ORAL ARGUMENT SCHEDULED No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. STEVEN WAYNE FISH, et al.,

Transcription

1 ORAL ARGUMENT SCHEDULED No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT STEVEN WAYNE FISH, et al., v. KRIS KOBACH, in his official capacity as Secretary of State for the State of Kansas Plaintiffs-Appellees, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS, NO. 16-cv-2105-JAR-JPO THE HONORABLE JULIE ROBINSON REPLY BRIEF OF APPELLANT KANSAS SECRETARY OF STATE KRIS W. KOBACH, Secretary of State, #17280 GARRETT R. ROE, #26867 Kansas Secretary of State s Office 120 S.W. 10 th Avenue Topeka, Kansas Tel. (785) Fax. (785) Attorneys for Appellant

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii ARGUMENT... 1 I. False or Misleading Statements in Appellees Description of Facts... 1 A. Four States Are Implementing Proof-of-Citizenship Laws... 1 B. The Appellees Omit Crucial Words in the NVRA... 4 C. Appellees Misstate Their Factual Circumstances... 5 II. Appellees 30-Month Delay Prevents any Finding of Irreparable Harm... 8 III. Appellees Are Unlikely to Prevail on the Merits A. Appellees Misquote ITCA Regarding the Plain Statement Rule B. Appellees Offer no Answer to the Fact that the Relevant Text of the NVRA Refers to Information Written on the Form, Not to Documents Required Outside of the Form C. Appellees Cannot Escape Young v. Fordice D. Appellees Interpretation Raises Constitutional Doubt The States Sole Authority to Set and Enforce Qualifications Different Qualifications for Federal and State Elections E. Appellees Interpretation of the Text is Unsustainable F. Appellees Use of Legislative History is Misleading and is Foreclosed by ITCA CONCLUSION i

3 CERTIFICATE OF COMPLIANCE CERTIFICATE OF DIGITAL SUBMISSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES Cases Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct (2013)... passim Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011) Clark v. Martinez, 543 U.S. 371 (2005) Dunn v. Board of Comm rs of Morton County, 165 Kan. 314 (1948)... 20, 21 Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005) F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009) Foster v. Love, 522 U.S. 67 (1997) Foundry Networks v. Lucent Techs., Inc., 2005 WL (E.D. Tex. 2005) Gregory v. Ashcroft, 501 U.S. 452 (1991) GTE Corp. v. Williams, 731 F.2d 676 (10th Cir. 1984)... 9, 11 Howard v. Zimmer, Inc., 711 F.3d 1148 (10th Cir. 2012)... 3 Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005) Jeman v. Carlisle, McNellie, Rini, Kramer, Ulrich LPA, 559 U.S. 573 (2010)... 8 Kobach v. Election Assistance Commission, 772 F.3d 1183 (10th Cir. 2014), cert. denied, 135 S.Ct (2015)... 5, 21, 25, 27, 28 Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2012)... 7 League of Women Voters v. Newby, No (RJL), WL (D.D.C. June 29, 2016)... 3, 25 iii

5 Lebron v. Nat l R.R. Passenger Corp., 513 U.S. 374 (1995) Lucas County Democratic Party v. Blackwell, 341 F. Supp.2d 861 (N.D. Ohio 2004) Purcell v. Gonzalez, 549 U.S. 1 (2006)... 1 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) Rice v. United States, 428 F.2d 1311 (Ct. Cl. 1970) Ron Peterson Firearms, LLC v. Jones, 760 F.3d 1147 (10th Cir. 2014)... 8 Shelby County v. Holder, 133 S. Ct (2013)... 3 Taylor v. Angarano, 652 F. Supp. 827 (S.D.N.Y. 1986) Tancogne v. Tomjai Enterprises Corp., 408 F. Supp. 2d 1237 (S.D. Fla. 2015) Tex. Cent. Bus. Lines Corp. v. City of Midlothian, 669 F.3d 525 (5th Cir. 2012) Tough Traveler, Ltd. V. Outbound Products, 60 F.3d 964 (2d Cir. 1995)... 9 Turner v Woodson County Com rs, 27 Kan. 314 (Kan. 1882)... 8 United States v. Johnson, 529 U.S. 53 (2000) United States v. Smalls, 605 F.3d 765 (10th Cir. 2010)... 3 United States v. Stewart, 472 F.2d 1114 (1st Cir. 1973)... 8 United States Postal Service v. Gregory, 534 U.S. 1 (2004)... 7 Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013)... 14, 24 Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001) Will v. Michigan Dep t. of State Police, 491 U.S. 58 (1989) iv

6 Young v. Fordice, 520 U.S. 273 (1997)... passim Constitutional Provisions and Statutes U.S. Const. Art. I, , 21, 23 U.S. Const. Art. I, 2, cl , 23 U.S. Const. Art. I, 4, cl , 19, 24 U.S. Const. Amend. XVII U.S.C , U.S.C (c) U.S.C (c)(2)... 14, U.S.C (c)(2)(A) U.S.C (c)(2)(B)... 4, 5, 12, U.S.C (c)(2)(C) U.S.C , U.S.C (b)(1) U.S.C (b)(2) U.S.C (b)(3) Ala. Code Ariz. Rev. Stat Ariz. Rev. Stat (A)... 2 v

7 Ariz. Rev. Stat Ariz. Rev. Stat (F)... 1, 2 Ariz. Rev. Stat Kan. Const. art. V, Kan. Const. art. V, K.S.A (b)(2)... 2 K.S.A (b)(3)... 2 K.S.A K.S.A (l)... passim K.S.A (l)(1)... 3 K.A.R O.C.G.A Help America Vote Act of 2002, 116 Stat. 1666, as amended, 42 U.S.C , et seq., recodified at 52 U.S.C et seq National Voter Registration Act of 1993, 107 Stat. 77, as amended, 42 U.S.C. 1973gg, et seq., recodified at 52 U.S.C et seq.... passim Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C and bb Legislative History H.R. Rep. No (1993) H.R. Rep. No (1993)(Conf. Rep.) vi

8 Other Sources Ariz. Op. Att y Gen. No. I (Oct. 7, 2013)... 2 The Federalist No. 60 (Hamilton) vii

9 ARGUMENT I. False or Misleading Statements in Appellees Description of Facts In their Statement of the Case, Appellees make multiple misleading or false statements. The following are the most egregious. A. Four States Are Implementing Proof-of-Citizenship Laws Throughout their brief, Appellees attempt to create the false impression that Kansas is alone in requiring documentary proof of citizenship ( DPOC ). Appellees incorrectly declare: This regime is unique; Kansas is the only State that uses a DPOC requirement, Resp. 3, and Kansas is an outlier. Id. at 58; see also id. at 7. Arizona was the first State to adopt a DPOC requirement for voter registration. In 2004, Arizona voters passed Proposition 200 requiring applicants to provide evidence of citizenship in order to register to vote (codified at Ariz. Rev. Stat. ( A.R.S. ) (F)). As the Supreme Court characterized it, Proposition 200 was designed to combat voter fraud by requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day. Purcell v. Gonzalez, 549 U.S. 1, 2 (2006). Contrary to Appellees suggestion, Arizona does not waive the DPOC requirement for those who apply at the DMV. See Resp. 7. Rather, because Arizona is a State that requires DPOC for all U.S. citizens who apply for a driver s license, including 1

10 renewals, Arizona deems the DPOC requirement satisfied if the applicant has already proven citizenship to obtain a driver s license. A.R.S and - 166(F); See also Ariz. Op. Att y Gen. No. I (Oct. 7, 2013)(discussing implementation of Proposition 200). Contrary to Appellees mischaracterization, Arizona law clearly requires DMV applicants to provide the same documentation as other applicants: Every person who is applying for a driver license or renewal and who is otherwise qualified to register to vote shall, at the same time and place, be permitted to register to vote by providing the information prescribed by A.R.S (A)(emphasis added). Similarly, Kansas deems the DPOC requirement satisfied if an applicant provides DPOC to the Kansas Division of Vehicles ( DMV ), see App. 544, , although Kansas does not require renewal driver s license applicants to provide DPOC. 1 Kansas s law was drafted to be similar to Arizona s in this respect, so that when Kansas eventually requires DPOC from all driver s license applicants, mere possession of a Kansas driver s license will suffice to satisfy the proof-of-citizenship requirement if the agency indicates on the applicant s 1 K.S.A (b)(2)-(3) requires proof of lawful presence to obtain a driver s license, which for U.S. citizens means DPOC. However, in 2012, the Kansas DMV delayed implementation of this requirement for driver s license renewals, applying it only to original applications for a driver s license. App

11 driver s license that the person has provided satisfactory proof of citizenship. K.S.A (l)(1). Appellees are similarly deceptive regarding Alabama and Georgia proof-ofcitizenship laws. Appellees declare that Alabama and Georgia are currently not enforcing their respective DPOC laws, and have indicated no definitive plans to do so. Resp. 7. That is incorrect. Both States have indicated that they will implement these laws in See Affidavit of Alabama Secretary of State, League of Women Voters v. Newby, No (RJL), 2016 WL (D.D.C. 2016), Doc (implementation to begin sometime after March 1, 2016 ); Affidavit of Georgia Deputy Secretary of State, Newby, Doc Both States were delayed in their implementation of their DPOC laws by Department of Justice preclearance procedures that were struck down by the Supreme Court in Shelby County v. Holder, 133 S.Ct (2013). The laws are similar. Alabama s law was copied verbatim from the Kansas law, with entire subsections worded identically. Compare Ala. Code with K.S.A This Court can judicially notice documents filed in the district court because they are public records. United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010)( [W]e have the authority to review [the non-record documents] because we may take judicial notice of public records, including district court filings. ); see also Howard v. Zimmer 711 F.3d 1148, 1150 n.2 (10 th Cir. 2012)(judicially noticing briefs filed in another circuit). 3

12 Georgia s similar proof-of-citizenship law was adopted before Kansas s and Alabama s and is codified at O.C.G.A Thus Kansas is not an outlier. Arizona and Kansas have enforced DPOC laws for years, and Alabama and Georgia indicate forthcoming implementation. B. The Appellees Omit Crucial Words in the NVRA No less than four times, Appellees attempt to mislead this Court by partially quoting 52 U.S.C (c)(2)(B). Resp. 2, 4-5, 14, 21. Each time, they omit text that is pivotal in this case. They quote the National Voter Registration Act ( NVRA ) as follows: The motor-voter application may require only the minimum amount of information necessary to enable State election officials to assess the eligibility of the applicant. Id. at 4-5. But that is not the only reason that information written on the application form may be deemed necessary. The entirety of 52 U.S.C (c)(2)(B) is as follows: (2) The voter registration application portion of an application for a State motor vehicle driver s license- (B) may require only the minimum amount of information necessary to- (i) prevent duplicate voter registrations; and (ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process; 4

13 52 U.S.C (c)(2)(B)(emphasis added). 3 Appellees never quote this subsection in its entirety. Each time, they omit the italicized words. When read in its entirety, it is clear that whether information is necessary under 52 U.S.C (c)(2)(B) depends on what the State election official is required to obtain from the applicant in order to comply with state laws. That is the only natural reading of to administering voter registration and other parts of the election process. Administering a process entails complying with relevant laws. The registration form drafted by a State may require information needed to comply with the State s laws, to assess eligibility, and to prevent duplicate registrations; but it may not require further information. Appellees omission of these words is instructive. They do not want this Court to consider the entire subsection. C. Appellees Misstate Their Factual Circumstances Appellees make numerous, factually-incorrect statements in their brief regarding their individual circumstances. First, Appellees incorrectly state that Several Plaintiffs testified that they provided DPOC to the DMV, but their voter registration applications were nevertheless placed in suspense, and ultimately 3 Kobach v. Election Assistance Comm n ( EAC ), 772 F.3d 1183 (10th Cir. 2014), cert. denied, 135 S.Ct (2015), never addressed these italicized words. 5

14 canceled. Resp. 8. No Plaintiff has testified in court. The district court found that, The ELVIS database shows no record of Mr. Boynton applying to register at a DMV office in August App According to the State s DMV records, Mr. Boynton declined to register to vote. App As for Mr. Hutchinson, he never provided DPOC as part of a motor voter transaction; instead he attempted to provide DPOC to a DMV office two years after he applied to register to vote, entirely apart from any motor voter transaction. App. 688, Second, Appellees falsely claim that Defendants have not identified any individuals whose applications were canceled or suspended for failing to provide DPOC were noncitizens. Resp. 9. In reviewing the Sedgwick County spreadsheet of noncitizen registrants, App , the court found that, [s]ince the effective date of the DPOC requirement, fourteen noncitizens have unsuccessfully attempted to register to vote in Sedgwick County. App Each noncitizen has an ELVIS ID number, and the record was necessarily placed in suspense because the applicant could not provide DPOC. App Those noncitizens who registered at the DMV were among (ever-changing) people on the suspense list; some were still on the list when the district court ruled, others records were cancelled after the 90-day period of K.A.R elapsed. Third, as to Ms. Bucci, Appellees purposefully ignore facts in the record. According to the district court, The ELVIS records show that Ms. Bucci was sent 6

15 two notifications that [DPOC] was required the first on August 16, There is also a notation in the database from September 25, 2013: Will get information to us on POC when she gets items unpacked. App. 685, 950. Ms. Bucci later acknowledged that she received a phone call after receiving one written notice. App The State s records reflect additional notifications. Ms. Bucci s ELVIS file indicates she applied to register at the DMV on August 14, 2013, at which time the DMV clerk handed her a paper notice informing her she still needed to provide DPOC. App The ELVIS file indicates a second notice was sent to her by the Sedgwick County election office two days later. Id. The ELVIS file also indicates Ms. Bucci spoke to a Sedgwick County official on September 25, Id. This was her third individual notice. In summary, all Appellees received notice at the DMV and again through notices from the county election offices, which are notated in the ELVIS files. Additionally, the record indicates that the notices mailed to the addresses in ELVIS, which were provided by Appellees themselves, were not returned undelivered. App Appellees may not hypothesize that perhaps written notices were not delivered or that the DMV receipts were not given. These are the official procedures for voter registration in Kansas. [A] presumption of regularity attaches to the actions of Government agencies[.] United States Postal Service v. Gregory, 534 U.S. 1, 10 (2004); Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 7

16 2012)( The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. )(citation omitted); Ron Peterson Firearms, LLC v. Jones, 760 F.3d 1147, 1164 (10th Cir. 2014) (citation omitted); United States v. Stewart, 472 F.2d 1114, 1118 (1st Cir. 1973) (citation omitted) (presumption of regularity attaches to delivery of letters). II. Appellees 30-Month Delay Prevents any Finding of Irreparable Harm Appellees attempt to convince this Court to affirm a preliminary injunction that they sought 30 months after the first Appellee received personal, individualized notice that he needed to present DPOC to complete registration. Principal Br Even by Appellees own self-serving explanations, they waited until over a year after the last Appellee had notice of the law. Resp. 47. Moreover, it is arguably immaterial when they received individualized notice. It is universally recognized that Appellees were on notice when the proof-of-citizenship law was enacted in 2011 because everyone is presumed to know the law. Jeman v. Carlisle, McNellie, Rini, Kramer, Ulrich LPA, 559 U.S. 573, 582 (2010)(It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally. ); Turner v Woodson County Com rs, 27 Kan. 314, 317 (Kan. 1882)(voters presumed to know a voting law was 8

17 unconstitutional when they voted). Appellees offer no support for their theory that an individual must receive individualized, personal notice regarding the statutory terms of a law before they can be deemed to have delayed in bringing a lawsuit. Moreover, even if individualized notice was required, Appellees do not explain why the clock did not begin when the first Appellee (Hutchinson) received notice at the DMV on May 23, The fact that the last Appellee (Boynton) delayed 14 months (also an excessive delay) rather than 30 months does not reset the clock. 4 Realizing the weakness of their argument, Appellees ask this Court to ignore their delay and instead focus on their claimed presumption of irreparable harm. Resp This does not remove Appellees delay problem. A presumption of irreparable harm is inoperative if the plaintiff has delayed either in bringing suit or in moving for preliminary injunctive relief. Tough Traveler, Ltd. v. Outbound Products, 60 F.3d 964, 968 (2d Cir. 1995)). This Court has already rejected Appellees argument that delay cannot negate a presumption of irreparable harm. GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984)( Delay in seeking relief, however, undercuts any presumption that infringement alone has caused irreparable harm[.] ). 4 Again, Mr. Boynton did not register to vote at the DMV anyway. 9

18 Appellees attempt to distinguish the cases cited by the Secretary as only applying to common law and trademark suits. Resp. 45. But courts have also refused to find irreparable harm due to delay in in cases involving voting laws. Lucas County Democratic Party v. Blackwell, 341 F. Supp.2d 861, (N.D. Ohio 2004)(rejecting finding of irreparable harm due to ten-month delay in challenging the Ohio Secretary of State s memorandum under Help America Vota Act); Taylor v. Angarano, 652 F. Supp. 827, (S.D.N.Y. 1986)( [P]laintiffs delay in bringing suit and in making this motion is evidence weighing against a finding of irreparable harm. ). In sum, Appellees offer no applicable case law justifying their extraordinarily long delay before seeking a preliminary injunction. A court cannot find irreparable harm when Appellees delayed four-and-a-half years after enactment of the law, and 30 months after receipt of individualized notice. Appellees next claim that their lengthy delay can be ignored because Kansas issued a document-maintenance regulation requiring incomplete applications more than 90 days old to be reclassified as cancelled in September Resp. 48. But that does not alleviate Appellees delay problem. The claimed irreparable harm for enjoining K.S.A (l) is that Appellees are required to provide DPOC. That requirement has been in Kansas law since April The document-maintenance regulation did not create that requirement. It simply meant 10

19 that an applicant who waited more than 90 days to provide DPOC must complete a new registration form to register. Finally, Appellees ask this Court to ignore their delay because their harm is ongoing; and they claim none of the cases cited by the Secretary involve ongoing harms. Resp That is incorrect. Trademark infringement is an ongoing harm[.] See Tancogne v. Tomjai Enterprises Corp., 408 F. Supp. 2d 1237, 1243 (S.D. Fla. 2015). This Court has declined to find irreparable harm despite the ongoing nature of trademark infringement harm. GTE Corp., 731 F.2d at 678. In sum, Appellees offer no case law excusing delaying 30 months from individualized notice and four-and-a-half years from enactment of the law. III. Appellees Are Unlikely to Prevail on the Merits A. Appellees Misquote ITCA Regarding the Plain Statement Rule The plain statement rule is a fundamental rule that applies in all preemption cases. It is axiomatic that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989)(internal citation omitted). This rule imperils Appellees argument because nowhere in the NVRA does Congress expressly state that States are barred from requiring proof of citizenship from voter 11

20 registration applicants. Rather, Appellees must rely on a tortured reading of 52 U.S.C (c)(2)(B) to find an unstated implication that DPOC is disfavored. Not surprisingly, Appellees want to ignore the plain statement rule. 5 To accomplish this, Appellees rip a passage from Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct (2013)( ITCA ) out of context. Appellees state, [T]he Supreme Court has rejected this view, noting that it ha[s] never mentioned such a principle in [its] Election Clause cases. ITCA, 133 S.Ct. at Resp. 20. However, the principle referred to in this passage from ITCA is the presumption against preemption, not the plain statement rule. Indeed, three sentences earlier, the paragraph begins with: Finally, Arizona appeals to the presumption against pre-emption sometimes invoked in our Supremacy Clause cases. ITCA, 133 S.Ct. at As explained in the Secretary s Principal Brief, ITCA declined to apply the presumption against preemption in the Elections Clause 5 Appellees also assert that the Secretary waived this argument below. This is remarkable, given that the Secretary repeatedly argued below that the NVRA must contain an express statement prohibiting DPOC if any preemption can occur. App Although the Secretary did not specifically cite the case law supporting the plain statement rule, the claim (minus the case law) was certainly presented. Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below. United States v. Johnson, 821 F.3d 1194, 1199 (10th Cir. 2016)(quoting Lebron v. Nat l R.R. Passenger Corp., 513 U.S. 374, 379 (1995). The additional precedents offered on appeal are nothing more than new argument[s].. support[ing] what ha[ve] been his consistent claim[s]. Lebron, 513 U.S. at 379. Finally, it is unclear how a party can waive a canon of construction and thereby free an Article III court to interpret statutes without constraint. 12

21 context, id. at 2256, but applied the plain statement rule. Principal Br The ITCA Court held that the reasonable assumption is that the statutory text accurately communicates the scope of Congress s pre-emptive intent. Id. at Elections Clause legislation cannot be read to have hidden, implicit prohibitions; a court must read Elections Clause legislation simply to mean what it says. ITCA, 133 S.Ct. at Appellees evidently misunderstood the difference between the plain statement rule and the presumption against preemption. The doctrines are distinct. The presumption against preemption (1) is a rule that places the initial burden on one party or the other, Tex. Cent. Bus. Lines Corp. v. City of Midlothian, 669 F.3d 525, 529 (5th Cir. 2012); (2) can be overcome if the burdened party makes the requisite showing, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); and (3) applies in both express preemption cases and implied preemption cases (outside of the Elections Clause context). In contrast, the plain statement rule (1) is a canon of statutory construction, Gregory v. Ashcroft, 501 U.S. 452, 470 (1991); (2) can never be overcome, Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); and (3) applies only in express preemption cases. Because there is no plain statement anywhere in the text of the NVRA that expressly prevents a state from requiring DPOC in addition to the information provided on face of the application form, Appellees claim must fail. The 13

22 preemptive scope of the NVRA is limited to the plain terms of the statutory text. ITCA, 133 S.Ct. at Finally, Appellees make a bizarre and unsupported statement of law: Preemption of state laws restricting voter registration is presumed. Resp. 20. They apparently begin with the correct premise that there is no presumption against preemption in Election Clause cases, but then make a giant leap in logic to declare that the converse must be true. The case law on this point is clear: in Election Clause cases there is no presumption either way. The Clause is a default provision that invests the States with responsibility for the mechanics of congressional elections only so far as Congress declines to preempt state legislative choices[.] Foster v. Love, 522 U.S. 67, 69 (1997). But a state law is only preempted by the NVRA if it directly conflict[s] with the NVRA s text. Voting for America, Inc. v. Steen, 732 F.3d 382, 399 (5th Cir. 2013). B. Appellees Offer no Answer to the Fact that the Relevant Text of the NVRA Refers to Information Written on the Form, Not to Documents Required Outside of the Form One of the most important arguments presented by the Secretary is that the wording of 52 U.S.C (c)(2) plainly describes information that must be written by the applicant on the voter registration form, not documentation that is 14

23 required by the State outside of the form. Principal Br Amazingly, Appellees say nothing in response. Only the Secretary has offered a reading of the disputed phrase ( minimum amount of information necessary ) that squares with the surrounding text. As the Supreme Court has repeatedly emphasized, [w]ords that can have more than one meaning are given content, however, by their surroundings. Whitman v. American Trucking Assns. 531 U.S. 457, 466 (2001); ITCA, 133 S.Ct. at U.S.C (c) only describes the information that is to be physically written on the form by the applicant, and the statement[s] that the State must put on the form. The phrase minimum amount of information necessary is in the section describing what must be written by the applicant on the face of the form. This is evident in the next clause, which discusses information required in the driver s license portion of the form. Id. at (c)(2)(a)(emphasis added). The parenthetical at the end of the same sentence indicates that it concerns information that the applicant must write in the form: (other than a second signature or other information necessary under subparagraph (C)). Id. A signature is written in the form. The other information described in subparagraph (C) is information in the form, specifically a statement of eligibility requirements and an attestation (with signature) that the applicant meets those requirements. Id. at (c)(2)(c). 15

24 The NVRA simply does not address providing a document that is entirely outside the information written in the spaces on the form, and that is exactly what the Supreme Court concluded in Young v. Fordice, 520 U.S. 273, 286 (1997), where it interpreted the same NVRA subsection. C. Appellees Cannot Escape Young v. Fordice As explained in the Secretary s Principal Brief, one of the greatest impediments to Appellees claim is that the Supreme Court already rejected the notion that the NVRA prohibits a State from requiring additional documentation, in addition to the information requested on the application form. Principal Br Referring to the same DMV section of the NVRA, the Young Court stated: The NVRA says, for example, that the state driver's license applications must also serve as voter registration applications. It says that States cannot force drivers license applications to submit the same information twice (on license applications and again on registration forms). Nonetheless, implementation of the NVRA is not purely ministerial. The NVRA still leaves room for policy choice. The NVRA does not list, for example, all the other information the State may or may not provide or request. Young, 520 U.S. at 286 (emphasis added). Young is unambiguous: States are permitted to request other documents or information, in addition to the minimum necessary information that the applicant writes on the form itself. 16

25 Realizing that this holding is fatal to their case, Appellees try to evade it in two ways. They first attempt to distinguish Young by stating that it was a Voting Rights Act preclearance case. Resp. 38. But that distinction is meaningless. In the course of reviewing a preclearance decision, the Supreme Court was required to opine on the NVRA s meaning, because it was reviewing changes that [Mississippi] made to comply with the NVRA. 520 U.S. at 279. The Court never implied that the NVRA might mean something different in a different case. Appellees second attempt to escape Young is even weaker. Appellees emphasize the word request in Young s statement, other information that the State may or may not provide or request. Resp. 38 (quoting Young, 520 U.S. at 286)(Appellees emphasis). Appellees then claim that request means something different than require. Resp. 38. Appellees appear to argue that request is permissive in Young. This argument borders on the ridiculous, and Appellees offer no support for it. The context of this sentence is clear: the Young Court used a word that means the opposite of provide. Thus, provide or request sounds better that provide or require. Moreover, the term request indicates a mandatory requirement in the context of a State application. If a State agency requests a document from an applicant, the agency will deem the application incomplete if the document is not provided. The term request is often mandatory in nature; just as a request for production is mandatory in the 17

26 litigation context, a request for a document is mandatory in the voter registration context. 6 In summary, the Supreme Court interpreted the meaning of 52 U.S.C (c)(2) and concluded that States may continue to require documents or information not specifically mentioned by the NVRA. Both the district court and Appellees are unable to explain why Young s holding does not control the instant case. D. Appellees Interpretation Raises Constitutional Doubt Congressional Acts must not be construed in a manner that raises doubts as to their constitutionality. Clark v. Martinez, 543 U.S. 371, (2005); F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). In the instant case, the Secretary lengthily explained why the district court s strained reading of the NVRA creates two constitutional problems, thereby raising constitutional doubt. 6 In any particular context it is always possible that a request is in fact grounded on right or authority and is meant and is to be understood as the polite equivalent of a command or a demand. Many a request is made in the law where a demand could as easily be made... Rice v. United States, 428 F.2d 1311, 1314 (Ct. Cl. 1970)(emphasis added). See also Foundry Networks v. Lucent Techs., Inc., 2005 WL , at *3 (E.D. Tex. 2005)( The court therefore construes request(s) consistent with its ordinary meaning a command, generated by a requester, to initiate an action on a responder. ). 18

27 Principal Br In response, Appellees attempt to brush this argument aside in two conclusory paragraphs. Resp The States Sole Authority to Set and Enforce Qualifications The Supreme Court in ITCA made clear that the States retain sole authority to set the qualifications for voters under Article I, Section 2, and the Seventeenth Amendment of the United States Constitution. Surely nothing in these provisions lends itself to the view that voting qualifications in federal elections are to be set by Congress. Prescribing voting qualifications... forms no part of the power to be conferred upon the national government by the Elections Clause. ITCA, 133 S.Ct. at 2258 (internal quotations omitted)(quoting The Federalist No. 60, at 371 (Hamilton)). Importantly, the Supreme Court also held that the States possess the authority to enforce voter qualifications: Since the power to establish voting requirements is of little value without the power to enforce those requirements, Arizona is correct that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications. Id. at (emphasis added). In response, Appellees merely say that citizenship is a voter qualification and DPOC is simply how a person proves that she is eligible. Resp. 40. Appellees response is inadequate for two reasons. First, in Kansas completing the registration process itself is also a qualification. The Secretary explained this in 19

28 his Principal Brief, and Appellees offered no response. Principal Br In Kansas, qualified electors are persons who have the constitutional (Kan. Const., art. V, 1, 4) qualifications of an elector and who are duly and properly registered. Dunn v. Board of Comm rs of Morton County, 165 Kan. 314, 328 (1948)(emphasis added). One is not entitled to vote under Kansas law until one is a qualified elector; and becoming a qualified elector entails not only being a United States citizen, but also completing the registration process. Second, even if Kansas law did not treat completion of the registration process as a separate qualification, it would not matter, because ITCA held that States also possess the sole constitutional authority to enforce [their] voter qualifications. ITCA, 133 S.Ct. at Thus, it does not matter whether one considers the DPOC registration requirement a qualification or a means of enforcing the citizenship qualification. The ITCA Court stated that it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications. Id. at The interpretation offered by the district court in the instant case unquestionably raises constitutional doubt much greater than the interpretation of the Federal Form section of the NVRA in ITCA. In ITCA, the Court was [h]appily spared that necessity [of determining whether an alternative interpretation of the NVRA was possible], since the statute provides another means 20

29 by which Arizona may obtain the information needed for enforcement. Id. at Specifically, Arizona could request anew that the EAC include such a requirement among the Federal Form s state-specific instructions. Id. at There is no such outlet in this case. 7 Here the district court agreed with Appellees and barred Kansas from setting and enforcing its voter qualifications. Kansas cannot simply request anew permission to exercise its constitutional authority to set and enforce voter qualifications. Constitutional doubt exists in spades. 2. Different Qualifications for Federal and State Elections The second constitutional problem created by the district court s decision is that the qualifications for federal electors no longer match the qualifications for state electors. This plainly conflicts with Article I, Section 2: the Electors in each State [for congressional elections] shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. U.S. Const., Article I, 2, cl. 1. Completion of the registration process by providing DPOC is a qualification for being an elector in Kansas legislative elections. K.S.A (l); Dunn., 165 Kan. at The NVRA cannot be interpreted so that the 7 Appellees vainly rely on this Court s EAC decision to escape the constitutional doubt problem. Resp. 40 (quoting EAC, 772 F.3d at 1199). But that decision is inapposite for the same reason. EAC concerned 52 U.S.C , which provided an outlet to avoid a construction that created constitutional doubt includes no such outlet. 21

30 qualifications for federal electors are different. But that is what the district court has effectively done. Its holding, by its own terms, only applies to federal elections because the NVRA only extends to federal elections. Meanwhile Kansas law at K.S.A (l) still governs state elections. So a bifurcated election is necessary in order to obey the district court s order while also obeying Kansas law. Its construction of the NVRA has improperly raised grave constitutional doubts when a construction of the statute is fairly possible by which the [constitutional] question may be avoided. ITCA, 133 S.Ct. at 2259 (citation omitted). Appellees only offer two frail responses. First, they inexplicably declare that this claim was not raised below. Resp. 41. On the contrary, the Secretary lengthily explained it below. App Indeed, the district court specifically mentioned the argument: Secretary Kobach argues that Plaintiffs position is unconstitutional because it would allow two sets of electors to exist, one for federal and one for state elections, despite the Qualification Clause s reference to one set of electors. App Second, Appellees argue that nothing compels Defendant Kobach to enact a labyrinthine dual registration system. Resp. 41. In other words, Appellees suggest that the Secretary should unilaterally decline to follow K.S.A (l) and abandon the State s statutory DPOC requirement with respect to state elections. Not only would this violate Kansas law, it would upend the United 22

31 States Constitution. According to Appellees, once the qualifications for federal electors are set (through an incorrect interpretation of a federal statute), the state must yield its constitutional authority and modify the qualifications for its state electors so they match the qualifications for federal electors. This inverts the constitutional design of Article I, Section 2: the Electors in each State [for congressional elections] shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. U.S. Const., Article I, 2, cl. 1. It is preposterous to argue that Kansas can avoid constitutional doubt by surrendering its constitutional authority to set the qualifications for state electors. E. Appellees Interpretation of the Text is Unsustainable Faced with statutory text that does not plainly prohibit States from requiring DPOC, Appellees offer implausible theories that find no support in relevant case law. First, Appellees argue that Kansas may not require information outside of the form because the NVRA did not authorize states to divide the registration process into multiple stages at which applicants must produce new information. Resp. 23. However, the Supreme Court has already rejected Appellees theory. If the NVRA prohibited requiring DPOC after submission of a Federal Form, ITCA would have so held. Instead, ITCA held the opposite the Federal Form can 23

32 require DPOC if the EAC modifies the Form. 133 S.Ct. at Appellees argument ignores this core ITCA holding. Moreover, States do not need federal authoriz[ation] to act. Appellees misunderstand how the Elections Clause works. The States begin with the default control of federal elections unless and until Congress chooses to preempt state legislative choices. ITCA, 133 S.Ct. at No prior authorization is necessary for States to prescribe[] the times, places and manner of federal elections. U.S. Const. Art I, 4, cl. 1. States are free to act as they wish until Congress preempts with a plain statement in federal law that creates a direct[] conflict. Steen, 732 F.3d at 399. Appellees also argue that the NVRA mandates that an attestation is the only information a State can request regarding citizenship, because the NVRA requires an attestation to citizenship on DMV forms. Resp Thus they theorize that anything beyond that is additional proof beyond the minimum. Id. at 22. However, Appellees argument fails in light of ITCA. The corresponding Federal Form section of the NVRA contains language nearly identical to the motor voter section. Although Appellees hinge their entire case on the word minimum, the equivalent language in the Federal Form provision is equally restrictive. The Federal Form may require only such identifying information as is necessary. 52 U.S.C (b)(1)(emphasis 24

33 added). Importantly, the Federal Form section also has an attestation requirement that is worded identically to the DMV section. 52 U.S.C (b)(2). Yet ITCA held that DPOC could be required by the Federal Form. 133 S.Ct. at And on January 29, 2016, the EAC added a DPOC requirement to the Federal Form instructions for Kansas, Alabama, and Georgia. While Appellees complain that the EAC action is being challenged, they forget that a presumption of validity attaches to the agency action[.] EAC, 772 F.3d at And, a preliminary injunction to that decision has already been rejected. Newby, 2016 WL Appellees also ignore the canon of construction that, where a statute contains express prohibitions, a court must not also attempt to find implicit prohibitions. Jama v. Immigration & Customs Enforcement, 543 U.S. 335, (2005). The NVRA clearly and plainly prohibits States from requiring (1) notarization of forms, 52 U.S.C (b)(3), and (2) information duplicated on the driver s license application form. 52 U.S.C (c)(2)(A). Congress knew how to expressly prohibit certain registration procedures in the NVRA; it is impermissible for a court to invent additional prohibitions. Finally, Appellees take the word minimum out of context. They claim anything beyond mere attestation is additional proof beyond the minimum. Resp. 22. Appellees simplistic argument ignores the remainder of the section. [M]inimum does not appear in a vacuum. The phrase minimum amount of 25

34 information necessary to is followed by three justifications for the requested information: (1) to prevent duplicate voter registrations, (2) to enable State election officials to assess the eligibility of the applicant, and (3) to administer voter registration and other parts of the election process. 52 U.S.C (c)(2)(B). Plaintiffs focus exclusively on the assessing-eligibility-of-theapplicant justification, but pointedly ignore the other two. The duplication prohibition explains why minimum was used in but not in The Secretary explained at length how duplicate registrations can be reduced by requiring any number of identifiers (race, birthplace, mother s maiden name, etc.); the NRVA directed States to use the minimum number of such identifiers. Principal Br. 42. Appellees have no coherent answer to this reading. They only oddly assert that this reading plac[es] no limitations on what States may require. Resp. 42, n But directing States to minimize the number of identifiers is a meaningful use of minimum, and it fits within the larger goal of creating a short DMV form that does not take long to complete. F. Appellees Use of Legislative History is Misleading and is Foreclosed by ITCA 8 Appellees also incorrectly claim that this argument was not made below. Resp. 42, n.19. The Secretary repeatedly offered the district court alternatives that gave effect to the word minimum. App. 481, 506, ,

35 This Court need not and should not wade into the murky waters of legislative history to resolve this case. Statutory text controls statutory interpretation, not ill-defined legislative intent. Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 599 (2011)(citing Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 (2005). And, as explained above, the Supreme Court already ruled on the meaning of this specific NVRA text: The NVRA still leaves room for policy choice. The NVRA does not list, for example, all the other information the State may or may not provide or request. Young, 520 U.S. at 286. Nevertheless, because Appellees continue to use legislative history to defeat the plain meaning of the legislative text, the Secretary will reply. Appellees begin their argument once again by attempting to mislead this Court. They take a quote from this Court s opinion in EAC completely out of context. Appellees state the following: But this Court has already recognized that [b]oth houses of Congress debated and voted and ultimately rejected a proposal to allow States to require DPOC from NVRA applicants. EAC, 772 F.3d at 1195 n.7. Resp. 24. The smoking ellipses tell the story. This Court was talking specific[ally] about the Federal Form. The full quote from EAC is as follows (the italicized words were omitted by Appellees): Both houses of Congress debated and voted on the specific question of whether to permit states to require documentary proof of citizenship in connection with the Federal Form, and 27

36 ultimately rejected such a proposal. EAC, 772 F.3d at 1195 n.7 (emphasis added). As this Court correctly recognized in EAC, the Federal Form is an entirely different method of registration one controlled by a federal agency, not one left entirely to the States, like State-created DMV registration forms and State-created mail registration forms. Appellees also misrepresent the proposal. It was a rule of construction amendment offered by Senator Alan Simpson, not a provision that would allow States to require DPOC from NVRA applicants as Appellees characterize it. Specifically, it was described as a rule of construction that nothing in this Act shall prevent a State from requiring presentation of documentation relating to citizenship of an applicant for voter registration. H.R. Rep. No , at 23 (1993)(Conf. Rep.). It was deemed not necessary by the conference committee. Id. And Senate sponsor of the NVRA Wendell Ford, who also sat on the conference committee, explained why it was not necessary: I say there is nothing in the bill now that would preclude the State s requiring presentation of documentary evidence of citizenship. I think basically this is redundant there is nothing in there now that would preclude it. App The rejection of a rule of construction as being redundant and unnecessary is completely different than what Appellees incorrectly describe as a proposal to allow States to require DPOC from NVRA applicants. Resp. 24. The Simpson 28

37 rule of construction did not grant the States authority to do anything. The States always had, and continue to have, the exclusive constitutional authority to enforce voter qualifications, including through the use of a DPOC requirement. ITCA, 133 S.Ct. at Revealingly, Appellees offer no response to the fact that the House and Senate committees clearly intended that the States would be permitted to continue verifying citizenship as they saw fit: It should be made very clear to any applicant in a driver's license bureau that the application for voter registration is an application which must be reviewed by the appropriate election officials. Only the election officials designated and authorized under State law are charged with the responsibility to enroll eligible voters on the list of voters. This bill should not be interpreted in any way to supplant that authority. The Committee is particularly interested in ensuring that election officials continue to make determinations as to applicant s eligibility, such as citizenship, as are made under current law and practice. Applications should be sent to the appropriate election official for the applicant s address in accordance with the regulations and laws of each State. H.R. Rep. No , 8 (1993)(emphasis added). [D]eterminations as to an applicant s eligibility, such as citizenship were to continue to be made in accordance with the regulations and laws of each State. Id. This language cuts directly against Appellees use of legislative history. On balance, the legislative history supports the Secretary s position. But most importantly, the Supreme Court in ITCA has already rejected the argument that Congress intended to prevent States from requiring DPOC. The 29

38 Supreme Court held that if Arizona accepted and used the Federal Form, it could require DPOC if the EAC subsequently modified the Form s Arizona-specific instructions on the Federal Form. ITCA, 133 S.Ct. at Accordingly, ITCA stated that, Arizona may request anew that the EAC include such a [DPOC] requirement among the Federal Form s state-specific instructions. Id. If the NVRA had been intended by Congress to bar States from requiring DPOC, the Supreme Court would not have said that Arizona was free to request that DPOC be added to the Federal Form. There is simply no logical way to reconcile Appellees reading of the legislative history with the Supreme Court s decision in ITCA. CONCLUSION For the reasons stated above, the district court s preliminary injunction should be reversed. Respectfully submitted this 28th day of July, /s/ Kris W. Kobach KRIS W. KOBACH, Secretary of State, #17280 GARRETT R. ROE, #26867 Office of the Kansas Secretary of State 120 SW 10th Avenue, Topeka, Kansas Tel. (785) Fax. (785) Attorneys for Appellant 30