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United States Court of Appeals Tenth Circuit Appellate Case: 18-3133 Document: 010110091267 Date Filed: 11/29/2018 Page: 1 NOS. 18-3133, -3134 In the United States Court of Appeals for the Tenth Circuit STEVEN WAYNE FISH, et al., Plaintiffs-Appellees, – v. – KRIS W. KOBACH, in his official capacity as Secretary of State for the State of Kansas, Defendant-Appellant. –––––––––––––––––––––––––––––– CODY KEENER; ALDER CROMWELL, Plaintiffs, – and – PARKER BEDNASEK, Plaintiff-Appellee, – v. – KRIS W. KOBACH, Kansas Secretary of State, Defendant-Appellant. _____________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS, KANSAS CITY, CIVIL DOCKET NOS. 2:16-CV-02105-JAR AND 2:15-CV-09300-JAR (HONORABLE JULIE A. ROBINSON, U.S. DISTRICT JUDGE) BRIEF FOR PLAINTIFFS-APPELLEES (ORAL ARGUMENT REQUESTED) DALE HO MARK P. JOHNSON R. ORION DANJUMA CURTIS E. WOODS SOPHIA LIN LAKIN SAMANTHA WENGER AMERICAN CIVIL LIBERTIES UNION DENTONS US LLP FOUNDATION 4520 Main Street, Suite 1100 125 Broad Street, 18th Floor Kansas City, Missouri 64111 New York, New York 10004 (816) 460-2400 (212) 549-2500 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Bednasek Plaintiff Counsel for Fish Plaintiffs (For Continuation of Caption See Inside Cover) Appellate Case: 18-3133 Document: 010110091267 Date Filed: 11/29/2018 Page: 2 . NEIL A. STEINER LINO S. LIPINSKY DE ORLOV REBECCA KAHAN WALDMAN DENTONS US LLP DECHERT LLP 1400 Wewatta Street, Suite 700 1095 Avenue of the Americas Denver, Colorado 80202 New York, New York 10036 (303) 634-4000 (212) 698-3500 [email protected] [email protected] – and – [email protected] MARK T. EMERT – and – FAGAN, EMERT & DAVIS LLC ANGELA M. LIU 730 New Hampshire, Suite 210 DECHERT LLP Lawrence, Kansas 66044 35 West Wacker Drive, Suite 3400 (785) 331-0300 Chicago, Illinois 60601 [email protected] (312) 646-5800 – and – [email protected] SHANNON WELLS STEVENSON – and – DAVIS GRAHAM & STUBBS LLP th LAUREN BONDS 1550 17 Street, Suite 500 ZAL K. SHROFF Denver, Colorado 80202 ACLU FOUNDATION OF KANSAS (303) 892-9400 6701 West 64th Street, Suite 210 [email protected] Overland Park, Kansas 66202 Counsel for Bednasek Plaintiff (913) 490-4100 [email protected] [email protected] Counsel for Fish Plaintiffs Appellate Case: 18-3133 Document: 010110091267 Date Filed: 11/29/2018 Page: 3 CORPORATE DISCLOSURE STATEMENT The League of Women Voters of Kansas (the “League”) is a non-profit organization organized under Section 501(c) of the Internal Revenue Code. The League does not issue stock. There are no publicly held corporations that own ten percent or more of the stock of the League. i Appellate Case: 18-3133 Document: 010110091267 Date Filed: 11/29/2018 Page: 4 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ......................................................... i TABLE OF AUTHORITIES .....................................................................................v STATEMENT OF PRIOR OR RELATED APPEALS ............................................. x GLOSSARY ............................................................................................................ xii COUNTER-STATEMENT OF THE ISSUES .......................................................... 1 COUNTER-STATEMENT OF THE CASE ............................................................. 2 I. BACKGROUND .............................................................................................3 II. PRIOR PROCEEDINGS .................................................................................4 A. Fish Preliminary Injunction Proceedings .............................................. 5 B. Proceedings Following Remand ........................................................... 7 III. THE DECISION BELOW ...............................................................................8 A. Overall Effect of the Law ......................................................................8 B. Effect of DPOC Law on Individuals ................................................... 10 C. Noncitizen Registration .......................................................................21 D. Alternatives to DPOC ..........................................................................24 E. Final Judgment ....................................................................................26 STANDARD OF REVIEW .....................................................................................26 ii Appellate Case: 18-3133 Document: 010110091267 Date Filed: 11/29/2018 Page: 5 SUMMARY OF ARGUMENT ...............................................................................27 ARGUMENT ...........................................................................................................34 I. THE DISTRICT COURT CORRECTLY RULED THAT THE DPOC REQUIREMENT VIOLATES SECTION 5 OF THE NVRA ...................... 34 A. The District Court Correctly Found that Defendant Failed to Satisfy this Court’s Two-Part Test to Overcome the Presumption that Section 5 of the NVRA Preempts Kansas’ DPOC Requirement .............................................................................35 1. The District Court Correctly Found that 39 Instances of Successful Noncitizen Registrations Over Nearly 20 Years Was Insufficient to Demonstrate “Substantial Numbers” of Noncitizens Registering in Kansas ..................... 36 2. The District Court Correctly Found that Defendant Failed to Satisfy his Burden to Show “Nothing Less” than DPOC Could Address Noncitizen Registration in Kansas ....... 39 B. There is No Basis to Revisit the Prior Panel’s Decision ..................... 41 1. Fish I’s Legal Ruling as to the Requirements of Section 5 of the NVRA Governs This Appeal .......................................... 41 2. Defendant’s Interpretation of the Statute is Inconsistent with the Plain Text of the NVRA ............................................. 44 3. Defendant’s Argument Based on Section 8 of the NVRA is Waived and Incorrect ............................................................ 51 II. THE DISTRICT COURT CORRECTLY FOUND THAT THE DPOC REQUIREMENT UNDULY BURDENS THE RIGHT TO VOTE IN VIOLATION OF THE FOURTEENTH AMENDMENT ............................ 53 A. Bednasek Has Standing for His Fourteenth Amendment Claim ........ 54 B. The DPOC Law Is Subject to the Anderson-Burdick Balancing Test—Not Rational Basis Review ...................................................... 58 C. Based on the Record, the District Court Correctly Found that the DPOC Law is Significantly More Burdensome than the Law iii Appellate Case: 18-3133 Document: 010110091267 Date Filed: 11/29/2018 Page: 6 Reviewed in Crawford, and is Therefore Subject to Heightened Scrutiny ...............................................................................................6 1 1. Evidence of the Number of Applicants Who Tried to Register But Were Blocked by the DPOC Requirement .......... 61 2. Evidence of Concrete Burdens Caused by the DPOC Law ...... 64 3. Absence of a Post-Election Safety Valve ................................. 69 4. Uneven Application and Evidence of Selective Enforcement ..............................................................................73 D. The District Court Correctly Determined That the State’s Rationale for the DPOC Law Was Insufficient to Justify Its Burden ................................................................................................. 78 CONCLUSION ........................................................................................................83 STATEMENT ON REQUEST FOR ORAL ARGUMENT ................................... 85 CERTIFICATE OF SERVICE ................................................................................85 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32 ...................................................................86 ECF CERTIFICATE OF COMPLIANCE .............................................................. 87 iv Appellate Case: 18-3133 Document: 010110091267 Date Filed: 11/29/2018 Page: 7 TABLE OF AUTHORITIES Cases Am. Association of People with Disabilities v. Herrera, 690 F.Supp.2d 1183, (D.N.M. 2010) ......................................................... 67 Am. Civil Liberties Union of N.M. v. Santillanes, 546 F.3d 1313 (10th Cir. 2008) .......................................................... passim Anderson v. Celebrezze, 460 U.S. 780 (1983) ............................................................................ 53, 67 Arizona Green Party v. Reagan, 838 F.3d 983 (9th Cir. 2016) ......................................................................59 Arizona v. Inter Tribal Council of Ariz., 133 S. Ct. 2247 (2013) ....................................................................... passim Belenky v. Kobach, No. 2013CV1331 (Shawnee Cty. Dist. Ct. Jan 15, 2016) .................. 49, 75 Brown v. Kobach, No. 2016CV550 (Shawnee Cty. Dist. Ct. Nov. 4, 2016) ........................... 49 Burdick v. Takushi, 504 U.S. 428 (1992) ................................................................ 53, 61, 80, 82 Burns v. Fortson, 410 U.S. 686 (1973) ...................................................................................72 City of New Orleans v. Dukes, 427 U.S. 297 (1976) ...................................................................................76 Clapper v. Amnesty International USA, 568 U.S. 398 (2013) ...................................................................................57
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