Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

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1 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KRIS W. KOBACH, KANSAS SECRETARY OF STATE, et al., Plaintiffs, vs. Case No EFM-DJW THE UNITED STATES ELECTION ASSISTANCE COMMISSION, et al., Defendants, and INTER TRIBAL COUNCIL OF ARIZONA, INC., et al.; PROJECT VOTE, INC.; LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, et al.; and VALLE DEL SOL, et al., Defendant-Intervenors. PLAINTIFFS RESPONSE IN OPPOSITION TO MOTION TO DISMISS BY DEFENDANT-INTERVENORS VALLE DEL SOL, et al. COME NOW the Plaintiffs, Kansas Secretary of State Kris W. Kobach, the State of Kansas, Arizona Secretary of State Ken Bennett, and the State of Arizona, by and through the undersigned counsel, and in opposition to the Motion to Dismiss (ECF No. 107 filed by the Defendant-Intervenors Valle Del Sol, et al. (hereinafter the Valle Intervenors, hereby submit the following response: The Valle Intervenors were permitted to intervene in this matter on December 12, 2013, on the theory that their alleged interest in increasing participation in the democratic process and protecting the voting rights of others somehow gives the Valle Intervenors a legal stake in the 1

2 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 2 of 9 outcome of the dispute between the Plaintiffs and the United States Election Assistance Commission (hereinafter the EAC concerning the Kansas- and Arizona-specific instructions to the national mail voter registration form (hereinafter the Federal Form. See Memorandum and Order (ECF No. 105 at 7. Having been granted intervention into this case over the Plaintiffs objection, the Valle Intervenors now attempt to eject the Plaintiffs, the parties who initiated this case in the first place. Notably, the Valle Intervenors only raise procedural defenses in which they have no interest, raise issues not raised by the real parties in interest, the Defendants, and are not joined in their Motion to Dismiss by either the Defendants or their fellow intervenors. The Valle Intervenors raise three issues in their Motion to Dismiss: (1 that the State of Kansas is not a proper party because Kansas Secretary of State Kris Kobach (hereinafter the Secretary cannot sue on behalf of Kansas; (2 that the Secretary lacks standing to bring this suit because he has failed to allege an injury-in-fact; and (3 that the claims of the State of Arizona and Arizona Secretary of State Ken Bennett (hereinafter the Arizona Plaintiffs should be dismissed because without the claims brought by the State of Kansas and the Secretary (hereinafter the Kansas Plaintiffs venue is improper in this Court. The Valle Intervenors Motion to Dismiss should be denied because: (1 the Kansas Attorney General authorized the Secretary and other attorneys in the Kansas Secretary of State s Office to initiate and prosecute this action on behalf of the State of Kansas; (2 the Secretary has standing to sue in his official capacity because he is the chief election officer for Kansas as that phrased is used in 42 U.S.C. 1973gg-7; and (3 venue remains proper for the Arizona Plaintiffs claims. 2

3 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 3 of 9 The Valle Intervenors Motion to Dismiss relies on Federal Rule of Civil Procedure 1 12(b(1 and 12(b(6. Def.-Interv. Mot. at 2. Concerning the standard for disposing of motions to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b(1, the Tenth Circuit Court of Appeals has explained: Generally, Rule 12(b(1 motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b(1. In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion. Holt v. United States, 46 F.3d 1000, (10th Cir (internal citations omitted. For purposes of resolving a Rule 12(b(6 motion, the court must accept as true all well-pleaded factual allegations in the complaint and view those allegations in the light most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir (citation omitted. The court s function on a Rule 12(b(6 motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff s complaint alone is legally sufficient to state a claim for which relief may be granted. Id. (quotation omitted. I. The Kansas Attorney General authorized the Secretary and other attorneys in the Kansas Secretary of State s Office to initiate and prosecute this action on behalf of the State of Kansas. K.S.A provides, in pertinent part, [t]he attorney general shall appear for the state, and prosecute and defend any and all actions, civil or criminal, in the Kansas supreme 1 As used herein, Rule(s refers to the Federal Rules of Civil Procedure. 3

4 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 4 of 9 court, the Kansas court of appeals and in all federal courts, in which the state shall be interested or a party, and shall, when so appearing, control the state s prosecution or defense. This statute, therefore, provides that the Kansas Attorney General has the authority to control cases in all federal courts in which the State is a party. In a letter addressed to the Secretary on August 21, 2013, attached hereto as Exhibit A, the Kansas Attorney General authorized the Secretary and the attorneys in the Secretary s office to initiate and prosecute this action on behalf of the State of Kansas. Notably, this letter contained a provision whereby the Kansas Attorney General retained all power and authority granted to him under K.S.A throughout the pendency of this litigation. Thus, while the Kansas Attorney General has authorized the Secretary and the attorneys in the Secretary of State s Office to prosecute this action on behalf of the State of Kansas, this authorization was made pursuant and subject to the Attorney General s statutory authority under K.S.A By this agreement, the Attorney General essentially contracted with the attorneys in the Secretary of State s Office for the prosecution of this action. This authorization is therefore by itself a sufficient basis to deny the Valle Intervenors Motion to Dismiss in all respects, since the Motion relies almost exclusively on the alleged lack of authority of the Secretary and the attorneys in his office to represent the State of Kansas in this case. Moreover, Plaintiffs dispute the legal bases relied upon by the Valle Intervenors in the Motion to Dismiss and supporting Memorandum. In challenging the authority of the Secretary and other attorneys in the Kansas Secretary of State s Office to assert claims in the name of the State of Kansas, the Valle Intervenors Motion to Dismiss relies on Rule 12(b(6. Def.-Interv. Mot. at 2. Further, in their supporting Memorandum, the Valle Intervenors also rely on Rule 17(a(1, which provides that an action must be prosecuted in the name of the real party in 4

5 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 5 of 9 interest. Def.-Interv. Br. at 6. However, the Valle Intervenors Motion and supporting Memorandum do not allege that the Complaint filed in this case fails to state a claim upon which relief can be granted, or that the State of Kansas is not a real party in interest. Rather, the Valle Intervenors are merely attacking the authority of the attorneys appearing on behalf of the State of Kansas to represent the State in this action. Def.-Interv. Br. at 6-9. Plaintiffs are aware of no rule of law requiring a complaint to contain factual assertions establishing the authority of a plaintiff s attorney to represent the plaintiff. Further, the Valle Intervenors do not allege that the State of Kansas is not a real party in interest, but rather challenge the authority of counsel to represent the State as a party. Thus, Rules 12(b(6 and 17(a(1 are inapposite. The Valle Intervenors Motion to Dismiss should be denied because the Kansas Attorney General authorized the Secretary and the attorneys in the Kansas Secretary of State s Office to prosecute this action on behalf of the State of Kansas. II. The Secretary has standing to sue because he is the chief election officer for Kansas, and he is the state official designated by federal law to submit requests to the EAC. The Valle Intervenors also seek dismissal pursuant to Rule 12(b(1 and (b(6 on the asserted ground that the Secretary lacks standing to bring this suit because he has failed to allege an injury-in-fact. Def.-Interv. Mot. at 2. On the contrary, the Secretary has made multiple allegations sufficient to meet the injury-in-fact requirement of standing. To satisfy the injury-infact element of constitutional standing, a plaintiff must show an invasion of a legally protected interest. Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 663 (1993. The Complaint alleges that pursuant to K.S.A the Secretary is the Chief Election Officer of the State of Kansas as that phrase is used in the National Voter Registration Act, 42 U.S.C. 1973gg et seq. (hereinafter the NVRA. 5

6 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 6 of 9 Complt. at 6. The Complaint further alleges that the EAC has an ongoing responsibility to develop the Federal Form prescribed by the NVRA in consultation with the chief elections officers of the States, which includes the Secretary. Complt. at 10, 21. Specifically, the Complaint alleges that the EAC has a nondiscretionary duty to modify the Kansas-specific instructions at the Secretary s request when the requested modifications reflect Kansas s voter qualification and registration laws and would enable Kansas election officials, including the Secretary, to obtain information the State of Kansas has deemed necessary to assess the eligibility of voter registration applicants and to enforce Kansas s voter qualifications. Complt. at 2, 22, 82, 84, 98, 111, and 123. Lastly, the Complaint alleges that in light of changes to Kansas voter registration law the Secretary requested the EAC to modify the Kansas-specific instructions of the Federal Form to include Kansas s statutory proof-of-citizenship requirement, and that the EAC failed to approve the Secretary s request despite its nondiscretionary duty to do so. Complt. at 43, 46, 48, 49, 50, 53, 54, 55, and 57. All of these allegations describe specific failures by the EAC that impede the Secretary in the performance of his official duties under Kansas law and consequently constitute a legally cognizable injury-in-fact. The Valle Intervenors also fail to account for the specific role that is assigned to the Secretary by the NVRA the federal statute that lies at the heart of this litigation. The NRVA requires that [e]ach State shall designate a State officer or employee as the chief State election official to be responsible for coordination of State responsibilities under this Act. 42 U.S.C. 1973gg-8. In Kansas that official is the Secretary. K.S.A The NVRA also assigns to the Secretary and the EAC joint responsibility to consult with each other in the development and modification of the federal form: the EAC in consultation with the chief election officers of the States, shall develop a mail voter registration application form for elections for Federal office. 6

7 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 7 of 9 42 U.S.C. 1973gg-7(a(2. If the EAC fails to meets its consultative responsibility under 42 U.S.C. 1973gg-7(a(2, it is the Secretary and only the Secretary who has standing to sue as the aggrieved party under the Administrative Procedure Act, 5 U.S.C. 702 (hereinafter the APA. The NVRA also charges the chief state election officer with the responsibility to make the Federal Form available for distribution through governmental and private entities. 42 U.S.C. 1973gg-4(b; and in Kansas the Secretary is the official who oversees the administration of the statewide voter roles as described in 42 U.S.C. 1973gg-6. In short, if the EAC is failing to perform its statutory duties under the NVRA, it is clear that the Secretary is the state official who is impaired in the performance of his official duties and therefore possesses the requisite injury in fact to a legally cognizable interest. In summary, the Complaint alleges that the Secretary, as the Chief Election Officer in Kansas, is empowered under the NVRA to request the EAC to modify the Kansas-specific instructions of the Federal Form. Indeed, the Secretary is the only official in Kansas authorized to make such a request. Thus, the Secretary suffered an injury in his official capacity, under numerous legal theories, when the EAC failed to modify the Kansas-specific instructions of the Federal Form as requested by the Secretary. Indeed, the Secretary is the only official in Kansas authorized under the NVRA to make such a request. Moreover, multiple counts in the complaint are brought under the APA. The APA confers standing on a person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action. 5 U.S.C Because the Secretary is the only official in Kansas empowered under the NVRA to request the EAC to modify the Kansas-specific instructions of the Federal Form, the Secretary is the party that is aggrieved by the EAC s failure to make the requested modification. Therefore, the 7

8 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 8 of 9 Secretary has standing, pursuant to 5 U.S.C. 702, to challenge the EAC s failure to approve the Secretary s request for modification to the Kansas-specific instructions to the Federal Form. III. Venue remains proper for the Arizona Plaintiffs claims. The Valle Intervenors Motion to Dismiss also asserts that if the Kansas Plaintiffs claims are dismissed the claims of the Arizona Plaintiffs should also be dismissed for improper venue. Def.-Interv. Mot. at 2. As shown supra, the Valle Intervenors motion to dismiss the claims asserted by the Kansas Plaintiffs should be denied. If the Valle Intervenors motion to dismiss the claims of either of the Kansas Plaintiffs is denied, the Valle Intervenors motion to dismiss the claims of the Arizona Plaintiffs should be denied because venue would remain proper in this Court pursuant to 28 U.S.C. 1391(e(1(C. 8

9 Case 5:13-cv EFM-DJW Document 126 Filed 01/02/14 Page 9 of 9 Respectfully submitted this 2nd day of January, s/ Thomas E. Knutzen Thomas E. Knutzen, Kansas Bar No KANSAS SECRETARY OF STATE S OFFICE Memorial Hall, 1st Floor 120 S.W. 10th Avenue Topeka, KS Tel. ( Fax. ( tom.knutzen@sos.ks.gov Attorney for Plaintiffs Thomas C. Horne, Arizona Bar No Kris W. Kobach, Kansas Bar No (admitted pro hoc vice Eric K. Rucker, Kansas Bar No Michele L. Forney, Arizona Bar No Regina M. Goff, Kansas Bar No (admitted pro hoc vice KANSAS SECRETARY OF STATE S OFFICE ARIZONA ATTORNEY GENERAL S OFFICE Attorneys for Kris W. Kobach, Kansas 1275 W. Washington Street Secretary of State, and for Phoenix, AZ The State of Kansas Tel. ( Fax. ( michele.forney@azag.gov Attorneys for Ken Bennett, Arizona Secretary of State, and for The State of Arizona CERTIFICATE OF SERVICE I, the undersigned, hereby certify that, on the 2nd day of January, 2014, I electronically filed the above and foregoing document using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record. s/ Thomas E. Knutzen Thomas E. Knutzen, Kansas Bar No Attorney for Plaintiffs 9