Fish v. Schwab, 957 F.3d 1105

Background

Kansas’s SAFE Act (effective Jan. 1, 2013) required “documentary proof of citizenship” (DPOC) to complete voter registration; statute lists acceptable documents (birth certificate, passport, etc.) and provides an administrative hearing alternative.
Secretary Kobach adopted a regulation treating motor-voter and mailed applications without DPOC as “incomplete” and allowing 90 days to cure; otherwise applications were suspended or cancelled.
At trial the district court found ~31,089 applicant registrations suspended or cancelled for lack of DPOC (≈12% of new registrations during 2013–2015) and that only ~39 noncitizens had been found on the rolls over ~19 years.
The district court enjoined enforcement of the DPOC requirement on Equal Protection (Anderson–Burdick) and NVRA §5 grounds; the Secretary appealed (consolidated as Bednasek v. Schwab and Fish v. Schwab).
The Tenth Circuit affirmed: (1) DPOC unconstitutionally burdens the right to vote under Anderson–Burdick given the scale of disenfranchisement and the absence of evidence that DPOC was necessary; and (2) NVRA §5 preempts Kansas’s DPOC for motor-voter registrants because Kansas failed to show a substantial number of noncitizen registrations despite the attestation regime.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DPOC violates Equal Protection (Anderson–Burdick)	DPOC imposes a significant burden (≈31,089 disenfranchised) and is not justified by evidence of noncitizen registration or other specific harms	DPOC serves legitimate interests: prevent noncitizen voting, ensure accurate rolls, and preserve public confidence; burden is limited and administratively necessary	Court: Unconstitutional — burden is substantial; State presented no concrete evidence that these interests required DPOC; heightened scrutiny applies and State’s justifications fail
Whether NVRA §5 (motor-voter) preempts Kansas’s DPOC	NVRA’s attestation requirement is the presumptive federal minimum; Kansas cannot require more unless it shows a substantial number of noncitizens registered despite attestation	Kansas contends it may require DPOC to prevent unqualified registrations and that state discretion should govern necessity	Court: Preempted as to motor-voter applicants — under Fish I framework, Kansas failed to show substantial numbers of noncitizen registrations, so DPOC exceeds NVRA’s minimum-information ceiling
Standing of Bednasek (student plaintiff)	Bednasek was a Kansas resident who was denied registration by enforcement of DPOC; injury is concrete and redressable	Secretary argued Bednasek was not actually a Kansas resident and his failure to provide DPOC was self-inflicted	Court: Standing established — district court’s residency finding not clearly erroneous; injury traceable to enforcement and redressable

Key Cases Cited

Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) (Fish I: established NVRA §5 preemption framework and attestation presumption)
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) (Anderson–Burdick balancing applied to voter-ID; controlling plurality frames burden/interest analysis)
Anderson v. Celebrezze, 460 U.S. 780 (1983) (articulated balancing test for election regulations)
Burdick v. Takushi, 504 U.S. 428 (1992) (endorsed flexible balancing approach for voting restrictions)
Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183 (10th Cir. 2014) (discussed noncitizen-registration evidence standard related to attestation)
Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013) (Elections Clause and federal regulation of registration forms)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements: injury, causation, redressability)