Fish v. Kobach
2016 U.S. App. LEXIS 18784
| 10th Cir. | 2016Background
- Kansas enacted a documentary proof of citizenship (DPOC) requirement for voter registration in 2011 (effective Jan. 1, 2013) requiring applicants to provide specified documents or pursue a hearing under a fallback procedure.
- Plaintiffs (five individual Kansans and the League of Women Voters of Kansas) sued under the NVRA and § 1983, seeking a preliminary injunction barring enforcement of DPOC for registrations submitted through the motor-voter (DMV) process.
- The district court granted a preliminary injunction, finding Kansas’s DPOC conflicted with NVRA §5’s “minimum amount of information necessary” rule and that plaintiffs showed likelihood of success, irreparable harm, and favorability of equities.
- The State (Secretary Kobach) appealed, arguing the NVRA does not preempt DPOC, that states determine what information is “necessary,” that the NVRA’s motor-voter limits apply only to the form itself (not collateral documentary requirements), and that plaintiffs’ harms were self-inflicted or delayed.
- The Tenth Circuit affirmed: it held the NVRA’s attestation (signed under penalty of perjury) is the presumptive minimum information for motor-voter registrations and Kansas failed to show a substantial number of noncitizens registered under attestation to rebut that presumption; the court upheld the injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NVRA §5 preempts Kansas’s DPOC for motor-voter registrations | Fish: §5’s minimum-information principle preempts state DPOC as applied to motor-voter forms; attestation suffices | Kobach: §5 doesn’t preempt; states may require additional evidence (what’s “necessary” is state-determined) | Held: §5 preempts Kansas’s DPOC as applied to motor-voter registrations unless the state rebuts the presumption that attestation is sufficient; Kansas failed to rebut |
| Proper interpretation of the NVRA’s motor-voter content rules | Plaintiffs: attestation under penalty of perjury is presumptively the minimum information necessary | Kobach: “minimum necessary” equals state discretion; states can require DPOC off-form | Held: attestation is the presumptive minimum; states may rebut only with evidence that a substantial number of noncitizens registered under attestation |
| Whether the plain-statement/presumption-against-preemption rule applies | Plaintiffs: Elections Clause context controls; no heightened clear-statement requirement | Kobach: Congress must clearly state preemption of DPOC | Held: plain-statement/presumption rules tied to Supremacy-Clause doctrine do not apply under the Elections Clause; NVRA’s plain terms govern |
| Irreparable harm and equitable balance for preliminary injunction | Plaintiffs: thousands of Kansans faced disenfranchisement; voting is a fundamental right warranting injunction | Kobach: plaintiffs delayed and could have complied with DPOC (self-inflicted); state faces administrative burden and risk of noncitizen voting | Held: district court did not abuse discretion—irreparable harm established (imminent disenfranchisement of ~18,000), equities and public interest favor injunction |
Key Cases Cited
- Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (U.S. 2013) (NVRA Federal Form preemption analysis; states may seek EAC or judicial relief for state-specific DPOC)
- Ex parte Siebold, 100 U.S. 371 (U.S. 1879) (Elections Clause permits federal partial regulation that supersedes conflicting state law)
- Foster v. Love, 522 U.S. 67 (U.S. 1997) (plain-reading conflict between state and federal election timing statutes warrants preemption)
- Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183 (10th Cir. 2014) (Tenth Circuit rejecting challenge to EAC’s refusal to add state-specific DPOC to Federal Form)
- M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (U.S. 1819) (interpretation of the word “necessary” may be qualified by context)