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Fish v. Kobach

United States Court of Appeals, Tenth Circuit

October 19, 2016


         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:16-CV-02105-JAR-JPO)

          Dale Ho (Rodkangyil Orion Danjuma and Sophia Lin Lakin, American Civil Liberties Union Foundation, Inc., New York, New York; Stephen Douglas Bonney, ACLU of Kansas and Western Missouri, Overland Park, Kansas; Neil A. Steiner and Rebecca Kahan Waldman, Dechert LLP, New York, New York; Angela M. Liu, Dechert LLP, Chicago, Illinois, with him on the briefs), American Civil Liberties Union, New York, New York for Plaintiffs-Appellees.

          Kris W. Kobach, Secretary of State of Kansas (Garrett R. Roe, Kansas Secretary of State's Office, Topeka, Kansas, with him on the brief), Kansas Secretary of State's Office, Topeka, Kansas, for Defendant-Appellant.

          Herbert W. Titus of William J. Olson, P.C. (William J. Olson, Jeremiah L. Morgan, John S. Miles, and Robert J. Olson, William J. Olson, P.C., Vienna, Virginia; Marc A. Powell, Powell Law Office, Wichita, Kansas; Michael Connelly, U.S. Justice Foundation, Ramona, California, with him on the brief), filed an amicus curiae brief for the English First Foundation, English First, the U.S. Justice Foundation, Public Advocate of the United States, the Gun Owners Foundation, the Gun Owners of America, the Conservative Legal Defense and Education Fund, the U.S. Border Control Foundation, and the Policy Analysis Center, in support of Defendant-Appellant.

          Debo P. Adegbile of Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York (Jason D. Hirsch, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Joshua M. Koppel, Tyeesha Dixon, and Derek A. Woodman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, District of Columbia, with him on the brief), filed an amicus curiae brief for Common Cause in support of Plaintiffs-Appellees.

          Before BRISCOE, HOLMES, and McHUGH Circuit Judges.

          HOLMES, Circuit Judge.


         In this case, we must resolve whether section 5 of the National Voter Registration Act (the "NVRA"), 52 U.S.C. § 20504, preempts a Kansas law requiring documentary proof of citizenship ("DPOC") for voter registration, Kan. Stat. Ann. § 25-2309(l), as applied to the federally mandated voter-registration form that must be a part of any application to obtain or renew a driver's license (the "motor voter" process).[1] Section 5 of the NVRA mandates that states include a voter-registration form as part of the application for a driver's license, and provides that this voter-registration form "may require only the minimum amount of information necessary to"[2] prevent duplicate registrations and to "enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process."[3] 52 U.S.C. § 20504(c)(2)(B). Section 5 further mandates that motor voter forms include the following: a statement of the criteria for eligibility, "including citizenship"; an attestation that the applicant meets those criteria; and the applicant's signature "under penalty of perjury." § 20504(c)(2)(C).[4]

         Granting a motion for a preliminary injunction against enforcement of Kansas's DPOC requirements, the U.S. District Court for the District of Kansas held that the Plaintiffs-Appellees had made a strong showing that Kansas's DPOC law was preempted by NVRA section 5, insofar as DPOC was more than the "minimum amount of information necessary" to achieve the purposes set forth by the statute. Defendant-Appellant Kansas Secretary of State Kris Kobach appeals from the district court's entry of the preliminary injunction, which required him to register to vote any applicants previously unable to produce DPOC and to cease enforcement of Kansas's DPOC requirement with respect to individuals who apply to register to vote at the Kansas Department of Motor Vehicles ("DMV") through the motor voter process.

         Exercising jurisdiction pursuant to 28 U.S.C. § 1292, [5] we hold that the district court did not abuse its discretion in granting the preliminary injunction because the NVRA preempts Kansas's DPOC law as enforced against those applying to vote while obtaining or renewing a driver's license. Specifically, section 5 of the NVRA provides, as most relevant here, that the state motor voter form "may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process." 52 U.S.C. § 20504(c)(2)(B)(ii). Section 5 also requires motor voter forms to include a signed attestation under penalty of perjury that the applicant meets the state's eligibility criteria, including citizenship. § 20504(c)(2)(C). We hold that this attestation under penalty of perjury is the presumptive minimum amount of information necessary for state election officials to carry out their eligibility-assessment and registration duties. As it pertains to the citizenship requirement, the presumption ordinarily can be rebutted (i.e., overcome) only by a factual showing that substantial numbers of noncitizens have successfully registered to vote under the NVRA's attestation requirement. Having determined that Secretary Kobach has failed to make this showing, we conclude that the DPOC required by Kansas law is more than the minimum amount of information necessary and, therefore, is preempted by the NVRA. We affirm the grant of a preliminary injunction.

         I. BACKGROUND

         A. Kansas's DPOC Requirement and Prior Litigation

         Unremarkably, in Kansas, only citizens may vote in state and federal elections. Kan. Const. art. V, § 1. The Kansas Constitution also requires the legislature to "provide by law for proper proofs of the right to suffrage." Id. art. V, § 4. Kansas adopted its DPOC requirement for voter registration on April 18, 2011. Secure and Fair Elections ("SAFE") Act, ch. 56, § 8(l), 2011 Kan. Sess. Laws 795, 806, 809-11 (codified at Kan. Stat. Ann. § 25-2309(l)). The requirement took effect January 1, 2013. Id. at § 8(u), 2011 Kan. Sess. Laws at 812. The SAFE Act requires that

(1) The county election officer or secretary of state's office shall accept any completed application for registration, but an applicant shall not be registered until the applicant has provided satisfactory evidence of United States citizenship. Evidence of United States citizenship as required in this section will be satisfied by presenting one of the documents listed . . . in person at the time of filing the application for registration or by including a photocopy of one of the following documents with a mailed registration application. After a person has submitted satisfactory evidence of citizenship, the county election officer shall indicate this information in the person's permanent voter file.

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

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

         We believe that it will provide useful context for our subsequent discussion of the procedural history of the present case for us to briefly refer to Kansas's prior litigation before our court involving the DPOC issue. Some groundwork must be laid first, however. In 2013, an Arizona DPOC requirement was challenged as running afoul of sections 6 and 9 of the NVRA. Arizona v. Inter Tribal Council of Ariz., Inc. (Inter Tribal), ___ U.S. ___, 133 S.Ct. 2247, 2252-53 (2013). Section 9 provides for a universal mail-in form for voter registration for federal elections (the "Federal Form") and entrusts the creation and administration of that form to the Election Assistance Commission (the "EAC") in consultation with the chief election officers of the states. See 52 U.S.C. § 20508(a). Section 6 provides that "[e]ach State shall accept and use the mail voter registration application form prescribed by . . . Section 20508(a)(2)." § 20505(a)(1). The case came before the U.S. Supreme Court, which was faced with the question of whether the federal statutory requirement that states "accept and use" the Federal Form preempted Arizona's law requiring officials to reject Federal Form applications unaccompanied by DPOC. See Inter Tribal, 133 S.Ct. at 2253. The Court held that the NVRA did require Arizona to accept Federal Forms unaccompanied by DPOC but also stated that Arizona could petition the EAC to add a state-specific instruction requiring DPOC and, in the case of its refusal to add it, the state could obtain judicial review of the EAC decision. Id. at 2259-60. The court further held that to raise a constitutional doubt under the Qualifications Clause (i.e., U.S. Const. art. I, § 2, cl. 1), the state would have had to show that the law precluded it "from obtaining information necessary for enforcement" of the state's voter qualifications. Id. at 2259.

         Ken Bennet, then Secretary of State of Arizona, together with Secretary Kobach, subsequently requested that the EAC add state-specific instructions for Arizona and Kansas requiring DPOC. Rebuffed by the EAC, they filed suit in the District of Kansas attempting to force the EAC to grant their request to add Arizona- and Kansas-specific DPOC instructions to the Federal Form or to obtain a judgment that the NVRA was unconstitutional as applied. Kobach v. U.S. Election Assistance Comm'n (EAC), 772 F.3d 1183, 1187-88 (10th Cir. 2014). They prevailed in district court, but we reversed on appeal. Specifically, we rejected their challenge and held that the EAC's refusal was in accordance with the NVRA and the Administrative Procedure Act and that no Qualifications Clause issue had been raised. See id. at 1199. Now we proceed to the procedural circumstances of this case.

         B. Procedural Background

         Steven Wayne Fish, Donna Bucci, Charles Stricker, Thomas J. Boynton, and Douglas Hutchinson (together with the League of Women Voters of Kansas, [6] the "Plaintiffs-Appellees") filed their initial complaint in the U.S. District Court for the District of Kansas on February 18, 2016. The individual Plaintiffs-Appellees are U.S. citizens eligible to vote who claim that they have been prevented from registering to vote by Kansas's DPOC requirement. Bringing suit under the private right of action established by the NVRA, 52 U.S.C. § 20510(b), and 42 U.S.C. § 1983, Plaintiffs-Appellees allege that Kansas's DPOC requirement and the 90-day regulation are preempted by the NVRA and are unconstitutional under both the Elections Clause (i.e., U.S. Const. art. I, § 4, cl. 1) and the Privileges and Immunities Clause (i.e., U.S. Const. art. IV, §2, cl. 1). After Plaintiffs-Appellees filed their motion for a preliminary injunction on February 25, 2016, limited and expedited discovery ensued. In response to the preliminary injunction motion, Secretary Kobach argued that the NVRA did not speak to or preempt state DPOC requirements and, to so interpret the statute, would raise a doubt as to whether the NVRA was constitutional because it would bring the statute into conflict with the states' power under the Qualifications Clause. The district court disagreed, issuing a memorandum and order on May 17.

         The order granted in part and denied in part the Plaintiffs-Appellees' motion for a preliminary injunction. The court denied the motion as to enjoining enforcement of the 90-day regulation, holding that the Plaintiffs-Appellees were unlikely to prevail on their claim that the regulation was preempted by Section 8 of the NVRA. But the court granted the motion to enjoin Kansas from enforcing the DPOC requirement and further enjoined Secretary Kobach to register each person whose application had been suspended or cancelled for failure to provide DPOC.[7] The court did so on the grounds that the minimum-information principle of NVRA section 5 preempted Kansas's DPOC requirements and, in that regard, Secretary Kobach had failed to show that the statute's attestation requirement did not meet this statutory principle or to raise a constitutional doubt under the Qualifications Clause.

         To reach this conclusion, the court first interpreted the term "minimum" in NVRA section 5 to bear its plain meaning. Accordingly, under the minimum-information principle, a "State may require only the least possible amount of information necessary to enable State election officials to assess whether the applicant is a United States Citizen." Fish v. Kobach, ___ F.Supp.3d ___, 2016 WL 2866195, at *16 (D. Kan. 2016). Next the court determined that DPOC was quite burdensome whereas attestation was less burdensome and had successfully prevented all but a very few noncitizens from registering to vote. DPOC was therefore adjudged to be greater than the least amount of information necessary and preempted by the NVRA, while attestation met the statutory minimum-information principle. Lastly, the court rejected Secretary Kobach's Qualifications Clause challenge to preemption under the NVRA. Guided by Inter Tribal and EAC, the court held that, because Kansas had failed to show that the statutory attestation requirement resulted in a "significant number of noncitizens voting, " the NVRA's preemption of Kansas's DPOC requirement did not preclude the state from enforcing its citizenship qualification in contravention of the Qualification Clause. Id. at *23.

         After the court issued its preliminary injunction, Secretary Kobach timely appealed, arguing that the district court erred in its interpretation of the NVRA, that the Plaintiffs-Appellees had failed to meet the irreparable-harm standard, and that the balance of harms was improperly weighed.[8]

         C. Statutory Background: The National Voter Registration Act

         1. General Purposes and Structure

         Acting pursuant to the Elections Clause, [9] Congress crafted and passed the NVRA against a backdrop of lackluster voter registration and political participation. Congress found 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, including racial minorities." 52 U.S.C. § 20501(a)(3). In crafting the NVRA, Congress had four overriding purposes:

(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
(2) to make it possible for Federal, State, and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;
(3) to protect the integrity of the electoral process; and
(4) to ensure that accurate and current voter registration rolls are maintained.

§ 20501(b).

         To achieve these purposes, the NVRA creates three federally mandated voter-registration mechanisms, two of which are implemented almost entirely by the states. Section 4 provides the basic outlines of the statute's requirements:

[N]otwithstanding any other Federal or State law, in addition to any other method of voter registration provided for under State law, each State shall establish procedures to register to vote in elections for Federal office-
(1) by application made simultaneously with an application for a motor vehicle driver's license pursuant to section 20504 of this title;
(2) by mail application pursuant to section 20505 of this title;
(3) by application in person-
. . . .
(B) at a Federal, State, or nongovernmental office designated under section 20506 of this title.

§ 20503(a). Together, these mechanisms ensure that, whatever else the states do, simple means are available to register for federal elections and those means are actively presented to voters by the states. The NVRA thus mandates both the means by which registration is achieved and where and how those means will be presented to potential voters.

         The NVRA sets requirements for the contents of both the Federal Form and any state forms used in the motor voter or agency registration processes. The contents of the mail-in Federal Form of sections 6 and 9 (the subject of both Inter Tribal and EAC) are prescribed partly by statute, § 20508(b), and otherwise entrusted to the administrative judgment of the EAC, a federal agency. See § 20508(a); EAC, 772 F.3d at 1195-96. While states are permitted to create their own mail-in forms, § 20505(a)(2), they must nevertheless accept and use the Federal Form, see § 20505(a)(1)-(2); Inter Tribal, 133 S.Ct. at 2247. Similarly, in the context of Section 7's agency provisions, state agencies must either distribute the Federal Form or use "the office's own form if it is equivalent to the form described in section 20508(a)(2), " i.e. the Federal Form.

         § 20506(a)(6)(A)(i)-(ii).

         By contrast, section 5's motor voter provisions require states to develop a form for use in tandem with applications to obtain or renew a driver's license. See § 20504(c). But the NVRA does not give states a free hand to determine the contents of their motor voter forms. The statute sets out requirements for the contents of state motor voter forms in terms that largely mirror the requirements for the Federal Form-but that also differ in important ways. Compare § 20504(c)(2) (motor voter form requirements), with § 20508(b) (Federal Form requirements).

         In addition to mandating and regulating the means of voter registration, the NVRA requires that states actively present voters with those means. Alongside the motor voter regime, section 7's agency provisions require state public assistance agencies and other offices designated by the state (as well as armed forces recruitment offices) to distribute with their applications for services either the Federal Form or an "equivalent" state form and to accept completed forms for transmittal to state election officials. § 20506(a)(1)-(4), (6); see also § 20506(c) (military recruitment office provision). Congress intended with this provision to reach potential voters who would otherwise not be reached by the motor voter program. See H.R. Rep. No. 103-66, at 19 (1993) (Conf. Rep.) ("If a State does not include either public assistance, agencies serving persons with disabilities, or unemployment compensation offices in its agency program, it will exclude a segment of its population from those for whom registration will be convenient and readily available-the poor and persons with disabilities who do not have driver's licenses and will not come into contact with the other principle [sic] place to register under this Act. . . . The only way to assure that no State can create an agency registration program that discriminates against a distinct portion of its population is to require that the agencies designated in each State include an agency that has regular contact with those who do not have driver's licenses."), as reprinted in 1993 U.S.C.C.A.N. 140, 144.

         The motor voter provision assures that all persons who drive will sooner or later be presented with an opportunity to register to vote:

Each State motor vehicle driver's license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application.

§ 20504(a)(1). Once a valid motor voter registration form is submitted to a state, the state is required to ensure registration so long as the form is submitted within the lesser of thirty days before the election date or the period provided by state law. See § 20507(a)(1)(A). Indeed, section 8 requires that whenever any "valid voter registration form" mandated by the statute is submitted, the state must ensure registration to vote in an election so long as the form was submitted within the requisite time period. § 20507(a)(1)(A)-(C). In other words, when an eligible voter avails herself of one of the mandated means of registration and submits to the state a valid form, ordinarily the state must register that person. See Inter Tribal, 133 S.Ct. at 2255.

         2. The Motor Voter Provisions

         In the present case, only the motor voter provisions are at issue-specifically, the requirements for the contents of motor voter forms. Subsection (c) of section 5 both sets out specific requirements for the motor voter form and establishes an overarching principle that restrains the discretion of states to require additional information in carrying out their eligibility-assessment and registration duties. The relevant statutory language reads:

(2) The voter registration application portion of an application for a State motor vehicle driver's license-
(A) may not require any information that duplicates information required in the driver's license portion of the form (other than a second signature or other information necessary under subparagraph (C));
(B) may require only the minimum amount of information necessary to-
(i) prevent duplicate voter registrations; and
(ii) enable state election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process;
(C) shall include a statement that-
(i) states each eligibility requirement (including citizenship);
(ii) contains an attestation that the applicant meets each such requirement; and
(iii) requires the signature of the applicant, under penalty of perjury[.]

§ 20504(c)(2)(A)-(C) (emphasis added). Thus, under subparagraph (A), no duplicate information may be required, § 20504(c)(2)(A); under subparagraph (B), while states may require more than what is expressly required by the NVRA, such discretion is restricted by the principle that the states not require more than "the minimum amount of information necessary to" prevent duplicate registrations and to carry out their eligibility-assessment and registration duties, § 20504(c)(2)(B); and under subparagraph (C) the application must include a list of eligibility requirements, "including citizenship, " and a signed attestation under penalty of perjury that the applicant meets those requirements, § 20504(c)(2)(C).


         After stating our standard of review, we begin by recalling the elements of the preliminary injunction standard. We then discuss each prong of the preliminary injunction standard, beginning with the likelihood of success on the merits. In determining whether the district court erred in holding that the Plaintiffs-Appellees were likely to succeed on the merits, we consider first the nature of Congress's power under the Elections Clause and Congress's role in regulating elections vis-à-vis the states. We next consider preemption questions and the nature of statutory interpretation under the Elections Clause. Under the Elections Clause, we apply ordinary tools of statutory interpretation and any conflicting state provision is preempted.

         Third, we interpret the meaning of the NVRA's requirements for state motor voter forms and hold that the NVRA attestation requirement presumptively meets the minimum-information principle; it therefore preempts Kansas's DPOC requirement absent a factual showing that the attestation requirement is insufficient on these facts to satisfy that principle. Next we examine whether Secretary Kobach has succeeded in showing that attestation is insufficient under the statutory minimum-information principle and hold that he has not. Last, we turn to Secretary Kobach's Qualifications Clause arguments and the remaining prongs of the preliminary injunction standard.

         A. Standard of Review

         On appeal, we review a district court's decision to grant a preliminary injunction for abuse of discretion. See, e.g., Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). An abuse of discretion occurs where a decision is premised "on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling." Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) (quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1223-24 (10th Cir. 2008)). Thus, we review the district court's factual findings for clear error and its conclusions of law de novo. Heideman, 348 F.3d at 1188.

         B. Preliminary Injunction Standard

         Four factors must be shown by the movant to obtain a preliminary injunction: (1) the movant "is substantially likely to succeed on the merits; (2) [the movant] will suffer irreparable injury if the injunction is denied; (3) [the movant's] threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest." Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009).

         Additionally, some preliminary injunctions are disfavored and require a stronger showing by the movant-viz., movants must satisfy a heightened standard. They are "(1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits." Awad, 670 F.3d at 1125 (quoting Summum v. Pleasant Grove City, 483 F.3d 1044, 1048-49 (10th Cir. 2007), rev'd on other grounds, 555 U.S. 460 (2009)). In seeking such an injunction, the movant must "make[] a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms." Beltronics, 562 F.3d at 1071 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004) (en banc)). The parties dispute whether the injunction requested here falls under one or more of these categories. The district court did not reach the question because it held that the Plaintiffs-Appellees had made a sufficiently strong showing to meet the heightened standard. Similarly, we decline to reach the question of whether the heightened standard for disfavored preliminary injunctions applies and hold that, even assuming arguendo that the heightened standard applies, the Plaintiffs-Appellees meet that standard.

         C. Likelihood of Success on the Merits

         We first examine the text of the Elections Clause and the Supreme Court's jurisprudence concerning statutory interpretation and preemption under that clause. We next interpret the NVRA's requirements for the contents of state motor voter forms and apply that interpretation to the facts as found by the district court. Last, we address Secretary Kobach's arguments regarding constitutional doubt under the Qualifications Clause.

         1. The Elections Clause

         The Elections Clause states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

U.S. Const. art. I, § 4, cl. 1. The plain text of the clause requires the states to provide for the regulation of congressional elections. See Inter Tribal, 133 S.Ct. at 2253; Foster v.Love, 522 U.S. 67, 69 (1997). The text makes equally clear, however, that Congress can step in, either making its own regulations that wholly displace state regulations or else modifying existing state regulations. See Inter Tribal, 133 S.Ct. at 2253 ("The Clause empowers Congress to ...

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