What’s the Matter with Kobach?

By “Kobach,” I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

What the Case Is About

Kobach involves a narrow but important issue, left unresolved after the U.S. Supreme Court’s decision last year in Arizona v. Inter Tribal Council of Arizona. That case involved Arizona’s attempt to impose a proof-of-citizenship requirement for voter registration, an issue that has been percolating for many years.

Arizona law requires would-be voters to provide documents proving their citizenship when they register, documents that some eligible citizens don’t have. But the National Voter Registration Act (NVRA) requires states to “accept and use” the national voter registration form, commonly known as the “federal form.” And that form’s instructions don’t require documentary proof of citizenship. In Arizona, the Supreme Court said that states must register voters who used the federal form, even without these documents. But the Court allowed Arizona to ask the U.S. Election Assistance Commission (EAC) to add the state’s proof-of-citizenship requirement to the federal form.

That’s exactly what Arizona, along with Kansas, sought to do. But there’s a problem. The EAC had no sitting commissioners – hasn’t had any for years, in fact, due to gridlock in Congress. With no Commissioners to vote on the states’ requests, they went to federal court to force the commissioner-less EAC to incorporate their proof-of-citizenship requirements on the federal form’s instructions.

While the Supreme Court saidthat Arizona may ask the EAC to change the federal form, it didn’t say that the EAC must grant the state’s request. The central issue in Kobach is whether and when state requests to add proof-of-citizenship requirements to the federal form must be granted.

What the District Court Did

Arizona and Kansas won in the lower court. The district court in Kobach first directed the EAC to make a decision on Arizona’s and Kansas’ requests, even without commissioners. EAC’s staff – specifically its acting executive director – complied with this order but denied the requests, concluding that the federal form shouldn’t be modified to add the states’ citizenship requirements. The district court then concluded that the EAC (staff) was wrong to deny Arizona’s and Kansas’ requests and that the states’ proof-of-citizenship requirements must be added to the federal form instructions.

There are two problems with what the district court did in Kobach. One is that the EAC isn’t legally obligated to grant Arizona’s and Kansas’ requests. These states argue that the EAC had a “ministerial” duty to change the federal form to add their proof-of-citizenship requirements. In effect, they argue that the EAC has to rubber-stamp states’ requests. But that’s not what the relevant statute, the NVRA, says – nor is it what the Supreme Court said. The NVRA says that the federal form should only include information that is “necessary” to assess eligibility to vote. This is consistent with what the Supreme Court said in Arizona – that it would raise serious constitutional questions if states couldn’t obtain information “necessary” to assess voter qualifications.

In this case, the relevant qualification is citizenship. So the dispositive question is whether these two states’ proof-of-citizenship requirements are “necessary” to assess voter qualifications. The answer is that they’re not. The federal form already requires voter to swear or affirm, under penalty of perjury, that they are U.S. citizens. It’s also telling that Congress declined to add language authorizing states to impose additional proof-of-citizenship requirements when it enacted the NVRA, as the EAC notes in its brief (p. 35).

If we had an epidemic of noncitizens voting, then Arizona’s and Kansas’ arguments would be stronger. But there’s no such evidence in the record — which shows 196 noncitizens registered in Arizona and 21 who either registered or tried to register in Kansas, paltry numbers in states with 3.7 and 1.8 million registered voters respectively as of 2012. And there was no evidence on how many of the handful of noncitizens on the rolls used the federal form, as opposed to other means of registration. For all the concerns that Secretary of State Kobach has expressed about noncitizen voting, Arizona and Kansas’ brief is conspicuously fuzzy on this point. They claim there may be more (p. 57) . . . but can’t prove it.

It can’t be the case, moreover, that the EAC has to rubber stamp every state request to add new registration requirements, however unreasonable. If Arizona and Kansas can implement their proof-of-citizenship requirements, can states require government-issued photo ID to register? DNA? A criminal background check? A statement of mental competency from a licensed physician? All of these documents bear some relationship to state voter qualifications. But that doesn’t mean that states are justified in demanding them – much less that the EAC is required to accommodate state demands to include them with the federal form. Eligible citizens could easily slide down this slippery slope – and right off the voting rolls.

The other problem concerns the district court’s directive that the EAC act on Arizona’s and Kansas’ request even though the Commission had no commissioners. At the end of their brief (p. 59), the states argue that the EAC lacked the authority to make this decision because it had no sitting commissioners. I think Arizona and Kansas are right on this point, given that the Help America Vote Act requires at least three commissioners for the EAC to take action. (In fairness to the district court, it appears to have ordered EAC to act based on the DOJ’s representation that EAC staff had this power.) But without a quorum, the EAC lacked statutory authority to decide the states’ requests. Arizona and Kansas are right on this point – although it doesn’t follow that they should win.

What the Tenth Circuit Should Do

Where does all this leave us? This is the really difficult question presented by the Kobach case, on which the Tenth Circuit judges seem to have been focused, as Doug Chapin highlights. Kansas and Arizona say that the EAC had no choice but to modify the federal form as they asked – but they’re wrong on the law, as I’ve explained.

There are at least two viable options for the Tenth Circuit. One is to punt, by vacating the district court’s ruling and remanding with instructions to send the case back to the EAC. The agency still has no commissioners – but nominations have been announced so it’s possible there will be a quorum before too long. Even if the EAC gets new commissioners, however, we can expect them to stalemate along party lines. And then what? In Arizona, this controversy has already been going on for almost a decade. While I don’t agree with Arizona’s and Kansas’ legal position, they’ve waited long enough for a judicial ruling on whether the EAC must grant their requests. The old adage about justice delayed sometimes applies to states as well as individuals.

There was, moreover, a thorough airing of the facts and law in the district court, which was crystal clear on its view of the law – and would have been the same regardless of whether the EAC had commissioners. We don’t have to speculate. The district court explicitly said that its “decision would be the same if a full commission had voted 4-0 to deny the states’ requests.” Sending the case back to the district court for further EAC consideration would serve no purpose.

The other option is for the Tenth Circuit to decide the case on the merits. While the district court may have been wrong to order EAC staff to act on the states’ requests, it could have ordered the EAC – with or without commissioners – to modify the federal form if required by federal law. A footnote in the Supreme Court’s Arizona opinion mentions this possibility, saying: “If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to ‘compel agency action unlawfully withheld or unreasonably delayed.’” Although the Court reserved the question whether such relief should be granted, it would be transparently unfair to deny states a ruling and, if warranted, relief due to circumstances beyond their control – in this case, congressional gridlock that left the EAC commissioner-less.

Thus, the Tenth Circuit can and should decide the case on the merits, treating the district court’s order as one to “compel agency action withheld or unreasonably delayed.” There’s no point in sending it back to the district court, which left no doubt on what it would have done, with or without a quorum on the EAC. The lack of the quorum does mean that the EAC’s “decision,” which it had no authority to make, shouldn’t get any judicial deference. But the Tenth Circuit should reverse the district court, on the ground that Arizona isn’t entitled to the relief it seeks under any standard of review. Federal law doesn’t require the EAC to amend the federal form, because the states’ requirements aren’t “necessary” to show that registrants are qualified to vote.

In other words, Arizona and Kansas are right that the EAC lacked authority to make the decision it purported to make. But they’re wrong to argue that the EAC – with or without a quorum of commissioners – was obliged to add the proof-of-citizenship requirements they seek. Whatever one’s view on the merits, there’s no good reason for the Tenth Circuit to delay a ruling on that disputed question.

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