egregious.

A. Four States Are Implementing Proof-of-Citizenship Laws

Throughout their brief, Appellees attempt to create the false impression that

Kansas is alone in requiring documentary proof of citizenship (“DPOC”).

Appellees incorrectly declare: “This regime is unique; Kansas is the only State

that uses a DPOC requirement,” Resp. 3, and “Kansas is an outlier.” Id. at 58; see

also id. at 7.

Arizona was the first State to adopt a DPOC requirement for voter

registration. In 2004, Arizona voters passed Proposition 200 requiring applicants

to provide evidence of citizenship in order to register to vote (codified at Ariz.

Rev. Stat. (“A.R.S.”) § 16-166(F)). As the Supreme Court characterized it,

Proposition 200 was designed “to combat voter fraud by requiring voters to present

proof of citizenship when they register to vote and to present identification when

they vote on election day.” Purcell v. Gonzalez, 549 U.S. 1, 2 (2006). Contrary to

Appellees’ suggestion, Arizona does not waive the DPOC requirement for those

who apply at the DMV. See Resp. 7. Rather, because Arizona is a State that

requires DPOC for all U.S. citizens who apply for a driver’s license, including

2

renewals, Arizona deems the DPOC requirement satisfied if the applicant has

already proven citizenship to obtain a driver’s license. A.R.S. §§ 16-112 and -

166(F); § 28-3153. See also Ariz. Op. Att’y Gen. No. I13-011 (Oct. 7,

2013)(discussing implementation of Proposition 200). Contrary to Appellees’

mischaracterization, Arizona law clearly requires DMV applicants to provide the

same documentation as other applicants: “Every person who is applying for a

driver license or renewal and who is otherwise qualified to register to vote shall, at

the same time and place, be permitted to register to vote by providing the

information prescribed by 16-152.” A.R.S. § 16-112(A)(emphasis added).

Similarly, Kansas deems the DPOC requirement satisfied if an applicant

provides DPOC to the Kansas Division of Vehicles (“DMV”), see App. 544, 838-

843, although Kansas does not require renewal driver’s license applicants to

provide DPOC.1 Kansas’s law was drafted to be similar to Arizona’s in this

respect, so that when Kansas eventually requires DPOC from all driver’s license

applicants, mere possession of a Kansas driver’s license will suffice to satisfy the

proof-of-citizenship requirement “if the agency indicates on the applicant’s

1 K.S.A. § 8-240(b)(2)-(3) requires proof of lawful presence to obtain a driver’s

license, which for U.S. citizens means DPOC. However, in 2012, the Kansas

DMV delayed implementation of this requirement for driver’s license renewals,

applying it only to original applications for a driver’s license. App. 680.

3

driver’s license…that the person has provided satisfactory proof of citizenship.”

K.S.A. § 25-2309(l)(1).

Appellees are similarly deceptive regarding Alabama and Georgia proof-of-

citizenship laws. Appellees declare that “Alabama and Georgia are currently not

enforcing their respective DPOC laws, and have indicated no definitive plans to do

so.” Resp. 7. That is incorrect. Both States have indicated that they will

implement these laws in 2016. See Affidavit of Alabama Secretary of State,

League of Women Voters v. Newby, No. 16-236(RJL), 2016 WL 3636604 (D.D.C.

2016), Doc. 51-5 (implementation to begin “sometime after March 1, 2016”);

Affidavit of Georgia Deputy Secretary of State, Newby, Doc. 51-1.2 Both States

were delayed in their implementation of their DPOC laws by Department of Justice

preclearance procedures that were struck down by the Supreme Court in Shelby

County v. Holder, 133 S.Ct. 2612 (2013). The laws are similar. Alabama’s law

was copied verbatim from the Kansas law, with entire subsections worded

identically. Compare Ala. Code 1975 § 31-13-28 with K.S.A. § 25-2309.

2 This Court can judicially notice documents filed in the district court because they

are “public records.” United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir.

2010)(“[W]e have the authority to review [the non-record documents] because we

may take judicial notice of public records, including district court filings.”); see

also Howard v. Zimmer 711 F.3d 1148, 1150 n.2 (10th Cir. 2012)(judicially

noticing briefs filed in another circuit).

4

Georgia’s similar proof-of-citizenship law was adopted before Kansas’s and

Alabama’s and is codified at O.C.G.A. § 21-2-216.

Thus Kansas is not an “outlier.” Arizona and Kansas have enforced DPOC

laws for years, and Alabama and Georgia indicate forthcoming implementation.

B. The Appellees Omit Crucial Words in the NVRA

No less than four times, Appellees attempt to mislead this Court by partially

quoting 52 U.S.C. § 20504(c)(2)(B). Resp. 2, 4-5, 14, 21. Each time, they omit

text that is pivotal in this case. They quote the National Voter Registration Act

(“NVRA”) as follows: “The motor-voter application ‘may require only the

minimum amount of information necessary to… enable State election officials to

assess the eligibility of the applicant.’” Id. at 4-5. But that is not the only reason

that information written on the application form may be deemed “necessary.” The

entirety of 52 U.S.C. § 20504(c)(2)(B) is as follows:

(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;”

5

52 U.S.C. § 20504(c)(2)(B)(emphasis added).3 Appellees never quote this

subsection in its entirety. Each time, they omit the italicized words.

When read in its entirety, it is clear that whether information is “necessary”

under 52 U.S.C. § 20504(c)(2)(B) depends on what the State election official is

required to obtain from the applicant in order to comply with state laws. That is

the only natural reading of “to administering voter registration and other parts of

the election process.” Administering a process entails complying with relevant

laws. The registration form drafted by a State may require information needed to

comply with the State’s laws, to assess eligibility, and to prevent duplicate

registrations; but it may not require further information. Appellees’ omission of

these words is instructive. They do not want this Court to consider the entire

subsection.

C. Appellees Misstate Their Factual Circumstances

Appellees make numerous, factually-incorrect statements in their brief

regarding their individual circumstances. First, Appellees incorrectly state that

“Several Plaintiffs testified that they provided DPOC to the DMV, but their voter

registration applications were nevertheless placed in suspense, and ultimately

3 Kobach v. Election Assistance Comm’n (“EAC”), 772 F.3d 1183 (10th Cir. 2014),

cert. denied, 135 S.Ct. 2891 (2015), never addressed these italicized words.

6

canceled.” Resp. 8. No Plaintiff has testified in court. The district court found

that, “The ELVIS database shows no record of Mr. Boynton applying to register at

a DMV office in August 2014.” App. 687. According to the State’s DMV records,

Mr. Boynton declined to register to vote. App. 1220. As for Mr. Hutchinson, he

never provided DPOC as part of a motor voter transaction; instead he attempted to

provide DPOC to a DMV office two years after he applied to register to vote,

entirely apart from any motor voter transaction. App. 688, 916-926.

Second, Appellees falsely claim that Defendants “have not identified any”

individuals whose applications were canceled or suspended for failing to provide

DPOC were noncitizens. Resp. 9. In reviewing the Sedgwick County spreadsheet

of noncitizen registrants, App. 904-907, the court found that, “[s]ince the effective

date of the DPOC requirement, fourteen noncitizens have unsuccessfully attempted

to register to vote in Sedgwick County.” App. 678. Each noncitizen has an ELVIS

ID number, and the record was necessarily placed in suspense because the

applicant could not provide DPOC. App. 680-81. Those noncitizens who

registered at the DMV were among (ever-changing) people on the suspense list;

some were still on the list when the district court ruled, others’ records were

“cancelled” after the 90-day period of K.A.R. § 7-23-15 elapsed.

Third, as to Ms. Bucci, Appellees purposefully ignore facts in the record.

According to the district court, “The ELVIS records show that Ms. Bucci was sent

7

two notifications that [DPOC] was required—the first on August 16, 2013….

There is also a notation in the database from September 25, 2013: ‘Will get

information to us on POC when she gets items unpacked.’” App. 685, 950. Ms.

Bucci later acknowledged that she received a phone call after receiving one written

notice. App. 258. The State’s records reflect additional notifications. Ms. Bucci’s

ELVIS file indicates she applied to register at the DMV on August 14, 2013, at

which time the DMV clerk handed her a paper notice informing her she still

needed to provide DPOC. App. 950. The ELVIS file indicates a second notice

was sent to her by the Sedgwick County election office two days later. Id. The

ELVIS file also indicates Ms. Bucci spoke to a Sedgwick County official on

September 25, 2013. Id. This was her third individual notice.

In summary, all Appellees received notice at the DMV and again through

notices from the county election offices, which are notated in the ELVIS files.

Additionally, the record indicates that the notices mailed to the addresses in

ELVIS, which were provided by Appellees themselves, were not returned

undelivered. App. 1116-17. Appellees may not hypothesize that perhaps written

notices were not delivered or that the DMV receipts were not given. These are the

official procedures for voter registration in Kansas. “[A] presumption of regularity

attaches to the actions of Government agencies[.]” United States Postal Service v.

Gregory, 534 U.S. 1, 10 (2004); Latif v. Obama, 677 F.3d 1175 (D.C. Cir.

8

2012)(“The presumption of regularity supports the official acts of public officers

and, in the absence of clear evidence to the contrary, courts presume that they have

properly discharged their official duties.”)(citation omitted); Ron Peterson

Firearms, LLC v. Jones, 760 F.3d 1147, 1164 (10th Cir. 2014) (citation omitted);

United States v. Stewart, 472 F.2d 1114, 1118 (1st Cir. 1973) (citation omitted)

(presumption of regularity attaches to delivery of letters).

II. Appellees’ 30-Month Delay Prevents any Finding of Irreparable Harm

Appellees attempt to convince this Court to affirm a preliminary injunction

that they sought 30 months after the first Appellee received personal,

individualized notice that he needed to present DPOC to complete registration.

Principal Br. 15-17. Even by Appellees’ own self-serving explanations, they

waited until over a year after the last Appellee had “notice” of the law. Resp. 47.

Moreover, it is arguably immaterial when they received individualized notice. It is

universally recognized that Appellees were on notice when the proof-of-citizenship

law was enacted in 2011 because everyone is presumed to know the law. Jeman v.

Carlisle, McNellie, Rini, Kramer, Ulrich LPA, 559 U.S. 573, 582 (2010)(It is a

“common maxim, familiar to all minds, that ignorance of the law will not excuse

any person, either civilly or criminally.”); Turner v Woodson County Com’rs, 27

Kan. 314, 317 (Kan. 1882)(voters presumed to know a voting law was

9

unconstitutional when they voted). Appellees offer no support for their theory that

an individual must receive individualized, personal notice regarding the statutory

terms of a law before they can be deemed to have delayed in bringing a lawsuit.

Moreover, even if individualized notice was required, Appellees do not

explain why the clock did not begin when the first Appellee (Hutchinson) received

notice at the DMV on May 23, 2013. The fact that the last Appellee (Boynton)

delayed 14 months (also an excessive delay) rather than 30 months does not reset

the clock.4

Realizing the weakness of their argument, Appellees ask this Court to ignore

their delay and instead focus on their claimed presumption of irreparable harm.

Resp. 46-47. This does not remove Appellees’ delay problem. A “presumption of

irreparable harm ‘is inoperative if the plaintiff has delayed either in bringing suit or

in moving for preliminary injunctive relief.’” Tough Traveler, Ltd. v. Outbound

Products, 60 F.3d 964, 968 (2d Cir. 1995)). This Court has already rejected

Appellees’ argument that delay cannot negate a presumption of irreparable harm.

GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984)(“Delay in seeking

relief, however, undercuts any presumption that infringement alone has caused

irreparable harm[.]”).

4 Again, Mr. Boynton did not register to vote at the DMV anyway.

10

Appellees attempt to distinguish the cases cited by the Secretary as only

applying to “common law and trademark suits.” Resp. 45. But courts have also

refused to find “irreparable harm” due to delay in in cases involving voting laws.

Lucas County Democratic Party v. Blackwell, 341 F. Supp.2d 861, 863-64 (N.D.

Ohio 2004)(rejecting finding of irreparable harm due to ten-month delay in

challenging the Ohio Secretary of State’s memorandum under Help America Vota

Act); Taylor v. Angarano, 652 F. Supp. 827, 828-89 (S.D.N.Y.

1986)(“[P]laintiffs’ delay in bringing suit and in making this motion is evidence

weighing against a finding of irreparable harm.”). In sum, Appellees offer no

applicable case law justifying their extraordinarily long delay before seeking a

preliminary injunction. A court cannot find irreparable harm when Appellees

delayed four-and-a-half years after enactment of the law, and 30 months after

receipt of individualized notice.

Appellees next claim that their lengthy delay can be ignored because Kansas

issued a document-maintenance regulation requiring incomplete applications more

than 90 days old to be reclassified as “cancelled” in September 2015. Resp. 48.

But that does not alleviate Appellees’ delay problem. The claimed irreparable

harm for enjoining K.S.A. § 25-2309(l) is that Appellees are required to provide

DPOC. That requirement has been in Kansas law since April 2011. The

document-maintenance regulation did not create that requirement. It simply meant

11

that an applicant who waited more than 90 days to provide DPOC must complete a

new registration form to register.

Finally, Appellees ask this Court to ignore their delay because their harm is

“ongoing;” and they claim none of the cases cited by the Secretary involve ongoing

harms. Resp. 48-49. That is incorrect. Trademark infringement is an “ongoing

harm[.]” See Tancogne v. Tomjai Enterprises Corp., 408 F. Supp. 2d 1237, 1243

(S.D. Fla. 2015). This Court has declined to find irreparable harm despite the

ongoing nature of trademark infringement harm. GTE Corp., 731 F.2d at 678. In

sum, Appellees offer no case law excusing delaying 30 months from individualized

notice and four-and-a-half years from enactment of the law.

III. Appellees Are Unlikely to Prevail on the Merits

A. Appellees Misquote ITCA Regarding the Plain Statement Rule

The plain statement rule is a fundamental rule that applies in all preemption

cases. It is axiomatic that “if Congress intends to alter the ‘usual constitutional

balance between the States and the Federal Government,’ it must make its intention

to do so ‘unmistakably clear in the language of the statute.’” Will v. Michigan

Dept. of State Police, 491 U.S. 58, 65 (1989)(internal citation omitted). This rule

imperils Appellees’ argument because nowhere in the NVRA does Congress

expressly state that States are barred from requiring proof of citizenship from voter

12

registration applicants. Rather, Appellees must rely on a tortured reading of 52

U.S.C. §20504(c)(2)(B) to find an unstated implication that DPOC is disfavored.

Not surprisingly, Appellees want to ignore the plain statement rule.5

To accomplish this, Appellees rip a passage from Arizona v. Inter Tribal

Council of Arizona, Inc., 133 S.Ct. 2247 (2013)(“ITCA”) out of context. Appellees

state, “[T]he Supreme Court has rejected this view, noting that it ‘ha[s] never

mentioned such a principle in [its] Election Clause cases. ITCA, 133 S.Ct. at

2256.” Resp. 20. However, the principle referred to in this passage from ITCA is

the presumption against preemption, not the plain statement rule. Indeed, three

sentences earlier, the paragraph begins with: “Finally, Arizona appeals to the

presumption against pre-emption sometimes invoked in our Supremacy Clause

cases.” ITCA, 133 S.Ct. at 2256. As explained in the Secretary’s Principal Brief,

ITCA declined to apply the presumption against preemption in the Elections Clause

5 Appellees also assert that the Secretary waived this argument below. This is

remarkable, given that the Secretary repeatedly argued below that the NVRA must

contain an express statement prohibiting DPOC if any preemption can occur. App.

509-513. Although the Secretary did not specifically cite the case law supporting

the plain statement rule, the claim (minus the case law) was certainly presented.

“Once a federal claim is properly presented, a party can make any argument in

support of that claim; parties are not limited to the precise arguments they made

below.” United States v. Johnson, 821 F.3d 1194, 1199 (10th Cir. 2016)(quoting

Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379 (1995). The additional

precedents offered on appeal are nothing more than “new argument[s]..

support[ing] what ha[ve] been his consistent claim[s].” Lebron, 513 U.S. at

379. Finally, it is unclear how a party can “waive” a canon of construction and

thereby free an Article III court to interpret statutes without constraint.

13

context, id. at 2256, but applied the plain statement rule. Principal Br. 27-29. The

ITCA Court held that “the reasonable assumption is that the statutory text

accurately communicates the scope of Congress’s pre-emptive intent.” Id. at 2257.

Elections Clause legislation cannot be read to have hidden, implicit prohibitions; a

court must “read Elections Clause legislation simply to mean what it says.” ITCA,

133 S.Ct. at 2257.

Appellees evidently misunderstood the difference between the plain

statement rule and the presumption against preemption. The doctrines are distinct.

The presumption against preemption (1) is a rule that places the initial burden on

one party or the other, Tex. Cent. Bus. Lines Corp. v. City of Midlothian, 669 F.3d

525, 529 (5th Cir. 2012); (2) can be overcome if the burdened party makes the

requisite showing, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); and

(3) applies in both express preemption cases and implied preemption cases (outside

of the Elections Clause context). In contrast, the plain statement rule (1) is a canon

of statutory construction, Gregory v. Ashcroft, 501 U.S. 452, 470 (1991); (2) can

never be overcome, Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242

(1985); and (3) applies only in express preemption cases.

Because there is no plain statement anywhere in the text of the NVRA that

expressly prevents a state from requiring DPOC in addition to the information

provided on face of the application form, Appellees’ claim must fail. The

14

“preemptive scope” of the NVRA is limited to the plain terms of the “statutory

text.” ITCA, 133 S.Ct. at 2257.

Finally, Appellees make a bizarre and unsupported statement of law:

“Preemption of state laws restricting voter registration is presumed.” Resp. 20.

They apparently begin with the correct premise that there is no presumption

against preemption in Election Clause cases, but then make a giant leap in logic to

declare that the converse must be true. The case law on this point is clear: in

Election Clause cases there is no presumption either way. “The Clause is a default

provision” that “invests the States with responsibility for the mechanics of

congressional elections… only so far as Congress declines to preempt state

legislative choices[.]” Foster v. Love, 522 U.S. 67, 69 (1997). But a state law is

only preempted by the NVRA if it “directly conflict[s]” with the NVRA’s text.

Voting for America, Inc. v. Steen, 732 F.3d 382, 399 (5th Cir. 2013).

B. Appellees Offer no Answer to the Fact that the Relevant Text of the

NVRA Refers to Information Written on the Form, Not to

Documents Required Outside of the Form

One of the most important arguments presented by the Secretary is that the

wording of 52 U.S.C. § 20504(c)(2) plainly describes information that must be

written by the applicant on the voter registration form, not documentation that is

15

required by the State outside of the form. Principal Br. 23-26. Amazingly,

Appellees say nothing in response. Only the Secretary has offered a reading of the

disputed phrase (“minimum amount of information necessary”) that squares with

the surrounding text. As the Supreme Court has repeatedly emphasized, “[w]ords

that can have more than one meaning are given content, however, by their

surroundings.” Whitman v. American Trucking Assns. 531 U.S. 457, 466 (2001);

ITCA, 133 S.Ct. at 2254.

52 U.S.C. § 20504(c) only describes the “information” that is to be

physically written on the form by the applicant, and the “statement[s]” that the

State must put on the form. The phrase “minimum amount of information

necessary” is in the section describing what must be written by the applicant on the

face of the form. This is evident in the next clause, which discusses “information

required in the driver’s license portion of the form.” Id. at (c)(2)(A)(emphasis

added). The parenthetical at the end of the same sentence indicates that it concerns

information that the applicant must write in the form: “(other than a second

signature or other information necessary under subparagraph (C)).” Id. A

signature is written “in” the form. The other information described in subparagraph

(C) is information “in” the form, specifically a statement of eligibility requirements

and an attestation (with signature) that the applicant meets those requirements. Id.

at (c)(2)(C).

16

The NVRA simply does not address providing a document that is entirely

outside the information written in the spaces on the form, and that is exactly what

the Supreme Court concluded in Young v. Fordice, 520 U.S. 273, 286 (1997),

where it interpreted the same NVRA subsection.

C. Appellees Cannot Escape Young v. Fordice

As explained in the Secretary’s Principal Brief, one of the greatest

impediments to Appellees’ claim is that the Supreme Court already rejected the

notion that the NVRA prohibits a State from requiring additional documentation,

in addition to the information requested on the application form. Principal Br. 26-

27. Referring to the same DMV section of the NVRA, the Young Court stated:

The NVRA says, for example, that the state driver's license

applications must also serve as voter registration applications…. It

says that States cannot force drivers’ license applications to submit the

same information twice (on license applications and again on

registration forms). …Nonetheless, implementation of the NVRA is

not purely ministerial. The NVRA still leaves room for policy choice.

The NVRA does not list, for example, all the other information the State may—or may not—provide or request.

Young, 520 U.S. at 286 (emphasis added). Young is unambiguous: States are

permitted to request other documents or information, in addition to the

“minimum… necessary” information that the applicant writes on the form itself.

17

Realizing that this holding is fatal to their case, Appellees try to evade it in

two ways. They first attempt to distinguish Young by stating that it “was a Voting

Rights Act preclearance case.” Resp. 38. But that distinction is meaningless. In

the course of reviewing a preclearance decision, the Supreme Court was required

to opine on the NVRA’s meaning, because it was reviewing “changes that

[Mississippi] made to comply with the NVRA.” 520 U.S. at 279. The Court never

implied that the NVRA might mean something different in a different case.

Appellees’ second attempt to escape Young is even weaker. Appellees

emphasize the word “request” in Young’s statement, “‘other information that the

State may—or may not—provide or request.’” Resp. 38 (quoting Young, 520 U.S.

at 286)(Appellees’ emphasis). Appellees then claim that “request” means

something different than “require.” Resp. 38. Appellees appear to argue that

“request” is permissive in Young. This argument borders on the ridiculous, and

Appellees offer no support for it. The context of this sentence is clear: the Young

Court used a word that means the opposite of “provide.” Thus, “provide or

request” sounds better that “provide or require.” Moreover, the term “request”

indicates a mandatory requirement in the context of a State application. If a State

agency “requests” a document from an applicant, the agency will deem the

application incomplete if the document is not provided. The term “request” is

often mandatory in nature; just as a “request for production” is mandatory in the

18

litigation context, a “request” for a document is mandatory in the voter registration

context.6

In summary, the Supreme Court interpreted the meaning of 52 U.S.C. §

20504(c)(2) and concluded that States may continue to require documents or

information not specifically mentioned by the NVRA. Both the district court and

Appellees are unable to explain why Young’s holding does not control the instant

case.

D. Appellees’ Interpretation Raises Constitutional Doubt

Congressional Acts must not be construed in a manner that raises doubts as

to their constitutionality. Clark v. Martinez, 543 U.S. 371, 380-81 (2005); F.C.C.

v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). In the instant case, the

Secretary lengthily explained why the district court’s strained reading of the

NVRA creates two constitutional problems, thereby raising constitutional doubt.

6 “In any particular context… it is always possible that a ‘request’ is in fact

grounded on right or authority and is meant and is to be understood as the polite

equivalent of a command or a demand. Many a ‘request’ is made in the law where

a ‘demand’ could as easily be made....” Rice v. United States, 428 F.2d 1311, 1314

(Ct. Cl. 1970)(emphasis added). See also Foundry Networks v. Lucent Techs., Inc.,

2005 WL 6217420, at *3 (E.D. Tex. 2005)(“The court therefore construes

‘request(s)’ consistent with its ordinary meaning—‘a command, generated by a

requester, to initiate an action on a responder.’”).

19

Principal Br. 39-46. In response, Appellees attempt to brush this argument aside in

two conclusory paragraphs. Resp. 40-41.

1. The States’ Sole Authority to Set and Enforce Qualifications

The Supreme Court in ITCA made clear that the States retain sole authority

to set the qualifications for voters under Article I, Section 2, and the Seventeenth

Amendment of the United States Constitution. “Surely nothing in these provisions

lends itself to the view that voting qualifications in federal elections are to be set

by Congress. …Prescribing voting qualifications ... ‘forms no part of the power to

be conferred upon the national government’ by the Elections Clause.” ITCA, 133

S.Ct. at 2258 (internal quotations omitted)(quoting The Federalist No. 60, at 371

(Hamilton)). Importantly, the Supreme Court also held that the States possess the

authority to enforce voter qualifications: “Since the power to establish voting

requirements is of little value without the power to enforce those requirements,

Arizona is correct that it would raise serious constitutional doubts if a federal

statute precluded a State from obtaining the information necessary to enforce its

voter qualifications.” Id. at 2258–59 (emphasis added).

In response, Appellees merely say that citizenship is a voter qualification

and DPOC is simply “how a person proves that she is eligible.” Resp. 40.

Appellees response is inadequate for two reasons. First, in Kansas completing the

registration process itself is also a qualification. The Secretary explained this in

20

his Principal Brief, and Appellees offered no response. Principal Br. 20-22. In

Kansas, qualified electors are “persons who have the constitutional (Kan. Const.,

art. V, §§ 1, 4) qualifications of an elector and who are duly and properly

registered.” Dunn v. Board of Comm’rs of Morton County, 165 Kan. 314, 328

(1948)(emphasis added). One is not entitled to vote under Kansas law until one is

a qualified elector; and becoming a qualified elector entails not only being a United

States citizen, but also completing the registration process.

Second, even if Kansas law did not treat completion of the registration

process as a separate qualification, it would not matter, because ITCA held that

States also possess the sole constitutional authority “to enforce [their] voter

qualifications.” ITCA, 133 S.Ct. at 2259. Thus, it does not matter whether one

considers the DPOC registration requirement a qualification or a means of

enforcing the citizenship qualification. The ITCA Court stated that “it would raise

serious constitutional doubts if a federal statute precluded a State from obtaining

the information necessary to enforce its voter qualifications.” Id. at 2258-59.

The interpretation offered by the district court in the instant case

unquestionably raises constitutional doubt much greater than the interpretation of

the Federal Form section of the NVRA in ITCA. In ITCA, the Court was

“[h]appily… spared that necessity [of determining whether an alternative

interpretation of the NVRA was possible], since the statute provides another means

21

by which Arizona may obtain the information needed for enforcement.” Id. at

2259. Specifically, Arizona could “request anew that the EAC include such a

requirement among the Federal Form’s state-specific instructions….” Id. at 2260.

There is no such outlet in this case.7 Here the district court agreed with Appellees

and barred Kansas from setting and enforcing its voter qualifications. Kansas

cannot simply “request anew” permission to exercise its constitutional authority to

set and enforce voter qualifications. Constitutional doubt exists in spades.

2. Different Qualifications for Federal and State Elections

The second constitutional problem created by the district court’s decision is

that the qualifications for federal electors no longer match the qualifications for

state electors. This plainly conflicts with Article I, Section 2: “the Electors in each

State [for congressional elections] shall have the Qualifications requisite for

Electors of the most numerous Branch of the State Legislature.” U.S. Const.,

Article I, § 2, cl. 1. Completion of the registration process by providing DPOC is a

qualification for being an elector in Kansas legislative elections. K.S.A. § 25-

2309(l); Dunn., 165 Kan. at 327-328. The NVRA cannot be interpreted so that the

7 Appellees vainly rely on this Court’s EAC decision to escape the constitutional

doubt problem. Resp. 40 (quoting EAC, 772 F.3d at 1199). But that decision is

inapposite for the same reason. EAC concerned 52 U.S.C. § 20508, which

provided an outlet to avoid a construction that created constitutional doubt. §

20504 includes no such outlet.

22

qualifications for federal electors are different. But that is what the district court

has effectively done. Its holding, by its own terms, only applies to federal

elections because the NVRA only extends to federal elections. Meanwhile Kansas

law at K.S.A. § 25-2309(l) still governs state elections. So a bifurcated election is

necessary in order to obey the district court’s order while also obeying Kansas law.

Its construction of the NVRA has improperly raised grave constitutional doubts

when “‘a construction of the statute is fairly possible by which the [constitutional]

question may be avoided.’” ITCA, 133 S.Ct. at 2259 (citation omitted).

Appellees only offer two frail responses. First, they inexplicably declare

that this claim was not raised below. Resp. 41. On the contrary, the Secretary

lengthily explained it below. App. 517-519. Indeed, the district court specifically

mentioned the argument: “Secretary Kobach argues that Plaintiffs’ position is

unconstitutional because it would allow two sets of electors to exist, one for federal

and one for state elections, despite the Qualification Clause’s reference to one set

of electors.” App. 718.

Second, Appellees argue that “nothing compels Defendant Kobach to enact a

labyrinthine dual registration system….” Resp. 41. In other words, Appellees

suggest that the Secretary should unilaterally decline to follow K.S.A. § 25-2309(l)

and abandon the State’s statutory DPOC requirement with respect to state

elections. Not only would this violate Kansas law, it would upend the United

23

States Constitution. According to Appellees, once the qualifications for federal

electors are set (through an incorrect interpretation of a federal statute), the state

must yield its constitutional authority and modify the qualifications for its state

electors so they match the qualifications for federal electors. This inverts the

constitutional design of Article I, Section 2: “the Electors in each State [for

congressional elections] shall have the Qualifications requisite for Electors of the

most numerous Branch of the State Legislature.” U.S. Const., Article I, § 2, cl. 1.

It is preposterous to argue that Kansas can avoid constitutional doubt by

surrendering its constitutional authority to set the qualifications for state electors.

E. Appellees’ Interpretation of the Text is Unsustainable

Faced with statutory text that does not plainly prohibit States from requiring

DPOC, Appellees offer implausible theories that find no support in relevant case

law.

First, Appellees argue that Kansas may not require information outside of

the form because the NVRA “did not authorize states to divide the registration

process into multiple stages at which applicants must produce new information.”

Resp. 23. However, the Supreme Court has already rejected Appellees’ theory. If

the NVRA prohibited requiring DPOC after submission of a Federal Form, ITCA

would have so held. Instead, ITCA held the opposite—the Federal Form can

24

require DPOC if the EAC modifies the Form. 133 S.Ct. at 2260. Appellees’

argument ignores this core ITCA holding.

Moreover, States do not need federal “authoriz[ation]” to act. Appellees

misunderstand how the Elections Clause works. The States begin with the

“default” control of federal elections unless and until Congress chooses to “pre-

empt state legislative choices.” ITCA, 133 S.Ct. at 2253. No prior authorization is

necessary for States to “prescribe[]” the “times, places and manner” of federal

elections. U.S. Const. Art I, § 4, cl. 1. States are free to act as they wish until

Congress preempts with a plain statement in federal law that creates a “direct[]

conflict.” Steen, 732 F.3d at 399.

Appellees also argue that the NVRA mandates that an “attestation” is the

only information a State can request regarding citizenship, because the NVRA

requires an attestation to citizenship on DMV forms. Resp. 21-22. Thus they

theorize that anything beyond that is “additional proof” beyond the “minimum.”

Id. at 22. However, Appellees’ argument fails in light of ITCA.

The corresponding Federal Form section of the NVRA contains language

nearly identical to the motor voter section. Although Appellees hinge their entire

case on the word “minimum,” the equivalent language in the Federal Form

provision is equally restrictive. The Federal Form “may require only such

identifying information…as is necessary.” 52 U.S.C. § 20508(b)(1)(emphasis

25

added). Importantly, the Federal Form section also has an attestation requirement

that is worded identically to the DMV section. 52 U.S.C. § 20508(b)(2). Yet

ITCA held that DPOC could be required by the Federal Form. 133 S.Ct. at 2260.

And on January 29, 2016, the EAC added a DPOC requirement to the Federal

Form instructions for Kansas, Alabama, and Georgia. While Appellees complain

that the EAC action is being challenged, they forget that “a presumption of validity

attaches to the agency action[.]” EAC, 772 F.3d at 1197. And, a preliminary

injunction to that decision has already been rejected. Newby, 2016 WL 3636604.

Appellees also ignore the canon of construction that, where a statute

contains express prohibitions, a court must not also attempt to find implicit

prohibitions. Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341-

342 (2005). The NVRA clearly and plainly prohibits States from requiring (1)

notarization of forms, 52 U.S.C. § 20508(b)(3), and (2) information duplicated on

the driver’s license application form. 52 U.S.C. § 20504(c)(2)(A). Congress knew

how to expressly prohibit certain registration procedures in the NVRA; it is

impermissible for a court to invent additional prohibitions.

Finally, Appellees take the word “minimum” out of context. They claim

anything beyond mere attestation is “additional proof” beyond the “minimum.”

Resp. 22. Appellees’ simplistic argument ignores the remainder of the section.

“[M]inimum” does not appear in a vacuum. The phrase “minimum amount of

26

information necessary to—” is followed by three justifications for the requested

information: (1) to “prevent duplicate voter registrations,” (2) to “enable State

election officials to assess the eligibility of the applicant,” and (3) “to administer

voter registration and other parts of the election process.” 52 U.S.C. §

20504(c)(2)(B). Plaintiffs focus exclusively on the assessing-eligibility-of-the-

applicant justification, but pointedly ignore the other two. The duplication

prohibition explains why “minimum” was used in § 20504 but not in § 20508. The

Secretary explained at length how duplicate registrations can be reduced by

requiring any number of identifiers (race, birthplace, mother’s maiden name, etc.);

the NRVA directed States to use the “minimum” number of such identifiers.

Principal Br. 42. Appellees have no coherent answer to this reading. They only

oddly assert that this reading “plac[es] no limitations on what States may

require….” Resp. 42, n.19.8 But directing States to minimize the number of

identifiers is a meaningful use of “minimum,” and it fits within the larger goal of

creating a short DMV form that does not take long to complete.

F. Appellees’ Use of Legislative History is Misleading and is

Foreclosed by ITCA

8 Appellees also incorrectly claim that this argument was not made below. Resp.

42, n.19. The Secretary repeatedly offered the district court alternatives that gave

effect to the word minimum. App. 481, 506, 509-14, 1066-1261.

27

This Court need not and should not wade into the murky waters of

legislative history to resolve this case. Statutory text controls statutory

interpretation, not ill-defined legislative intent. Chamber of Commerce of U.S. v.

Whiting, 563 U.S. 582, 599 (2011)(citing Exxon Mobil Corp. v. Allapattah

Services, Inc., 545 U.S. 546, 568 (2005). And, as explained above, the Supreme

Court already ruled on the meaning of this specific NVRA text: “The NVRA still

leaves room for policy choice. The NVRA does not list, for example, all the other

information the State may—or may not—provide or request.” Young, 520 U.S. at

286. Nevertheless, because Appellees continue to use legislative history to defeat

the plain meaning of the legislative text, the Secretary will reply.

Appellees begin their argument once again by attempting to mislead this

Court. They take a quote from this Court’s opinion in EAC completely out of

context. Appellees state the following: “But this Court has already recognized

that ‘[b]oth houses of Congress debated and voted … and ultimately rejected … a

proposal’ to allow States to require DPOC from NVRA applicants. EAC, 772 F.3d

at 1195 n.7.” Resp. 24. The smoking ellipses tell the story. This Court was

talking “specific[ally]” about the Federal Form. The full quote from EAC is as

follows (the italicized words were omitted by Appellees): “Both houses of

Congress debated and voted on the specific question of whether to permit states to

require documentary proof of citizenship in connection with the Federal Form, and

28

ultimately rejected such a proposal.” EAC, 772 F.3d at 1195 n.7 (emphasis

added). As this Court correctly recognized in EAC, the Federal Form is an entirely

different method of registration—one controlled by a federal agency, not one left

entirely to the States, like State-created DMV registration forms and State-created

mail registration forms.

Appellees also misrepresent the proposal. It was a rule of construction

amendment offered by Senator Alan Simpson, not a provision that would “allow

States to require DPOC from NVRA applicants” as Appellees characterize it.

Specifically, it was described as a “rule of construction” that “nothing in this Act

shall prevent a State from requiring presentation of documentation relating to

citizenship of an applicant for voter registration.” H.R. Rep. No. 103-66, at 23

(1993)(Conf. Rep.). It was deemed “not necessary” by the conference committee.

Id. And Senate sponsor of the NVRA Wendell Ford, who also sat on the

conference committee, explained why it was not necessary: “I say there is nothing

in the bill now that would preclude the State’s requiring presentation of

documentary evidence of citizenship. I think basically this is redundant … there is

nothing in there now that would preclude it.” App. 0897.

The rejection of a rule of construction as being redundant and unnecessary is

completely different than what Appellees incorrectly describe as a proposal “to

allow States to require DPOC from NVRA applicants.” Resp. 24. The Simpson

29

rule of construction did not grant the States authority to do anything. The States

always had, and continue to have, the exclusive constitutional authority to

“enforce… voter qualifications,” including through the use of a DPOC

requirement. ITCA, 133 S.Ct. at 2259.

Revealingly, Appellees offer no response to the fact that the House and

Senate committees clearly intended that the States would be permitted to continue

verifying citizenship as they saw fit:

It should be made very clear to any applicant in a driver's license

bureau that the application for voter registration is an application

which must be reviewed by the appropriate election officials. Only

the election officials designated and authorized under State law are

charged with the responsibility to enroll eligible voters on the list of

voters. This bill should not be interpreted in any way to supplant that

authority. The Committee is particularly interested in ensuring that

election officials continue to make determinations as to applicant’s

eligibility, such as citizenship, as are made under current law and

practice. Applications should be sent to the appropriate election

official for the applicant’s address in accordance with the regulations

and laws of each State.

H.R. Rep. No. 103-9, 8 (1993)(emphasis added). “[D]eterminations as to an

applicant’s eligibility, such as citizenship” were to continue to be made “in

accordance with the regulations and laws of each State.” Id. This language cuts

directly against Appellees use of legislative history. On balance, the legislative

history supports the Secretary’s position.

But most importantly, the Supreme Court in ITCA has already rejected the

argument that Congress intended to prevent States from requiring DPOC. The

30

Supreme Court held that if Arizona accepted and used the Federal Form, it could

require DPOC if the EAC subsequently modified the Form’s Arizona-specific

instructions on the Federal Form. ITCA, 133 S.Ct. at 2260. Accordingly, ITCA

stated that, “Arizona may… request anew that the EAC include such a [DPOC]

requirement among the Federal Form’s state-specific instructions….” Id. If the

NVRA had been intended by Congress to bar States from requiring DPOC, the

Supreme Court would not have said that Arizona was free to request that DPOC be

added to the Federal Form. There is simply no logical way to reconcile Appellees’

reading of the legislative history with the Supreme Court’s decision in ITCA.

CONCLUSION

For the reasons stated above, the district court’s preliminary injunction

should be reversed.

Respectfully submitted this 28th day

of July, 2016.

/s/ Kris W. Kobach

KRIS W. KOBACH, Secretary of State, #17280

GARRETT R. ROE, #26867

Office of the Kansas Secretary of State

120 SW 10th Avenue,

Topeka, Kansas 66612

Tel. (785) 296-4575

Fax. (785) 368-8032

Attorneys for Appellant

31

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitations of Federal Rule

of Appellate Procedure 32(a)(7)(B), because it contains 6,920 words, excluding the

parts of the brief exempted by Federal Rule of Appellate Procedure

32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5), and the type style requirements of Federal Rule of

Appellate Procedure 32(a)(6), because it has been prepared in a proportionally

spaced typeface using Word 2010 in 14-point Times New Roman font.

Date: July 28, 2016 s/ GARRETT ROE

Garrett Roe

Attorney for Kansas Secretary of State

32

CERTIFICATE OF DIGITAL SUBMISSION

I certify that the electronic version of the foregoing REPLY BRIEF OF

APPELLANT KANSAS SECRETARY OF STATE, prepared for submission via

ECF, complies with all required privacy redactions per Tenth Circuit Rule 25.5, is

an exact copy of the paper copies submitted to the Tenth Circuit Court of Appeals,

and has been scanned with the most recent version of Symantec Endpoint

Protection, Version 12.1.5., last updated on July 28, 2016, and, according to the

program, is virus-free.

s/ GARRETT ROE

Garrett Roe

Attorney for Kansas Secretary of State

33

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that, on the 28th day of July, 2016, I

electronically filed the foregoing REPLY BRIEF OF APPELLANT KANSAS

SECRETARY OF STATE with the Clerk of the Court for the United States Court

of Appeals for the Tenth Circuit by using the CM/ECF system. I certify that all

participants in this case are registered CM/ECF users and that service will be

accomplished by the appellate CM/ECF system.

In addition, I certify that I will cause to be served seven paper copies of the

same by Federal Express so that it arrives to the Court within two business days

and one paper copy to the following counsel of record via Federal Express:

Dale Ho

American Civil Liberties Union, Voting Rights Project

125 Broad St, 18th Floor

New York, NY 10004

s/ GARRETT ROE

Garrett Roe

Attorney for Kansas Secretary of State