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(Kansas)\Fish Petition.Wpd No. ______ In the Supreme Court of the United States __________________ SCOTT SCHWAB, in his official capacity as Secretary of State for the State of Kansas, Petitioner, v. STEVEN WAYNE FISH, ET AL., Respondents. __________________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit __________________ PETITION FOR WRIT OF CERTIORARI __________________ DEREK SCHMIDT TOBY CROUSE Attorney General of Kansas Solicitor General JEFFREY A. CHANAY (Counsel of Record) Chief Deputy Attorney BRANT M. LAUE General Deputy Solicitor General DWIGHT R. CARSWELL KURTIS K. WIARD Assistant Solicitors General 120 S.W. 10th Ave., 2d Floor Topeka, Kansas 66612 (785) 296-2215 [email protected] Counsel for Petitioner Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i QUESTIONS PRESENTED The Kansas Constitution establishes United States citizenship as a qualification to vote and directs the Legislature to provide for proof of eligibility. Thus, when an applicant in Kansas registers to vote, Kansas law requires “satisfactory evidence of United States citizenship.” Kan. Stat. Ann. § 25-2309(l). The questions presented are: (1) Whether the United States Constitution prohibits Kansas from requiring applicants to provide proof of United States citizenship when registering to vote. (2) Whether Section 5 of the National Voter Registration Act of 1993, 52 U.S.C. § 20501, et seq., prohibits Kansas from requiring motor-voter applicants to provide proof of United States citizenship when registering to vote. ii PARTIES TO THE PROCEEDING Petitioner is Scott Schwab, in his official capacity as Secretary of State for the State of Kansas. Respondents are Steven Wayne Fish, Donna Bucci, Charles Stricker, Thomas Boynton, Douglas Hutchinson, League of Women Voters of Kansas, and Parker Bednasek. STATEMENT OF RELATED PROCEEDINGS • Fish v. Schwab, No. 16-2105 (D. Kan.) (June 19, 2018) • Bednasek v. Schwab, No. 15-9300 (D. Kan.) (June 19, 2018) • Fish v. Schwab, No. 18-3133 (10th Cir.) (Apr. 29, 2020) • Bednasek v. Schwab, No. 18-3134 (10th Cir.) (Apr. 29, 2020) There are no additional proceedings in any court that are directly related to this case. iii TABLE OF CONTENTS QUESTIONS PRESENTED................... i PARTIES TO THE PROCEEDING.............. ii STATEMENT OF RELATED PROCEEDINGS .... ii TABLE OF CONTENTS..................... iii TABLE OF AUTHORITIES....................v PETITION FOR A WRIT OF CERTIORARI ...... 1 OPINIONS BELOW..........................1 JURISDICTION............................. 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.................... 1 STATEMENT OF THE CASE.................. 1 REASONS FOR GRANTING THE PETITION . 12 A. This Case Presents an Important Question of Federal Law.......................... 12 B. The Tenth Circuit’s Decision Conflicts with this Court’s Decision in Crawford......... 16 C. The Tenth Circuit’s Interpretation of Section 5 of the NVRA Is an Important Issue that Should Be Addressed by this Court........24 CONCLUSION.............................32 iv APPENDIX Appendix A Opinion in the United States Court of Appeals for the Tenth Circuit, Nos. 18- 3133, 18-3134 (April 29, 2020) ...............App. 1 Appendix B Findings of Fact and Conclusions of Law in the United States District Court for the District of Kansas (June 18, 2018) ..............App. 81 Appendix C Opinion in the United States Court of Appeals for the Tenth Circuit, No. 16- 3147 (October 19, 2016)...........App. 238 Appendix D Constitutional Provisions Involved...................App. 334 Appendix E Statutory Provisions Involved...................App. 336 v TABLE OF AUTHORITIES CASES Alabama-Quassarte Tribal Town v. United States, 899 F.3d 1121 (10th Cir. 2018).............. 28 Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1 (2013)..................... passim Ayestas v. Davis, 138 S. Ct. 1080 (2018)..................... 28 Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989)....................... 26 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)....................... 23 Commissioner v. Tellier, 383 U.S. 687 (1966)....................... 28 Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)................... passim Daunt v. Benson, 956 F.3d 396 (6th Cir. 2020)................ 17 Frank v. Walker, 768 F.3d 744 (7th Cir. 2014)................ 20 Gregory v. Ashcroft, 501 U.S. 452 (1991)....................... 29 Husted v. A. Phillip Randolph Institute, 138 S. Ct. 1833 (2018)..................... 15 Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005)....................... 26 vi John Doe No. 1 v. Reed, 561 U.S. 186 (2010)....................... 15 League of Women Voters of U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016)................. 15 Marx v. General Revenue Corp., 568 U.S. 371 (2013)....................... 27 McCulloch v. Maryland, 17 U.S. 316 (1819)........................ 28 McKay v. Thompson, 226 F.3d 752 (6th Cir. 2000)................ 28 Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988) ........ 26 Purcell v. Gonzalez, 549 U.S. 1 (2006)...................... 14, 15 Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986)....................... 13 Washington v. Davis, 426 U.S. 229 (1976)....................... 24 Young v. Fordice, 520 U.S. 273 (1997)....................... 28 vii CONSTITUTIONAL PROVISIONS U.S. Const. art. I, § 2, cl. 1....................13 U.S. Const. art. I, § 4, cl. 1....................31 U.S. Const. art. II, § 1, cl. 2................... 13 U.S. Const. amend. XVII..................... 13 Kan. Const. art. V, § 1..................... 2, 13 Kan. Const. art. V, § 4..................... 2, 14 STATUTES 26 U.S.C. § 162(a)........................... 28 28 U.S.C. § 1254(1)........................... 1 52 U.S.C. § 20501, et seq ...................... 5 52 U.S.C. § 20504(a)(1) ....................... 6 52 U.S.C. § 20504(c)(1)........................ 5 52 U.S.C. § 20504(c)(2)(A) .................. 7, 27 52 U.S.C. § 20504(c)(2)(B) ......... 7, 25, 26, 27, 29 52 U.S.C. § 20504(c)(2)(B)(ii) ............... 26, 30 52 U.S.C. § 20504(c)(2)(C) ................ 7, 8, 26 52 U.S.C. § 20507(a)(1) ...................... 30 REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 310 ............................ 17 Ala. Code § 31-13-28(c)-(l) .................... 15 Ariz. Rev. Stat. Ann. § 16-166(F)............... 15 viii Ga. Code Ann. § 21-2-216(g) .................. 15 Kan. Stat. Ann. § 25-2309 ..................... 2 Kan. Stat. Ann. § 25-2309(b) ................... 3 Kan. Stat. Ann. § 25-2309(b)(15) ................ 3 Kan. Stat. Ann. § 25-2309(b)(16) ................ 3 Kan. Stat. Ann. § 25-2309(l) ........... 3, 4, 17, 18 Kan. Stat. Ann. § 25-2309(m) ............... 5, 22 Kan. Stat. Ann. § 25-2309(m)(3) ................ 5 Kan. Stat. Ann. § 25-2309(p) .................. 18 Kan. Stat. Ann. § 25-2309(t) .................. 18 Kansas Secure and Fair Elections (SAFE) Act, 2011 Kan. Sess. Laws 795–825 .............. 2 REGULATIONS Kan. Admin. Reg. § 7-23-14(b)..............18, 22 Kan. Admin. Reg. § 7-23-15(b)..................4 Kan. Admin. Reg. § 7-23-15(c).................. 4 RULES Sup. Ct. R. 10(c)............................ 12 Sup. Ct. R. 12.4..............................1 OTHER AUTHORITIES Black’s Law Dictionary (5th ed. 1979) .......... 28 The Federalist No. 52 (J. Cooke ed. 1961) ....... 13 ix Edward B. Foley, Voting Rules and Constitutional Law, 81 Geo. Wash. L. Rev. 1836 (2013) ...... 17 Keith Gaddie, Justin J. Wert, and Charles S. Bullock III, Seats, Votes, Citizens, and the One Person, One Vote Problem, 23 Stan. L. & Pol’y Rev. 431 (2012) ........................... 2 E.D. Hirsch, Validity in Interpretation (1967) .... 26 https://azsos.gov/elections/voting-election/proof- citizenship-requirements.................. 31 https://www.vote.org/voter-registration-rules/ ..... 2 Journal of the Kansas House of Representatives, 2011 Session (March 29, 2011)............... 3 Journal of the Kansas Senate, 2011 Session (March 23, 2011) ................................ 3 10 Oxford English Dictionary (2d ed. 1989) ...... 27 A. Scalia & B.A. Garner, Reading Law (2012) .... 26 Steven M. Shapiro, et al., Supreme Court Practice (11th ed. 2019) .......................... 15 Webster’s Third New International Dictionary (1993).................................. 27 1 PETITION FOR A WRIT OF CERTIORARI The State of Kansas respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit rendered in two consolidated cases that “involve identical or closely related [federal] questions.” Sup. Ct. R. 12.4. OPINIONS BELOW The Tenth Circuit’s decision is reported at 957 F.3d 1105. Pet. App. 1-80. The United States District Court for the District of Kansas’s decision containing its Findings of Fact and Conclusions of Law is reported at 309 F. Supp. 3d 1048. Pet. App. 81-237. The Tenth Circuit’s decision affirming the District Court’s entry of a preliminary injunction is reported at 840 F.3d 710. Pet. App. 238-333. JURISDICTION The United States Court of Appeals for the Tenth Circuit issued its decision on April 29, 2020. This Court has jurisdiction under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Pertinent constitutional and statutory provisions are reproduced in the appendix to this petition. Pet. App. 334-43. STATEMENT OF THE CASE The Kansas Constitution requires United States citizenship as a qualification to vote and directs the Legislature to provide
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