August 25, 2019

Tenth Circuit: Kansas Law Requiring Documentary Proof of Citizenship Violates National Voter Registration Act

The Tenth Circuit Court of Appeals issued its opinion in Fish v. Kobach on Wednesday, October 19, 2016.

In this case, the Tenth Circuit resolved whether section 5 of the National Voter Registration Act (the “NVRA”), 52 U.S.C. § 20504, preempts a Kansas law requiring documentary proof of citizenship (“DPOC”) for voter registration, Kan. Stat. Ann. § 25-2309(l), as applied to the federally mandated voter-registration form that must be a part of any application to obtain or renew a driver’s license (the “motor voter” process). Section 5 of the NVRA mandates that states include a voter-registration form as part of the application for a driver’s license, and provides that this voter-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.” 52 U.S.C. § 20504(c)(2)(B). Section 5 further mandates that motor voter forms include the following: a statement of the criteria for eligibility, “including citizenship”; an attestation that the applicant meets those criteria; and the applicant’s signature “under penalty of perjury.” § 20504(c)(2)(C).4

Granting a motion for a preliminary injunction against enforcement of Kansas’s DPOC requirements, the U.S. District Court for the District of Kansas held that the Plaintiffs-Appellees had made a strong showing that Kansas’s DPOC law was preempted by NVRA section 5, insofar as DPOC was more than the “minimum amount of information necessary” to achieve the purposes set forth by the statute. Defendant-Appellant Kansas Secretary of State Kris Kobach appealed from the district court’s entry of the preliminary injunction, which required him 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.

Exercising jurisdiction pursuant to 28 U.S.C. § 1292, the Tenth Circuit held that the district court did not abuse its discretion in granting the preliminary injunction because the NVRA preempts Kansas’s DPOC law as enforced against those applying to vote while obtaining or renewing a driver’s license. Specifically, section 5 of the NVRA provides that the state motor voter form “may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” 52 U.S.C. § 20504(c)(2)(B)(ii). Section 5 also requires motor voter forms to include a signed attestation under penalty of perjury that the applicant meets the state’s eligibility criteria, including citizenship. § 20504(c)(2)(C). The Tenth Circuit held that this attestation under penalty of perjury is the presumptive minimum amount of information necessary for state election officials to carry out their eligibility-assessment and registration duties. As it pertains to the citizenship requirement, the presumption ordinarily can be rebutted (i.e., overcome) only by a factual showing that substantial numbers of noncitizens have successfully registered to vote under the NVRA’s attestation requirement. Having determined that Secretary Kobach failed to make this showing, the Tenth Circuit concluded that the DPOC required by Kansas law is more than the minimum amount of information necessary and, therefore, is preempted by the NVRA.

The Tenth Circuit affirmed the grant of a preliminary injunction.

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