Fish v. Kobach
189 F. Supp. 3d 1107
D. Kan.2016Background
- Plaintiffs (individuals and League of Women Voters of Kansas) challenge Kansas’s documentary proof of citizenship (DPOC) requirement (K.S.A. §25-2309(l)) and a cancellation regulation (K.A.R. §7-23-15) as preempted by the National Voter Registration Act (NVRA) and as violating constitutional provisions; they seek a preliminary injunction.
- NVRA §5 requires motor‑voter (DMV) applications to serve as federal voter registration forms and allows the State to require “only the minimum amount of information necessary” to assess eligibility, including citizenship.
- Kansas’s SAFE Act (2011) requires applicants to submit one of 13 specified documents to prove U.S. citizenship to complete registration; if applicants fail to provide DPOC within 90 days, K.A.R. §7-23-15 permits cancelling the application.
- In practice, DMV renewal applicants are not routinely asked to provide DPOC; many motor-voter applicants were placed in “incomplete”/“cancelled” status and not registered (approximately 12,717 motor-voter cancellations; ~5,655 incomplete as of the record).
- Plaintiffs presented evidence of individual disenfranchisement (several named plaintiffs who believed they had registered at DMV but later were found not registered) and expert evidence that noncitizen registration in Kansas historically was rare.
- The district court held an evidentiary hearing and, applying the heightened preliminary injunction standard, granted a partial injunction: enjoining enforcement of K.S.A. §25-2309(l) as applied to motor-voter applicants and ordering the Secretary of State to register otherwise-eligible motor-voter applicants cancelled or in suspense solely for lack of DPOC; denied injunction as to K.A.R. §7-23-15.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NVRA §5 preempts Kansas’s DPOC requirement for motor-voter applications (i.e., whether the State may require more than the “minimum” information to assess citizenship) | SAFE Act’s DPOC exceeds §5’s “minimum” requirement; attestation under penalty of perjury is sufficient and less burdensome | State contends §5 allows reasonable information necessary to verify citizenship; DPOC needed to prevent noncitizen voting and is within state authority | Court: Plaintiffs likely to succeed; DPOC (as enforced) conflicts with §5 and is preempted for federal registrations — injunction granted as to K.S.A. §25-2309(l) for motor-voter applicants |
| Whether Kansas may require duplicate documentation on DMV and voter portions of motor application (duplication prohibition in §5(c)(2)(A)) | Duplication occurs when applicants must submit DPOC at DMV and again to county officials; statute explicitly authorizes duplicative info | State says duplication is not systematic for initial-license applicants; any duplication is error rather than policy | Court: Did not find plaintiffs made a strong showing on duplication claim; factual disputes exist; not enough to grant relief on this theory |
| Whether K.A.R. §7-23-15 (cancellation after 90 days) violates NVRA §8 by removing registrants from rolls | Cancellation removes otherwise eligible applicants from rolls in violation of §8’s limited removal grounds | State says incomplete applicants are not yet registrants and cancellation does not remove registrants from official lists; cancellation simply requires reapplication | Court: Denied injunction against the regulation; plaintiffs did not show strong likelihood of success on §8 claim, though court ordered registration of applicants cancelled or suspended solely for lack of DPOC |
| Whether plaintiffs and parties have jurisdictional standing / Eleventh Amendment issues (Ex parte Young) | Plaintiffs allege ongoing, redressable injury (denial of registration/disenfranchisement); relief prospective and appropriate under Ex parte Young | Defendants argue some officials (e.g., Secretary of Revenue) lack enforcement connection and therefore are immune or relief is not redressable | Court: Ex parte Young applies; plaintiffs have standing and relief is redressable against state officials involved in motor-voter process |
Key Cases Cited
- Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013) (Supreme Court held federal NVRA form preempts state laws requiring documentary proof for federal mail registration; explained interaction of Elections Clause and Qualifications Clause)
- Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183 (10th Cir. 2014) (Tenth Circuit addressed EAC’s discretion to deny state-specific additions to the federal form and the availability of alternate enforcement means)
- Young v. Fordice, 520 U.S. 273 (1997) (Supreme Court recognized NVRA imposes mandates but left some room for state policy choice in implementing motor‑voter)
- Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) (Supreme Court evaluated burdens of voter ID laws and weight of curative measures in balancing burdens on voting)
- Ex parte Young, 209 U.S. 123 (1908) (establishes narrow exception to Eleventh Amendment for prospective injunctive relief against state officials)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (Supreme Court articulates preliminary injunction standard requiring likelihood of success and balance of harms)