Nos , IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

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1 Nos , IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT KRIS W. KOBACH, Kansas Secretary of State; KEN BENNETT, Arizona Secretary of State; STATE OF KANSAS; STATE OF ARIZONA, v. Plaintiffs-Appellees, UNITED STATES ELECTION ASSISTANCE COMMISSION; ALICE MILLER, in her capacity as acting Executive Director and Chief Operating Officer of the United States Election Assistance Commission, and Defendants-Appellants, INTER TRIBAL COUNCIL OF ARIZONA, INC.; ARIZONA ADVOCACY NETWORK; LEAGUE OF UNITED LATIN AMERICAN CITIZENS ARIZONA; STEVE GALLARDO; PROJECT VOTE, INC.; LEAGUE OF WOMEN VOTERS OF THE UNITED STATES; LEAGUE OF WOMEN VOTERS OF ARIZONA; LEAGUE OF WOMEN VOTERS OF KANSAS; VALLE DEL SOL; SOUTHWEST VOTER REGISTRATION EDUCATION PROJECT; COMMON CAUSE; CHICANOS POR LAW CAUSA, INC.; DEBRA LOPEZ, Defendant Intervenors-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS, No. 5:13-cv EFM-DJW THE HONORABLE ERIC F. MELGREN PLAINTIFFS-APPELLEES PETITION FOR PANEL REHEARING KRIS W. KOBACH, Secretary of State THOMAS E. KNUTZEN Kansas Secretary of State s Office 120 S.W. 10th Avenue Topeka, Kansas Tel: (785) DEREK SCHMIDT, Attorney General STEPHEN R. McALLISTER JEFFREY A. CHANAY Kansas Attorney General s Office 120 S.W. 10th Avenue Topeka, Kansas Tel: (785)

2 TABLE OF CONTENTS Table of Authorities... ii STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE FACTUAL BACKGROUND... 2 ARGUMENT... 5 I. The Panel Overlooked the EAC s Failure to Follow its Own Regulations... 5 II. III. The Panel Did Not Address the Argument that the States have the Exclusive Power to Establish and Enforce Voter Qualifications... 7 The Panel Overlooked the State Law Requirements that Define Registration, Itself, as a Qualification for Being an Elector CONCLUSION CERTIFICATE OF DIGITAL SUBMISSION CERTIFICATE OF SERVICE Attachment Opinion that is Subject of Petition for Panel Rehearing i

3 TABLE OF AUTHORITIES Cases Arizona v. Inter Tribal Council, 133 S. Ct (2013)... passim Brown v. Ohio, 432 U.S. 161 (1977) Christensen v. Harris Cnty., 529 U.S. 576 (2000)... 6 Crow v. Shalala, 40 F.3d 323 (10th Cir. 1994) Dunn v. Bd. Of Comm rs of Morton Cnty., 194 P.2d 924 (Kan. 1948)... 11, 12 McDowell Mountain Ranch Land Coalition v. Vizcaino (Ariz. 1988)... 11, 12 Estate of Holl v. C.I.R., 54 F.3d 648 (10th Cir. 1995)... 2 Garner v. Louisiana, 368 U.S. 157 (1961) Kobach v. v. EAC, No (10th Cir., Nov. 7, 2014)... passim Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) Oregon v. Mitchell, 400 U.S. 112 (1970) RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct (2012) Silverton Snowmobile Club. v. U.S. Forest Service, 433 F.3d 772 (10th Cir. 2006) Tele-Communications, Inc. v. C.I.R., 104 F.3d 1229 (1997) Utah Envtl. Congress v. Richmond, 483 F.3d 1127 (10th Cir. 2007)... 5 Via Christi Reg l Med. Ctr., Inc. v. Leavitt, 509 F.3d 1259 (10th Cir. 2007)... 5 Ventre v. Ryder, 176 F. Supp. 90 (W.D. La. 1959) Constitutional Provisions U.S. Const. art. I, , 8, 11, 12, 14 ii

4 U.S. Const. art. I, 2, cl , 15 U.S. Const. Art. I, , 11 U.S. Const. Art. I, 4, cl U.S. Const. amend. XIV U.S. Const. amend. XV U.S. Const. amend. XVII... 11, 12, 15 U.S. Const. amend. XIX U.S. Const. amend. XXIV U.S. Const. amend. XXVI Statutes 42 U.S.C. 1971gg U.S.C (a)(1) U.S.C Ariz. Rev. Stat (A) Ariz. Rev. Stat (F)... 2, 6 Kan. Stat. Ann (l)... 2, 6 Regulations 11 C.F.R , 4 11 C.F.R (b)... 1, 4, 5, 6 11 C.F.R (b)(1)... 3 iii

5 Other Materials The Federalist No. 59 (A. Hamilton)... 8 The Federalist No. 60 (A. Hamilton)... 8 iv

6 STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 40 Plaintiffs-Appellees, State of Kansas, State of Arizona, Kansas Secretary of State Kris Kobach, and Arizona Secretary of State Ken Bennett ( the States ), seek panel rehearing in this case on three points of law that the Panel was required to address in order to rule in favor of the States, but overlooked. The Panel reversed the judgment of the district court, which held that the Election Assistance Commission ( EAC ) unlawfully denied the States requests to modify the national mail voter registration application form ( Federal Form ) to reflect current registration requirements according to the States laws. The first legal issue that the Panel overlooked stemmed from the fact that the EAC ignored its own Regulations in making this denial. The States had argued in their briefing that the EAC Decision was arbitrary and capricious because the agency failed to follow its own regulation. See States Response Brief ( States Resp. Br. ) at (citing 11 C.F.R (b)); Via Christi Reg l Med. Ctr., Inc. v. Leavitt, 509 F.3d 1259, 1271 (10th Cir. 2007). Second, the Panel rejected the States constitutional argument because the Supreme Court held that the States did not have exclusive authority to regulate federal elections. Kobach v. v. EAC, No , Slip Opinion (10th Cir., Nov. 7, 2014) ( Slip Op. ) at 27. However, the States never argued that they had that exclusive authority. The Court overlooked the legal position that the States consistently asserted that they have exclusive authority to establish and enforce the qualifications of electors, just as ITCA held. States Resp. Br. at Third, this Court overlooked the point of state law that one must be properly registered in order to be 1

7 considered an elector in both Arizona and Kansas. States Resp. Br. at 47. The weight of this state-law definition must be assessed before the Panel can dispose of the States argument that they have exclusive authority to control the qualifications of electors. If the States are correct on any of these three points, then the decision of the district court must be affirmed. Thus, it is necessary for the panel to address these three questions. Accordingly, the States ask the Panel to rehear this matter and/or issue holdings on these three questions of law that it overlooked: 1. Whether the EAC Decision was arbitrary and capricious because the EAC failed to follow its own regulations. 2. Whether the States have the exclusive authority to establish and enforce the qualifications of electors. 3. Whether the EAC unlawfully intruded on the States authority to set the qualifications for electors when it disregarded the States requirement that a person be duly registered before he can be an elector. These issues involve questions of law which the Panel reviews de novo. Estate of Holl v. C.I.R., 54 F.3d 648, 650 (10th Cir. 1995) (citation omitted). If the Panel agrees with the States on any of them, then the holding of the district court must be affirmed. FACTUAL BACKGROUND Kansas and Arizona both adopted laws requiring that persons provide documentary proof of citizenship when registering to vote. Kan. Stat. Ann. ( K.S.A. ) (l); Ariz. Rev. Stat. ( A.R.S. ) (F). Both States notified the EAC about the changes in their respective state voter registration requirements and requested that the 2

8 EAC update the state-specific instructions for the Federal Form to reflect these changes. See Aplt. App. 61, 70-71, , , 267, (discussing Arizona s requests and denials); Aplt. App (discussing Kansas requests and denials). The EAC ultimately denied the States requests and the States sought relief from the EAC s decision. Aplt. App ; Aplt. App. 33 at Dkt ; Aplt. App Relevant to this Petition is longstanding regulation 11 C.F.R , which partially implements the National Voter Registration Act ( NVRA ) and the Help America Vote Act ( HAVA ). Under the NVRA and HAVA, Congress mandated that States accept and use the Federal Form for the registration of voters for elections for federal office. 52 U.S.C (a)(1). The Federal Form is maintained by the EAC in consultation with the States chief election officers. 52 U.S.C C.F.R lists the components of the Federal Form, and subsection (b) states: The statespecific instructions shall contain information from each state, arranged by state: the address where the application should be mailed and information regarding the state s specific voter eligibility and registration requirements. (emphasis added). And, 11 C.F.R (b)(1) requires that the Federal Form [s]pecify each eligibility requirement (including citizenship) and include by reference each state s specific additional eligibility requirements (including any special pledges) as set forth in the accompanying state instructions. 1 The Panel s opinion and the Parties merits briefs cite to 42 U.S.C. 1971gg et seq. for their NVRA citations. However, 42 U.S.C. 1971gg et seq. was transferred to 52 U.S.C et seq. Accordingly, this Petition now uses the current code sections. 3

9 After construing 11 C.F.R , the district court ordered the EAC to add the language requested by Arizona and Kansas to the state-specific instructions of the federal mail voter registration form immediately. Aplt. App In its holding, the district court specifically stated that The regulation describes the mandatory contents of the instructions: The state-specific instructions shall contain the following information for each state, arranged by state: the address where the application should be mailed and information regarding the state s specific voter eligibility and registration requirements. Aplt. App. at 1443 (quoting 11 C.F.R (b)). Thus, the EAC s nondiscretionary duty is to perform the ministerial function of updating the instructions to reflect each state s laws. Id. at Further, relying on Arizona v. Inter Tribal Council, 133 S. Ct (2013) ( ITCA ), the district court held that the EAC s interpretation of its own statutory authority raised constitutional doubt because the States have the exclusive power to establish and enforce voter qualifications under Art. I, 2, cl. 1, while Congress lacked any such power under its Art. I, 4, cl. 1, authority. Aplt. App Thus, the district court held that the EAC could not prevent the States from enforcing their proofof-citizenship requirements. Id. at 1437, The States made the same argument before the Panel. States Resp. Br. at On November 7, 2014, the Panel reversed the district court. However, the Panel did not address the States argument, and the district court s conclusion, that the EAC s actions were arbitrary and capricious because the agency did not follow its own regulations, namely 11 C.F.R (b). See States Resp. Br. at The Panel 4

10 did not address whether the EAC intruded onto the States exclusive authority under Article I, 2, to establish and enforce voter qualifications. States Resp. Br. at And the Panel did not address whether the EAC intruded upon the States Article I, 2, powers because the States laws define a qualified elector as an individual properly registered to vote. States Resp. Br. at 47. Because each of these legal challenges to the EAC s decision is sufficient to sustain the holding of the district court below, the Panel should rehear the case and issue holdings on these issues. ARGUMENT I. The Panel Overlooked the EAC s Failure to Follow its Own Regulations. The Panel overlooked that the EAC acted arbitrarily and capriciously because it failed to follow its own regulation, 11 C.F.R (b). Generally, an agency s interpretation of its own regulation is to be given deference. Utah Envtl. Congress v. Richmond, 483 F.3d 1127, 1134 (10th Cir. 2007). However, an agency s interpretation of its own regulation must be rejected when it is unreasonable, plainly erroneous, or inconsistent with the regulation s plain meaning. Id. It is arbitrary, capricious, an abuse of discretion, and not in accordance with law for an agency to fail to comply with its own regulations. Via Christi Reg l Med. Ctr., Inc. v. Leavitt, 509 F.3d 1259, 1271 (10th Cir. 2007). Courts must be careful not to disrupt the plain language of the regulation itself, and if an agency wants to take a position that is inconsistent with existing regulations, then [the agency] must promulgate new regulations under the notice-andcomment provisions of the APA. Id. at (internal citations omitted). Deferring to an agency s re-interpretation of an unambiguous regulation would be to permit the 5

11 agency, under the guise of interpreting a regulation, to create de facto a new regulation. Christensen v. Harris Cnty., 529 U.S. 576, 588 (2000). In the briefing to the Panel, the States argued that Ms. Miller and the EAC failed to follow 11 C.F.R (b). States Resp. Br. at 34, 49. Specifically, the EAC s failure to follow its own regulations was unlawful, arbitrary, capricious, an abuse of discretion, and not in accordance with law because the EAC regulations require that [t]he state-specific instructions shall contain the following information for each state, arranged by state: the address where the application should be mailed and information regarding the state s specific voter eligibility and registration requirements. States Resp. Br. at 40 (citations omitted) (emphasis in original). The States also argued: Section (b) unambiguously uses mandatory language requiring the EAC to include state-specific instructions that reflect the respective voter registration laws of the States. Kansas s and Arizona s laws require voter registration applicants utilizing the Federal Form to provide satisfactory proof of citizenship before being registered to vote in any election, including elections for Federal office. K.S.A (a), (l); A.R.S (F). Therefore, according to its own regulations, the EAC must modify the Kansas and Arizona state-specific instructions to include each State s proof-of-citizenship requirements. States Resp. Br. at (emphasis in original). The district court also found the 11 C.F.R (b) mandate important. In analyzing the EAC s regulatory scheme, the district court rejected the EAC s position that it could decide what was necessary, relying on the regulation s mandatory wording. Aplt. App. at Yet, the Panel apparently overlooked that Ms. Miller failed to comply with 11 C.F.R (b), the regulation that specifies what information the Federal Form is 6

12 required to contain. This oversight is reflected in the Panel s holding that Ms. Miller s actions, and by extension the EAC s actions, were proper because Ms. Miller complied with the EAC s subdelegated authority. Slip Op. at The Panel repeatedly stressed that Ms. Miller s limited subdelegated authority was predicated on following existing EAC regulations. See Slip Op. at 9, 24. Because this Panel overlooked this dispositive issue, the Panel must rehear the case. II. The Panel Did Not Address the Argument that the States have the Exclusive Power to Establish and Enforce Voter Qualifications. The Panel held that Kobach s and Bennett s argument that the states Qualifications Clause powers trump Congress Elections Clause powers is foreclosed by precedent. Slip Op. at 28. However, the Panel never explained how or why. Instead, the Panel answered an argument the States never made, stating that the Framers rejected giving the states exclusive authority to regulate federal elections because an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. Slip Op. at 27 (citing ITCA, 133 S. Ct. at 2253). The Panel overlooked the point of law the States actually presented that the States, not the Federal Government, exclusively establish and enforce the qualifications of electors. States Resp. Br. at 16-24, 36-37, ITCA unanimously held that Congress may supersede states in regulating the Times, Places, and Manner of congressional elections under Article I, 4. ITCA, 133 S. Ct. at ; id. at (Kennedy, J. concurring); id. at (Thomas, J. dissenting); id. at (Alito, J. dissenting). The States never disputed this holding. 7

13 States Resp. Br. at Instead, the States argued that the EAC unconstitutionally prevented them from enforcing their voter qualification requirements a power reserved exclusively to the States under Article I, 2, of the Constitution. States Resp. Br. 14, 17. As the district court below noted, the Supreme Court was unanimous on this point of law. Aplt App. 1431; ITCA, 131 S. Ct. at ; id. at 2265 (Thomas, J., dissenting); id. at Prescribing voting qualifications, therefore, forms no part of the power to be conferred upon the national government by the Elections Clause[.] Id. at 2258 (quoting The Federalist No. 60, at 371 (A. Hamilton)). The Panel mistakenly believed that the States were arguing in favor of Justice Thomas s dissent. Slip Op. at Justice Thomas addressed a different issue than that presented by the States. ITCA analyzed whether Arizona could reject a validly completed Federal Form for lack of accompanying proof of citizenship. ITCA, 131 S. Ct. at The ITCA Majority held Arizona could not, because it must accept and use the Federal Form and that Arizona must request modification of the form. Id. at Justice Thomas believed that accept and use should be read as meaning that Arizona could simply use the Federal Form as part of its registration process and could require additional information not contained in the Form. Id. at 2262 (Thomas J. dissenting). That interpretation, in Justice Thomas s view, avoided Congress intruding on Arizona s Article I, 2, power and thus did not require Arizona to seek modifications to the Form. Id. However, Justice Thomas agreed Congress had some power to regulate federal elections and cited to The Federalist No. 59 (A. Hamilton), like the Panel. Id. at

14 The States followed the ITCA majority by seeking updates to the Federal Form and, after the EAC rejected the States requests, argued that the EAC s interpretation of the NVRA that it can exercise its discretion to interfere with a State s authority to enforce voter qualifications is unconstitutional under ITCA. States Resp. Br. 14, 17. Not only is the States argument consistent with ITCA, the States argument is the only interpretation of the NVRA that avoids serious constitutional doubts according to ITCA. Id. at The district court correctly selected this interpretation in order to avoid serious constitutional doubts. Aplt. App [T]he power to establish voting requirements is of little value without the power to enforce those requirements, and it would raise serious constitutional doubts if a federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications. ITCA, 133 S. Ct. at Yet the Panel has allowed that to happen. The EAC is precluding the States from obtaining information they deem necessary to enforce [their] voter qualifications. Id. at Thus the Panel allowed the EAC to substitute its judgment for that of the States on who is a qualified voter something the EAC may not do without raising serious constitutional doubts. The Panel s suggestion that constitutional doubt could be avoided because the EAC identified alternative means through which the States could supposedly enforc[e] their laws intended to prevent noncitizen voting[,] does not resolve the serious constitutional issue identified in ITCA. Slip Op. at 28. ITCA focused on whether the NVRA s accept and use requirement pre-empted Arizona from rejecting Federal Form applications unaccompanied by evidence of citizenship. Id. at ITCA never stated 9

15 that the EAC could preclude Arizona from obtaining those documents if the EAC conceived of other ways Arizona could achieve the goal of its own law. The ITCA majority held that the serious constitutional problem of preventing Arizona from obtaining information to enforce its voter qualifications laws could be avoided only by interpreting the NVRA to provide[] another means by which Arizona may obtain information needed for enforcement. Id. at That alternative means was changing the Arizona instructions on the Federal Form to require proof of citizenship. See id. The Government in ITCA conceded that this was accomplished only if the phrase may require only... meant that the EAC shall require information that s necessary, but may only require that information. Id. (quoting Tr. Of Oral Arg. 52) (emphasis in original). Only then would validly conferred discretionary executive authority [be] properly exercised (as the [United States] Government has proposed) to avoid serious constitutional doubt. That is to say, it is surely permissible if not requisite for the Government to say that necessary information which may be required will be required. Id. (emphasis in original). It was not that Arizona had alternative means to enforce its own law. It was that the EAC must include within the Federal Form, through the state-specific instructions, the requirements in Arizona s law. Otherwise, the NVRA would permit the EAC to set the qualifications for who may vote in federal elections i.e. those who provide the information that the Federal Government deems necessary. The Panel has created the constitutional problem that ITCA avoided. Finally, the Panel did not address the constitutional canon that controls the States and Congress respective authority: The specific governs the general. RadLAX 10

16 Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (internal quotations omitted). As the States counsel reiterated during oral argument, ITCA was emphatic on this point: It is difficult to see how words could be clearer in stating what Congress can control and what it cannot control. Surely nothing in these provisions lends itself to the view that voting qualifications in federal elections are to be set by Congress. ITCA, 133 S. Ct. at 2258 (quoting Oregon v. Mitchell, 400 U.S. 112, 210 (1970) (Harlan, J., concurring in part and dissenting in part)) (quotations omitted). Congress can set certain registration requirements, but it cannot preempt States authority to determine voter eligibility. The Panel held the opposite; and for the first time an Article III court held that Article I, 4, grants Congress the authority to regulate who may vote in federal elections. 2 This holding is contrary to ITCA. The Panel must therefore rehear this case. III. The Panel Overlooked the State Law Requirements that Define Registration, Itself, as a Qualification for Being an Elector. Finally, the Panel overlooked the legal reality that in Arizona and Kansas, one must be registered to vote to be an elector. States Resp. Br. at 47 (citing A.R.S (A); Dunn v. Bd. Of Comm rs of Morton Cnty., 194 P.2d 924, 934 (Kan. 1948) (parenthetical omitted)); see also McDowell Mountain Ranch Land Coalition v. Vizcaino, 945 P.2d 312, 314 (Ariz. 1988). The States clearly raised the issue that being registered is itself a qualification for being an elector in both States. States Resp. Br. at The Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments restrict the States authority under Article I, 2 and the Seventeenth Amendment. 11

17 States possess the exclusive power to decide who is an elector. ITCA, 133 S. Ct. at 2258; see also Ventre v. Ryder, 176 F. Supp. 90, 97 (W.D. La. 1959) ( The question of whether or not a voter is a qualified elector is a state matter to be determined by state law and state courts. ) A state s highest courts are the final authority on state law. Brown v. Ohio, 432 U.S. 161, 167 (1977); Garner v. Louisiana, 368 U.S. 157, 169 (1961). In exercising this constitutional authority, Kansas and Arizona determined that only registered voters are electors. Dunn, 194 P. 2d at 934; Vizcaino, 945 P.2d at 314. To be a registered voter in both states, one must provide proof of citizenship. Thus, the EAC lacks authority to decline to update the state-specific instructions to the Federal Form since registration itself is a qualification to be an elector. The Panel s decision raises serious constitutional doubt because it eviscerates the requirement in Article I, 2, and the similar requirement in the Seventeenth Amendment. Article I, 2, requires that the electors in each State for U.S. House of Representatives members shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. The same formula applies to electors for the U.S. Senate under the Seventeenth Amendment. Yet, the Panel s opinion creates a scenario where one must meet certain qualifications to be an elector for the most numerous Branch of each State s legislature (provide documentary proof-of-citizenship) and one can meet different qualifications to be an elector for the U.S. House of Representatives and the U.S. Senate (not provide documentary proof-of-citizenship). Thus, under the Panel s decision, the Qualifications requisite for the most numerous Branch of the State Legislature are no longer the same as the qualifications to be an elector for members of 12

18 the U.S. House and Senate. Instead, two different definitions for who is an elector result one for state electors and one for federal electors. This argument is not foreclosed by ITCA because it was not before the Court. ITCA, 133 S. Ct. at 2259 n.9. Accordingly, this argument was presented to the Panel in the States Opening Brief. States Resp. Br. at 47. The argument supports the States position on both Questions Presented to this Court whether the EAC must modify the Federal Form s state-specific instructions to reflect state laws requiring proof of citizenship from registering voters and whether the EAC s actions deprived the States of their exclusive authority to establish and enforce qualifications of voters. Id. at 1. The EAC limited its response to this point to one procedural and one substantive argument contained in a footnote. EAC Reply Br. at 7, n.2. Procedurally, the EAC claimed that this issue was not properly before the Panel and that the Panel should only consider whether the EAC may restrict documented proof-of-citizenship for registration purposes. Id. However, it was raised in the States Opening Brief and thus not waived. Silverton Snowmobile Club. v. U.S. Forest Service, 433 F.3d 772, 783 (10th Cir. 2006). In ITCA, in contrast, it was not raised until the Reply Brief before the Supreme Court. 133 S. Ct. at 2259, n.9. And, even if the Panel believes it was not properly raised, compelling reasons necessitate the Panel exercising its discretion to address the issue. Tele-Communications, Inc. v. C.I.R., 104 F.3d 1229, 1232 (1997); Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). First, addressing this issue conserves judicial resources and provides finality. Tele-Communications, 104 F.3d at In ITCA, the Supreme Court held that Arizona 13

19 must accept and use the Federal Form in a preemption action by private parties. Thus, Arizona had to request modification to the Form in a separate proceeding regardless of the State s definition of elector in order to accept and use the form. In contrast, this case is directly appealed from the EAC s refusal to modify the Federal Form. The Panel has jurisdiction to order the EAC to modify the Form now, as the district court did below. If the Panel declines to rehear this issue of law, the States must return to the EAC and request modification to reflect the States definitions of electors, which will likely result in more litigation before this Court. Second, consideration of the issue now ensures that federal officials are elected by qualified electors. Refusal to address this issue could create constitutional questions regarding whether federal officials were properly elected by qualified electors after subsequent litigation. The EAC s substantive response to this argument was also wrong. It claimed that the Supreme Court has long recognized that Congress has plenary authority under the Elections Clause to regulate voter registration procedures in federal elections and that States cannot evade that precedent by recasting relevant voter qualification as registration instead of (or in addition to) citizenship. EAC Reply Br. at 7, n.2. Essentially, the EAC argues that because Congress can create a registration procedure for federal elections, States lack the authority to substantively define who is an elector if registration is a State requirement. This argument conflicts with ITCA and Article I, 2 of the Constitution. The Congress has the authority to alter the Times, Places, and Manner of elections, but that is only if the Congress does not alter who is an elector. ITCA, 131 S. 14

20 Ct. at 2258 ( [N]othing in these provisions lends itself to the view that voting qualifications in federal elections are to be set by Congress. ) (citations and quotation marks omitted). If a State makes registration under state law a qualification to be an elector, Article I, 2, Cl. 1, and the Seventeenth Amendment command that that qualification be respected despite what the Congress may prefer. In order to address this dispositive question, the Panel must rehear this case to address this issue in its decision. Because Arizona and Kansas law provide that one must be registered to vote to be an elector, the EAC has no discretion in updating the Federal Form as requested by the States. Otherwise, the EAC would be determining who is an elector in federal elections rather than obeying the mandate of Article I, 2, Cl. 1, and the Seventeenth Amendment. CONCLUSION Because each of these three legal questions must be addressed before the decision of the district court below can be reversed, the States respectfully request that this Court rehear this case. Respectfully submitted this 22nd day of December, s/ Kris W. Kobach Stephen R. McAllister Kris W. Kobach Jeffrey A. Chanay Thomas E. Knutzen KANSAS SECRETARY OF STATE S OFFICE Memorial Bldg., 3rd Floor Memorial Hall, 1st Floor 120 SW 10th Avenue 120 S.W. 10th Avenue Topeka, KS Topeka, KS Tel: (785) Tel. (785) Fax: (785) Fax. (785) jeff.chanay@ag.ks.gov tom.knutzen@sos.ks.gov steve.mcallister@trqlaw.com KANSAS ATTORNEY GENERAL S OFFICE 15

21 CERTIFICATE OF DIGITAL SUBMISSION Per Tenth Circuit Rule 25.5, no privacy redactions were necessary in this document. The hard copies to be submitted to the court are exact copies of the version submitted electronically. The document is a native PDF document. The digital submission has been scanned for viruses with the most recent version of a commercial virus scanning program Symantec Endpoint Protection. According to the program, the document is virus free. Respectfully submitted this 22nd day of December, s/ Thomas E. Knutzen Thomas E. Knutzen 16

22 CERTIFICATE OF SERVICE I hereby certify that on the 22nd day of December, 2014, I electronically filed the foregoing PLAINTIFFS-APPELLEES PETITION FOR PANEL REHEARING with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit using the appellate CM/ECF system. Service on all other parties to this action has occurred via electronic means. In addition, I certify that on December 23, 2014, I will serve 7 paper copies of the same by Federal Express to the Court and 1 paper copy to Counsel of Record for Defendants-Appellants and Defendant Intervenors-Appellants. Respectfully submitted this 22nd day of December, s/ Thomas E. Knutzen Thomas E. Knutzen 17

23 Appellate Case: Document: Date Filed: 11/07/2014 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS TENTH CIRCUIT November 7, 2014 Elisabeth A. Shumaker Clerk of Court KRIS W. KOBACH, Kansas Secretary of State; KEN BENNETT, Arizona Secretary of State; STATE OF KANSAS; STATE OF ARIZONA, Plaintiffs - Appellees, v. Nos and UNITED STATES ELECTION ASSISTANCE COMMISSION; ALICE MILLER, in her capacity as acting Executive Director and Chief Operating Officer of the United States Election Assistance Commission, and Defendants - Appellants, INTER TRIBAL COUNCIL OF ARIZONA, INC.; ARIZONA ADVOCACY NETWORK; LEAGUE OF UNITED LATIN AMERICAN CITIZENS ARIZONA; STEVE GALLARDO; PROJECT VOTE, INC.; LEAGUE OF WOMEN VOTERS OF THE UNITED STATES; LEAGUE OF WOMEN VOTERS OF ARIZONA; LEAGUE OF WOMEN VOTERS OF KANSAS; VALLE DEL SOL; SOUTHWEST VOTER

24 Appellate Case: Document: Date Filed: 11/07/2014 Page: 2 REGISTRATION EDUCATION PROJECT; COMMON CAUSE; CHICANOS POR LA CAUSA, INC.; DEBRA LOPEZ, Defendant Intervenors - Appellants REPRESENTATIVES NANCY PELOSI, STENY H. HOYER, JAMES E. CLYBURN, XAVIER BECERRA, MARCIA L. FUDGE, RUBEN HINOJOSA, JUDY CHU, ROBERT A. BRADY; ROCK THE VOTE; VOTO LATINO; PROTECTING ARIZONA'S FAMILY COALITION; NONPROFIT VOTE; FAIR SHARE EDUCATION FUND; FAIR SHARE; AMERICAN UNITY LEGAL DEFENSE FUND; ALLIED EDUCATIONAL FOUNDATION; JUDICIAL WATCH, INC.; EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND; THE STATES OF GEORGIA AND ALABAMA, Amici Curiae. Appeal from the United States District Court for the District of Kansas (D.C. No. 5:13-CV EFM-TJJ) Bonnie I. Robin-Vergeer (Jocelyn Samuels, Acting Assistant Attorney General, and Diana K. Flynn and Sasha Samberg-Champion, attorneys, with her on the briefs), United States Department of Justice Civil Rights Division - Appellate Section, Washington, D.C., for the Defendants-Appellants. 2

25 Appellate Case: Document: Date Filed: 11/07/2014 Page: 3 Kris W. Kobach, Secretary of State of Kansas (Thomas E. Knutzen and Caleb D. Crook, Kansas Secretary of State s Office, Topeka Kansas; Thomas C. Horne, Attorney General of Arizona and Michele L. Forney, Arizona Attorney General s Office, Phoenix, Arizona; and Derek Schmidt, Attorney General of Kansas and Stephen R. McAllister and Jeffrey A. Chanay, Kansas Attorney General s Office, Topeka, Kansas, with him on the brief), Kansas Secretary of State s Office, Topeka, Kansas for the Plaintiffs-Appellees. Susan Davies, Jonathan Janow, and Rachel B. Funk, Kirkland & Ellis LLP, Washington, D.C.; Michael C. Keats, Bonnie L. Jarrett, and Adam Teitcher, Kirkland & Ellis LLP, New York, New York; David G. Seely, Fleeson, Gooing, Coulson & Kitch LLC, Wichita, Kansas; and Wendy R. Weiser, Tomas Lopez, and Jonathan Brater, Brennan Center for Justice at NYU School of Law, New York, New York, Michelle Kanter Cohen, Project Vote, Inc., Washington, D.C.; Lee Thompson, Erin C. Thompson, Thompson Law Firm, LLC, Wichita, Kansas; and Robert N. Weiner, John A. Freedman, Andrew W. Beyer, and Andrew Treaster, Arnold & Porter, LLP, Washington, D.C.; Nina Perales, Ernest Herrera, Mexican American Legal Defense and Education Fund, San Antonio, Texas; Jeffrey J. Simon and Judd M. Treeman, Husch Blackwell LLP, Kansas City, Missouri; Linda Smith, Adam P. KohSweeney, and J. Jorge deneve, O Melveny & Myers LLP, Los Angeles, California; Lane Williams and Kip Elliot, Disability Rights Center of Kansas, Topeka, Kansas; Mark A. Posner and Erandi Zamora, Lawyers Committee for Civil Rights Under Law, Washington, D.C.; Linda Stein, Errol R. Patterson, and Jason A. Abel, Steptoe & Johnson, LLP, Washington, D.C.; Joe P. Sparks, Laurel A. Herrmann, and Julia M. Kolsrud, The Sparks Law Firm, P.C., Scottsdale, Arizona; David B. Rosenbaum, Thomas L. Hudson, and Anna H. Finn, Osborn Maledon, P.A., Phoenix, Arizona; and Daniel B. Kohrman, AARP Foundation Litigation, Washington, D.C., submitted a brief on behalf of Intervenors-Appellants League of Women Voters of the United States, League of Women Voters of Arizona, League of Women Voters of Kansas, Project Vote, Inc., Southwest Voter Registration Education Project, Common Cause, Chicanos Por La Causa, Inc., Debra Lopez, and Inter Tribal Council of Arizona, Inc., Arizona Advocacy Network, League of United Latin American Citizens Arizona, and Steve Gallardo. Nina Perales, Ernest Herrera, Mexican American Legal Defense and Education Fund, San Antonio, Texas; Jeffrey J. Simon and Judd M. Treeman, Husch Blackwell LLP, Kansas City, Missouri; Linda Smith, Adam P. KohSweeney, and J. Jorge deneve, O Melveny & Myers LLP, Los Angeles, California, submitted a brief on behalf of Intervenor-Appellant Valle Del Sol. Bradley J. Schlozman, Hinkle Law Firm, LLC, Wichita, Kansas, and Robert D. Popper and Chris Fedeli, Judicial Watch, Inc., Washington, D.C., filed an amicus curiae brief for Judicial Watch, Inc. and Allied Educational Foundation. 3

26 Appellate Case: Document: Date Filed: 11/07/2014 Page: 4 Lawrence J. Joseph, Washington, D.C., filed an amicus curiae brief for Eagle Forum Education & Legal Defense Fund. Edith Hakola, American Unity Legal Defense Fund, Warrenton, Virginia, and Barnaby Zall, Weinberg, Jacobs Tolani, Bethesda, Maryland, filed an amicus curiae brief for American Unity Legal Defense Fund. Luther Strange, Alabama Attorney General, Samuel S. Olens, Georgia Attorney General, and Dennis Dunn, Deputy Attorney General, Georgia Department of Law, Atlanta, Georgia, Montgomery, Alabama, filed an amicus curiae brief for the States of Georgia and Alabama. Karl J. Sandstrom, Perkins Coie, LLP, Washington, D.C., and Joshua L. Kaul, Perkins Coie, LLP, Madison, Wisconsin, filed an amicus curiae brief for Representatives Nancy Pelosi, Steny H. Hoyer, James E. Clyburn, Xavier Becerra, Marcia L. Fudge, Ruben Hinojosa, Judy Chu, and Robert A. Brady. Stuart C. Naifeh, Demos, New York, New York, and Brenda Wright and Lisa J. Danetz, Demos, Brighton, Massachusetts, filed an amicus curiae brief for Community Voter Registration Organizations. Before LUCERO, HOLMES, and PHILLIPS, Circuit Judges. LUCERO, Circuit Judge. Arizona Secretary of State Ken Bennett and Kansas Secretary of State Kris Kobach sought, on behalf of their respective states, that the Election Assistance Commission ( EAC ) add language requiring documentary proof of citizenship to each state s instructions on the federal voter registration form ( Federal Form ). The EAC concluded that the additional language was unnecessary and denied their requests. After Kobach and Bennett filed suit challenging the EAC s decision, the district court 4

27 Appellate Case: Document: Date Filed: 11/07/2014 Page: 5 concluded that the agency had a nondiscretionary duty to grant their requests. We hold that the district court s conclusion is in error in that it is plainly in conflict with the Supreme Court s decision in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct (2013) (ITCA). Were the agency s duty nondiscretionary, the ITCA majority would have so concluded and arrived at an opposite result. This would, of course, have rendered the Court s suggested option of Administrative Procedure Act ( APA ) appellate review both unnecessary and inapplicable. It would also have made the Justice Thomas dissenting opinion endorsing the theory Arizona and Kansas bring to us in this appeal the majority not the dissent. This is one of those instances in which the dissent clearly tells us what the law is not. It is not as if the proposition had not occurred to the majority of the Court. Applying traditional APA review standards, our thorough reading of the record establishes that Kobach and Bennett have failed to advance proof that registration fraud in the use of the Federal Form prevented Arizona and Kansas from enforcing their voter qualifications. Exercising jurisdiction under 28 U.S.C. 1291, we therefore reverse the grant of judgment favoring Kobach and Bennett, and remand with instructions to vacate. I The present appeal is the latest installment in a long-running dispute over the Federal Form. In 2004, Arizona passed Proposition 200, which requires documentary proof of citizenship for voter registration. On December 12, 2005, Arizona asked the EAC to add language to the Federal Form s state-specific instructions indicating a 5

28 Appellate Case: Document: Date Filed: 11/07/2014 Page: 6 documentary proof of citizenship requirement. The EAC s Executive Director denied the request, leading Arizona to ask the EAC commissioners to reconsider the denial. By a 2-2 vote, the commissioners effectively confirmed the Executive Director s denial. Meanwhile, various organizations and individuals, many of them Intervenor- Appellants in this case, challenged Proposition 200 in federal court. Their suit culminated in the Supreme Court holding that the National Voter Registration Act ( NVRA ) precludes Arizona from requiring a Federal Form applicant to submit information beyond that required by the form itself. ITCA, 133 S. Ct. at Anticipating this case, the Court stated: Arizona may, however, request anew that the EAC include such a requirement among the Federal Form s state-specific instructions, and may seek judicial review of the EAC s decision under the [APA]. Id. Just two days after the ITCA decision, Arizona again asked the EAC to include documentary proof of citizenship language as a state-specific instruction on the Federal Form. Kansas, which had enacted legislation similar to Proposition 200, made a similar contemporaneous request. Both petitions were deferred on the basis that the EAC lacked a quorum of commissioners. Kobach and Bennett then sued the EAC in the U.S. District Court for the District of Kansas, alleging that the EAC s failure to act violated the APA and that the NVRA is unconstitutional as applied. The district court ordered the EAC to issue a final agency action by January 17, After receiving and reviewing 423 public comments, including comments from Arizona, Kansas, and each of the Intervenor-Appellants, the EAC s Executive Director 6

29 Appellate Case: Document: Date Filed: 11/07/2014 Page: 7 issued a memorandum on January 17, 2014, denominated as final agency action, denying the states requests. Kobach and Bennett then renewed their previous demand for relief. This request was granted by the district court and the EAC was ordered to add the subject language to the Federal Form on the district court s conclusion that the NVRA did not preempt state laws requiring proof of citizenship, and that the EAC had a nondiscretionary duty to grant Kobach s and Bennett s petitions. We stayed the order. The merits appeal is now before us. II We review questions of statutory interpretation de novo. United States v. Porter, 745 F.3d 1035, 1040 (10th Cir. 2014). Likewise, we review district court decisions under the APA de novo. Forest Guardians v. U.S. Forest Serv., 641 F.3d 423, 428 (10th Cir. 2011). Our de novo review includes the question of whether an agency acted within the scope of its authority. Wyoming v. U.S. Dep t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011). The arguments of the parties and intervenors require us to address four issues: (1) as preliminary matters, (a) is the Executive Director s decision a final agency action over which we may exercise jurisdiction, and (b) if so, is it procedurally valid, such that we may reach the merits; (2) does the EAC have a nondiscretionary duty to approve the states requests under the NVRA; (3) is the Executive Director s decision arbitrary and capricious; and (4) is the Executive Director s decision unconstitutional? A 7

30 Appellate Case: Document: Date Filed: 11/07/2014 Page: 8 At the outset, we must consider two broad issues: (1) whether the Executive Director s decision constituted final agency action; and (2) if so, whether the Executive Director s decision was procedurally valid. 1 We must first determine whether the Executive Director s decision constituted final agency action, a question that necessarily implicates our own jurisdiction. The APA authorizes judicial review only of final agency actions. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, (2004). [T]o be final, agency action must mark the consummation of the agency s decisionmaking process, and must either determine rights or obligations or occasion legal consequences. Alaska Dep t of Envtl. Conservation v. EPA, 540 U.S. 461, 483 (2004) (quotations omitted). There is a presumption in favor of judicial review of administrative action. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 348 (1984); accord Painter v. Shalala, 97 F.3d 1351, 1356 (10th Cir. 1996). Additionally, we construe the concept of final agency action pragmatically, rather than inflexibly. Abbott Labs. v. Gardner, 387 U.S. 136, (1967); Coal. for Sustainable Res., Inc. v. U.S. Forest Serv., 259 F.3d 1244, 1251 (10th Cir. 2001); Sierra Club v. Yeutter, 911 F.2d 1405, 1417 (10th Cir. 1990). Even if the agency has not dressed its decision with the conventional procedural accoutrements of finality, its own behavior [could] belie[] the claim that its interpretation is not final. Whitman v. Am. Trucking Ass ns, 531 U.S. 457, 479 (2001). An agency cannot render its action final merely by styling it as such. See, e.g., 8

31 Appellate Case: Document: Date Filed: 11/07/2014 Page: 9 Cody Labs., Inc. v. Sebelius, 446 F. App x 964, 968 (10th Cir. 2011) (unpublished) (noting that the label an agency attaches to its action is not determinative ) (quoting Cont l Air Lines, Inc. v. Civil Aeronautics Bd., 522 F.2d 107, 124 (D.C. Cir. 1975) (en banc)). Generally, the decision of a subordinate is not final action. See Abbott Labs., 387 U.S. at 151. However, we conclude that, under the unique circumstances of this case, the Executive Director s decision which was issued pursuant to a subdelegation of authority in a 2008 policy was final. 2 On September 12, 2008, the EAC commissioners subdelegated several responsibilities to the Executive Director, including the responsibility to [m]aintain the Federal Voter Registration Form consistent with the NVRA and EAC Regulations and policies, in its Roles and Responsibilities Policy. The subdelegated responsibilities also included, inter alia, the responsibilities to [m]anage the daily operations of EAC consistent with Federal statutes, regulations and EAC policies; [i]mplement and interpret policy directives, regulations, guidance, guidelines, manuals and other policies of general applicability issued by the commissioners; and [a]nswer questions from stakeholders regarding the application of NVRA or HAVA [the Help America Vote Act] consistent with EAC s published Guidance, regulations, advisories and policy[.] We owe deference to the EAC s interpretation of the statute it was charged with administering when it issued this policy, and to its conclusion that HAVA, the EAC s 9

32 Appellate Case: Document: Date Filed: 11/07/2014 Page: 10 enabling statute, 1 permitted the Executive Director to issue decisions on behalf of the agency in maintaining the Federal Form. See City of Arlington v. FCC, 133 S. Ct. 1863, (2013) (deference extends to an agency s interpretation of the scope of its own authority under a statute). [W]e apply Chevron deference to the [agency] s interpretation of the statute and its own authority. In re FCC , 753 F.3d 1015, 1114 (10th Cir. 2014). This level of deference requires us to decide whether the agency s answer is based on a permissible construction of the statute. Id. (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). Absent some indication in an agency s enabling statute that subdelegation is forbidden, subdelegation to subordinate personnel within the agency is generally permitted. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 121 (1947). 2 Our sibling circuits that have spoken on this issue are unanimous in permitting subdelegations to subordinates, even where the enabling statute is silent, so long as the enabling statute and its legislative history do not indicate a prohibition on subdelegation. See La. Forestry Ass n, Inc. v. Sec y U.S. Dep t of Labor, 745 F.3d 653, 671 (3d Cir. 2014); Frankl v. HTH Corp., 650 F.3d 1334, 1350 (9th Cir. 2011) (noting the general presumption that delegations to subordinates are permissible in cases of statutory silence ); U.S. Telecom Ass n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004), cert. denied, 1 See Help America Vote Act of 2002, Pub. L. No , 116 Stat ( HAVA ) (transferring voter-registration functions to the EAC). 2 Fleming was not the first case in which the Supreme Court reached this wellestablished conclusion. See, e.g., Parish v. United States, 100 U.S. 500, 504 (1879). 10

33 Appellate Case: Document: Date Filed: 11/07/2014 Page: S. Ct. 345 (2004) ( When a statute delegates authority to a federal officer or agency, subdelegation to a subordinate federal officer or agency is presumptively permissible absent affirmative evidence of a contrary congressional intent. ); United States v. Mango, 199 F.3d 85, (2d Cir. 1999); House v. S. Stevedoring Co., 703 F.2d 87, 88 (4th Cir. 1983); United States v. Gordon, 580 F.2d 827, 840 n.6 (5th Cir. 1978); United States v. Vivian, 224 F.2d 53, (7th Cir. 1955) (in dicta). 3 Because the text of HAVA, the EAC s enabling statute, neither explicitly permits nor forbids subdelegation, subdelegation is presumed permissible. HAVA provides for an Executive Director, a General Counsel, and other staff, 52 U.S.C , indicating that Congress contemplated some degree of subdelegation to those staff members. Cf. Norman v. United States, 392 F.2d 255, 263 (Ct. Cl. 1968) (noting that Congress authorization of a staff to assist the Secretary of the Air Force supports the conclusion that the Secretary could subdelegate his duties). Further, in NLRB v. Duval Jewelry Co. of Miami, 357 U.S. 1, 7 (1958), the Court held that the limited nature of the delegated authority exercised by a subordinate 3 See also Jason Marisam, Duplicative Delegations, 63 Admin. L. Rev. 181, 241 (2011) (noting that the Supreme Court has held that the power to subdelegate was presumed when Congress was silent on whether subdelegation was allowed, and that subdelegation to subordinates has become uncontroversial in the modern day); cf. United States v. Widdowson, 916 F.2d 587, 592 (10th Cir. 1990), vacated on other grounds, 502 U.S. 801, 801 (1991) (explaining that the relevant inquiry in any subdelegation challenge is whether Congress intended to permit the delegate to subdelegate the authority conferred by Congress[,] and that language in the statute at issue allowing the Attorney General to authorize staff to carry out his duties implied such an intent). 11