DC Circuit Finds Evidence of Threat of Non-Citizen Voting Very Minor in Kobach-EAC Case

Back on September 9, the DC Circuit issued an order in one of the EAC cases, holding that the district court should have issued a preliminary injunction against the order put out by EAC Director Brian Newby (without getting approval of the EAC Commissioners) giving Kansas and a few other states the ability to demand documentary proof of citizenship before someone could vote using the federal voting form. This was a huge deal as it was litigated before and the EAC refused to do so for vote fraud huckster and Kansas SOS Krisk Kobach in a case that went all the way to the Supreme Court. Newby used to work with Kobach in Kansas and was seen by many to be doing his bidding.

When the DC Circuit ruled, it did so before a full opinion was ready. The opinion in the case, along with a dissent, is now out. The court finds that Newby acted arbitrarily and capriciously in violation of the Administrative Procedure Act:

The Leagues have a substantial (perhaps overwhelming) likelihood of success on the merits. Under section 9(b) of the NVRA, 52 U.S.C. § 20508(b), the Federal Form requires registrants to supply information as part of their application only insofar as it is “necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” Id. § 20508(b)(1) (emphasis added); see also ITCA, 133 S. Ct at 2259 (section 9(b) “acts as both a ceiling and a floor with respect to the contents of the Federal Form”). In a contemporaneous internal memorandum, which this court may consider, see Tourus Records, Inc. v. DEA, 259 F.3d 731, 738 (D.C. Cir. 2001), Executive Director Newby justified his decisions by stating that “[s]tate-specific instructional changes are ministerial, and, thus, routine.” Brian D. Newby, Acceptance of State-Instructions to Federal Form for Alabama, Georgia, and Kansas at 2 (Feb. 1, 2016). Far from considering whether these amendments were “necessary” (as required by the NVRA), he concluded that the “examples of need for these changes are irrelevant to [his] analysis” because of “the role and right[] of the states to set the framework for acceptance and completion of the [Federal F]orm.” Id. at 4-5. Newby viewed his role merely to “review the request[s] for clarity and accuracy.” Id. at 2. Because Newby expressly found that the criterion set by Congress — i.e., whether the amendments were necessary to assess eligibility — was “irrelevant” to his analysis, id. at 4, it is difficult to imagine a more clear violation of the APA’s requirement that an agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted).

Importantly, on the issue of the state requiring this information to prevent non-citizen voting the court wrote:

First, the states — and the public — “indisputably ha[ve] a compelling interest in preserving the integrity of [the] election process.” Purcell, 549 U.S. at 4 (internal quotation marks omitted). What is disputable is whether an injunction would actually do much, if any, harm to that interest. An injunction would undermine this interest if it permitted fraudulent registration by non-citizens. But there is precious little record evidence that it would do so. Kansas represented in its request letter that between 2003 and 2015 eighteen non-citizens had tried to or successfully registered to vote. Only one of them attempted to use the Federal Form. When the requests of Arizona and Kansas to add their proof-of-citizenship requirements to the Federal Form were rejected in 2014, it appeared that only a tiny fraction of one percent of registered voters were non-citizens. Earlier this year, a federal district court in Kansas found similarly little evidence of fraudulent registration by non-citizens trying to register at the Department of Motor Vehicles. See Fish v. Kobach, No. 16-2105, 2016 WL 2866195, at *29 (D. Kan. May 17, 2016). Additionally, the Tenth Circuit observed that the states have other tools at their disposal to ensure the integrity of elections, including protections against voter fraud. See Kobach, 772 F.3d at 1197, 1199. This court need take no position now on what evidence the Commission ought to require to show that documentary proof of citizenship is “necessary” for purposes of section 20508(b)(1), but observes only that, on the evidence before this court, the likely harm to election integrity appears minimal. Kobach suggests that he does not need to provide any evidence of harm to justify the state’s interest in election integrity, relying on a case where the question was whether, as a matter of constitutional law, a state interest in preventing voter fraud  could justify a state’s voter identification law. See State Appellee Intervenor Br. 58 (citing Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191, 195–97 (2008) (Stevens, J., joined by Roberts, C.J. & Kennedy, J.)). That is immaterial to the factual question presented here — the extent to which an injunction would harm this valid state interest.

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