Filed: Apr. 29, 2020
Latest Update: Apr. 29, 2020
Summary: FILED United States Court of Appeals Tenth Circuit PUBLISH April 29, 2020 Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court TENTH CIRCUIT STEVEN WAYNE FISH, on behalf of himself and all others similarly situated; DONNA BUCCI, on behalf of herself and all others similarly situated; CHARLES STRICKER, on behalf of himself and all others similarly situated; THOMAS J. BOYNTON, on behalf of himself and all others similarly situated; DOUGLAS HUTCHINSON, on behalf of himself and all o
Summary: FILED United States Court of Appeals Tenth Circuit PUBLISH April 29, 2020 Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court TENTH CIRCUIT STEVEN WAYNE FISH, on behalf of himself and all others similarly situated; DONNA BUCCI, on behalf of herself and all others similarly situated; CHARLES STRICKER, on behalf of himself and all others similarly situated; THOMAS J. BOYNTON, on behalf of himself and all others similarly situated; DOUGLAS HUTCHINSON, on behalf of himself and all ot..
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FILED
United States Court of Appeals
Tenth Circuit
PUBLISH April 29, 2020
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
STEVEN WAYNE FISH, on behalf of
himself and all others similarly
situated; DONNA BUCCI, on behalf of
herself and all others similarly situated;
CHARLES STRICKER, on behalf of
himself and all others similarly
situated; THOMAS J. BOYNTON, on
behalf of himself and all others
similarly situated; DOUGLAS
HUTCHINSON, on behalf of himself
and all others similarly situated;
LEAGUE OF WOMEN VOTERS OF
KANSAS,
Plaintiffs - Appellees,
v. No. 18-3133
SCOTT SCHWAB, in his official
capacity as Secretary of State for the
State of Kansas,
Defendant - Appellant.
___________________________
STATE OF TEXAS; STATE OF
ARKANSAS; STATE OF
OKLAHOMA; STATE OF WEST
VIRGINIA; PAUL
LEPAGE, † Governor of Maine; STATE
OF MISSOURI; EAGLE FORUM
EDUCATION & LEGAL DEFENSE
FUND,
Amici Curiae.
____________________________
CODY KEENER; ALDER
CROMWELL,
Plaintiffs,
and
PARKER BEDNASEK,
Plaintiff - Appellee,
v. No. 18-3134
SCOTT SCHWAB, Kansas Secretary of
State,
Defendant - Appellant.
--------------------------------------
†
Paul LePage is no longer Governor of Maine. In a letter dated March
15, 2019, counsel for Maine’s Attorney General, informed the court that Maine’s
current Governor, Janet T. Mills, “does not support the position taken [by several
states and then-Governor LePage] in the amicus brief filed in this case on October
5, 2018,” and that “the position taken in the amicus [brief] does not reflect the
position of the State of Maine.” Letter of Susan P. Herman, Deputy Attorney
General to Tenth Circuit Clerk, Case Nos. 18-3133 & 18-3134, at 1 (Mar. 15,
2019). Although we acknowledge this correspondence, it has no impact on our
resolution of this appeal.
2
STATE OF TEXAS; STATE OF
ARKANSAS; STATE OF
OKLAHOMA; STATE OF WEST
VIRGINIA; PAUL LEPAGE, Governor
of Maine; STATE OF MISSOURI;
EAGLE FORUM EDUCATION &
LEGAL DEFENSE FUND,
Amici Curiae.
Appeals from the United States District Court
for the District of Kansas
(D.C. No. 2:16-CV-02105-JAR)
(D.C. No. 2:15-CV-09300-JAR)
Toby Crouse, Solicitor General of Kansas, (Derek Schmidt, Attorney General of
Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Bryan C. Clark,
Assistant Solicitor General, Dwight R. Carswell, Assistant Solicitor General, with
him on the briefs), Office of Attorney General, Topeka, Kansas, for Defendant-
Appellant.
Dale Ho, American Civil Liberties Union Foundation, New York, New York, (R.
Orion Danjuma and Sophia Lin Lakin, American Civil Liberties Union
Foundation, New York, New York; Mark P. Johnson, Curtis E. Woods and
Samantha Wenger, Dentons US LLP, Kansas City, Missouri; Neil A. Steiner and
Rebecca Kahan Waldman, Dechert LLP, New York, New York; Angela M. Liu,
Dechert LLP, Chicago, Illinois; Lauren Bonds and Zal K. Shroff, ACLU
Foundation of Kansas, Overland Park, Kansas; Lino S. Lipinsky De Orlov,
Dentons US LLP, Denver, Colorado; Mark T. Emert, Fagan, Emert & Davis LLC,
Lawrence, Kansas; Shannon Wells Stevenson, Davis Graham & Stubbs LLP,
Denver, Colorado, with him on the brief), for Plaintiffs-Appellees.
Ken Paxton, Attorney General of Texas, Jeffrey C. Mateer, First Assistant
Attorney General, Kyle D. Hawkins, Solicitor General, Matthew H. Frederick,
Deputy Solicitor General, Beth Klusmann, Assistant Solicitor General, filed an
amicus curiae brief for the States of Texas, Arkansas, Missouri, Oklahoma, West
3
Virginia and Paul R. LePage, Governor of Maine, in support of Defendant-
Appellant.
Lawrence J. Joseph, Washington, D.C., filed an amicus curiae brief on behalf of
Eagle Forum Education & Legal Defense Fund, in support of Defendant-
Appellant.
Before BRISCOE, McKAY, * and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
In these two consolidated appeals, we must determine whether a Kansas
law requiring documentary proof of citizenship (“DPOC”) for voter registration is
preempted by section 5 of the National Voter Registration Act (“NVRA”), 52
U.S.C. § 20504, or violates the Fourteenth Amendment’s Equal Protection Clause.
We addressed the first of these questions, i.e., whether Kansas’s DPOC
requirement is preempted by section 5 of the NVRA, in Fish v. Kobach (“Fish I”),
840 F.3d 710 (10th Cir. 2016). Section 5 of the NVRA mandates that a voter-
*
The late Honorable Monroe G. McKay was a member of the three-
judge panel assigned to this case and heard the parties’ oral arguments, but he
passed away on March 28, 2020. He took no part in the final disposition of this
case, including the preparation of this opinion. “The practice of this court
permits the remaining two panel judges if in agreement to act as a quorum in
resolving the appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n.* (10th Cir.
1997); see also 28 U.S.C. § 46(d) (providing that “[a] majority of the number of
judges authorized to constitute a court or panel thereof . . . shall constitute a
quorum”). The remaining two panel members have acted as a quorum with
respect to this appeal, and, for the reasons stated herein, have voted to affirm the
decision of the district court.
4
registration form must be a part of any application to obtain or renew a driver’s
license. Such a registration form “‘may require only the minimum amount of
information necessary to’ prevent duplicate registrations and to ‘enable State
election officials to assess the eligibility of the applicant and to administer voter
registration and other parts of the election process.’” Id. at 715–16 (footnotes
omitted) (quoting 52 U.S.C. § 20504(c)(2)(B)). In Fish I, we held that—on the
factual record then before this court—“the DPOC required by Kansas law [was]
more than the minimum amount of information necessary [to perform the Kansas
Secretary of State’s eligibility-assessment and registration duties] and, therefore,
[was] preempted by the NVRA.”
Id. at 717. Thus, we held that “the district court
did not abuse its discretion in granting [a] preliminary injunction [against the
enforcement of the DPOC law] because the NVRA preempts Kansas’s DPOC law
as enforced against those applying to vote while obtaining or renewing a driver’s
license.”
Id. at 716. We remanded for a trial on the merits where Kansas’s
Secretary of State would have an opportunity to demonstrate that the DPOC
requirement was not more than the minimum amount of information necessary to
perform his eligibility-assessment and registration duties.
On remand, the district court consolidated that statutory challenge with a
related case that raises the second aspect of this appeal, i.e., whether the DPOC
requirement violates the Fourteenth Amendment’s Equal Protection Clause. The
5
Supreme Court and this court have evaluated challenges to state-voter-
identification requirements under the Equal Protection Clause. See Crawford v.
Marion Cty. Election Bd., 553 U.S. 181, 189S91 (2008) (plurality opinion of
Stevens, J.); ACLU of N.M. v. Santillanes,
546 F.3d 1313, 1320 (10th Cir. 2008).
Proceeding under that framework, the Equal Protection Clause challenge to the
DPOC requirement is predicated on the idea that the DPOC requirement
unconstitutionally burdens the right to vote because the interests asserted by the
Kansas Secretary of State (“the Secretary”) are insufficient to justify the burden it
imposes on that right.
After holding a joint bench trial, the district court entered a permanent
injunction against the enforcement of the DPOC requirement under both section 5
of the NVRA and the Equal Protection Clause. The Secretary has appealed. His
appeal raises the two fundamental questions outlined above. First, in Bednasek v.
Schwab, No. 18-3134, does the DPOC requirement violate the Equal Protection
Clause? Second, in Fish v. Schwab, No. 18-3133, does section 5 of the NVRA
preempt the DPOC requirement? Exercising jurisdiction under 28 U.S.C. § 1291,
we answer both questions in the affirmative and thus affirm the district court’s
judgment enjoining enforcement of the DPOC requirement. In doing so, we
summarize the relevant background, assure ourselves that the challengers possess
6
standing, and then discuss both challenges to the DPOC requirement, taking up
first (for organizational convenience) the constitutional challenge.
I. Background
A. Kansas’s DPOC Requirement
Both suits on appeal challenge Kansas’s DPOC requirement, and so we
start by recounting Fish I’s summary of the statute and regulations that constitute
Kansas’s DPOC requirement:
Kansas adopted its DPOC requirement for voter
registration on April 18, 2011. Secure and Fair Elections
(“SAFE”) Act, ch. 56, § 8(l), 2011 Kan. Sess. Laws 795,
806, 809S11 (codified at Kan. Stat. Ann. § 25S2309(l)).
The requirement took effect January 1, 2013. Id. at § 8(u),
2011 Kan. Sess. Laws at 812. The SAFE Act requires that
(l) The county election officer or secretary of state’s
office shall accept any completed application for
registration, but an applicant shall not be registered
until the applicant has provided satisfactory
evidence of United States citizenship. Evidence of
United States citizenship as required in this section
will be satisfied by presenting one of the documents
listed . . . in person at the time of filing the
application for registration or by including a
photocopy of one of the following documents with
a mailed registration application. After a person has
submitted satisfactory evidence of citizenship, the
county election officer shall indicate this
information in the person’s permanent voter file.
Kan. Stat. Ann. § 25S2309(l). The statute then lists
thirteen forms of documentation acceptable to prove U.S.
citizenship, including a birth certificate or passport. See
§ 25S2309(l)(1)S(13). For citizens unable to present
7
DPOC, subsection (m) provides an alternate means to
prove citizenship by the submission of evidence to the
state election board followed by a hearing. See §
25S2309(m). The state election board is composed of “the
lieutenant governor, the secretary of state and the attorney
general.” § 25S2203(a).
[Then-serving Kansas] Secretary [of State Kris W.]
Kobach promulgated regulations for the DPOC
requirement on October 2, 2015. Kan. Admin. Regs. §
7S23S15 (the “90-day regulation”). Those regulations
provide that applications unaccompanied by DPOC are
deemed to be “incomplete.” § 7S23S15(a). Once an
application is designated as incomplete, a voter has ninety
days to provide DPOC or else the application is canceled
and a new voter-registration application is required to
register. See § 7S23S15(b)S(c).
840 F.3d at 717.
B. Factual Background
1. Bednasek v. Schwab, No. 18-3134
Mr. Parker Bednasek—the only remaining plaintiff in Bednasek v. Schwab,
No. 18-3134—moved from Texas to Kansas in order to attend the University of
Kansas. While he was a full-time student at the University of Kansas, he
canceled his Texas voter registration and applied to register to vote in Kansas.
He did so because he “considered [him]self to be a resident in Kansas, and [he]
wanted to vote in Kansas elections.” Aplt.’s App., Vol. 38, at 9339 (Tr. of Bench
Trial, Day 2, P.M. Session, filed Mar. 30, 2018). In applying, he swore that he
was a Kansas resident and that he had abandoned his former residence. He later
8
swore that he had “no intent to leave Kansas in the future.” Id., Vol. 48, at 11692
(Aff. of Parker Bednasek, filed Apr. 21, 2016). While at the University of
Kansas, Mr. Bednasek paid out-of-state tuition, had a vehicle that he jointly
owned with his parents that was registered in Texas, had a car insurance policy on
that vehicle registered to his parents’ Texas home, and applied for and received a
Texas driver’s license.
When he submitted his application to register to vote, Mr. Bednasek did not
provide DPOC. He did not do so because (1) his birth certificate was at his
parent’s home in Texas, and (2) “he [did] not agree with the law” and was
attempting to challenge it. Id., Vol. 47, at 11466 (Findings of Fact & Conclusions
of Law, filed June 18, 2018); see
id., Vol. 38, at 9368S69. Mr. Bednasek would
later acquire a copy of his DPOC in order to apply to the Navy but did not submit
it to Kansas. Because he never submitted DPOC to Kansas, his application was
canceled under the DPOC requirement.
2. Fish v. Schwab, No. 18-3133
In Fish v. Schwab, No. 18-3133, multiple plaintiffs attempted to register to
vote as “motor voters” under section 5 of the NVRA, but their applications to
register were denied because of the DPOC requirement. We briefly recount some
of their experiences. Mr. Steven Fish applied for a driver’s license and to register
as a voter. The driver’s license examiner did not inform him that he needed to
9
provide DPOC, but he subsequently received notices informing him that he
needed to submit DPOC. However, he had difficulty locating his birth certificate
because “he was born on a decommissioned Air Force base.” Id., Vol. 47, at
11460. He thus was unable to vote in the 2014 general election. A family
member subsequently found his birth certificate, and he has now registered.
Similarly, Ms. Donna Bucci applied to vote while renewing her driver’s license.
She was not told that she needed to provide DPOC, but, like Mr. Fish, she later
received a notice informing her that she needed to provide DPOC in order to
register. However, Ms. Bucci did not possess a copy of her birth certificate. The
district court found that “[s]he [could not] afford the cost of a replacement birth
certificate from Maryland and she credibly testified that spending money to obtain
one would impact whether she could pay rent.”
Id. at 11461. Her application was
canceled for failure to provide DPOC, and she was unable to vote in the 2014
election. A third plaintiff, Mr. Douglas Hutchinson, likewise applied to register
to vote while renewing his driver’s license but did not provide DPOC. His
application was also later canceled.
Other plaintiffs did bring DPOC to register, but various errors in the
administration of the DPOC requirement prevented their registration. Mr. Charles
Stricker applied to vote while renewing his driver’s license and brought DPOC
with him, but the clerk told him that he did not need to provide anything. He only
10
learned that his application had been canceled for lack of DPOC when he was not
allowed to vote at the polls. Similarly, Mr. Thomas Boynton applied to vote, and
his application was suspended for failure to provide DPOC. He had, however,
brought DPOC with him to register and provided the requested documentation.
Nevertheless, he was told that he was not registered when he showed up at the
polls. After the election, he received a notice that he needed to resubmit DPOC
in order to complete the voter-registration process.
The final plaintiff is the League of Women Voters of Kansas (“Kansas
League”), “a nonpartisan, nonprofit volunteer organization that encourages
informed and active participation of citizens in government.” Id. at 11452. The
district court found that “the DPOC requirement significantly hampered the
Kansas League’s voter registration work,”
id. at 11453, “the DPOC requirement
forced the Kansas League to devote substantial resources to assist voters whose
applications are in suspense due to the failure to provide DPOC,”
id. at 11455,
and “the DPOC requirement has forced the Kansas League to spend a
considerable amount of member resources—including volunteer time—and money
to educate the public about registering under the DPOC law,”
id.
11
C. Procedural Background
1. Fish I
The Fish plaintiffs brought suit seeking a preliminary injunction against the
enforcement of the DPOC requirement. The district court granted the preliminary
injunction and “required [the Secretary] to register to vote any applicants
previously unable to produce DPOC and to cease enforcement of Kansas’s DPOC
requirement with respect to individuals who apply to register to vote at the
Kansas Department of Motor Vehicles (‘DMV’) through the motor voter process.”
Fish I, 840 F.3d at 716. The Secretary appealed the entry of the preliminary
injunction, and we affirmed.
Id. at 716–17.
As recounted in more depth below, we held that section 5 of the NVRA
preempted Kansas’s DPOC requirement. Id. at 716. The relevant portion of
section 5 of the NVRA, known as the “motor-voter” provision, states:
(2) The voter registration application portion of an application
for a State motor vehicle driver’s license—
(A) may not require any information that duplicates
information required in the driver’s license portion of the
form (other than a second signature or other information
necessary under subparagraph (C));
(B) may require only the minimum amount of information
necessary to—
(i) prevent duplicate voter registrations; and
(ii) enable State election officials to assess the eligibility
of the applicant and to administer voter registration and
other parts of the election process;
12
(C) shall include a statement that—
(i) states each eligibility requirement (including
citizenship);
(ii) contains an attestation that the applicant meets each
such requirement; and
(iii) requires the signature of the applicant, under penalty
of perjury . . . .
52 U.S.C. § 20504(c)(2)(A)S(C) (emphases added). In Fish I, we read
subparagraph (C)’s “attestation requirement” as establishing “the presumptive
minimum amount of information necessary for a state to carry out its
eligibility-assessment and registration duties [under subparagraph (B)].” 840 F.3d
at 737. However, we acknowledged that “whether the attestation requirement
actually satisfies the minimum-information principle in a given case turns on the
factual question of whether the attestation requirement is sufficient for a state to
carry out these duties.”
Id. at 738. We held that “in order for a state advocating
for a DPOC regime to rebut the presumption that the attestation requirement is the
minimum information necessary for it to carry out its eligibility-assessment and
registration duties,” section 5 of the NVRA requires “[the] state to show that ‘a
substantial number of noncitizens have successfully registered’ notwithstanding
the attestation requirement.”
Id. at 738–39 (quoting Kobach v. U.S. Election
Assistance Comm’n (“EAC”),
772 F.3d 1183, 1198 (10th Cir. 2014)).
We held that the Secretary had failed to demonstrate that a substantial
number of noncitizens had successfully registered. Id. at 746–47. In particular,
13
the Secretary had only shown that between 2003 and 2013 “thirty noncitizens
registered to vote.” Id. at 746. “These numbers [fell] well short of the showing
necessary to rebut the presumption that attestation constitutes the minimum
amount of information necessary for Kansas to carry out its eligibility-assessment
and registration duties.”
Id. at 747. Thus, we concluded that the plaintiffs’
challenge was likely to succeed on the merits.
Id. at 750. We went on to address
the remaining preliminary-injunction factors and concluded that the district court
did not err in concluding that they, too, favored a preliminary injunction.
Id. at
751S56. We thus affirmed the district court’s grant of the preliminary injunction.
Id. at 756.
2. The Joint Fish and Bednasek Bench Trial
On remand, the district court consolidated Fish—the statutory case—with
Bednasek—the constitutional case—for trial. We summarize the district court’s
factual findings, its legal conclusions in both cases, and the remedies it imposed.
a. Factual Findings
In addition to the above evidence about individual plaintiffs with suspended
or canceled applications, the plaintiffs put forward statistical evidence about the
overall number of suspended applications. The district court found that, before
the preliminary injunction in Fish was issued, there were 14,770 individuals who
had applied to vote but whose applications were suspended for failure to provide
14
DPOC. Of these, 5,655 were motor-voter applicants. Another 16,319 individuals
had their applications canceled for failure to provide DPOC. Of these, 11,147
were motor-voter applicants. That “amount[ed] to 31,089 total applicants who
were denied registration for failure to provide DPOC.” Aplt.’s App., Vol. 47, at
11447. Other numbers and expert testimony demonstrated that “[c]anceled or
suspended applicants represented 12.4% of new voter registrations between
January 1, 2013[,] and December 11, 2015.” Id. at 11448. An expert opined that
the total number of applicants with suspended or canceled applications would
have increased but for the injunction, “in part because voter registration activity
typically increases in the months leading up to a presidential election.”
Id. at
11449. However, while there was significant evidence that would-be voters had
their applications suspended and canceled by the DPOC requirement, the court
acknowledged that “[t]here was little admissible evidence presented at trial about
the rate of DPOC possession by suspended and canceled applicants.”
Id. at
11457.
The district court also made factual findings about the number of
noncitizens who had applied to register to vote. The district court found that, “at
most, 67 noncitizens registered or attempted to register in Kansas over the last 19
years.” Id. at 11519. Of these, “there [were] only 39 confirmed noncitizens who
successfully registered to vote between 1999 and 2013 when the DPOC law
15
became effective.” Id. at 11508. Those 39 individuals represented 0.002% of all
registered voters in Kansas as of January 1, 2013—the date the DPOC
requirement went into effect.
Id. And specifically as to those applications that
were suspended, the court found that the estimated number of suspended
applications that belonged to noncitizens was “statistically indistinguishable from
zero,” while “more than 99% of the individuals” whose voter-registration
applications were suspended were citizens who would have been able to vote but
for the DPOC requirement.
Id. at 11491S92; see
id. at 11481. Moreover, even
those few instances of noncitizens attempting to register to vote may be explained
by “administrative anomalies.”
Id. at 11520. For example, Kansas’s voter-
registration database included 100 individuals with purported birth dates in the
19th century and 400 individuals with purported birth dates after their date of
voter registration.
While the district court only found these 39 instances of noncitizen
registration, the Secretary presented several anecdotes regarding noncitizens who
purportedly attempted to register to vote. There was evidence that some
noncitizens with temporary driver’s licenses had been registered to vote and that
one citizen told Kansas officials that she had voted before becoming a citizen.
The Secretary also identified an incident, summarized in a letter in the record,
where employees of a hog farm “were transported to [a county] office by their
16
employer to register to vote” even though a county clerk stated that “some of
these employees felt they were pressured to register even though they may not be
legal.” Id., Vol. 30, at 7668 (Letter from Seward Cty. Clerk to Kan. S. Ethics &
Elections Comm., dated Mar. 3, 2011). In its preliminary injunction analysis, the
district court had concluded that the evidence submitted about this incident was
“insufficient to show that noncitizens actually voted.”
Id., Vol. 4, at 867 (Mem.
& Order, filed May 17, 2016). While the Secretary returns to these examples in
this court, it is unclear how they relate to the 39 instances of noncitizen
registration that the district court identified.
Apart from the 39 confirmed instances of noncitizen registration, Kansas
presented expert testimony on statistical estimates of noncitizen registration and
on noncitizen registration outside Kansas. But the district court either gave little
weight or entirely rejected Kansas’s expert testimony on these topics. The court
found that one expert’s testimony contained “myriad misleading statements” and
“preordained opinions.” Id., Vol. 47, at 11474; see
id. at 11476 (“The record is
replete with further evidence of [the expert]’s bias.”). The court also concluded
that studies offered by a different expert were “confusing, inconsistent, and
methodologically flawed.”
Id. at 11491. “[L]ooking beyond Kansas, [the
Secretary’s] evidence of noncitizen registration at trial was weak.”
Id. at 11519.
The district court explained at length why it excluded large portions of the
17
Secretary’s expert testimony on statistical estimates of noncitizen registration in
Kansas and found much of the remaining testimony unpersuasive. Id. (explaining
that one of the Secretary’s experts was “credibly dismantled” by the architect of
the survey upon which the expert had relied).
b. Legal Conclusions in Bednasek v. Schwab, No. 18-3134
In Bednasek, the court carefully evaluated these facts under the equal-
protection rubric established by the Supreme Court’s opinion in Crawford v.
Marion County Election Board, supra. As discussed at length below, Crawford
instructs that we are to examine the burden that a state law places on the right to
vote and then weigh the government’s asserted interests for imposing that law
against that burden. Guided by Crawford, the district court here balanced the
burdens imposed by the DPOC requirement against the state’s interests in
preventing noncitizen voter registration, maintaining accurate voter rolls, and
maintaining confidence in elections. The court concluded that “the magnitude of
potentially disenfranchised voters impacted by the DPOC law and its enforcement
scheme cannot be justified by the scant evidence of noncitizen voter fraud before
and after the law was passed, by the need to ensure the voter rolls are accurate, or
by the State’s interest in promoting public confidence in elections.” Aplt.’s App.,
Vol. 47, at 11526.
18
c. Legal Conclusions in Fish v. Schwab, No. 18-3133
In Fish, the court held that the preemption framework established in Fish I
was the law of the case. Applying that framework and considering the evidence
summarized above, the court concluded that there was “no credible evidence that
a substantial number of noncitizens registered to vote under the attestation
regime.” Id. at 11507. Instead, it found that the “evidence of a small number of
noncitizen registrations in Kansas . . . is largely explained by administrative error,
confusion, [and] mistake.”
Id. at 11509. The court concluded that “[the
Secretary] ha[d] failed to rebut the presumption that the attestation clause meets
the minimum information principle in § 5 of the NVRA, and [it] therefore
order[ed] judgment in favor of [the Fish] Plaintiffs.”
Id. at 11515.
d. Remedies
Finding that the DPOC requirement violated the Equal Protection Clause
and section 5 of the NVRA, the court ordered the Secretary “not [to] enforce the
DPOC law and accompanying regulation against voter registration applicants in
Kansas.” Id. at 11529. The court also ordered various specific forms of relief not
at issue here, e.g., ordering the Secretary to update websites and provide
applicants with certificates of registration.
Id. at 11530. The Secretary timely
appealed.
19
II. Standing
The Secretary first argues that Mr. Bednasek—the only remaining plaintiff
in Bednasek v. Schwab, No. 18-3134—lacks standing. 1 We summarize the
relevant legal principles and conclude Mr. Bednasek has standing.
A. Legal Principles Governing Standing
Article III of the United States Constitution restricts the jurisdiction of
federal courts to the adjudication of “Cases” or “Controversies.” U.S. C ONST . art.
III, § 2, cl. 1. To satisfy Article III’s case-or-controversy requirement, a plaintiff
must demonstrate standing by establishing “(1) an ‘injury-in-fact,’ (2) a sufficient
‘causal connection between the injury and the conduct complained of,’ and (3) a
‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 157S58 (2014) (alteration in original)
(quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 560S61 (1992)); accord Spokeo,
Inc. v. Robins, --- U.S. ----,
136 S. Ct. 1540, 1547 (2016). “Put simply, a plaintiff
must establish three elements: an injury-in-fact, causation, and redressability.”
Bronson v. Swensen,
500 F.3d 1099, 1106 (10th Cir. 2007).
1
The Secretary does not challenge the Fish plaintiffs’ standing.
Nevertheless, “[w]e have an obligation to assure ourselves of litigants’ standing
under Article III.” Frank v. Gaos, --- U.S. ----, 139 S. Ct. 1041, 1046 (2019) (per
curiam) (quoting DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 340 (2006)). We
concluded that the Fish plaintiffs had standing in Fish I,
see 840 F.3d at 716 n.5
(“We are confident on the current record that Plaintiffs–Appellees have standing
to sue.”), and we see no reason to depart from that conclusion now.
20
We are focused on the first two of these requirements. As to the first, “[t]o
establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion
of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting
Lujan, 504 U.S. at 560); accord People for the Ethical Treatment of Prop. Owners
v. U.S. Fish & Wildlife Serv.,
852 F.3d 990, 996–97 (10th Cir. 2017). And as to
the second, causation is established when the injury “is fairly traceable to the
challenged conduct of the defendant.”
Spokeo, 136 S. Ct. at 1547 (citing
Lujan,
504 U.S. at 560S61); accord Benham v. Ozark Materials River Rock, LLC,
885
F.3d 1267, 1273 (10th Cir. 2018) (“To satisfy the traceability requirement, the
defendant’s conduct must have caused the injury.”). This requires proving that
there is “a substantial likelihood that the defendant’s conduct caused plaintiff’s
injury in fact.”
Bronson, 500 F.3d at 1109–10 (quoting Nova Health Sys. v.
Gandy,
416 F.3d 1149, 1156 (10th Cir. 2005)).
“We . . . review the district court’s rulings on standing de novo.” Niemi v.
Lasshofer, 770 F.3d 1331, 1344 (10th Cir. 2014); accord People for the Ethical
Treatment of Prop.
Owners, 852 F.3d at 996. However, we review the factual
findings underlying the district court’s standing determination for clear error. See
Protocols, LLC v. Leavitt,
549 F.3d 1294, 1298 (10th Cir. 2008); see also
McCormack v. Herzog,
788 F.3d 1017, 1024 (9th Cir. 2015) (“Questions of
21
standing are . . . reviewed de novo, but underlying factual findings are reviewed
for clear error.”); ASPCA v. Feld Entm’t, Inc., 659 F.3d 13, 19 (D.C. Cir. 2011)
(same); Me. People’s All. v. Mallinckrodt, Inc.,
471 F.3d 277, 283 (1st Cir. 2006)
(same).
B. Application
The Secretary raises two arguments that Mr. Bednasek lacks standing.
First, the Secretary argues that Mr. Bednasek did not suffer an injury-in-fact
because he was not a Kansas resident and so he was ineligible to vote. Second,
the Secretary argues that Mr. Bednasek’s harm was not caused by the DPOC
requirement and was instead self-inflicted. We reject both arguments before
briefly assuring ourselves that Mr. Bednasek’s injury-in-fact is redressable.
1. Injury-in-fact
The Secretary argues that Mr. Bednasek did not suffer “an invasion of a
legally protected interest,” Spokeo, 136 S. Ct. at 1548 (quoting
Lujan, 504 U.S. at
560), when his application was cancelled because Mr. Bednasek ostensibly was
not a resident of Kansas and so was ineligible to vote there. For purposes of
“determining the residence of a person offering to vote” under Kansas law, a
person’s residence is “the place adopted by a person as such person’s place of
habitation, and to which, whenever such person is absent, such person has the
intention of returning.” Kan. Stat. Ann. § 25-407. “That this determination is not
22
based solely on intent has been recognized by the Kansas Supreme Court, which
has stated that a citizen has the right to change his residence permanently or
temporarily, and that ‘whether he does so, or which he does, is determined by his
acts and his intentions.’” Warren v. Gaston, 55 F. Supp. 2d 1230, 1237 (D. Kan.
1999) (quoting State ex rel. Parker v. Corcoran,
128 P.2d 999, 1003 (Kan.
1942)). While Mr. Bednasek’s family is from Texas, he was enrolled as a
full-time student at the University of Kansas when he attempted to register to
vote. Moreover, in the fall of 2015, he cancelled his Texas voter registration and
attempted to register in Kansas because he “considered [him]self to be a resident
in Kansas, and [he] wanted to vote in Kansas elections.” Aplt.’s App., Vol. 38, at
9339. In applying to register in Kansas, he swore that he was a Kansas resident
and that he had abandoned his former residence. And, as part of this lawsuit, he
submitted an affidavit wherein he stated that he was a Kansas resident and had
“no intent to leave Kansas in the future.”
Id., Vol. 48, at 11692. The district
court thus concluded that Mr. Bednasek was a resident of Kansas.
The Secretary, however, points out that Mr. Bednasek paid out-of-state
tuition at the University of Kansas, had a car that he jointly owned with his
parents that was registered in Texas, had a car insurance policy—for which his
parents are listed as the policy holders—that was also registered to his parents’
Texas home, and applied for and received a Texas driver’s license. The Secretary
23
argues that these actions undermine Mr. Bednasek’s declared intentions. But in
rejecting a motion to dismiss on standing grounds, the district court stated: “the
Court finds that neither Bednasek’s Texas driver’s license, nor his Texas
automobile registration and insurance, objectively disprove Bednasek’s repeated
attestations of Kansas residency.” Id., Vol. 49, at 11825 (Mem. & Order, filed
July 29, 2016). This factual finding about Mr. Bednasek’s residence was
incorporated in the summary judgment and trial rulings. We only review the
district court’s factual findings for clear error. See
Protocols, 549 F.3d at 1298;
McCormack, 788 F.3d at 1024;
ASCPA, 659 F.3d at 19; Me. People’s
All., 471
F.3d at 283. And this factual finding was not clearly erroneous: Mr. Bednasek
had chosen to live in Kansas, canceled his Texas voter registration, and sworn
that he intended to remain in Kansas. The district court could weigh all of this
evidence and make a credibility determination. 2 We conclude that the district
2
Moreover, the standard for paying in-state tuition is more onerous
than that for voter residency. Kansas’s regulations concerning in-state tuition
state that “[v]oting or registration for voting in Kansas,” “standing alone,
ordinarily shall not constitute sufficient evidence of a change to Kansas
residence.” Kan. Admin. Regs. § 88S3S2(c)(1). The regulations also create a
presumption that individuals enrolled in academic programs are not residents for
purposes of in-state tuition. Id. § 88S3S2(d). No similar presumption is in the
voter-residency statute. And the relevant statute requires an individual to be a
domiciliary resident of Kansas for twelve months prior to receiving in-state
tuition, see Kan. Stat. Ann. § 76S729(a)(1); no such requirement is in the
voter-registration residency definition. Thus, the fact that Mr. Bednasek paid out-
of-state tuition does not tell us much. Additionally, Kansas’s then-existing
(continued...)
24
court’s finding that Mr. Bednasek was a Kansas resident for purposes of voter
registration was not clearly erroneous.
The Secretary counters by citing two Kansas cases: Willmeth v. Harris, 403
P.2d 973 (Kan. 1965), and Gleason v. Gleason,
155 P.2d 465 (Kan. 1945). But
these cases acknowledge that residency is a “question of fact” that turns on “all
the surrounding facts and circumstances,”
Gleason, 155 P.2d at 467; see also
Willmeth, 403 P.2d at 978 (concluding “[t]here is ample evidence in the record to
support the trial court’s findings” about an individual’s residency); thus, those
authorities do nothing to change our conclusion that the district court’s factual
finding that Mr. Bednasek was a Kansas resident was not clearly erroneous.
Moreover, neither case was interpreting residency under the relevant voter-
registration statute, and so neither could provide a persuasive reason to depart
from the above analysis in any event.
In sum, we conclude that district court did not clearly err in concluding that
Mr. Bednasek was a resident of Kansas and thus suffered an injury-in-fact when
the Secretary cancelled his registration application.
2
(...continued)
guidance on “Election Standards” stated that residency for purposes of voter
registration “is not related to or affected by vehicle registration,” and so the
Texas vehicle registration also is far from dispositive here. Aplt.’s App., Vol. 49,
at 11825. Likewise, we do not find the fact that his parents linked the auto
insurance policy with their house to be telling.
25
2. Causation
The Secretary next argues that Mr. Bednasek did not have standing to sue
because his injury was “self-inflicted” and thus not fairly traceable to Kansas’s
conduct. Aplt.’s Opening Br. at 23. The Secretary’s argument turns on the
following facts: that Mr. Bednasek possessed DPOC that was located at his
parent’s home in Texas, that he acquired a copy of this DPOC at some point
during his Kansas residency in order to apply to the Navy, and that he stated that
he did not bring the DPOC when he attempted to register to vote because he did
not agree with the law. But we rejected similar arguments in Fish I. See 840
F.3d at 716 n.5, 753S54. We stated that “our cases show that typically a finding
of self-inflicted harm results from either misconduct or something akin to
entering a freely negotiated contractual arrangement, not from a failure to comply
with an allegedly unlawful regime.”
Id. at 753 (collecting cases). “[W]e
reject[ed] the notion that the source of an injury is a litigant’s decision not to
comply with an allegedly unlawful state regime, rather than the regime itself.”
Id.
at 754 (emphasis added). “Were this notion to apply in a case like this one, a
court could never enjoin enforcement of an unlawful statute if the plaintiffs could
have complied with the statute but elected not to; this hypothetical scenario
borders on the absurd.”
Id. This all remains true now.
26
Our opinion in ACLU of New Mexico v. Santillanes, supra, underscores the
point. There, in-person voters were required to produce voter identification. We
concluded that the plaintiffs who intended to vote in future elections and would
be required to present identification in those elections had
standing. 546 F.3d at
1319. This was the case even though “no individual [plaintiff] lack[ed] photo
identification.”
Id. Kansas’s denial of Mr. Bednasek’s application to register to
vote for lack of DPOC functions analogously to the voter-identification law in
Santillanes; the requirement that Mr. Bednasek provide DPOC is sufficient to
establish standing. Cf. Common Cause/Georgia v. Billups,
554 F.3d 1340,
1351S52 (11th Cir. 2009) (“Requiring a registered voter either to produce photo
identification to vote in person or to cast an absentee or provisional ballot is an
injury sufficient for standing.”).
In arguing to the contrary, the Secretary relies most heavily on Clapper v.
Amnesty International USA, 568 U.S. 398 (2013). In that case, the plaintiffs
asserted they were “suffering ongoing injuries” because they had chosen “to take
costly and burdensome measures to protect the confidentiality of their
international communications” from the potential of surveillance under the
Foreign Intelligence Surveillance Act.
Id. at 402, 415. The Supreme Court
rejected the notion that these expenditures established standing: “respondents
cannot manufacture standing merely by inflicting harm on themselves based on
27
their fears of hypothetical future harm that is not certainly impending.” Id. at
416. But unlike the hypothetical enforcement in Clapper, the DPOC requirement
here actually was enforced against Mr. Bednasek. And it was that enforcement
that caused Mr. Bednasek’s injury-in-fact, not any decision he made to spend
money to avoid a hypothetical injury. Furthermore, the suit here concerns the
fundamental right to vote; it does not concern “[the] actions of the political
branches in the fields of intelligence gathering and foreign affairs,” where the
Court engages in an especially rigorous standing inquiry.
Id. at 408S09. We thus
conclude Mr. Bednasek has demonstrated that there is a substantial likelihood that
his injury-in-fact was caused by the Secretary’s actions. See
Bronson, 500 F.3d at
1109–10.
3. Redressability
And while not challenged by the Secretary, we have no doubt that there is
“a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’”
Susan B. Anthony List, 573 U.S. at 158 (alteration in original) (quoting
Lujan, 504
U.S. at 560S61). An order enjoining the Secretary from enforcing the DPOC
requirement will ensure that approximately 30,000 voters whose applications were
canceled or suspended are registered to vote. Cf.
Santillanes, 546 F.3d at 1319.
We thus conclude Mr. Bednasek has established standing.
28
III. Discussion
Turning to the merits of the two challenges to the DPOC requirement, we
summarize our standard of review before considering whether the DPOC
requirement unconstitutionally burdens the right to vote and whether the DPOC
requirement is preempted by section 5 of the NVRA. We conclude that the DPOC
requirement is both unconstitutional and preempted by section 5 of the NVRA,
and thus affirm the district court’s judgment.
A. Standard of Review
“We review the district court’s legal conclusions in a bench trial de novo;
findings of fact will not be set aside unless clearly erroneous.” FTC v. Chapman,
714 F.3d 1211, 1216 (10th Cir. 2013) (quoting Ryan v. Am. Nat. Energy Corp.,
557 F.3d 1152, 1157 (10th Cir. 2009)); accord United States v. Estate of St. Clair,
819 F.3d 1254, 1264 (10th Cir. 2016). Because the Secretary only challenges the
court’s legal conclusions, see Aplt.’s Opening Br. at 21 (explaining that “the State
asserts only legal error”), our review is de novo.
B. Whether Kansas’s DPOC Requirement Violates the Fourteenth
Amendment’s Equal Protection Clause
We first ask whether Kansas’s DPOC requirement violates the Fourteenth
Amendment’s Equal Protection Clause. We structure this inquiry by setting forth
the Anderson-Burdick balancing test that governs our analysis, see Burdick v.
Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze,
460 U.S. 780 (1983), and
29
then analyzing the constitutionality of the DPOC requirement under that test by
weighing the burdens the voting requirement imposes against the interests the
government asserts. We conclude that the DPOC requirement is unconstitutional
and uphold the district court’s injunction against its enforcement.
1. Governing Legal Principles
Crawford v. Marion County Election Board, supra, instructs that when
examining a claim that a state law unconstitutionally burdens a plaintiff’s right to
vote under the Equal Protection Clause, we are to examine the burden that the
state law places on the right to vote and then weigh the government’s asserted
interests for imposing that law against the burden. In the following discussion,
we introduce the so-called Anderson-Burdick balancing test before summarizing
how it was applied in Crawford.
a. The Anderson-Burdick Balancing Test
The right to vote is “a fundamental political right, . . . preservative of all
rights.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (omission in original)
(quoting Reynolds v. Sims,
377 U.S. 533, 562 (1964)); Fish
I, 840 F.3d at 752
(“There can be no dispute that the right to vote is a constitutionally protected
fundamental right.”); see also Harper v. Va. State Bd. of Elections,
383 U.S. 663,
670 (1966) (“[T]he right to vote is too precious, too fundamental to be so
burdened or conditioned.”). “No right is more precious in a free country than that
30
of having a voice in the election of those who make the laws under which, as
good citizens, we must live. Other rights, even the most basic, are illusory if the
right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
Nevertheless, “[i]t does not follow . . . that the right to vote in any manner
and the right to associate for political purposes through the ballot are absolute.”
Burdick, 504 U.S. at 433; accord Utah Republican Party v. Cox,
892 F.3d 1066,
1076 (10th Cir. 2018), cert. denied,
139 S. Ct. 1290 (2019). Instead, the
Constitution allows states to “prescribe ‘the Times, Places and Manner of holding
Elections for Senators and Representatives,’ and the Court therefore has
recognized that States retain the power to regulate their own elections.”
Burdick,
504 U.S. at 433 (citation omitted) (quoting U.S. C ONST . art. I, § 4, cl. 1). These
regulations can help protect the right to vote by ensuring that elections are “fair
and honest” and that “some sort of order, rather than chaos, . . . accompan[ies] the
democratic processes.”
Id. (quoting Storer v. Brown,
415 U.S. 724, 730 (1974));
accord Campbell v. Buckley,
203 F.3d 738, 745 (10th Cir. 2000); see Timmons v.
Twin Cities Area New Party,
520 U.S. 351, 358 (1997) (“States may, and
inevitably must, enact reasonable regulations of parties, elections, and ballots to
reduce election- and campaign-related disorder.”).
However, there is “[n]o bright line,” Timmons, 520 U.S. at 359, that
separates those regulations that properly impose order—thereby protecting the
31
fundamental right to vote—from those that unduly burden it—thereby
undermining it. See Crawford, 553 U.S. at 190 (plurality opinion of Stevens, J.)
(explaining that instead of applying a “litmus test” courts must make a “hard
judgment”);
Anderson, 460 U.S. at 789 (explaining that instead of applying a
“litmus-paper test” “a court must resolve such a challenge by an analytical
process that parallels its work in ordinary litigation”). Instead, the Supreme Court
has instructed that:
A court considering a challenge to a state election law must
weigh “the character and magnitude of the asserted injury to the
rights protected by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate” against “the precise interests put
forward by the State as justifications for the burden imposed by
its rule,” taking into consideration “the extent to which those
interests make it necessary to burden the plaintiff’s rights.”
Burdick, 504 U.S. at 434 (quoting
Anderson, 460 U.S. at 789); accord
Santillanes,
546 F.3d at 1320 (“[T]he appropriate test when addressing an Equal Protection
challenge to a law affecting a person’s right to vote is to ‘weigh the asserted
injury to the right to vote against the precise interests put forward by the State as
justifications for the burden imposed by its rule.’” (quoting
Crawford, 553 U.S. at
190)). This balancing test has become known as the Anderson-Burdick balancing
32
test. See Cox, 892 F.3d at 1077 (“[W]e analyze electoral regulations using the
now-familiar Anderson-Burdick balancing test.”). 3
Both parties agree that this Anderson-Burdick balancing test applies here.
We thus turn to examine how the Anderson-Burdick test was applied to a related
voting restriction in Crawford v. Marion County Election Board, supra.
3
The Supreme Court’s cases have equivocated over which provision of
the Constitution mandates this balancing test. Compare Anderson, 460 U.S. at
786 n.7 (“[W]e base our conclusions directly on the First and Fourteenth
Amendments and do not engage in a separate Equal Protection Clause analysis.
We rely, however, on the analysis in a number of our prior election cases resting
on the Equal Protection Clause of the Fourteenth Amendment. These cases,
applying the ‘fundamental rights’ strand of equal protection analysis, have
identified the First and Fourteenth Amendment rights implicated by restrictions
on the eligibility of voters and candidates, and have considered the degree to
which the State’s restrictions further legitimate state interests.” (collecting
cases)), with
Crawford, 553 U.S. at 207 n.* (plurality opinion of Scalia, J.) (“A
number of our early right-to-vote decisions, purporting to rely upon the Equal
Protection Clause, strictly scrutinized nondiscriminatory voting laws requiring the
payment of fees.” (collecting cases)). Our court, however, has traced the
Anderson-Burdick balancing test to the Equal Protection Clause. See
Santillanes,
546 F.3d at 1319S20; see also Edward B. Foley, Due Process, Fair Play, and
Excessive Partisanship: A New Principle for Judicial Review of Election Laws, 84
U. C HI . L. R EV . 655, 674 (2017) (explaining that the Supreme Court’s
“equal-protection-for-voting jurisprudence has evolved into what is known as the
‘Anderson-Burdick balancing test’”). Yet, as explained above, the Anderson-
Burdick balancing test does not entail “a traditional equal-protection inquiry.”
Democratic Exec. Comm. of Fla. v. Lee,
915 F.3d 1312, 1319 (11th Cir. 2019);
see also Green Party of Tenn. v. Hargett,
791 F.3d 684, 692 (6th Cir. 2015)
(discussing relationship between Anderson-Burdick and the Equal Protection
Clause, and collecting cases).
33
b. Crawford v. Marion County Election Board
Crawford involved “the constitutionality of an Indiana statute requiring
citizens voting in person on election day, or casting a ballot in person at the office
of the circuit court clerk prior to election day, to present photo identification
issued by the government.” 553 U.S. at 185 (plurality opinion of Stevens, J.).
The Court—in two plurality opinions, one by Justice Stevens and one by Justice
Scalia—upheld the constitutionality of the statute under the Anderson-Burdick
balancing test.
Id. at 189S90
(plurality opinion of Stevens, J.);
id. at 204S05
(plurality opinion of Scalia, J.). We have held that Justice Stevens’s opinion is
controlling, and so we focus on that opinion here. See
Santillanes, 546 F.3d at
1321 (“Following Crawford, it appears that Justice Stevens’s plurality opinion
controls, a position advocated by the Plaintiffs in the present case because it is the
narrowest majority position.”);
id. at 1321S25 (citing, in the analysis, only to
Justice Stevens’s opinion); see also
Foley, supra, at 676 (“The controlling
opinion in [Crawford] was written by Stevens and joined by Roberts and
Kennedy.”).
Justice Stevens’s opinion—joined by Chief Justice Roberts and Justice
Kennedy—started its discussion of the relevant legal standard with Harper v.
Virginia State Board of Elections, supra, a case that invalidated a poll-tax under
the Equal Protection Clause. Justice Stevens explained that Harper had not
34
invalidated the poll-tax because of any racial classification or animus; instead, it
invalidated the poll-tax as “invidious because it was irrelevant to the voter’s
qualifications.” Crawford, 553 U.S. at 189; see
Harper, 383 U.S. at 668 (“To
introduce wealth or payment of a fee as a measure of a voter’s qualifications is to
introduce a capricious or irrelevant factor. The degree of the discrimination is
irrelevant. In this context—that is, as a condition of obtaining a ballot—the
requirement of fee paying causes an ‘invidious’ discrimination that runs afoul of
the Equal Protection Clause.” (citation omitted) (quoting Skinner v. Okla. ex rel.
Williamson,
316 U.S. 535, 541 (1942))).
Justice Stevens thus deduced the rule that “even rational restrictions on the
right to vote are invidious if they are unrelated to voter qualifications.”
Crawford, 553 U.S. at 189. At the same time, Justice Stevens acknowledged “that
‘evenhanded restrictions that protect the integrity and reliability of the electoral
process itself’ are not invidious and satisfy the standard set forth in Harper.”
Id.
at 189S90 (quoting
Anderson, 460 U.S. at 788 n.9). But determining how to
“neatly separate valid from invalid restrictions” is not always an easy task.
Id. at
190
. Notably, Justice Stevens applied the Anderson-Burdick balancing test even
though the voter-identification law at issue was not “unrelated to voter
qualifications.”
Id. at 189; see
id. at 193 (noting that Congress had indicated
“that photo identification is one effective method of establishing a voter’s
35
qualification to vote”). Instead, “[h]owever slight th[e] burden [imposed on the
right to vote] may appear, as Harper demonstrates, it must be justified by relevant
and legitimate state interests ‘sufficiently weighty to justify the limitation.’”
Id.
at 191 (quoting Norman v. Reed,
502 U.S. 279, 288S89 (1992)). In other words,
Anderson-Burdick scrutiny is required even when the burden imposed by a voter-
identification law has some relationship to voter qualifications and even when the
burden imposed may appear slight.
An important question then is exactly what this scrutiny entails. Justice
Stevens’s opinion explained that the degree of scrutiny was “flexible.”
Id. at 190
n.8; see
Burdick, 504 U.S. at 434 (explaining that under Anderson the mere fact
that a burden was imposed does not itself mandate strict scrutiny; instead, “a more
flexible standard applies”); accord Campbell v. Davidson,
233 F.3d 1229, 1233
(10th Cir. 2000) (applying “the flexible standard of Burdick”). This
“flexib[ility]” acknowledges that we must engage in a case-specific inquiry based
on (1) “the character and magnitude of the asserted injury to the rights . . . that
the plaintiff seeks to vindicate,” (2) “the precise interests put forward by the State
as justifications for the burden imposed by its rule,” and (3) “the extent to which
those [state] interests make it necessary to burden the plaintiff’s rights.”
Burdick,
504 U.S. at 434 (quoting
Anderson, 460 U.S. at 789). Thus, the scrutiny we apply
will wax and wane with the severity of the burden imposed on the right to vote in
36
any given case; heavier burdens will require closer scrutiny, lighter burdens will
be approved more easily. Id. (“Under this standard, the rigorousness of our
inquiry into the propriety of a state election law depends upon the extent to which
a challenged regulation burdens First and Fourteenth Amendment rights.”).
We, and our sister circuits and commentators, have referred to this as a
“sliding scale” test. Navajo Nation v. San Juan Cty., 929 F.3d 1270, 1283 (10th
Cir. 2019); see Ariz. Libertarian Party v. Hobbs,
925 F.3d 1085, 1090 (9th Cir.
2019) (“We have described this approach as a ‘sliding scale’—the more severe the
burden imposed, the more exacting our scrutiny; the less severe, the more relaxed
our scrutiny.” (quoting Ariz. Green Party v. Reagan,
838 F.3d 983, 988 (9th Cir.
2016)));
Foley, supra, at 675 (“Anderson and Burdick create a kind of
sliding-scale balancing test, whereby the strength of the state’s justification
required to defend its law depends on the severity of the burden that the law
imposes on the would-be voter’s opportunity to cast a ballot . . . .”); see also Ne.
Ohio Coal. for the Homeless v. Husted,
696 F.3d 580, 592 (6th Cir. 2012) (per
curiam) (“While a rational basis standard applies to state regulations that do not
burden the fundamental right to vote, strict scrutiny applies when a state’s
restriction imposes ‘severe’ burdens. For the majority of cases falling between
37
these extremes, we apply the ‘flexible’ Anderson/Burdick balancing test.”
(citations omitted)). 4
Justice Stevens—applying this “flexible” approach—then concluded that
the photographic-identification requirement at issue in Crawford “impose[d] only
a limited burden on voters’ rights.” 553 U.S. at 203 (quoting
Burdick, 504 U.S. at
439). In particular, Justice Stevens relied heavily on the district court’s
conclusion that the challengers “had ‘not introduced evidence of a single,
individual Indiana resident who will be unable to vote’” as a result of the law “or
who will have his or her right to vote unduly burdened by its requirements.”
Id.
at 187 (quoting Ind. Democratic Party v. Rokita,
458 F. Supp. 2d 775, 783 (S.D.
4
Justice Scalia would have abandoned this traditional understanding
of the Anderson-Burdick balancing test as a flexible, sliding scale test. Instead,
he characterized Burdick as “forg[ing] Anderson’s amorphous ‘flexible standard’
into” a more rigid “two-track approach.” Crawford, 553 U.S. at 205 (plurality
opinion of Scalia, J.). Under his view, strict scrutiny would be applied to
“severe” burdens while “nonsevere, nondiscriminatory restrictions” would be
reviewed under “a deferential ‘important regulatory interests’ standard.”
Id. at
204S05 (quoting
Burdick, 504 U.S. at 433S34 ). Applying this framework to the
law at issue in Crawford, Justice Scalia would have concluded that the burden
imposed by Indiana’s photo-identification law was “simply not severe” and thus
justified by Indiana’s generalized interests under a deferential standard.
Id. at
209. But six Members of the Court—Chief Justice Roberts, Justice Stevens,
Justice Kennedy, see
id. at 190 n.8, and all three dissenters, see
id. at 210 (Souter,
J., joined by Ginsburg, J., dissenting);
id. at 237 (Breyer, J., dissenting)—rejected
Justice Scalia’s reframing of the Anderson-Burdick balancing test as involving
only two distinct tracks. And, as we have previously held that Justice Stevens’s
opinion is controlling, we must apply the “flexible” approach to the Anderson-
Burdick balancing test that was used by Justice Stevens, see
Crawford, 553 U.S.
at 190 n.8, as well as by the Court’s earlier cases, see
Burdick, 504 U.S. at 434.
38
Ind. 2006)). Additionally, while Justice Stevens acknowledged that the law could
impose a burden on those without photo identification, “the evidence in the record
d[id] not provide [the Court] with the number of registered voters without photo
identification.”
Id. at 200.
“Much of the argument about the numbers of such
voters c[ame] from extrarecord, postjudgment studies, the accuracy of which
ha[d] not been tested in the trial court.”
Id. Thus, he concluded that any costs
associated with requiring voters to acquire freely provided photographic
identification did not “qualify as a substantial burden on the right to vote, or even
represent a significant increase over the usual burdens of voting.”
Id. at 198.
This determination that the burden was not substantial was “record-based.”
Id. at
208 (plurality opinion of Scalia, J.); see
id. at 189 (plurality opinion of Stevens,
J.) (“[T]he evidence in the record is not sufficient to support a facial attack on the
validity of the entire statute . . . .” (emphasis added));
id. at 200 (plurality opinion
of Stevens, J.) (“[O]n the basis of the evidence in the record it is not possible to
quantify either the magnitude of the burden on this narrow class of voters or the
portion of the burden imposed on them that is fully justified.” (emphasis added)).
In light of this weak evidence of a burden, Justice Stevens concluded that
the state’s justifications were “sufficiently weighty to justify the limitation.”
Id.
at 191 (quoting
Norman, 502 U.S. at 288S89). In particular, Indiana had
“unquestionably relevant” interests in election modernization, preventing voter
39
fraud, and safeguarding voter confidence. Id. Justice Stevens determined that
these interests were “legitima[te]” and “importan[t],” even though, for example,
“[t]he record contain[ed] no evidence of any [voter-impersonation] fraud actually
occurring in Indiana.”
Id. at 194, 196. Thus, the Crawford opinion demonstrates
that when there is limited evidence of a burden on the right to vote, the state need
not present concrete evidence to justify its assertion of legitimate or important
generalized interests. See
Santillanes, 546 F.3d at 1323 (“In requiring the City to
present evidence of past instances of voting fraud, the district court imposed too
high a burden on the City.”).
However, when a more substantial burden is imposed on the right to vote,
our review of the government’s interests is more “rigorous[].” Burdick, 504 U.S.
at 434; see also
Anderson, 460 U.S. at 789 (“In passing judgment, the Court must
not only determine the legitimacy and strength of each of those interests; it also
must consider the extent to which those interests make it necessary to burden the
plaintiff’s rights.”); League of Women Voters of N.C. v. North Carolina,
769 F.3d
224, 246 (4th Cir. 2014) (“North Carolina asserts goals of electoral integrity and
fraud prevention. But nothing in the district court’s portrayal of the facts
suggests that those are anything other than merely imaginable.”); Obama for Am.
v. Husted,
697 F.3d 423, 433S34 (6th Cir. 2012) (holding voting regulation was
not justified by “vague interest[s]” when the state had submitted “no evidence” to
40
justify its invocation of the interests); cf. Cal. Democratic Party v. Jones, 530
U.S. 567, 584 (2000) (explaining that the determination of whether the “four
asserted state interests—promoting fairness, affording voters greater choice,
increasing voter participation, and protecting privacy—are . . . compelling . . . is
not to be made in the abstract, by asking whether fairness, privacy, etc., are highly
significant values; but rather by asking whether the aspect of fairness, privacy,
etc., addressed by the law at issue is highly significant”).
Finally, in addition to Justice Stevens’s consideration of the “facial attack
on the validity of the entire statute” in Crawford based on “the statute’s broad
application to all Indiana voters,” 553 U.S. at 189, 202–03, he also parsed the
burden imposed on specific categories of voters: “elderly persons born out of
State, who may have difficulty obtaining a birth certificate; persons who because
of economic or other personal limitations may find it difficult either to secure a
copy of their birth certificate or to assemble the other required documentation to
obtain a state-issued identification; homeless persons; and persons with a
religious objection to being photographed,”
id. at 199 (footnote omitted). But the
record evidence concerning the burdens imposed on these voters was once again
lackluster: “on the basis of the evidence in the record it is not possible to quantify
either the magnitude of the burden on this narrow class of voters or the portion of
the burden imposed on them that is fully justified.”
Id. at 200.
“[T]he evidence
41
in the record d[id] not provide [the Court] with the number of registered voters
without photo identification,” “the deposition evidence presented in the District
Court d[id] not provide any concrete evidence of the burden imposed on voters
who currently lack photo identification,” and the “record sa[id] virtually nothing
about the difficulties faced by either indigent voters or voters with religious
objections to being photographed.” Id. at 200S01. Furthermore, the Court noted
that the unique burdens on these classes of individuals would be mitigated by a
provision in the Indiana law that allowed certain “voters without photo
identification [to] cast provisional ballots that will ultimately be counted.”
Id. at
199
. 5
In sum, Crawford teaches that we must balance any burden on the right to
vote imposed by the DPOC requirement against the government’s asserted
interests as justifications for imposing that burden. We must apply the Anderson-
5
Justice Scalia criticized the “lead opinion” for this focus on the
burden imposed on specific populations. 553 U.S. at 204S05. In his view,
traditional equal-protection principles required evaluating the burden the
voter-identification requirement imposed on all voters, even if different
populations felt the impacts of that single burden differently.
Id. at 205; see also
id. at 206 (arguing that, in its prior opinions, “when [the Court] began to grapple
with the magnitude of burdens, [it] did so categorically and did not consider the
peculiar circumstances of individual voters or candidates”). He particularly
thought Justice Stevens’s focus on the requirement’s impact on the poor, disabled,
and elderly was problematic because these are not suspect classifications.
Id. at
207. He would have avoided “[t]he lead opinion’s record-based resolution” and
instead held that “[t]he burden of acquiring, possessing, and showing a free photo
identification is simply not severe.”
Id. at 208S09.
42
Burdick balancing test flexibly, i.e., “the rigorousness of our inquiry into the
propriety of [the DPOC requirement] depends upon the extent to which [it]
burdens” voters’ rights. Burdick, 504 U.S. at 434. And, while we are to evaluate
“the statute’s broad application to all . . . voters” to determine the magnitude of
the burden,
Crawford, 553 U.S. at 202–03 (plurality opinion of Stevens, J.), we
may nevertheless specifically consider the “limited number of persons” on whom
“[t]he burdens that are relevant to the issue before us” will be “somewhat
heavier,”
id. at 198S99 (plurality opinion of Stevens, J.); see also
Harper, 383
U.S. at 668 (holding poll tax facially unconstitutional while identifying the
specifically pernicious effect such a tax has on those unable to pay it); Nathaniel
Persily, Fig Leaves and Tea Leaves in the Supreme Court’s Recent Election Law
Decisions, 2008 S UP . C T . R EV . 89, 101 (2008) (“Voting laws that are
unconstitutional on their face are usually so because a minority (even a
nonsuspect one) is disadvantaged.”).
2. Application
In the following discussion, we (a) set out the burdens imposed on the right
to vote by the DPOC requirement, (b) discuss the interests that the Secretary
offers to justify those burdens, and then (c) arrive at the “hard judgment”
Crawford demands. We conclude that the significant burden quantified by the
31,089 voters who had their registration applications canceled or suspended
43
requires us to increase the “rigorousness of our inquiry,” Burdick, 504 U.S. at
434, and that such an inquiry demonstrates that the precise interests put forward
by the Secretary do not justify the burden imposed on the right to vote. Thus, we
conclude the DPOC requirement is unconstitutional.
a. Burden on Voters
Based primarily on the district court’s finding that 31,089 applicants were
prevented from registering to vote because of the DPOC requirement, we
conclude that the burden imposed on the right to vote by the DPOC requirement
was significant and requires heightened scrutiny. 6 In arriving at this conclusion,
we reject the Secretary’s counterargument that the burden imposed here compares
favorably to the burden that the Supreme Court found insubstantial in Crawford.
The district court found that—before the preliminary injunction in Fish I
was issued—14,770 individuals had applied to vote but had their applications
suspended by the Secretary for failure to provide DPOC. In addition to these
suspended applications, another 16,319 individuals had their applications
canceled by the Secretary for failure to provide DPOC. The district court thus
found that “31,089 total applicants . . . were denied registration for failure to
6
In labeling the burden “significant,” we—applying Justice Stevens’s
“flexible” approach in Crawford—conclude that the burden is at least somewhere
in between the two poles identified by Justice Scalia, i.e., “severe” and
“nonsevere.”
44
provide DPOC.” Aplt.’s App., Vol. 47, at 11447. Expert testimony demonstrated
that “[c]anceled or suspended applicants represented 12.4% of new voter
registrations between January 1, 2013[,] and December 11, 2015,” or
“approximately 12% of the total voter registration applications submitted since
the law was implemented.” Id. at 11448S49. And an expert opined that the total
number of applicants with suspended or canceled applications would have
increased but for the injunction. And despite the eventual injunction, many of the
would-be voters—including both Mr. Fish and Ms. Bucci—actually were
disenfranchised and “were not registered in time to vote in the [intervening] 2014
election by operation of the DPOC law.”
Id. at 11450S51. The Secretary
challenges none of these findings on appeal.
These factual findings create a fundamental distinction between this case
and Crawford: based on an extensive record, the district court here concluded that
the Kansas Secretary of State actually denied approximately thirty thousand
would-be voters’ registration applications in his implementation of the DPOC
requirement, while, in Crawford, the scant evidence before the Court left it with
the unenviable task of attempting to estimate the magnitude of the burden on
voting rights, largely from untested extra-record sources. The district court in
Crawford had found that the challengers “had ‘not introduced evidence of a
single, individual Indiana resident who w[ould] be unable to vote’” as a result of
45
the law. 553 U.S. at 187 (quoting Ind. Democratic
Party, 458 F. Supp. 2d at
783). The Court concluded that “the evidence in the record d[id] not provide [it]
with the number of registered voters without photo identification.”
Id. at 200.
This was because the district court had found the challengers’ experts “to be
‘utterly incredible and unreliable.’”
Id. (quoting Ind. Democratic Party, 458 F.
Supp. 2d at 803). Contrast that with the district court’s factual finding here that
31,089 total applicants were denied registration for failure to provide DPOC.
While the record in Crawford led Justice Stevens to conclude that the burden
there was slight, the record before us instead leads us to conclude that the burden
on the right to vote here was significant.
Moreover, in finding Indiana’s statute constitutional, Justice Stevens relied
on the fact that—even for that unquantified number of voters who would lack a
photo identification at the next election—Indiana’s statute provided that, “if
eligible, voters without photo identification may cast provisional ballots that will
ultimately be counted.”
Id. at 199
. In order to have such a provisional ballot
counted, an eligible voter without photographic identification only needed to
execute the required affidavit at the local circuit court clerk’s office.
Id.
Additionally, “[p]resumably most voters casting provisional ballots w[ould] be
able to obtain photo identifications before the next election,” and thus would not
bear this burden going forward.
Id. at 199 n.19. Thus, the Court concluded that
46
the statute as a whole “impose[d] only a limited burden on voters’ rights.” Id. at
203 (quoting
Burdick, 504 U.S. at 439).
But as the district court here concluded, Kansas’s DPOC requirement
offered no similar safety valve. See Aplt.’s App., Vol. 47, at 11520 (“[U]nlike
the Indiana law in Crawford, an eligible Kansas applicant on the suspense or
cancellation list does not have the option to fill out a provisional ballot, produce
DPOC after the election, and have their ballot counted.”). The Kansas law allows
voters who submit an application without DPOC to supplement that application at
any point within the following ninety days. See Kan. Admin. Regs. § 7S23S15(b).
Counties have been instructed to contact each voter that has submitted an
application without DPOC three times within this ninety-day period. See Aplt.’s
App., Vol. 47, at 11446. And, if they do not have DPOC, they may apply for a
hearing where they are otherwise able to prove their citizenship. See Kan. Stat.
Ann. § 25S2309(m). But these provisions are significantly less effective than the
safety valve in Crawford because that safety valve allowed certain individuals to
actually cast provisional votes while these provisions do not. Thus, voters who
were not registered due to a lack of DPOC—including those who did not know
that they were not registered, like Mr. Boynton and Mr. Stricker—could show up
to vote but be turned away without a backup option for them to cast votes.
47
Thus, we conclude that this case presents fundamental differences with
Crawford—differences that make the burden on the right to vote more substantial
here than in Crawford. In sum, the burden imposed on the right to vote by the
DPOC requirement was significant and requires heightened scrutiny. 7
The Secretary offers several arguments to the contrary, but we do not find
any of them persuasive. First, the Secretary argues that—as a matter of law—the
DPOC requirement here only imposes a limited burden on voters. He bases his
7
We acknowledge that the record also reflects certain instances where
the disenfranchisement of voters arguably was not directly related to the burdens
associated with the legal requirement that voters produce DPOC. That is because,
in some instances, the voters in fact produced DPOC to Kansas state employees
and their disenfranchisement apparently stemmed from bureaucratic snafus in
Kansas’s implementation of the DPOC regime. Notably, in some instances,
disenfranchisement was the result of the apparently inadvertent failures of state
employees to record and to give effect to the DPOC that prospective voters
provided. For example, Mr. Stricker and Mr. Boynton both brought DPOC when
they went to register and either provided it to the clerk or were told that they did
not need to. The Secretary does not argue that disenfranchisement stemming from
such bureaucratic or administrative failures in the implementation of the DPOC
regime should not be considered by us to be part and parcel of that regime, nor,
relatedly, that such disenfranchisement should be excluded from our analysis of
the alleged burden caused by the DPOC regime under Anderson-Burdick. Cf.
Democratic Exec. Comm. of Fla., 915 F.3d at 1319S21 (considering “the way in
which Florida implements the scheme” when determining the severity of the
burden imposed under Anderson-Burdick); Ne. Ohio Coal. for the
Homeless, 696
F.3d at 591S95 (considering burden imposed on the right to vote by “poll-worker
error” under Anderson-Burdick). In particular, the Secretary does not argue that
prospective voters disenfranchised through such bureaucratic snafus should not be
counted, for purposes of the burden analysis, among the approximately 30,000
would-be voters that the district court found to be disenfranchised. Therefore, we
have no occasion to consider any such argument further.
48
argument on Justice Stevens’s statement in Crawford that “the inconvenience of
making a trip to the [Bureau of Motor Vehicles], gathering the required
documents, and posing for a photograph surely does not qualify as a substantial
burden on the right to vote, or even represent a significant increase over the usual
burdens of voting.” 553 U.S. at 198. But Justice Stevens made that statement in
light of the record then before the Court.
Id. at 189 (concluding “the evidence in
the record is not sufficient to support a facial attack on the validity of the entire
statute” (emphasis added));
id. at 200 (“[O]n the basis of the evidence in the
record it is not possible to quantify either the magnitude of the burden on this
narrow class of voters or the portion of the burden imposed on them that is fully
justified.” (emphasis added)). But while there was no evidence in Crawford that
the inconvenience of going to the Bureau of Motor Vehicles constituted a
significant burden, the approximately 30,000 would-be voters disenfranchised in
this case provide a concrete evidentiary basis to find that a significant burden was
imposed by the DPOC requirement. Thus, the fundamental differences between
the record in this case and in Crawford lead us to a different conclusion.
Furthermore, we also reject the Secretary’s argument that features of the
DPOC requirement made it—as a matter of law—less burdensome than the law in
Crawford. While the Secretary notes that Kansas allows those without DPOC to
register by meeting with him and other officials, this procedure has only been
49
used five times, and we agree with the district court’s finding that its byzantine
nature “adds, not subtracts, from the burdensomeness of the law.” Aplt.’s App.,
Vol. 47, at 11526; cf. Harman v. Forssenius, 380 U.S. 528, 541–42 (1965)
(finding unconstitutional what was “plainly a cumbersome procedure” to avoid a
poll tax). The Secretary also argues that Kansas accepts DPOC through e-mail,
fax, or mail, while the law at issue in Crawford required voters without photo
identification to travel to the Bureau of Motor Vehicles. But the provisions the
Secretary cites do not mention e-mail or fax. See Kan. Stat. Ann. § 25S2309(l),
(t). Moreover, it is far from clear that requiring all registrants to provide
DPOC—even though they need only submit it once—is less burdensome than
Crawford’s requirement that voters bring identification to the polls. After all,
many Indiana voters in Crawford no doubt would have driven to the polls and
therefore already would have had their driver’s licenses with them; consequently,
they would not have been obliged to take any further steps to vote.
The Secretary also argues that there is no way to determine how many of
the 31,089 would-be voters whose applications were suspended or denied “were
actually unable (as opposed to just unwilling) to obtain a birth certificate or other
evidence of citizenship.” Aplt.’s Opening Br. at 32; cf. Frank v. Walker, 768
F.3d 744, 749 (7th Cir. 2014) (“If people who already have copies of their birth
certificates do not choose to get free photo IDs, it is not possible to describe the
50
need for a birth certificate as a legal obstacle that disfranchises them.”). In
support, he notes that the district court acknowledged that “[t]here was little
admissible evidence presented at trial about the rate of DPOC possession by
suspended and canceled applicants.” Aplt.’s App., Vol. 47, at 11457; see also id.
(“There is no evidence about how many canceled and suspended applicants in fact
lack DPOC . . . .”). And, as his argument goes, if voters simply did not want to
be inconvenienced by providing DPOC, this inconvenience does not necessarily
constitute a cost that is beyond the “usual burdens of voting.”
Crawford, 553
U.S. at 198 (plurality opinion of Stevens, J.). But the concrete record evidence of
the disenfranchisement of the 31,089 would-be voters again provides reason to
believe that the DPOC requirement does impose a significant burden on Kansas
voters, even if some of those voters could have registered with DPOC. While the
district court was unable to determine what percentage of the disenfranchised
voters lacked DPOC, it did recount extensive testimony about individual voters
like Mr. Fish and Ms. Bucci who lacked DPOC or faced significant costs to obtain
it. When this testimonial evidence was combined with the statistical evidence of
disenfranchised voters, the district court could properly conclude here that the
DPOC requirement imposed a significant burden on the right to vote. 8
8
We note that a sister circuit has concluded—in the NVRA
context—that this very DPOC requirement burdens the right to vote by imposing
(continued...)
51
The Secretary further argues that Crawford is analogous to this case
because the district court in Crawford had “estimated” that, “when the statute was
enacted, around 43,000 Indiana residents lacked a state-issued driver’s license or
identification card.” Id. at 187S88 (plurality opinion of Stevens, J.) (citing Ind.
Democratic
Party, 458 F. Supp. 2d at 807). The Secretary thus argues that, like
here, there was widespread and quantified evidence of disenfranchisement in
Crawford, and so we should reach the same result as the Court did there. But this
argument ignores that the Supreme Court in Crawford found that this 43,000
number was meaningless because it told the Court “nothing about the number of
free photo identification cards [that had been] issued since” the statute’s
enactment and thus nothing about how many voters actually would be turned away
from the polls.
Id. at 202 n.20. We thus do not view the Court in Crawford as
implying that the disenfranchisement of 43,000 voters would not be significant.
Furthermore, the Court in Crawford concluded that “the evidence in the record
d[id] not provide [it] with the number of registered voters without photo
identification” and thus the number of voters who might be unable to vote.
Id. at
8
(...continued)
“onerous” processes that can lead would-be voters to give up. See League of
Women Voters of the U.S. v. Newby,
838 F.3d 1, 13 (D.C. Cir. 2016) (“It does not
matter whether [would-be voters were being held on a suspension list] because
they lack access to the requisite documentary proof or simply because the process
of obtaining that proof is so onerous that they give up. The outcome is the
same—the abridgment of the right to vote.” (citations omitted)).
52
200 (emphasis added). In contrast, we know here that approximately 30,000
Kansans took affirmative and concrete steps to register to vote and were
disenfranchised by application of the DPOC requirement. Therefore, we are not
persuaded by the Secretary’s attempt here to analogize Crawford to this case.
The Secretary relatedly argues that the district court overstated the burden
by considering all 31,089 would-be voters with canceled or suspended
applications because some of them might have later submitted DPOC to cure their
applications if the district court had not enjoined the DPOC requirement. It is
true that in Crawford Justice Stevens suggested that certain estimates of the
number of voters without photographic identification were likely overstated
because some voters may have obtained identification in the intervening months.
Id. at 188 n.6, 202 n.20. However, the Secretary’s argument disregards the
expert’s opinion here that the total number of applicants with suspended or
canceled applications would have increased but for the injunction. The
Secretary’s argument, in contrast, is based on sheer speculation: he makes no
attempt to estimate how many of the would-be Kansas voters with canceled or
suspended applications would have taken the step to submit DPOC. And, as
Justice Stevens rightly pointed out in Crawford, “[s]upposition . . . is not an
adequate substitute for admissible evidence subject to cross-examination in
constitutional adjudication.”
Id. at 202 n.20. And the concrete, admissible
53
evidence here indicates that—because of Kansas’s DPOC requirement—31,089
would-be voters were not permitted to vote; without doubt, that is a significant
burden.
In sum, we conclude that the DPOC requirement imposed a significant
burden on the right to vote. 9
b. Asserted State Interests
We now turn to “evaluate the interests put forward by the State as
justifications for the burden imposed by its rule.”
Id. at 190 (plurality opinion of
Stevens, J.). The Secretary puts forward four interests: “(i) protecting the
integrity of the electoral process, (ii) ensuring the accuracy of voter rolls, (iii)
9
Mr. Bednasek also argues that the DPOC requirement is suspect
because it applies different registration requirements to those who registered
before the statute was enacted than to those who registered after. See Kan. Stat.
Ann. § 25-2309(n) (“Any person who is registered in this state on the effective
date of this amendment to this section is deemed to have provided satisfactory
evidence of citizenship and shall not be required to resubmit evidence of
citizenship.”). But Mr. Bednasek concedes that this distinction is justified in part
by Kansas’s “legitimate state interest” in protecting the reliance interests of
voters who were registered under the previous regime, Aplee.’s Resp. Br. at 76,
and the authority he provides that found certain grandfather clauses
unconstitutional in the voting context concluded that the statutes were
unconstitutional because they sought to avoid the import of the Fifteenth
Amendment. See Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45,
49S50 (1959); Guinn v. United States,
238 U.S. 347, 363 (1915). No similar
allegations have been made here, and so we do not base our analysis of the burden
on this argument.
54
safeguarding voter confidence, and (iv) preventing voter fraud.” Aplt.’s Opening
Br. at 33. We agree with the Secretary that each of these interests is legitimate in
the abstract. However, the Secretary points to no concrete evidence that “those
interests make it necessary to burden the plaintiff’s rights” in this case, Burdick,
504 U.S. at 434 (quoting
Anderson, 460 U.S. at 789), and so—in the following
section—we conclude that, on this record, these legitimate interests are
insufficiently weighty to justify the limitations on the right to vote imposed by the
DPOC requirement.
While nominally distinct interests, three of the Secretary’s asserted
interests—protecting the integrity of the electoral process, ensuring the accuracy
of voter rolls, and preventing vote fraud—largely overlap. Each fundamentally
can be boiled down to Kansas’s interest in making sure that only eligible voters
vote in its elections. And we agree with the Secretary that “[t]here is no question
about the legitimacy or importance of the State’s interest in counting only the
votes of eligible voters.” Crawford, 553 U.S. at 196 (plurality opinion of
Stevens, J.); see
id. (“[T]he interest in orderly administration and accurate
recordkeeping provides a sufficient justification for carefully identifying all
voters participating in the election process.”). Likewise, when put in terms of
electoral integrity, “[a] State indisputably has a compelling interest in preserving
the integrity of its election process.” Purcell v. Gonzalez,
549 U.S. 1, 4 (2006)
55
(per curiam) (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231
(1989)). And we agree that “[t]he State’s interest is particularly strong with
respect to efforts to root out fraud,” Doe v. Reed,
561 U.S. 186, 197 (2010),
because fraud “drives honest citizens out of the democratic process and breeds
distrust of our government,”
id. (quoting Purcell, 549 U.S. at 4). “While the most
effective method of preventing election fraud may well be debatable, the propriety
of doing so is perfectly clear.”
Crawford, 553 U.S. at 196 (plurality opinion of
Stevens, J.). Thus, we agree with the Secretary that Kansas’s interest in counting
only the votes of eligible voters is legitimate in the abstract, but, on this record,
we do not see any evidence that such an interest made it necessary to burden
voters’ rights here.
The Secretary argues that—even if there is no inaccuracy or fraud to
correct—the DPOC requirement furthers Kansas’s interest in increasing public
confidence and participation in the democratic process. Aplt.’s Opening Br.
at 35–36; see also id. at 34 (“Preventing Kansas from verifying the bedrock voter
qualification of United States citizenship would undermine the integrity of the
electoral process—whether widespread voter fraud exists or not.” (emphasis
added)). Again, we agree with the Secretary that “[c]onfidence in the integrity of
our electoral processes is essential to the functioning of our participatory
democracy.”
Purcell, 549 U.S. at 4. Such confidence is vital because “[v]oter
56
fraud drives honest citizens out of the democratic process and breeds distrust of
our government.” Id. Voters “will feel disenfranchised” when they have reason
to “fear their legitimate votes will be outweighed by fraudulent ones.”
Id. Thus,
the Supreme Court has recognized that “public confidence in the integrity of the
electoral process has independent significance[] because it encourages citizen
participation in the democratic process.”
Crawford, 553 U.S. at 197 (plurality
opinion of Stevens, J.). While we agree with the Secretary that Kansas has a
legitimate interest in safeguarding voter confidence, we explain below why there
is no evidence that the DPOC requirement furthers that interest.
Thus, we agree that each of the interests asserted by the Secretary is
legitimate in the abstract. However, we now turn to explain why—due to the
significant burden that the DPOC requirement imposes on the right to vote and
the lack of concrete evidence supporting the relevance of these interests in this
case—we cannot conclude “those interests make it necessary to burden the
plaintiff’s rights.” Burdick, 504 U.S. at 434 (quoting
Anderson, 460 U.S. at 789).
c. Balancing
As we have discussed, “the rigorousness of our inquiry into the propriety of
[the DPOC requirement] depends upon the extent to which [it] burdens” voters’
rights. Id. Here, the evidence of the approximately 30,000 disenfranchised voters
means that heightened scrutiny is appropriate. Thus, we must look at more than
57
whether the proffered interests are legitimate in the abstract; we must ask whether
the concrete evidence demonstrates that “those interests make it necessary to
burden the plaintiff’s rights” in this case. Id. (quoting Anderson, 460 U.S.
at 789); see Cal. Democratic
Party, 530 U.S. at 584; League of Women Voters of
N.C., 769 F.3d at 246; Obama for
Am., 697 F.3d at 433S34. Doing so, we
conclude that the Secretary has failed to introduce sufficiently weighty evidence
to justify the burdens imposed on voters.
To start, the district court found essentially no evidence that the integrity of
Kansas’s electoral process had been threatened, that the registration of ineligible
voters had caused voter rolls to be inaccurate, or that voter fraud had occurred. In
particular, it found that, “at most, 67 noncitizens registered or attempted to
register in Kansas over the last 19 years.” Aplt.’s App., Vol. 47, at 11519. Of
these, “[a]t most, 39 noncitizens have found their way onto the Kansas voter rolls
in the last 19 years.”
Id. at 11520.
The Secretary does not argue that these
factual findings are clearly erroneous. Thus we are left with this incredibly slight
evidence that Kansas’s interest in counting only the votes of eligible voters is
under threat. Indeed, even as to those 39 noncitizens who appear on the Kansas
voter rolls, the district court effectively found that “administrative anomalies”
could account for the presence of many—or perhaps even most—of them there.
Id. Supporting this determination is the fact that Kansas’s voter-registration
58
database included 100 individuals with purported birth dates in the 19th century
and 400 individuals with purported birth dates after their date of voter
registration. And so it is quite likely that much of this evidence of noncitizen
registration is explained by administrative error.
The Secretary also presented the district court with out-of-state evidence
about election fraud and noncitizen registration. But the district court concluded
that, “looking beyond Kansas, [the Secretary’s] evidence of noncitizen
registration at trial was weak.”
Id. at 11519.
It explained at length why it
excluded large portions of the Secretary’s expert testimony and found much of the
remaining testimony unpersuasive.
Id. (explaining that one of the Secretary’s
experts was “credibly dismantled” by the architect of the survey upon which the
expert had relied and that the court “d[id] not fully credit” a second expert’s
testimony “given its inclusion of misleading and false assertions”). We have no
doubt that inaccurate voter registrations exist in our country, see, e.g., Husted v.
A. Philip Randolph Inst., --- U.S. ----,
138 S. Ct. 1833, 1838 (2018) (“It has been
estimated that 24 million voter registrations in the United States—about one in
eight—are either invalid or significantly inaccurate.”), but the Secretary fails to
connect this generalized information to the DPOC requirement at issue here or to
argue that the district court clearly erred in finding that “the trial evidence did not
demonstrate the largescale problem urged by [the Secretary].” Aplt.’s App.,
59
Vol. 47, at 11520. In light of the significant burden on the right to vote, we thus
do not rely on the Secretary’s out-of-state evidence of voter-fraud and nonvoter
registration.
Finally and relatedly, while much of the above discussion focused on
Kansas’s interest in counting only the votes of eligible voters, it is also true that
the evidence did not demonstrate that Kansas’s interest in safeguarding voter
confidence made it necessary to enact the DPOC requirement. In particular, the
district court found that “the evidence in this case d[id] not show that the DPOC
law furthers” Kansas’s “significant interest” in “maintaining confidence in the
electoral process.” Id. at 11527S28. The district court found that, even under
calculations from one of the Secretary’s experts, the estimated number of
suspended applications that belonged to noncitizens was “statistically
indistinguishable from zero,” while “more than 99% of the individuals” whose
voter-registration applications were suspended were citizens who presumably
would have been able to vote but for the DPOC requirement.
Id. at 11491S92; id.
at 11528 (“[T]he DPOC law disproportionately impacts duly qualified registration
applicants, while only nominally preventing noncitizen voter registration.”).
Thus, the district court found that this disproportionate impact on qualified
registration applicants “also may have the inadvertent effect of eroding, instead of
maintaining, confidence in the electoral system.”
Id. at 11528. Again, while the
60
Secretary casts aspersions on these factual findings, he does not contest them as
clearly erroneous. See Aplt.’s Opening Br. at 21 (“[T]he State asserts only legal
error . . . .”).
In sum, the burden on the right to vote evinced by the approximately 30,000
disenfranchised voters elevates “the rigorousness of our inquiry into the propriety
of [the DPOC requirement].” Burdick, 504 U.S. at 434. And when we look at
“‘the precise interests put forward by the State as justifications for the burden
imposed by its rule,’ taking into consideration ‘the extent to which those interests
make it necessary to burden the plaintiff’s rights,’” id. (quoting
Anderson, 460
U.S. at 789), we see that the Secretary’s proffered justifications are not
supported—and indeed in several places are undercut—by the facts found by the
district court. We thus make the “hard judgment,”
Crawford, 553 U.S. at 190
(plurality opinion of Stevens, J.), that the DPOC requirement unconstitutionally
burdens the right to vote and uphold the district court’s judgment.
To be sure, the Secretary argues that Crawford and our opinion in
Santillanes prohibit us from examining whether there is any evidence behind his
proffered justifications. In Crawford, Justice Stevens’s opinion accepted three
justifications—election modernization, protection against voter fraud, and
safeguarding voter confidence—in the abstract, i.e., without requiring evidence
that these interests were at risk in Indiana or remedied by the photographic-
61
identification requirement at issue.
Id. at 191S97 (plurality opinion of Stevens,
J.). Similarly, in Santillanes, we concluded that “[i]n requiring the City to present
evidence of past instances of voting fraud, the district court imposed too high a
burden on the
City.” 546 F.3d at 1323. Guided by Crawford, we relied on the
city’s general invocation of its interest and Crawford’s citation to “flagrant
examples of such fraud in other parts of the country,”
id. (quoting Crawford, 553
U.S. at 195 (plurality opinion of Stevens, J.)), in concluding that “[p]revention of
voter fraud and voting impersonation as urged by the City are sufficient
justifications for a photo identification requirement for local elections,”
id.
But in Crawford and Santillanes, the Supreme Court and our court had
concluded that there was only a light burden on the right to vote.
Crawford, 553
U.S. at 202S03 (plurality opinion of Stevens, J.);
Santillanes, 546 F.3d at
1322–23. While both of those decisions acknowledged that the laws at issue there
could impose a burden on the right to vote, those burdens were limited and were
further mitigated by the possibility of casting provisional ballots. But the
evidence here that 31,089 voter-registration applications were either suspended or
canceled differentiates the magnitude of the burden here from the magnitude of
the burdens in those cases. Because “the rigorousness of our inquiry into the
propriety of [the challenged law] depends upon the extent to which [it] burdens”
voters’ rights,
Burdick, 504 U.S. at 434, and neither of those decisions confronted
62
the level of disenfranchisement that the record evidence establishes that the
DPOC requirement produced here, neither of those decisions applied the more
robust scrutiny that we must here. And it is only after engaging in that
heightened scrutiny that we find that the facts in this case do not support the
conclusion that the Secretary’s legitimate interests justify the burdens that the
DPOC law imposes on the right to vote. Thus, our approach here is entirely
consistent with Crawford and Santillanes; the different result is driven by the
different record of burdens and, consequently, the different level of judicial
scrutiny applied.
In sum, we conclude that the DPOC requirement is unconstitutional and
uphold the district court’s injunction in Bednasek v. Schwab, No. 18-3134. 10
C. Whether Section 5 of the NVRA Preempts the DPOC Requirement
We also uphold the district court’s entry of the injunction against the
enforcement of the DPOC requirement with regard to motor-voter registrants (i.e.,
10
While the Secretary argues that we should not facially invalidate the
statute based on “the allegedly ‘confusing’ implementation of Kansas law,”
Aplt.’s Opening Br. at 33, or “the unique circumstances of one individual,”
Aplt.’s Reply Br. at 16, he does not offer a broader challenge to the scope of the
relief that the district court ordered. We do not rely here on the confusing
implementation of the DPOC law or the circumstances of any individual plaintiff,
instead finding that the demonstrated disenfranchisement of approximately 30,000
would-be voters demonstrates that the “broad application” of the DPOC
requirement imposed an unjustified burden on “all [Kansas] voters.” Crawford,
553 U.S. at 202S03 (plurality opinion of Stevens, J.).
63
the appeal in Fish v. Schwab, No. 18-3133) because section 5 of the NVRA
preempts Kansas’s DPOC requirement. In coming to that conclusion, we (1)
summarize our opinion in Fish I, (2) explain why that opinion establishes the law
of this case, and (3) hold that, under the Fish I framework, Kansas’s DPOC
requirement is preempted by section 5 of the NVRA because Kansas failed to
demonstrate substantial numbers of non-citizen voters attempted to register or
vote. Thus, even apart from our constitutional holding in Bednasek v. Schwab,
No. 18-3134, we affirm the district court’s injunction—as to the class of voters
who sought to register under section 5 of the NVRA.
1. Preemption Framework Established in Fish I
In Fish I, we addressed the fundamental question of whether
Congress—through the NVRA—had utilized the authority vested in it by the
Elections Clause to preempt state regulations—namely, the DPOC requirement.
The Constitution’s Elections Clause states:
The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of
chusing Senators.
U.S. C ONST . art. I, § 4, cl. 1. This provision makes clear that while states must
set the “Times, Places and Manner” of their elections, “Congress can step in,
either making its own regulations that wholly displace state regulations or else
64
modifying existing state regulations.” Fish I, 840 F.3d at 724; see Arizona v.
Inter Tribal Council of Ariz., Inc.,
570 U.S. 1, 8 (2013) (“Upon the States [the
Elections Clause] imposes the duty (‘shall be prescribed’) to prescribe the time,
place, and manner of electing Representatives and Senators; upon Congress it
confers the power to alter those regulations or supplant them altogether.”). In
other words, “[t]he Clause is a default provision; it invests the States with
responsibility for the mechanics of congressional elections, but only so far as
Congress declines to preempt state legislative choices.” Foster v. Love,
522 U.S.
67, 69 (1997) (citation omitted); accord Fish
I, 840 F.3d at 725S26.
In Fish I, we explained that, in order to answer the fundamental preemption
question, “the Elections Clause requires that we straightforwardly and naturally
read the federal and state provisions in question as though part of a unitary system
of federal election regulation but with federal law prevailing over state law where
conflicts arise.” Fish I, 840 F.3d at 729; accord Gonzalez v. Arizona,
677 F.3d
383, 394 (9th Cir. 2012) (en banc), aff’d sub nom. Inter Tribal,
570 U.S. 1 (2013).
We then turned to the relevant portions of Kansas’s DPOC requirement and the
NVRA. Kansas’s DPOC requirement provides: “The county election officer or
secretary of state’s office shall accept any completed application for registration,
but an applicant shall not be registered until the applicant has provided
satisfactory evidence of United States citizenship.” Kan. Stat. Ann. § 25–2309(l).
65
The statute then “enumerates thirteen forms of documentation, including a birth
certificate and a passport, that meet this requirement.” Fish I, 840 F.3d at 732.
We then turned to the relevant portion of section 5 of the NVRA, which states:
(2) The voter registration application portion of an application
for a State motor vehicle driver’s license—
(A) may not require any information that duplicates
information required in the driver’s license portion of the
form (other than a second signature or other information
necessary under subparagraph (C));
(B) may require only the minimum amount of information
necessary to—
(i) prevent duplicate voter registrations; and
(ii) enable State election officials to assess the eligibility
of the applicant and to administer voter registration and
other parts of the election process;
(C) shall include a statement that—
(i) states each eligibility requirement (including
citizenship);
(ii) contains an attestation that the applicant meets each
such requirement; and
(iii) requires the signature of the applicant, under penalty
of perjury . . . .
52 U.S.C. § 20504(c)(2)(A)S(C).
We read subparagraph (B) as “restricting states’ discretion in creating their
own DMV voter-registration forms” by establishing what we referred to as the
“minimum-information principle.” Fish I, 840 F.3d at 733. The minimum-
information principle “establishes a ceiling on what information the states can
require” on the motor-voter form. Id.; see
id. (“Under NVRA section 5, a state
66
motor voter form ‘may require only the minimum amount of information
necessary’ for state officials to carry out their eligibility-assessment and
registration duties.” (quoting 52 U.S.C. § 20504(c)(2)(B))). This principle “calls
on states to include the least possible amount of information necessary on the
motor voter form.” Id. at 736. We also noted subparagraph (C)’s command to
“states to list qualifications and also to require applicants to attest that they meet
them and to sign the attestation under penalty of perjury.”
Id. Subparagraph (C)
“mandates that states include an attestation requirement” on the motor-voter form.
Id.
Reading subparagraphs (B) and (C) harmoniously, see FDA v. Brown &
Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (“A court must . . . interpret
the statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if
possible, all parts into an harmonious whole.’” (citations omitted) (first quoting
Gustafson v. Alloyd Co.,
513 U.S. 561, 569 (1995); then quoting FTC v. Mandel
Bros., Inc.,
359 U.S. 385, 389 (1959))), we concluded that “section 5 is
reasonably read to establish [subparagraph (C)’s] attestation requirement as the
presumptive minimum amount of information necessary for a state to carry out its
eligibility-assessment and registration duties [under subparagraph (B)],” Fish
I,
840 F.3d at 737;
id. at 737S38 (inferring “from the statutory structure that
Congress contemplated that the attestation requirement would be regularly used
67
and would typically constitute the minimum amount of information necessary for
state officials to carry out their eligibility-assessment and registration duties”).
While subparagraph (C)’s attestation requirement provides the presumptive
minimum amount of information necessary for a state to carry out its
subparagraph (B) duties, we “recognize[d] that in a given case [the attestation
requirement] may not be sufficient for a state to carry out its eligibility-
assessment and registration duties.” Id. at 737.
“[W]hether the attestation requirement actually satisfies the minimum-
information principle in a given case turns on the factual question of whether the
attestation requirement is sufficient for a state to carry out these duties.”
Id.
at 738. Thus, “in order for a state advocating for a DPOC regime to rebut the
presumption that the attestation requirement is the minimum information
necessary for it to carry out its eligibility-assessment and registration duties, it
must make a factual showing that the attestation requirement is insufficient for
these purposes.”
Id. “More specifically, in order to rebut the presumption as it
relates to the citizenship criterion, we interpret[ed] the NVRA as obliging a state
to show that ‘a substantial number of noncitizens have successfully registered’
notwithstanding the attestation requirement.”
Id. at 739 (quoting
EAC, 772 F.3d
at 1198). And so we observed that “if Kansas fails to rebut this presumption that
attends the attestation regime, then DPOC necessarily requires more information
68
than federal law presumes necessary for state officials to meet their
eligibility-assessment and registration duties (that is, the attestation
requirement).” Id. In that circumstance, “Kansas’s DPOC law would be
preempted.”
Id.
Finally, we then applied this preemption framework and concluded that the
Secretary had failed to demonstrate that a substantial number of noncitizens had
successfully registered.
Id. at 747–48. In particular, the Secretary had only
shown that between 2003 and 2013 “thirty noncitizens registered to vote.”
Id.
at 746. “These numbers [fell] well short of the showing necessary to rebut the
presumption that attestation constitutes the minimum amount of information
necessary for Kansas to carry out its eligibility-assessment and registration
duties.”
Id. at 747. Thus, we concluded that the plaintiffs’ challenge was likely
to succeed on the merits.
Id. at 750S51. We then concluded that the district court
did not err in holding that the remaining preliminary-injunction factors also
favored a preliminary injunction, and thus affirmed the district court’s grant of a
preliminary injunction.
Id. at 751S56. However, we acknowledged that if, on
remand, “evidence comes to light that a substantial number of noncitizens have
registered to vote in Kansas during a relevant time period, inquiry into whether
DPOC is the minimum amount of information necessary for Kansas to carry out
its eligibility-assessment and registration duties would then be appropriate.”
Id.
69
at 750–51. In other words, while the Secretary had not demonstrated that a
substantial number of noncitizens had registered to vote at the preliminary-
injunction stage of the litigation, we left open the possibility that he would be
able to make that showing at a trial on the merits. As noted, however, the district
court subsequently concluded that the Secretary failed to make that showing.
2. The Fish I Framework Governs
We conclude that the Fish I framework governs our inquiry into whether
section 5 of the NVRA preempts Kansas’s DPOC requirement. However, the
Secretary argues against this conclusion, claiming that Fish I “is not binding on
this panel” and that we should reevaluate the Fish I framework. Aplt.’s Opening
Br. at 18, 41S42. Thus, before we turn to evaluating whether the Secretary has
demonstrated that a substantial number of noncitizens registered to vote, we
explain why, under the law-of-the-case doctrine, Fish I’s legal determinations are
the law of the case.
The law-of-the-case doctrine provides that, “when a court rules on an issue
of law, the ruling ‘should continue to govern the same issues in subsequent stages
in the same case.’” Bishop v. Smith, 760 F.3d 1070, 1082 (10th Cir. 2014)
(quoting United States v. Graham,
704 F.3d 1275, 1278 (10th Cir. 2013)); accord
Arizona v. California,
460 U.S. 605, 618 (1983). “Under this doctrine, ‘the
decision of the appellate court establishes the law of the case and ordinarily will
70
be followed by both the trial court on remand and the appellate court in any
subsequent appeal.’” Cressman v. Thompson, 798 F.3d 938, 946 (10th Cir. 2015)
(quoting Zinna v. Congrove,
755 F.3d 1177, 1182 (10th Cir. 2014)). The doctrine
serves “important” functions. Entek GRB, LLC v. Stull Ranches, LLC,
840 F.3d
1239, 1240 (10th Cir. 2016). “Without something like it, an adverse judicial
decision would become little more than an invitation to take a mulligan,
encouraging lawyers and litigants alike to believe that if at first you don’t
succeed, just try again.” Id.; see also 18B C HARLES A LAN WRIGHT ET AL .,
F EDERAL P RACTICE & P ROCEDURE § 4478, Westlaw (2d ed., database updated
Apr. 2020) (“Law-of-the-case rules have developed to maintain consistency and
avoid reconsideration of matters once decided during the course of a single
continuing lawsuit.”).
However, despite its importance, “the decision whether to apply law of the
case doctrine remains a matter of judicial discretion.” Entek GRB, 840 F.3d
at 1242; see Rimbert v. Eli Lilly & Co.,
647 F.3d 1247, 1251 (10th Cir. 2011)
(“This doctrine is designed to promote finality and prevent re-litigation of
previously decided issues, but does not serve to limit a court’s power.”).
“Although the law of the case doctrine is not a limit on our power, nor ‘an
inexorable command,’” United States v. Irving,
665 F.3d 1184, 1192 (10th Cir.
2011) (citations omitted) (quoting United States v. Alvarez,
142 F.3d 1243, 1247
71
(10th Cir. 1998)), it “is subject to very limited exceptions,” id. In particular,
“[w]e will only deviate from the law of the case ‘(1) when the evidence in a
subsequent trial is substantially different; (2) when controlling authority has
subsequently made a contrary decision of the law applicable to such issues; or
(3) when the decision was clearly erroneous and would work a manifest
injustice.’”
Cressman, 798 F.3d at 946 (quoting
Irving, 665 F.3d at 1192 n.12);
accord United States v. Trent,
884 F.3d 985, 995 (10th Cir. 2018).
In light of all this, it is clear that, at least ordinarily, a panel of our court
would follow any rulings made in prior appeals in the same case; thus, we
ordinarily would follow Fish I’s framework. But the Secretary argues that “Fish I
does not bind this panel” because that opinion was considering a preliminary
injunction while we are now considering the merits. Aplt.’s Opening Br. at 41S42
(bold-faced font omitted). His argument relies centrally on Homans v. City of
Albuquerque, 366 F.3d 900 (10th Cir. 2004). In that case, a two-judge motions
panel of this court granted an emergency motion for a preliminary injunction that
enjoined the relevant law pending review of the merits.
Id. at 903. “In doing so,
the motions panel held that [the plaintiff] established a likelihood of success on
the merits” on his claim that the relevant statute was unconstitutional.
Id. On
remand, the district court stated its own view that the statute was constitutional,
but it nevertheless—under its perceived duty—entered judgment enjoining
72
enforcement of the statute based on the motions panel’s ruling. Id. In an appeal
of that order, i.e., a second appeal, we held that the motions panel’s preliminary
ruling was not the law of the case and thus did not bind the district court’s or our
subsequent merits determinations.
Id. at 904–05. This was because “the two
judge panel decision of our court constituted an interlocutory ruling, and its
holding was limited to the conclusion that [the plaintiff] had shown a likelihood
of success on the merits of his claim.”
Id. at 904. Furthermore, “[t]o the extent
that any language in [the motions-panel’s decision] c[ould] be read as an
assessment of the actual merits of [the plaintiff’s] claim, as opposed to his
likelihood of success on the merits, such language [was] dicta” and “not subject
to the law of the case doctrine.”
Id. at 904 n.5; see Univ. of Tex. v. Camenisch,
451 U.S. 390, 395 (1981) (“[T]he findings of fact and conclusions of law made by
a court granting a preliminary injunction are not binding at trial on the merits.”
(citations omitted)).
The Secretary argues, based on Homans and Camenisch, that Fish I is not
entitled to law-of-the-case effect. We disagree. As Camenisch indicates, the
normal rule is that “[r]ulings—predictions—as to the likely outcome on the merits
made for preliminary injunction purposes do not ordinarily establish the law of
the case, whether the ruling is made by a trial court or by an appellate court.”
18B WRIGHT ET AL ., supra, at § 4478.5 (footnotes omitted); cf. Attorney Gen. of
73
Okla. v. Tyson Foods, Inc.,
565 F.3d 769, 776 (10th Cir. 2009) (“In affirming the
district court’s denial of a preliminary injunction, we do not address the
underlying merits of Oklahoma’s ultimate claims at trial.”). This rule exists
because “the court of appeals must often consider such preliminary relief without
the benefit of a fully developed record and often on briefing and argument
abbreviated or eliminated by time considerations.” Sherley v. Sebelius,
689 F.3d
776, 782 (D.C. Cir. 2012). And so our sister circuits and a leading treatise agree
that “[a] fully considered appellate ruling on an issue of law made on a
preliminary injunction appeal . . . become[s] the law of the case for further
proceedings in the trial court on remand and in any subsequent appeal.” 18B
WRIGHT ET AL
., supra, at § 4478.5 (emphasis added) (footnote omitted); see
Rodriguez v. Robbins,
804 F.3d 1060, 1080S81 (9th Cir. 2015) (explaining that
conclusions on pure issues of law made during appeal of preliminary injunction
constitute law of the case), rev’d on other grounds sub nom. Jennings v.
Rodriguez,
138 S. Ct. 830 (2018); Howe v. City of Akron,
801 F.3d 718, 740 (6th
Cir. 2015) (collecting cases from other circuits reaching the conclusion that
“when a court reviewing the propriety of a preliminary injunction issues a fully
considered ruling on an issue of law with the benefit of a fully developed record,
then the conclusions with respect to the likelihood of success on the merits are the
law of the case in any subsequent appeal”).
74
Guided by this authority, we note that, in Homans, the motions panel
granted the emergency motion two days after it was made, and so it made sense
there that we would not afford law-of-the-case effect to the motion panel’s
decision—made, as it was, under (necessarily) severe time constraints. 366 F.3d
at 903. Here, however, the Fish I panel was able to consider the issue fully and
issue a lengthy opinion discussing pure issues of law. See
Sherley, 689 F.3d
at 783 (“The time constraints and limited record available to the court in those
cases are not present here. We therefore follow the other circuits in concluding
that the exception [to the law-of-the-case doctrine] is not present either.”).
“[W]here the earlier ruling, though on preliminary-injunction review, was
established in a definitive, fully considered legal decision based on a fully
developed factual record and a decisionmaking process that included full briefing
and argument without unusual time constraints, why should we not follow the
usual law-of-the-case jurisprudence?”
Id. at 782. We, like our sister circuits,
think that it makes eminent sense to apply the law-of-the-case doctrine in these
circumstances.
Arguing against this conclusion, the Secretary also cites to the concurring
opinion in Prairie Band Potawatomi Nation v. Wagnon, 402 F.3d 1015, 1029
(10th Cir.) (McConnell, J., concurring), vacated,
546 U.S. 1072 (2005). But the
majority opinion in that case adopted the same position set out above—namely
75
that an opinion that robustly addresses legal issues at the preliminary-injunction
stage of the litigation will provide “the district court with the appropriate legal
framework within which to view th[e] case.” Id. at 1020; see
id. at 1021 (“In so
ruling [on an issue in the earlier appeal of the preliminary injunction], it would
appear that [the prior ruling] is the law of this case . . . .”). In responding to the
concurring opinion cited by the Secretary, “we specifically recognized that the
principles of law of the case are flexible,” and so “while it [wa]s true that we
[we]re not bound by Prairie Band I, it [wa]s not true that ‘the law of the case
doctrine does not apply’ merely because Prairie Band I dealt with a preliminary
injunction.”
Id. at 1026 (quoting
id. at 1030 (McConnell, J., concurring)).
We think this gets it exactly right: because the Fish I panel was able to
consider the issue fully and issue a lengthy opinion discussing pure issues of law,
we conclude that the law-of-the-case doctrine applies to Fish I’s legal
conclusions. Of course, this doctrine “does not serve to limit a court’s power.”
Rimbert, 647 F.3d at 1251. And exceptions to the doctrine’s effect exist when
there is new and different evidence, an intervening change in controlling
authority, or the prior ruling was clearly erroneous and would work a manifest
injustice.
Id. But it is undisputed that none of these exceptions applies here, and
thus we adhere to the “thorough and sound” discussion of the applicable
76
preemption framework found in our prior opinion, Fish I. Prairie Band
Potawatomi Nation, 402 F.3d at 1026.
In sum, we conclude that Fish I’s preemption framework is the law of the
case.
3. Whether the Secretary Presented Sufficient Evidence to Satisfy
Fish I
The Secretary argues that he satisfied the Fish I framework on remand. But
the district court’s factual findings undermine this argument, and the Secretary’s
remaining arguments turn on his already-rejected view that Kansas must be
afforded “sufficient discretion [for it] to determine whether the problem of
unqualified voters becoming registered is ‘substantial.’” Aplt.’s Opening Br.
at 57. We thus conclude that the Secretary has failed to show that a substantial
number of noncitizens registered to vote.
In Fish I, we held that “to overcome the presumption that attestation
constitutes the minimum amount of information necessary for a state to carry out
its eligibility-assessment and registration duties, the state must show that a
substantial number of noncitizens have successfully registered to vote under the
attestation requirement.” 840 F.3d at 739. At that stage, “[t]he district court
found that between 2003 and the effective date of Kansas’s DPOC law in 2013,
only thirty noncitizens registered to vote,” and we concluded that “[t]hese
numbers [fell] well short of the showing necessary to rebut the presumption that
77
attestation constitutes the minimum amount of information necessary for Kansas
to carry out its eligibility-assessment and registration duties.” Id. at 746S47. But
we acknowledged that “[i]f evidence comes to light that a substantial number of
noncitizens have registered to vote in Kansas during a relevant time period,
inquiry into whether DPOC is the minimum amount of information necessary for
Kansas to carry out its eligibility-assessment and registration duties would then be
appropriate.”
Id. at 750S51. Thus, to overcome the presumption that the
attestation requirement satisfies the minimum-information principle, the Secretary
needed to provide greater evidence of noncitizens registering to vote.
But, at the trial on the merits, the district court found that only 39
noncitizens “successfully registered to vote despite the attestation requirement.”
Aplt.’s App., Vol. 47, at 11472; see id. at 11508. Yet recall that, even as to those
39 noncitizens who appear on the Kansas voter rolls, the district court effectively
found that “administrative anomalies” could account for the presence of many—or
perhaps even most—of them there.
Id. at 11520.
In other words, even the figure
of 39 registered noncitizens could be more the product of such anomalies than of
the voluntary registration actions of noncitizens in the face of the attestation
requirement. But, accepting that figure at face value, the confirmed noncitizens
who successfully registered to vote from 1999 to 2013 was equivalent to less than
three noncitizen voters a year. In Fish I we concluded that the 30 noncitizens
78
who had registered to vote between 2003 and 2013—which also equated to “no
more than three per year”—were “well short” of “substantial.” 840 F.3d
at 746–47. Following Fish I’s guidance, we reach a similar conclusion here.
Specifically, we conclude that the addition of nine voters spread over four more
years means that the Secretary has still failed to demonstrate that substantial
numbers of noncitizens successfully registered to vote notwithstanding the
attestation requirement. Thus, we conclude that the Secretary has failed to rebut
the presumption that the attestation requirement satisfies the
minimum-information principle.
The Secretary does not argue that the district court’s factual findings
concerning the number of noncitizens who registered to vote were clearly
erroneous. Nevertheless, he references statements made in the legislative record
by certain legislators who believed noncitizens had registered to vote, cites a
letter from a court clerk asserting that employees of a hog farm “were transported
to [the county clerk’s] office by their employer to register to vote” and that “some
of these employees felt they were pressured to register even though they may not
be legal,” Aplt.’s App., Vol. 30, at 7668, and notes possible instances of
noncitizens registering to vote, including one where a citizen told Kansas officials
that she had voted before becoming a citizen, see Aplt.’s Opening Br. at 57S58
(citing Aplt.’s App., Vol. 38, at 9460S65, 9522S23). But because the Secretary
79
does not directly contest the district court’s factual findings about how many
noncitizens registered to vote, he may not wage a guerilla war on the district
court’s factual findings through these ad hoc, anecdotal references to other
purported incidents of noncitizen registration. This evidence does not establish
that substantial numbers of noncitizens registered to vote.
The Secretary also cites to two cases from the Seventh Circuit that
identified individual noncitizens who registered to vote using motor-voter forms,
see Kimani v. Holder, 695 F.3d 666, 668, 671 (7th Cir. 2012); Keathley v. Holder,
696 F.3d 644, 645 (7th Cir. 2012), and provides a citation to an internet story
about another noncitizen whom Illinois officials registered to vote, see Aplt.’s
Opening Br. at 58S60. These anecdotes, even were we to consider them, do not
establish that “substantial” numbers of noncitizens registered to vote in Kansas
during a relevant time period and thus are not pertinent to the registration of
noncitizen voters in Kansas. See Aplee.’s Resp. Br. at 37. This showing thus
cannot satisfy the Secretary’s burden.
The Secretary falls back on arguing that “[t]he elected representatives of
the people of the State of Kansas determined that requiring proof of citizenship as
a condition of voter eligibility was a permissible response to the threat posed by
voter fraud.” Aplt.’s Opening Br. at 57. But this is just an argument that states
should be able to determine what § 20504(c)(2)(B)’s term “necessary” means—an
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argument that we expressly rejected in Fish I. See 840 F.3d at 743 (noting that
“the Supreme Court in Inter Tribal rejected such an understanding of federal
election regulation and confirmed that the NVRA’s plain language evinces
Congress’s intent to restrain the regulatory discretion of the states over federal
elections, not to give them free rein”).
Moreover, the Secretary relatedly argues that the attestation requirement
does not provide the minimum information necessary if even one noncitizen
registers to vote because even a small number of noncitizens registered to vote
could be “determinative” in certain close elections. Aplt.’s Opening Br. at 60
(pointing to various close elections in Kansas between 2000 and 2016, including
33 elections decided by fewer than 100 votes and one that was tied (citing Aplt.’s
App., Vol. 27, at 6938; id., Vol. 39, at 9765S69)); see Aplt.’s Reply Br. at 33S34.
But we rejected this argument in Fish I: “The NVRA does not require the least
amount of information necessary to prevent even a single noncitizen from
voting.” 840 F.3d at 748. As we explained there, “Congress adopted the NVRA
to ensure that whatever else the states do, ‘simple means of registering to vote in
federal elections will be available.’”
Id. (quoting Inter Tribal, 570 U.S. at 12).
“This purpose would be thwarted if a single noncitizen’s registration would be
sufficient to cause the rejection of the attestation regime.”
Id. The Secretary
provides no reason here to deviate from that conclusion, and, for that reason
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alone, we could reject his argument. And, furthermore, if the Secretary is correct
that Kansas’s recent history is sprinkled with some hotly contested, close
elections such that he reasonably could have an especially keen interest in
ensuring that every proper vote counts, we are hard-pressed to see how that
interest is furthered by the DPOC law—a law that undisputedly has
disenfranchised approximately 30,000 would-be Kansas voters who presumably
would otherwise have been eligible to vote in such close elections. Indeed, the
DPOC law would appear to undercut, rather than further, the Secretary’s
professed interest in ensuring that every proper vote counts.
Finally, the Secretary argues that “even if there were no widespread
problem of voter fraud in Kansas, the Supreme Court has recognized that the
States can proactively fight against the prospect of fraud.” Aplt.’s Opening Br.
at 61. To make this point, he cites to Justice Stevens’s discussion in Crawford of
Indiana’s undisputed interest in preventing voter fraud even though “[t]he record
contain[ed] no evidence of any such fraud actually occurring in Indiana at any
time in its history.” 553 U.S. at 194. But this interest was asserted in an entirely
different context: Justice Stevens was analyzing a constitutional challenge in a
case where the relevant law only imposed a limited burden on voters.
Id.
at 202S03. He said nothing about the evidentiary burden required to displace the
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statutory presumption created by section 5 of the NVRA and thus the citation is
inapt.
In short, we conclude that the Secretary has failed to show that a substantial
number of noncitizens successfully registered to vote. 11
* * *
The Secretary has failed to show that a substantial number of noncitizens
have successfully registered in Kansas notwithstanding section 5 of the NVRA’s
attestation requirement. Thus, the DPOC requirement necessarily requires more
information than federal law presumes necessary for state officials to meet their
eligibility-assessment and registration duties. And so we conclude that Kansas’s
DPOC law is preempted by section 5 of the NVRA. We uphold the district
court’s entry of a permanent injunction against the enforcement of the DPOC
requirement as to the those voters who sought to register under section 5 of the
NVRA.
IV. Conclusion
In Bednasek, No. 18-3134, we conclude the DPOC requirement
unconstitutionally burdens the right to vote and thus AFFIRM the district court’s
11
We do not reach the district court’s separate analysis concerning
whether—if the number of noncitizen voters here did count as substantial—the
DPOC requirement nevertheless satisfied the minimum-information principle.
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injunction. Likewise, in Fish, No. 18-3133, we AFFIRM the district court’s
injunction because section 5 of the NVRA preempts the DPOC requirement.
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