Kobach v. United States Election Assistance Commission
2014 U.S. App. LEXIS 22400
| 10th Cir. | 2014Background
- Arizona (Proposition 200) and Kansas required documentary proof of citizenship for voter registration and asked the Election Assistance Commission (EAC) to add that requirement to the federal voter registration form (Federal Form).
- After the Supreme Court in Arizona v. Inter Tribal Council (ITCA) held the NVRA precludes states from adding requirements to the Federal Form but invited states to request the EAC to alter the Form and seek APA review, Arizona and Kansas renewed requests to the EAC.
- The EAC commissioners had no quorum when the Executive Director, acting under a 2008 subdelegation policy, issued a final memorandum denying the requests; Kobach and Bennett sued claiming the EAC had a nondiscretionary duty to approve the changes and that the NVRA was unconstitutional as applied.
- The district court ordered the EAC to add the language; the Tenth Circuit stayed that order and heard the EAC’s appeal.
- The Tenth Circuit treated the Executive Director’s denial as final agency action (given the lack of quorum and an authorized subdelegation), held it procedurally valid, and reviewed the denial under the APA’s arbitrary-and-capricious standard.
- Applying ITCA and APA review, the court concluded the states failed to prove excluding the documentary-proof language precluded enforcement of voter qualifications; it reversed the district court and remanded with instructions to vacate.
Issues
| Issue | Plaintiff's Argument (Kobach/Bennett) | Defendant's Argument (EAC) | Held |
|---|---|---|---|
| 1. Finality/jurisdiction: Was the Executive Director’s memorandum final agency action? | It was not final because only commissioners (quorum) can take final action. | The 2008 subdelegation authorized the Executive Director to maintain the Federal Form; her denial was the agency’s last word and produced legal consequences. | Held: Final — subdelegation + lack of quorum made the Executive Director’s decision the consummation of agency action. |
| 2. Procedural validity: Was the Executive Director’s action valid despite no three-commissioner approval? | §20928 requires approval by at least three commissioners; lacking that, action is ultra vires. | The action fell within a valid 2008 limited subdelegation approved by three commissioners and §20928 doesn’t apply to the enabling provision at issue. | Held: Procedurally valid — delegation survived loss of quorum; New Process Steel distinguished. |
| 3. Duty under NVRA: Is the EAC nondiscretionarily required to add state-requested documentary-proof language to the Federal Form? | States’ determinations that an oath is insufficient are dispositive; EAC must include the states’ requested language. | ITCA and NVRA give EAC discretion; states must prove exclusion precludes enforcement and may seek APA review. | Held: No nondiscretionary duty — ITCA requires states to prove exclusion prevents enforcement; EAC has discretion subject to APA review. |
| 4. APA/arbitrary-and-capricious review: Was the Executive Director’s denial arbitrary and capricious? | The denial ignored evidence of registration fraud and logistical enforcement burdens. | The denial explained alternatives, relied on prior EAC precedent and record evidence, and the states failed to meet ITCA’s evidentiary burden. | Held: Not arbitrary and capricious — EAC’s decision was rational, fact-supported, and consistent with precedent. |
Key Cases Cited
- Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013) (NVRA preempts state-added documentary-proof requirements for the Federal Form; states may seek EAC changes and APA review)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (judicial review under the APA is limited to final agency actions)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (defer to reasonable agency interpretations of ambiguous statutes)
- New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010) (agency actions by fewer members than statute requires may be invalid, but prior delegations to subordinate officials can survive loss of quorum)
- Teamsters Local Union No. 455 v. NLRB, 765 F.3d 1198 (10th Cir. 2014) (finality of agency action may depend on whether the action’s impact is direct and immediate; actions denying relief can be appealable even if procedural defects exist)