Appellate Case: Document: Date Filed: 08/08/2016 Page: 1. Re: Supplemental Authority in Fish, et al. v. Kobach, Case No.

Transcription

1 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE BROAD STREET, TH FL. NEW YORK, NY T/.. F/-- Elisabeth Shumaker Clerk of the Court United States Court of Appeals for the Tenth Circuit The Byron White U.S. Courthouse Stout Street Denver, CO 0 August, 0 Re: Supplemental Authority in Fish, et al. v. Kobach, Case No. - Dear Ms. Shumaker, Plaintiffs in the above-captioned appeal respectfully submit this citation of supplemental authority pursuant to Federal Rule of Appellate Procedure (j). Briefing in this appeal was completed on July, 0; the authorities described below were issued on the following day. On July, the District Court of Shawnee County, Kansas, Division, issued an oral ruling granting a temporary injunction in Brown v. Kobach, Case No. 0CV0 (Shawnee Cnt. Dist. Ct. July, 0). The court found that the dual registration system operated by the Defendant-Appellant in this appeal, Kansas Secretary of State Kris Kobach, is prohibited by Kansas state law, and therefore preliminarily enjoined its implementation. Id. at. The effect of the order is that any voters registered for federal elections pursuant to the preliminary injunction at issue in this appeal must be permitted to vote for local, state, and federal elections in Kansas; their ballots will be fully counted as complete. Id. A copy of the Brown decision is attached as Exhibit A. Later the same day, Secretary Kobach s office issued instructions to local elections officials to count the entirety of the ballot[s] of affected voters. See Ex. B, Office of the Kansas

2 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: Secretary of State, Update to Instructions Concerning Division of Motor Vehicle Applicants, July, 0. Appellant Kobach s position in this case is that his office suffers extreme injury from the preliminary injunction in the form of, inter alia, administrative burdens arising from implementing a bifurcated election, in which some voters would be permitted to vote for federal offices only. Appellant s Br. at,. As the authorities described above indicate, that bifurcated system has been enjoined and is no longer in effect, thus alleviating any such alleged injury to Appellant. Respectfully, Dale E. Ho Attorney for Plaintiffs American Civil Liberties Union Foundation, Inc.

3 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: CERTIFICATE OF SERVICE I, the undersigned, hereby certify that, on the th day of August, 0, I electronically filed the foregoing document using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record. /s/ Dale E. Ho DALE E. HO Attorney for Plaintiffs

4 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: EXHIBIT A

5 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS DIVISION MARVIN L. BROWN, et al., ) Plaintiff,) ) vs. KRIS KOBACK, KANSAS SECRETARY ) OF STATE, ) Defendant.) ) Case No. 0CV0 ) TRANSCRIPT OF JUDGE'S DECISIONS AFTER ARGUMENT PROCEEDINGS had on the th day of July, 0, before the HONORABLE LARRY D. HENDRICKS, Judge of Division of Shawnee County District Court, Third Judicial District of Kansas, sitting at Topeka, Kansas. 0 APPEARANCES The plaintiffs appeared by and through their counsel, Ms. Sophia Lin Lakin and Mr. Dale Ho, American Civil Liberties Union, Broad Street, th Floor, New York, NY 00; Mr. Robert Eye, Eye Law Office, SE th Avenue, Topeka, KS 0; and Mr. Mark P. Johnson, Dentons US LLP, 0 Main Street, Suite 0, Kansas City, MO. The defendant appeared in person and by and through his counsel, Mr. Kris Kobach and Mr. Garrett Roe, Kansas Secretary of State's Office, Memorial Hall, st Floor, SW th Avenue, Topeka, KS. Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

6 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: THE COURT: All right. I'm going to take a 0 break here, probably until about :00, and I don't -- my preference always is to have a written opinion in cases like this, but I don't have the time, folks, for a written opinion in something that the polls are going to open up at :00 on Tuesday morning. I want everybody to know how strongly I feel about the right to vote. I think that's number one in our constitutions, our citizens have the right to vote. It is the most important, to me, one of the most important constitutional rights we have, because without that, everything else falls as far as I'm concerned. Our citizens don't go out and vote, is not allowed to vote, then we are in a situation where we know longer, as citizens of the United States, are controlling our country, someone else is. So that's very important to me. But I am also not a magician. This all occurred in the last days, and as I said about sabotage, Mr. Kobach, I got your brief at :00 last night. So it gives me very little time to fully absorb what I would like to do and how I would like to approach this, but I don't always get what I like, so I'm going to do the best that I can with what I have in front of me and come back by :00 and give you what my opinion is on Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

7 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: this and what I would like to do from there. 0 (Recess had.) THE COURT: The Court will recall the case of Marvin Brown, et al, v. Kris Kobach, case number 0CV0. Let me, once again, state that this was something that is done in a very rapid manner. I appreciate counsel briefing this and doing their best that they could to present to this Court as much information as you could in a short period of time. It's unfortunate that we are there, but that's where we are. So as I've stated just before I left, it's beyond dispute that voting is of the most fundamental significance under our Constitution, that it's, there is no right that's more precious to a free country than having a voice in the election of those who make the laws under which, as good citizens, we must all live. The case before me today is presented to the Court as a result of the defendant's adoption of and ultimately the enactment of KAR --. The regulation that was proposed and adopted on July the th, 0, by the Secretary. Notice was given on late July the th, 0, and the State's rules and regulation board, met at eight a.m. on July th, and approved the regulation. Early voting began on July Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

8 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: the th of 0. The plaintiffs filed this action 0 for declaratory and injunctive relief on July the th at :0 a.m. The Court's administrative assistant, on July the 0th, called all the parties and attempted to get a hearing set as rapidly as we possibly could. It was delayed until this date, because there was things that Secretary Kobach was unavailable to get here, as I understood, and also, there was briefing that needed to be done by them and response and they needed time for that certainly to be able to respond to the petition that had been filed by the plaintiffs. The plaintiff, Marvin Brown, is a 0-year-old Army Air Corps vet, as I understand it. He lives in Johnson County, and on January the th, 0, he registered to vote in Kansas by filling out the federal form, and attesting under the penalty of perjury to his U.S. citizenship and eligibility to vote. Mr. Brown did not submit documentary proof of citizenship. I think the Court has stated today the DPOC, a couple of times, that's what I'm talking about. The plaintiff, Jo Ann Brown, followed the same process as Marvin Brown on that same date, husband and wife, and I think in Johnson County. The Kansas director of election, Brian Caskey confirmed that the Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

9 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: Browns were eligible to vote for federal offices, but 0 not for State or local offices is my understanding. Plaintiff Stricker, I'm sorry, is a resident of Sedgwick County. He applied for driver's license in October of 0, and while doing so, registered to vote in Kansas, attesting under the penalty of perjury to his citizenship, his U.S. citizenship, and eligibility to vote. He did not submit DPOC. On July the th, 0, Mr. Stricker received notice from the Sedgwick County election office informing him he was eligible to vote for federal offices only and not considered a registered voter. He was ineligible to vote for state and local offices. As I have stated, the plaintiffs are asking for injunctive relief. The standard of review for that in the State of Kansas states that the Court, in reviewing the plaintiff's petition, must look at the five-part factor test. That five-part factor test, and those five factors that are necessary for issuing a temporary injunction are, "One, a substantial likelihood of eventually prevailing on the merits; two, a reasonable probability of suffering irreparable future injury; three, the lack of obtaining an adequate remedy of law; four, the threat of suffering injury that outweighs whatever damage the proposed Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

10 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: injunction may cause the opposing party; and lastly, 0 number five, the impact of issuing the injunction will not address, or excuse me, will not be adverse to the public interest." Those are as quoted out of Downtown Bar and Grill LLC, Kan., at ; P.d 0, a 0 case, which by the way was the case of Judge Theis, next door. I did not have in front of me in any of the briefs or that I heard today in your arguments about standing, with the exception of irreparable harm kind of argument, so I don't see any need to address it as I can address it in irreparable harm. The first factor I need to look at, and let me say, we talked about it, and I think that Judge Theis' opinion, I agree, can only be considered as persuasive to this Court. If I do so, it's not binding on me in any way. It's not the Supreme Court or Court of Appeals opinion that I'm required to follow in any manner, and because I had the plaintiff's briefs for nine days, I had an opportunity, because they attached to that, to read all of, I think, what Judge Theis suggested in his opinions. I also had the ability to review in the Secretary's brief what they -- why they think that those opinions should not be considered and certainly heard those arguments today, also, but I Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

11 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: want everyone to know that I was fully briefed and had 0 the opportunity to review that. I went ahead and also reviewed those exhibits that were provided by the State. That's why I was a little late, and I apologize for that, but there was a little more there to read than I thought there might have been. So first along looking at the substantial likelihood of eventually prevailing on the merits, difficult for this Court to assess in the short time I have and what I have in front of me. The Secretary issued a regulation that, by the finding, I think, of, certainly by Judge Theis, which I do find persuasive, and in some way, that of Judge Julie Robinson, that were beyond his ability to do, and it could have asked the legislature to provide that authority, and he did not. There is a heightened scrutiny given to rights under Article, Section of the Kansas Constitution, and that demands that the laws or actions encumbering the privilege of voting be measured by a compelling reason. Based upon the authorities that I have in front of me and I've reviewed and I'm relying on, I don't believe any such authority exists in the Kansas Secretary of State based upon the regulations in the past to encumber the voting process. The regulation in question, --, was not backed by appropriate Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

12 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: legislative authority, and the Court finds that there 0 is a substantial likelihood of prevailing on the merits due to the dual registration system that has been put into effect by this regulation. Next, is there a reasonable probability of suffering irreparable future injury? Early voting began on July the th, 0. There's nothing this Court can do for those voters that complied with the instructions to vote, and the regulations, --, on local and state voters. There's nothing I can do about that, if in fact they complied with those regulations. Those voters that vote on August nd are within my ability to help, and if they are not allowed to vote and cannot vote for local and state offices August nd due to my finding about the dual, dual registration system, they will never be able to re-cast their votes, and that's even by the testimony, certainly of the State of Kansas. And there's a magnitude of,00 voters, that's an overwhelming majority of people that, which are U.S. citizens, that will lose their constitutionally-mandated right to vote. The Secretary, I think, candidly told this Court, that he can point to right now, and maybe as many as 0 if you spread that out over the state, to 0 possibilities of folks that should not be able Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

13 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: to be registered because they're not U.S. citizens, if 0 there is that may, and if they in fact go to vote, I don't find, can be considered in the same basis as,00 folks that should be able to vote simply because of the DPOC requirement of losing one's vote is an irreparable harm in my opinion, and in my ruling here today, the Court finds that it is much greater than any of the possibility discussed problems that the Secretary might have at the election offices or in any other place that might occur because of the Court's ruling. While it may be difficult to get to and talk to these election officers, it seems that these are votes that will be cast in the normal course if they weren't set aside as suggested by the, the regulation, and therefore, it shouldn't be difficult to say to those folks, "Just do it how you normally do it." It seems to me that it is a pretty easy requirement. Lack of obtaining an adequate remedy of law, there is no other remedy against a government agency beside equitable remedies, or very few. It is self evident that private citizens have limited recourse against governmental action. Clearly, KSA 0-0, et seq., and KSA 0- et seq, are two of those remedies. Neither of those are actions of law that Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

14 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: are equitable actions, and I find that there is no 0 adequate remedy. This must be an equitable remedy that's available to the plaintiffs in this case, and no real legal remedy is available. So there is a lack of obtaining an adequate remedy at law, this Court finds. Fourth is the threat of suffering injury outweighs whatever damage the proposed injunction may cause the opposing party. As I previously stated and gone into, the Secretary will suffer some administrative burdens, but those difficulties do not outweigh the loss of the plaintiffs' and other voters' rights similarly situated to the plaintiff to cast their ballots in local and state offices, and the only reason they cannot is because of my finding that there be is a registration requirement that is inappropriate. The dual registration is a problem that was created by the Secretary of State by the late adoption of a regulation that creates a possible different treatment of the same class of individuals. The Court cannot solve that problem, and it is not a problem that I created, and therefore, beyond the ability for this Court to help. Finally, the impact of the injunction will not be adverse to public interests. The Court agrees the Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

15 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: Secretary has an interest in preventing non-citizens 0 from registering and preserving its own laws. The Court recognizes the legitimacy and importance of the State's interest in counting votes of eligible voters only, but those voters or those interests do not outweigh the risk that the public will suffer by losing those,00 votes of qualified voters as opposed to the or 0 that are not qualified based on the improper dual registration system. Therefore, I find that all five factors are present, and rule in favor of the plaintiff. Additionally, because of the short time I've had to outline those five factors, I'll also adopt Judge Theis' legal findings and those findings of the plaintiff in the memorandum that support my findings that the dual registration is prohibited. I will grant the temporary injunction ordering that all provisional ballots that were made so or tagged as I heard argument about, as a result of KAR --, apply to both federal, state and local elections. The elections offices will be immediately instructed to let all,00 or whatever the number is that remains, be allowed to be fully counted as complete. The ballot will be fully completed and counted as ballots that will be able to vote federal, Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

16 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: local and State elections. 0 Mr. Eye, you or someone want to create an order? I want to be very specific what I've ordered. MR. EYE: Yes, sir. THE COURT: I think this allows us to have an evidentiary hearing and briefing schedule for permanent injunction before the election in November. That gives the Court more time to absorb and have arguments made and both parties more time to brief this Court on items that are relevant and that are pertinent, and that may subject the Court to change its mind or to grant a permanent injunction. I would like to establish a briefing schedule. All the parties have their calendars and are available to do that? MR. KOBACH: Your Honor, can I ask one question? THE COURT: Yes. MR. KOBACH: I think your order was clear. Can I just request that in your -- and I think plaintiffs would -- heard this as well, you ordered the counts of the ballots shall be for all the races on the ballots. Without -- could your order specify that these individuals are not in time to be added to the principal voter roll of Kansas, but be kept Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

17 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: separately so that way the th Circuit has the 0 freedom to rule either way? THE COURT: I think we had a discussion about that between you and I, and I didn't order that they would be placed on any registration, just that they be counted, and I think you've had got two separate things still, and maybe the th Circuit will clarify those one way or the other. MR. KOBACH: That's what I thought you said. I just wanted to make sure we're clear there. THE COURT: Is there any dispute about that from the plaintiff? Do you have any misunderstanding about that? MS. LAKIN: No, your Honor. THE COURT: Okay. The plaintiff be able to brief this by August th? MS. LAKIN: Yes, your Honor. THE COURT: Would the defendants be able to respond to that by September the st? MR. KOBACH: Sir, we're -- we've got two federal cases that we're trying to keep the calendars. THE COURT: I've got nobody. You've got a few people to help you out there, I've got me, Mr. Kobach. MR. KOBACH: You said September st? Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

18 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: THE COURT: Yes. I take that back, I've got 0 a very good law clerk who helps me tremendously. Mike is his name, who helped me in this case, but he's got other judges. MR. KOBACH: We'll make it work. THE COURT: Okay. Reply September th? MS. LAKIN: That's fine, your Honor. THE COURT: I would be available on September the st, nd and rd, any of those days, to have a hearing on this injunction or I'll save all three if you think it'll take more than one day or two days. I can't imagine that it would be more than two days. September st, nd or rd? MR. KOBACH: I think the st is good. I don't know that the nd or rd are. MR. HO: All three dates are fine for plaintiffs, your Honor. THE COURT: Okay. Mr. Kobach, do you think it would be more than one day we'd need for evidence? MR. KOBACH: I don't think so. THE COURT: So if you can pick any one of these. MR. KOBACH: It would be the st. THE COURT: I'll leave the morning of the nd open just in case; would that be prudent? Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

19 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: MS. LAKIN: Yes, your Honor. 0 THE COURT: You get to stay in Topeka one more night. That would be good, right? Spend lots of money. MR. EYE: Your Honor, did you specify time on that hearing? THE COURT: I'm waiting for Mr. Kobach to tell me if any of those dates work. MR. KOBACH: The nd and rd do not, but it looks like the st would work for sure. THE COURT: So that :00, does that work for everybody? MR. HO: Yes, your Honor. MS. LAKIN: Yes, your Honor. THE COURT: I'll set a hearing on September st at :00. All day I'll be available and keep the next day available just in case, but hopefully we won't need that. Mr. Eye, you can put that in the order or whoever's doing it. I don't mean to put that on you, but it'll help you out. MR. EYE: Yes, sir, thank you. THE COURT: Is there anything else we need to do? MS. LAKIN: Not from the plaintiffs. Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

20 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: THE COURT: Mr. Kobach? MR. KOBACH: No. THE COURT: If not, then that's the Court's order. Thank you all. (Recess had.) 0 Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

21 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: C E R T I F I C A T E STATE OF KANSAS ) ) ss: COUNTY OF SHAWNEE ) I, Dorothy J. Sheeley-Seel, a Certified Shorthand Reporter, and the regularly appointed, qualified and acting official reporter of Division of the Third Judicial District of the State of Kansas, do hereby certify that I was present at and reported in Stenotype shorthand the above and foregoing proceedings held in Case No. 0CV0, Marvin L. Brown, et al., v. Kris Kobach, Kansas Secretary of State, heard on July, 0, before the HONORABLE LARRY D. HENDRICKS, Judge of Division No. of said Court. I further certify that at the request of Mr. Robert Eye, attorney for the plaintiffs, a transcript of my shorthand notes was prepared by me or under my direction with computer-aided transcription and the foregoing transcript, consisting of typewritten pages, is a true copy of said proceedings. SIGNED, OFFICIALLY SEALED, and FILED this st day of August 0. DOROTHY J. SHEELEY-SEEL, CSR, RPR, FCRR Supreme Court #00 0 Official Court Reporter, 00 SE th Street, Room 00 Topeka, KS 0 () -00, Ext.

22 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: EXHIBIT B

23 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: OFFICE OF THE KANSAS SECRETARY OF STATE UPDATE TO INSTRUCTIONS CONCERNING DIVISION OF MOTOR VEHICLES APPLICANTS JULY, 0 On Friday, July th, 0, a Shawnee County District Court Judge issued a preliminary injunction concerning the voting procedure to be used during the 0 Primary Election. The injunction covers individuals who have applied to register to vote at a Division of Motor Vehicles office and have not provided proof of citizenship (currently,), and individuals who have applied to vote using a federal voter registration application prior to February, 0 (currently ), and have not provided proof of citizenship. As we have previously instructed, all persons who fall into these categories should be given a provisional ballot during the 0 Primary Election. Effective immediately, these persons should be instructed that they are eligible to vote a full provisional ballot. In our previous instructions, we asked board workers to instruct these persons they are only eligible to vote for federal office. That is no longer applicable. These persons will still cast a provisional ballot, but should be informed the entirety of the ballot will be counted. After Election Day, persons who have cast a provisional ballot should be entered into ELVIS with a provisional ballot reason of DMV Applicant NO POC Should count (Code M). When each county presents the provisional ballots to the county board of canvassers, each county election office should present these ballots to the commissioners along with instructions that the entirety of these ballots should be counted according to a judicial order. There will be a full court hearing on this case after the Primary Election. At this time, do not change the status of persons in these categories. Continue to obtain and process acceptable forms of proof of citizenship. NEW ACTION ITEMS. Prepare to issue provisional ballots to DMV office Federal Election Only No POC applicants at the primary election and count the votes for all offices that are voted on the ballot. The voter should be instructed they are eligible to cast a vote for all offices due to a judicial order. A. Maintain a list of DMV office Federal Election Only No POC applicants in the county election office. County election offices should distribute this list to all polling places throughout the county. B. Do not print these applicants names on the poll book. They are not registered voters under Kansas law for the purposes of state and local elections, even though they will be permitted to vote for all offices during the August, 0, primary election. C. Poll workers will issue provisional ballots to these voters the same as any other voters whose names do not appear in the poll book.

24 Appellate Case: - Document: 0 Date Filed: 0/0/0 Page: D. When provisional ballots are returned to the election office after the close of polls on Election Day, use the list of DMV office Federal Election Only No POC applicants to separate their provisional ballots into a separate stack. Use the provisional ballot code mentioned above when processing in ELVIS. E. Unless these provisional ballots are determined to be invalid for another reason, make a recommendation to the county board of canvassers to count the votes for all offices. F. Count the votes and add them to the other vote totals. G. Report to the Secretary of State the number of persons who voted a provisional ballot under these circumstances. The report should be sent at the conclusion of the county board of canvassers certification of the primary election. Please contact Bryan Caskey, Director of Elections with questions concerning this policy.