Fish et al v. Kobach et al

Filing 334

MEMORANDUM AND ORDER denying #267 Motion for Partial Summary Judgment. See Order for details. Signed by Chief Judge Julie A. Robinson on 5/4/17. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al.,
Plaintiffs,
v.

Case No. 16-2105-JAR-JPO

KRIS KOBACH, KANSAS SECRETARY OF
STATE,
Defendant.

MEMORANDUM AND ORDER
The individual Plaintiffs in this case are United States citizens who attempted to register
to vote at the time they applied for a Kansas driver’s license. Under a 2011 Kansas
Documentary Proof of Citizenship (“DPOC”) law, Plaintiffs’ voter registration applications were
deemed “incomplete,” and under a 2015 regulation passed by Kansas Secretary of State Kris
Kobach, some of these applications were cancelled in the Kansas voter registration database.
These Plaintiffs, along with the Kansas League of Women Voters, bring several claims against
Secretary Kobach for constitutional violations under 42 U.S.C. § 1983, and for statutory
violations of the National Voter Registration Act (“NVRA”). On May 17, 2016, the Court issued
an extensive Memorandum and Order granting in part Plaintiffs’ motion for a preliminary
injunction barring enforcement of the Kansas DPOC law until this case could be decided on the
merits.1 It was effective on June 14, 2016.2 The Tenth Circuit affirmed that ruling on October
19, 2016.3

1

189 F. Supp. 3d 1107 (D. Kan. 2016).

2

Doc. 145.

3

840 F.3d 710 (10th Cir. 2016).

After the Tenth Circuit’s decision, the court reopened discovery. Although the parties’
dispositive motions are not due until July, Plaintiffs filed a Motion for Partial Summary
Judgment (Doc. 267) on the Fourteenth Amendment Right to Travel claim, arguing that the
DPOC law on its face, and as enforced, violates the Privileges or Immunities clause. That
motion is fully briefed, and the Court heard oral argument on March 3, 2017.4 Having fully
considered the arguments and evidence presented by the parties on the briefs and at the hearing,
the Court denies Plaintiffs’ motion for summary judgment, as explained more fully below.
I.

The Kansas Documentary Proof of Citizenship Law
Under Kansas law, legally qualified voters must register in order to be eligible to vote,5

and only United States citizens over the age of eighteen are eligible to register to vote.6 Before
2013, Kansas voter registration applicants met the citizenship requirement by signing an
attestation of United States citizenship on the registration application. The Secure and Fair
Elections Act (“SAFE Act”) became law in April 2011. It requires voter registration applicants
to submit documentary proof of citizenship (“DPOC”) at the time they apply to register to vote:
(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 paragraphs (1) through (13) of
subsection (l) 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. Evidence of United States citizenship shall be

4

The Court allowed a consolidated oral argument on these motions with the cross motions for summary
judgment in the related case of Bednasek v. Kobach, No. 15-9300. Although the Court consolidated the oral
argument, it has been careful to evaluate these cases separately. The Court has not cross-referenced or relied upon
the record or brief in the Bednasek matter in deciding the instant motions in this case.
5

K.S.A. § 25-2302.

6

Kansas Constitution art. 5, § 1.

2

satisfied by providing one of the following, or a legible photocopy of one of the
following documents:
(1) The applicant’s driver’s license or nondriver’s identification card issued by the
division of vehicles or the equivalent governmental agency of another state within
the United States if the agency indicates on the applicant’s driver’s license or
nondriver’s identification card that the person has provided satisfactory proof of
United States citizenship;
(2) the applicant’s birth certificate that verifies United States citizenship to the
satisfaction of the county election officer or secretary of state;
(3) pertinent pages of the applicant’s United States valid or expired passport
identifying the applicant and the applicant’s passport number, or presentation to
the county election officer of the applicant’s United States passport;
(4) the applicant’s United States naturalization documents or the number of the
certificate of naturalization. If only the number of the certificate of naturalization
is provided, the applicant shall not be included in the registration rolls until the
number of the certificate of naturalization is verified with the United States
bureau of citizenship and immigration services by the county election officer or
the secretary of state, pursuant to 8 U.S.C. § 1373(c);
(5) other documents or methods of proof of United States citizenship issued by
the federal government pursuant to the immigration and nationality act of 1952,
and amendments thereto;
(6) the applicant’s bureau of Indian affairs card number, tribal treaty card number
or tribal enrollment number;
(7) the applicant’s consular report of birth abroad of a citizen of the United States
of America;
(8) the applicant’s certificate of citizenship issued by the United States citizenship
and immigration services;
(9) the applicant’s certification of report of birth issued by the United States
department of state;
(10) the applicant’s American Indian card, with KIC classification, issued by the
United States department of homeland security;
(11) the applicant’s final adoption decree showing the applicant’s name and
United States birthplace;
(12) the applicant’s official United States military record of service showing the
applicant’s place of birth in the United States; or
(13) an extract from a United States hospital record of birth created at the time of
the applicant’s birth indicating the applicant’s place of birth in the United States.7
In addition to this DPOC requirement, each registration application in Kansas requires an
attestation by the applicant as to the applicant’s residence, age of majority, and United States

7

K.S.A. § 25-2309(l).

3

citizenship, signed under penalty of perjury. The registration application does not contain fields
for an applicant’s place of birth, maiden name, or mother’s maiden name.
The DPOC requirement was made effective on January 1, 2013.8 A person already
registered to vote on the Act’s effective date is not required to submit evidence of citizenship.9
Defendant later promulgated K.A.R. § 7-23-14(c), which provides that “[a] registered voter who
has previously provided sufficient evidence of United States citizenship with a voter registration
application in this state shall not be required to resubmit evidence of United States citizenship
with any subsequent voter registration application.”
If an applicant is a United States citizen but unable to provide one of the thirteen forms of
identification listed in subsection (l), the statute allows that applicant to submit another form of
citizenship documentation by directly contacting the Secretary of State’s Office. In these cases,
the state election board shall give the applicant an opportunity for a hearing before assessing the
evidence of citizenship to determine whether it is satisfactory.10 The state election board is
composed of the Secretary of State, the Attorney General, and the Lieutenant Governor.11
If a voter registration applicant fails to submit the requisite DPOC before the registration
deadline in Kansas, that applicant can still submit DPOC to the county election office in person,
by mail, or electronically (including by text message) before midnight on the day before an
election.12
On June 25, 2015, Defendant Kobach promulgated K.A.R. § 7-23-15, which became
effective on October 2, 2015. The regulation applies to registration applications that have been
8

Id. § 25-2309(u) (repealed 2016).

9

Id. § 25-2309(n).

10

Id. § 25-2309(m).

11

K.S.A. § 25-2203(a).

12

K.A.R. § 7-23-14(b).

4

deemed “incomplete.” Such applications are “cancelled” if they do not produce DPOC, or
otherwise cure the deficiency in the application, within 90 days of application. The applicant
must submit a new, compliant voter registration application in order to register to vote.
On July 1, 2015, the legislature granted the Secretary of State authority to prosecute
election crimes, including attempts by noncitizens to register to vote, or cast a ballot.13
II.

Uncontroverted Facts
The following material facts are either uncontroverted or viewed in the light most

favorable to Defendant as the nonmoving party.
Implementation and Enforcement of DPOC Law
As of January 1, 2013, there were 1,762,330 registered voters in Kansas. Between
January 1, 2013, the day the DPOC law went into effect, and January 3, 2017, 389,058 Kansans
successfully registered to vote. For the Presidential election in 2016, the number of registered
voters in Kansas was over 1.8 million, a new record.
Kansans may apply to register to vote in person, by mail, through a voter registration
agency, in conjunction with applying for a Kansas driver’s license, or “by delivery to a county
election officer to be registered.”14 The individual Plaintiffs in this case all applied to register at
the time they applied for a Kansas driver’s license.
The Kansas Election Voter Information System (“ELVIS”) is a database that contains
every registered voter, every voter registration applicant, and everyone who used to be a
registered voter but was subsequently cancelled. If an applicant has not provided DPOC, or if
the application is otherwise missing required information, the record is deemed “incomplete,”

13

K.S.A. § 25-2435(a).

14

K.S.A. §§ 25-2309(a), -2352(a)(1).

5

and designated with a reason code of “in suspense” until the application is completed. After 90
days, an incomplete application is cancelled under K.A.R. § 7-23-15.15
Defendant and county election officers may accept DPOC at a different time or in a
different manner than an application for voter registration, as provided in (l), “so long as the
applicant’s eligibility can be adequately assessed by the secretary of state or county election
officer as required by this section.”16 Under this authority, Defendant has established
interagency agreements with two Kansas agencies to verify whether one of the thirteen forms of
DPOC listed in § 25-2309(l) may be on file. First, on January 7, 2014, Defendant and Robert
Moser, MD, Secretary of the Kansas Department of Health and Environment (“KDHE”), entered
into an Interagency Agreement called the “Birth/Voter Registration Data Link,” whereby the
KDHE agreed to crosscheck the names of incomplete voter registration applicants with the
database of birth certificates and marriage licenses on file with the Kansas Department of Vital
Statistics, and provide Defendant with the results. Defendant sends a list of new voter
registration applicants on the suspense list to the KDHE on approximately a monthly basis. The
agreement makes clear that “The Kansas OVS maintains records only on Kansas vital events
occurring in the State of Kansas. The voter registration form does not collect State of birth for
the voter.”17
The KDHE maintains birth records only of those individuals born in the State of Kansas.
Kansas Elections Director Bryan Caskey testified that “generally speaking . . . between 40 and
50 percent of the records that we present to KDHE will come back with an affirmative response
15

In addition to the Court’s order in this case requiring Defendant to register all motor voter registrants who
had been deemed incomplete or cancelled for failure to provide DPOC, there is a preliminary injunction in place
prohibiting state-specific instructions on the Federal mail-in that would require an applicant to produce DPOC.
League of Women Voters v. Newby, 838 F.3d 1 (D.C. Cir. 2016), rev’g 195 F. Supp. 80 (D.D.C. 2016).
16

K.S.A. § 25-2309(t).

17

Doc. 269-2 at 7 (Pl. Ex. B).

6

of yes, there is proof of citizenship on file. That information is provided to the counties.”18
Indeed, according to Defendant, as of January 22, 2014, just a few weeks after implementing the
KDHE verification policy, 7716 registrations were completed out of a total of 20,201 that had
been deemed incomplete at the time due to lack of DPOC.
Defendant does not cross-reference birth certificate information with any state other than
Kansas. Caskey has contacted several neighboring states in an attempt to obtain birth certificate
information, but either their state laws prohibit such information sharing, or it would be costprohibitive—“in the thousands of dollars per record.”19 Defendant has been unable to utilize the
Electronic Verification of Vital Events (“EVVE”) system to verify citizenship of Kansans who
were not born in Kansas because that system requires a person’s state of birth for crossreferencing. This information is not collected on the voter registration application. Additionally,
Defendant determined that the EVVE system would cost the State between $5 and $30 per
record to use.
Second, in May 2016, Defendant implemented two new interagency policy changes for
coordinating with the Kansas Department of Revenue (“KDOR”) to verify citizenship documents
that may have been provided by voter registration applicants when they applied for a Kansas
driver’s license. The Division of Vehicles (“DMV”), a subdivision of the KDOR, accepts and
scans DPOC provided by any Kansas driver’s license holder or applicant, at any time. Also,
Defendant and the county clerks have been given access to a secure internet portal whereby they
may check the DMV records of any registration applicant on the incomplete list to determine if
the DMV possesses DPOC for that resident. Defendant has instructed the counties to check for
every applicant on their incomplete lists to determine whether incomplete voter registration
18

Doc. 269-10 at 63:20–25 (Pl. Ex. F-2).

19

Doc. 281-4 at 142:3 (Def. Ex. C).

7

applicants may have provided acceptable DPOC to the DMV when applying for a driver’s
license. If the web portal does not return confirmation that a citizenship document is on file,
KDOR will manually run a secondary verification of its system for those names. Caskey
contends that in addition to those confirmed through the KDHE process, “others” are confirmed
through the KDOR, and “most” provide their own DPOC within the 90-day period provided
under K.A.R. § 7-23-15.
As of January 3, 2017, there were 22,053 voter registration applications either cancelled
or deemed incomplete for failure to provide DPOC under K.A.R. § 7-23-15.
Individual Plaintiffs
Plaintiff Steven Wayne Fish is a United States citizen, a resident of Kansas, and over
eighteen years old. He was born on the Chanute Air Force Base in the State of Illinois, which
was decommissioned and closed in 1993. In August 2014, Fish applied to register to vote while
renewing his Kansas driver’s license at the DMV. ELVIS reflects that Plaintiff did not provide
DPOC and his application was cancelled in January 2016, pursuant to K.A.R. § 7-23-15. Upon
learning that his voter registration application was deficient for lack of DPOC, Fish searched for
his birth certificate but was unable to find it. He attempted to obtain a copy of his birth
certificate from the Chanute Air Force Base where he was born, to no avail. In 2016, Fish
discovered a copy of his birth certificate in a safe at his stepfather’s house. He was deemed
registered in June 2016, after the Court’s preliminary injunction order became effective.
Plaintiff Donna Bucci is a United States citizen, a resident of Kansas, and over eighteen
years old. She was born in the State of Maryland. Bucci applied to register to vote while
renewing her Kansas driver’s license at the DMV on August 14, 2013. The ELVIS records show
that Bucci failed to provide proof of citizenship. She has testified that obtaining a copy of her

8

Maryland birth certificate would be a financial burden for her. Bucci’s application was cancelled
on October 15, 2015 pursuant to K.A.R. § 7-23-15. She was deemed registered in June 2016,
after the Court’s preliminary injunction order became effective.
Plaintiff William Stricker, III is a United States citizen, a resident of Kansas, and over
eighteen years old. He was born in the State of Missouri. Stricker went to the DMV office in
October 2014 to obtain a driver’s license and register to vote. He was told that he had
insufficient documentation to obtain a driver’s license and was sent home to retain his social
security card. Stricker returned to the DMV with his out-of-state driver’s license, social security
card, and utility bills to show proof of lawful presence.20 Stricker’s ELVIS records show that he
was notified that his voter registration application was incomplete due to failure to provide
DPOC, and that it was cancelled on November 6, 2015, pursuant to K.A.R. § 7-23-15. He was
deemed registered on June 22, 2016, after the Court’s preliminary injunction order became
effective. On July 7, October 15, and October 28, 2016, “registrant attachments” were added to
his ELVIS file. On October 28, 2016, Stricker’s status in ELVIS was changed from “S” to “A.”
Plaintiff Thomas Boynton is a United States citizen, a resident of Kansas, and over
eighteen years old. He was born in the State of Illinois. In early August 2014, Mr. Boynton
went to a driver’s license office in Wichita, Kansas to apply for a Kansas driver’s license and to
register to vote. At the preliminary injunction hearing, there was a factual dispute about whether
Boynton applied to register at a DMV office, or in person at his polling station. Regardless, the
ELVIS records reflect that his voter registration application was cancelled on November 5, 2015,
pursuant to K.A.R. § 7-23-15. He was deemed registered on June 20, 2016, after the Court’s
preliminary injunction order became effective. A screen shot in his ELVIS file dated June 20,

20

See K.S.A. § 8-240(b)(2).

9

2016 indicates that a certified U.S. birth certificate was provided, with a “date added” of August
4, 2014.
Plaintiff Douglas Hutchinson is a United States citizen, a resident of Kansas, and over
eighteen years old. He was born in the State of Colorado. Hutchinson applied to register to vote
in the spring of 2013 when he renewed his driver’s license at a DMV. In late 2014 or early 2015,
he received a telephone call from a volunteer with the League of Women Voters advising him
that his name was not registered to vote because he had not provided DPOC. Mr. Hutchinson
obtained a passport, and in the summer of 2015 attempted to take a copy of his passport to the
DMV office. Nonetheless, Hutchinson’s application was cancelled under K.A.R. § 7-23-15. It
appears from the updated ELVIS records that Hutchinson reapplied to register to vote on July 29,
2016.21 The document attached to his voter registration card is completely redacted.
III.

Standard
Summary judgment is appropriate if the moving party demonstrates that there is no

genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.22 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.23 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”24 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”25 An issue

21

Doc. 281-8 at 10–11 (Def. Ex. D-3).

22

Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).

23

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

24

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

25

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).

10

of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
non-moving party.”26
To prevail on a motion for summary judgment on a claim upon which the moving party
also bears the burden of proof at trial, the moving party must demonstrate “no reasonable trier of
fact could find other than for the moving party.”27 The facts “must be identified by reference to
an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”28 Rule 56(c)(4)
provides that opposing affidavits must be made on personal knowledge and shall set forth such
facts as would be admissible in evidence.29 The non-moving party cannot avoid summary
judgment by repeating conclusory opinions, allegations unsupported by specific facts, or
speculation.30
Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”31 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”32
IV.

Standing and Mootness
Defendant challenges certain Plaintiffs’ standing to raise the right to travel claim, and

argues that the claim is moot with respect to other Plaintiffs. Article III of the Constitution gives
26

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
27

Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015).

28

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).

29

Fed. R. Civ. P. 56(c)(4).

30

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
31

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

32

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

11

federal courts the power to exercise jurisdiction only over “Cases” and “Controversies.” As the
Supreme Court has explained:
In limiting the judicial power to “Cases” and “Controversies,” Article III of the
Constitution restricts it to the traditional role of Anglo-American courts, which is
to redress or prevent actual or imminently threatened injury to persons caused by
private or official violation of law. Except when necessary in the execution of
that function, courts have no charter to review and revise legislative and executive
action.33
One of several doctrines reflecting Article III’s case-or-controversy limitation on the judicial
power is the doctrine of standing. That doctrine requires federal courts, before considering the
merits of an action, to “satisfy themselves that the plaintiff has alleged such a personal stake in
the outcome of the controversy as to warrant [the plaintiff’s] invocation of federal-court
jurisdiction.”34 Standing considers whether there is a case or controversy at the time the action is
filed, while “mootness ensures it remains one at the time a court renders a decision.”35 “Failure
to satisfy the requirements of either doctrine places a dispute outside the reach of the federal
courts.”36 Although the Plaintiff bears the burden of showing standing, Defendant bears the
burden of demonstrating mootness.37
A.

Standing Challenges to League of Women Voters, Fish, and Bucci

The Supreme Court has found the “irreducible constitutional minimum of standing” to
contain three elements:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
33

Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009).

34

Id. at 493 (quoting Warth v. Seldin, 422 U.S. 490, 498–99 (1975)).

35

Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016).

36

Id. at 1164.

37

WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1183 (10th Cir. 2012).

12

be “fairly . . . trace[able] to the challenged action of the defendant, and not . . .
th[e] result of the independent action of some third party not before the court.”
Third, it must be “likely,” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”38
Plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing each
element of standing “with the manner and degree of evidence required at the successive stages of
the litigation.”39 Standing is evaluated based on the facts as they exist at the time the Complaint
is filed.40 At the summary judgment stage of the proceedings, “the elements of standing must be
set forth, through specific facts, by affidavit or other evidence. Furthermore, a plaintiff must
demonstrate standing separately for each form of relief sought.”41
The Court easily finds that Plaintiffs Fish and Bucci have standing to raise the right to
travel claim asserted in this case. The right to travel claim has two components: (1) a facial
challenge to the grandfather clause in the statute, which makes the law effective on January 1,
2013; and (2) an enforcement challenge to the KDHE agreement that allows Defendant to verify
the birth records of native-born Kansans who appear on the list of incomplete voter registration
applicants. Plaintiffs Fish and Bucci both applied to register to vote after January 1, 2013, so
they have standing to claim that the law discriminates against them as newer Kansas residents.
Plaintiffs Fish and Bucci were born outside of Kansas, so their incomplete applications could not
be verified by the KDHE. For purposes of the standing analysis, they both suffered an injury in
the form of discriminatory treatment on the basis of the length of their residency and their place
of birth. If the law was invalidated on this basis, the barrier to completing their registration
applications would be removed.
38

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation marks and citations

omitted).
39

Id. at 561; Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004).

40

Tandy, 380 F.3d at 1284.

41

Id. (citations omitted).

13

While it is true that “standing is not dispensed in gross,”42 the Supreme Court has
repeatedly observed that if one individual plaintiff has demonstrated standing to raise a claim for
relief, it need not consider whether the other plaintiffs have standing.43 Here, all of the
individual Plaintiffs have standing to raise the right to travel claim asserted in the Complaint.
As such, the Court need not consider whether the League of Women Voters has standing to raise
this particular claim.44
B.

Mootness Challenge to Boynton, Hutchinson, and Stricker

Defendant argues that Plaintiffs Boynton, Hutchinson, and Stricker’s claims are moot
because since the time of the preliminary injunction order last year, the State has located DPOC
for each of these Plaintiffs and deemed them registered to vote. “If an intervening circumstance
deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during
litigation, the action can no longer proceed and must be dismissed as moot.”45 Defendant argues
that Boynton and Stricker were registered to vote after their DPOC was verified through the
KDOR database, and that Hutchinson was registered because he presented a passport to the
Johnson County Elections Officer, which was then used to verify his citizenship. Plaintiffs
respond that these Plaintiffs’ claims are not moot because the only reason they became registered
was by virtue of the preliminary injunction ruling requiring Defendant to register them.
Otherwise, since their applications had been cancelled, they would have been required to reapply
to register to vote in order for any verification process to apply to them. Plaintiffs also point to
42

Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996).

43

Horne v. Flores, 557 U.S. 443, 446–47 (2009); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 264 & n.9 (1977); see also Thiebaut v. Colo. Springs Utils., 455 F. App’x 795, 802–03 (10th Cir. 2011)
(“courts retain discretion to analyze the standing of all plaintiffs in a case and to dismiss those plaintiffs that lack
standing”).
44

At this time, Defendant does not contest the League of Women Voters’ standing to raise the other claims
of relief asserted in this case.
45

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016).

14

contradictory evidence submitted by Defendant in support of these Plaintiffs’ recent
registrations.
The Court agrees with Plaintiffs. Prior to this Court’s May 2016 preliminary injunction
order, Hutchinson and Stricker’s voter registration applications had been cancelled.46 As to
Plaintiff Boynton, Defendant took the position when litigating the preliminary injunction motion
that Boynton had never applied to register to vote. Yet, the record reflected that he had been
notified that he lacked DPOC after applying for his driver’s license, and that his voter
registration application had been cancelled.47 The Court’s order directed Defendant “to register
for federal elections all otherwise eligible motor voter registration applicants that have been
cancelled or are in suspense due solely to their failure to provide DPOC.”48 Therefore, but for
the preliminary injunction order, these Plaintiffs were required to reapply to register to vote in
order for any post-application verification procedure to be available to them. Instead, the Court’s
order directed Defendant to register those who had been cancelled or held in suspense to vote,
despite the fact that no DPOC had been submitted. The Court will not allow Defendant to use its
preliminary injunction order as a justiciability sword to pick off Plaintiffs whose citizenship he
would not have verified otherwise.
Defendant’s evidence of citizenship verification supports Plaintiffs’ assertion that
Stricker and Boynton were only registered because of the Court’s previous Order, and supports
their allegation that this mootness argument is pure gamesmanship—a tactic Defendant has

46

189 F. Supp. 3d at 1122–23.

47

Id. at 1123.

48

Id. at 1152.

15

employed in other cases to avoid reaching the merits of challenges to the SAFE Act.49 Stricker’s
ELVIS records show that his application was cancelled on November 6, 2015 pursuant to K.A.R.
§ 7-23-15, for failure to provide DPOC.50 Defendant cites Exhibit D-4, which appears to be an
updated ELVIS record for Stricker, for the proposition that his “citizenship was confirmed with
the Division of Vehicles.”51 The Court notes that Defendant has not provided the Court with an
affiant to help explain the many and varied codes in the ELVIS records. This document
indicates that Stricker’s status changed from cancelled to “S” on June 22, 2016—after the
preliminary injunction order was issued, which the Court infers to mean that he was registered on
that date in compliance with the Court’s order. It appears that Stricker’s citizenship was later
verified on October 28, 2016.52
Defendant claims that Hutchinson presented a passport to the Johnson County Election
Office, which allowed them to confirm his citizenship and register him. Of course, it was part of
the record during the preliminary injunction hearing that Hutchinson, upon learning that he was
not in fact registered to vote from the League of Women Voters, attempted to prove his
citizenship by presenting his passport in person at the DMV office in Mission, Kansas. He had
been told this was sufficient to register him to vote. Yet, he later discovered that his application
was incomplete and eventually cancelled.53 Discrepancies and holes in Hutchinson’s updated
ELVIS record prevent this Court from determining that Hutchinson’s claim is moot. First,
although this exhibit is largely the ELVIS record for Hutchinson, the detail log on pages 5 and 6
49

Cromwell v. Kobach, 199 F. Supp. 3d 1292 (D. Kan. 2016); Belenky v. Kobach , No. 2013CV1331, slip
op. at 9–10 (Shawnee Cty. D. Ct. Jan. 15, 2016) (“Plaintiffs’ current registration status under the Kansas SAFE act
was accomplished by the actions and choice of the Secretary, not at the choice of these two Plaintiffs.”).
50

See Pl. Ex. H-3.

51

Doc. 280 at 32.

52

Doc. 281-9 at 5 (Def. Ex. D-4).

53

There is a notation on his ELVIS file that a DMV check was performed on “6-21-16” and no document
was found. Doc. 281-8 at 19 (Def. Ex. D-3).

16

are for Stricker. It is therefore impossible for this Court to determine the history of status
changes or documents provided for this Plaintiff. Second, the exhibit does not even infer that
Plaintiff provided a passport to the Johnson County Election Office, allowing for independent
registration after the Court’s preliminary injunction order. There is a copy of a voter registration
card signed by Hutchinson on July 29, 2016,54 but the following page is redacted and Defendant
has not provided the Court with an unredacted copy. There is a notation of “Proof of
Citizenship” on August 8, 2016, but the note does not indicate the manner or type of DPOC
provided.55
Boynton’s ELVIS record shows that his application was cancelled on November 5, 2015,
pursuant to K.A.R. § 7-23-15, for failure to provide DPOC. On June 20, 2016, his registration
status changed to “A.” A screenshot of a voter check in this ELVIS record from June 20, 2016,
shows that Boynton had a certified birth certificate on file as of August 4, 2014—the date he
claimed at the preliminary injunction hearing to have applied to register to vote, which
Defendant had denied.
This evidence does not suggest that in the normal course of administering the DPOC law,
Defendant located and verified these Plaintiffs’ DPOC, leading to their completed registrations.
Instead, Plaintiffs’ cancelled applications were revived and registered by operation of the Court’s
preliminary injunction order.56 Only then did Defendant search the KDOR records for Boynton
and Stricker’s citizenship documents to verify. Defendant’s burden to demonstrate mootness is

54

Doc. 281-8 at 10 (Def. Ex. D-3).

55

Doc. 281-8 at 7 (Def. Ex. D-3).

56

On September 23, 2016, Shawnee County District Court Judge Larry D. Hendricks ordered Defendant to
provide notice to all voters impacted by this Court’s preliminary injunction ruling that they would be “deemed
registered and qualified to vote for the appropriate local, state, and federal elections for purposes of the November 8,
2016 general election, subject only to further official notice.” Brown v. Kobach, No. 2016-CV-550, slip op. at 3–4
(Shawnee Cty. Dist. Ct. Sept. 23, 2016).

17

greater when he “moots the case by voluntarily ceasing [his] offending conduct.”57 Under such
circumstances, Defendant “bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.”58 Here, the Court
cannot find that the allegedly wrongful behavior could not be expected to recur. Apparently,
Defendant is now taking the position that his office will independently review cancelled
applications for DPOC submitted to other State agencies, rather than forcing those individuals to
reapply.59 Of course, at the preliminary injunction phase, many of the Plaintiffs complained that
they had provided citizenship documents when they registered to vote, but were held in suspense
or cancelled anyway. It was not until this Court issued its Order granting preliminary injunctive
relief on the NVRA claim that Defendant attempted to find these documents. While the Court is
mindful that “the withdrawal or alteration of administrative policies can moot an attack on those
policies,”60 Defendant has made no effort to prove how his office’s policies have changed since
last May that would explain his unilateral attempts to verify citizenship documents for cancelled
applicants. As such, the Court cannot find that he has met his burden of demonstrating
mootness.
The Court encourages Defendant to review the Court’s previous order denying class
certification in this matter. The Court’s decision last year turned on its finding, at Defendant’s

57

WildEarth Guardians, 690 F.3d at 1183.

58

Id. (quoting Laidlaw, 528 U.S. at 190).

59

The Court notes that this is directly contrary to Defendant’s statement of fact that “once an individual’s
application is cancelled, the regulation requires individuals to provide a new voter registration application.”
Doc. 280 at 9 ¶ 21.
60

Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1117 (10th Cir. 2010) (quoting
Bahnmiller v. Derwinski, 923 F.2d 1085, 1089 (4th Cir. 1991)).

18

urging, that class certification is not necessary because for one thing, “there has been no showing
of a risk that the remaining name Plaintiffs’ claims will become moot.”61 This court explained:
None of the named Plaintiffs were born in Kansas, so it is unlikely that Defendant
could verify their citizenship through its coordinated efforts with the DVS. All of
the named Plaintiffs applied to register to vote at the DMV, and the evidence
presented at the preliminary injunction hearing showed that all but two failed to
present DPOC during the driver’s license renewal process. So the risk that the
State could independently verify their citizenship and register these Plaintiffs is
low. . . . In fact, for those applicants cancelled in ELVIS, there is little chance
that their claims could become moot unless they move out of state, as with Mr.
Ortiz.62
The revelation that Defendant has since verified citizenship for Plaintiffs Boynton and Stricker
calls into question the Court’s previous findings on necessity, and are troubling to say the least.63
If Defendant continues his pattern of picking off Plaintiffs through targeted back-end
verifications in an attempt to avoid reaching the merits of this case, the Court may be inclined to
revisit its previous decision denying Plaintiffs’ motion for class certification.
Having found that the right to travel claim is justiciable, the Court proceeds to consider
Plaintiffs’ summary judgment motion on the merits of that claim.
B.

Right to Travel Claim

Plaintiffs claim that the DPOC statute, and the State’s efforts to verify Kansas birth
records for individuals on the incomplete list, apply differently to Kansas citizens depending on
their length of residency and state of birth, burdening their fundamental right to travel under the
Privileges or Immunities Clause of the Fourteenth Amendment. Defendant argues that there is
no legal basis for either a facial or as-applied challenge to the law. The right to travel is a
61

Doc. 200 at 7.

62

Id. at 7–8.

63

Because Defendant does not make an absolutely clear showing on the status of Hutchinson’s
application—that he in fact reapplied in person, armed with DPOC, after the Court’s preliminary injunction order
became effective—the Court denies the motion to dismiss without prejudice. Even if Hutchinson’s claim is moot,
the remaining individual Plaintiffs have demonstrated that they have justiciable claims.

19

fundamental right under the Constitution, and “protects residents of a State from being
disadvantaged, or from being treated differently, simply because of the timing of their migration,
from other similarly situated residents.”64 In Saenz v. Roe,65 the United States Supreme Court
explained that the right to travel has three components:
It protects the right of a citizen of one State to enter and to leave another State, the
right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State, and, for those travelers who elect to
become permanent residents, the right to be treated like other citizens of that
State.66
As with the durational residency requirement at issue in Saenz,67 this case implicates the third
category of the right to travel.
The fact that a law may only incidentally implicate the right to travel is not a defense
because “since the right to travel embraces the citizen’s right to be treated equally in her new
State of residence, the discriminatory classification is itself a penalty.”68 Supreme Court cases
dealing with indirect burdens on the right to travel address “state laws that, by classifying
residents according to the time they established residence, resulted in the unequal distribution of
rights and benefits among otherwise qualified bona fide residents.”69 Strict scrutiny is most
frequently applied in the context of durational residency requirements. In Saenz for example, the
Court invalidated a California statute that made new California residents ineligible to receive
welfare benefits during their first year of residency.70 During that first year, new residents could

64

Atty. Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 901, 904 (1986).

65

526 U.S. 489 (1999).

66

Id. at 499. Plaintiffs do not bring this claim under Article IV, § 2 Privileges and Immunities Clause (“The
Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”).
67

Id. at 502.

68

Id. at 505.

69

Soto-Lopez, 476 U.S. at 903.

70

Saenz, 526 U.S. at 510–11.

20

only obtain welfare benefits equivalent to what they would have received in their prior State of
residence.71 The State’s interest in deterring welfare applicants from migrating to California was
impermissible and unsupported by the record.72 The Court also found that California’s fiscal
justification for the law did not justify its decision to discriminate against new residents from
certain states.73
In 1972, the Court struck down Tennessee’s one-year durational residency requirement
on the right to vote in Dunn v. Blumstein.74 Finding that the Tennessee law deprived new
residents the fundamental political right to vote, the Court applied a “strict equal protection test:
[durational residence laws] are unconstitutional unless the State can demonstrate that such laws
are ‘necessary to promote a compelling governmental interest.”75 Strict scrutiny applied because
the law “forc[ed] a person who wishes to travel and change residences to choose between travel
and the basic right to vote.”76 The Court found that the statute was not narrowly tailored to
further either the State’s interests in preventing voter fraud, or having knowledgeable voters, and
thus invalidated the law.77 The Court made clear that the State must demonstrate that the law is
narrowly tailored to meet the State’s legitimate objections, and that “if there are other, reasonable
ways to achieve those goals with a lesser burden on constitutionally protected activity, a State
may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic
means.’”78
71

Id. at 492–93.

72

Id. at 506.

73

Id. at 507.

74

405 U.S. 330 (1972).

75

Id. at 342 (quoting Shapiro, 394 U.S. at 634).

76

Id. at 341.

77

Id. at 344–61.

78

Id. at 343 (quoting Shelton v. Tucke, 364 U.S. 479, 488 (1960)).

21

In Zobel v. Williams,79 the Court addressed a slightly different law tied to length of
residency. The Alaska statute at issue in that case provided for dividend distributions to State
residents from a Fund the State established to deposit a portion of its mineral income each year.
The statute distributed the dividends based on each adult resident’s length of residency. Given
the fixed, permanent residency classifications created by the statute, the Court held that the law
was subject to strict scrutiny.80 The Court determined that the State’s interests in creating
incentives for individuals to maintain residence in Alaska, and to prudently manage the Fund,
were not even rationally related to its classifications.81
Plaintiffs argue that two aspects of the DPOC law violate their right to travel: (1) the law
only applies to those registering to vote for the first time after January 1, 2013, which favors
established residents who registered before that date; and (2) the DPOC law and the Birth Link
MOU together form a system in which the DPOC requirement is enforced exclusively against
those born outside of Kansas. The Court considers each in turn.
1.

The Grandfather Clause (Facial Challenge)

Plaintiffs offer a theory of relief in their motion for summary judgment that was not
explicitly pled in the Amended Complaint: that the grandfather clause in K.S.A. § 25-2309(n)
discriminates against new Kansas residents by exempting from its requirements Kansas residents
who were already registered to vote as of January 1, 2013.82 Defendant first objects that because
this right to travel theory was not pled, Plaintiffs may not seek summary judgment on this
ground. Plaintiffs respond that they are not required to plead every legal theory on which their

79

457 U.S. 55 (1982).

80

Id. at 60.

81

Id. at 60–65.

82

See Doc. 268 at 43–46.

22

right to travel claim is based. Plaintiffs are correct that under notice pleading standards, the
complaint only requires “a short and plain statement of the claim showing that the pleader is
entitled to relief.”83 It does not require the plaintiff to set forth legal theories.84 Nonetheless, a
complaint “must ‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’”85 The question in this case is whether Defendant was provided notice of what
the right to travel claim encompassed, and the grounds upon which it rested.
The Court has reviewed the Amended Complaint and concludes that it did not place
Defendant on notice that Plaintiffs were pursuing a facial challenge based on the effective date of
the statute under the Privileges or Immunities Clause of the Fourteenth Amendment. This is not
a case where the Privileges or Immunities claim was so broadly worded that this theory of relief
could be inferred if liberally construed. Plaintiffs spent considerable time alleging specific facts
in support of their contention that “Defendants selectively register voters born within the State of
Kansas.”86 Count 6 of the Amended Complaint alleges their right to travel claim:
95. Plaintiffs re-allege and incorporate all of the allegations contained in the
previous paragraphs of this complaint as though fully set forth herein.
96. The Privileges and Immunities Clauses in Article IV and the Fourteenth
Amendment to the U.S. Constitution protect a fundamental [right] to travel. In
Saenz v. Roe, the Supreme Court recognized that “for those travelers who elect to
become permanent residents” of another state, the right to travel encompasses
“the right to be treated like other Citizens in that State.” 526 U.S. at 500.

83

Fed. R. Civ. P. 8(a)(2).

84

Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2013); Zokari v. Gates, 561 F.3d 1076, 1084 (10th
Cir. 2009).
85

Zokari, 561 F.3d at 1084 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Evans v.
McDonald’s Corp., 936 F.2d 1087, 1090–91 (10th Cir. 1991) (“As a general rule, a plaintiff should not be prevented
from pursuing a valid claim just because she did not set forth in the complaint a theory on which she could recover,
‘provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his
defense upon the merits.’” (quoting 5C Wright & Miller, Federal Practice & Procedure § 1219 at 194 (1990)).
86

Doc. 39 at 28-30.

23

97. Defendants’ discriminatory application of the DPOC law violates the right to
travel protected under the Privileges and Immunities Clauses of the Constitution.
When a Kansas registrant purportedly fails to provide documentary proof of
citizenship, Defendants take affirmative steps to register voters born in Kansas by
checking birth and marriage records retained by the KDHE. Defendants do not
typically verify suspended registrants’ citizenship with agencies outside of
Kansas. Citizens who have moved to Kansas and become permanent residents are
therefore not treated equally to citizens born or married in the State in violation of
the Constitution.87
These allegations did not place Defendant on notice that Plaintiffs advanced a facial
challenge to the statute. The Amended Complaint repeatedly discusses the KDHE policy and
articulates Plaintiffs’ claim as an as-applied challenge only. The fact that it was not disclosed
until this summary judgment motion certainly caused him prejudice. Notice that the scope of
Plaintiff’s Privileges or Immunities claim went beyond the verification procedure with the
KDHE would have certainly affected Defendant’s discovery strategy—the Court assumes he
would have marshalled statistical information about the types of Kansas residents affected by the
grandfather clause, for example. The Court agrees with Defendant that this claim was not pled.
Even assuming the grandfather clause claim was properly pled, the Court also denies
Plaintiff’s motion for summary judgment on the merits for failure to demonstrate that no
reasonable trier of fact could find other than for the moving party. It is true that durational
residency laws are subject to strict scrutiny because they have been deemed a “classification
which serves to penalize the exercise of” the right to travel.88 But the Court agrees with
Defendant that there are important differences between the DPOC law’s grandfather clause and
durational residency requirements such as those in Saenz and Dunn.

87

Id. ¶¶ 95–97 (emphasis added).

88

See, e.g., Dunn v. Blumstein, 405 U.S. 330, 339 (1972); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d
487, 497 (10th Cir. 1998).

24

As an initial matter, the DPOC law does not amount to the outright denial of a benefit or
right to new residents. The law creates an additional requirement on voter registration applicants
who register for the first time after January 1, 2013. But unlike the durational residency
requirements subject to strict scrutiny in the cases relied on by Plaintiffs, the DPOC law’s
grandfather clause is not defined by length of residency.89 Instead, the grandfather clause states
that the new law will not apply to any person who was already registered to vote in Kansas on or
before January 1, 2013.
Plaintiffs argue that like the laws invalidated in Soto-Lopez, Hooper, and Zobel, the
grandfather clause here conditions a benefit on becoming a Kansas resident at a certain point in
time. These cases are all distinguishable. In Soto-Lopez, the Court considered a New York law
that granted a civil service employment preference to New York residents who are honorably
discharged veterans of the Armed Forces and served during a time of war, if they were residents
of New York at the time they entered military service.90 The Court determined that the plaintiffs
in that case had been denied “a significant benefit that is granted to all veterans similarly situated
except for State of residence at the time of their entry into the military.”91 Importantly, the Court
found that the denial of this benefit was a permanent deprivation because the residence

89

See Saenz v. Roe, 526 U.S. 489, 505 (1999) (explaining that the subject law’s classifications “are defined
entirely by (a) the period of residency in California and (b) the location of the prior residence of the disfavored class
members.”); Dunn, 405 U.S. at 334 (reviewing law that denied right to vote to Tennessee residents who resided in
the State for less than one year); Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612 (1985) (reviewing tax exemption
law that favored Vietnam veterans that have lived in New Mexico for a fixed minimum period); Zobel v. Williams,
457 U.S. 55, 61 (1982) (reviewing law that distributed benefits based on “fixed, permanent distinctions between an
ever-increasing number of perpetual classes of concededly bona fide residents, based on how long they have been in
the State.”); see also Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 214 (3d Cir. 2013) (“When the receipt of a
government benefit is conditioned on factors other than duration of residency, we apply rational basis review to
determine whether the right to travel has been unconstitutionally burdened.”).
90

Atty. Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 900 (1986).

91

Id. at 908.

25

requirement could never be satisfied.92 In Hooper, the Court considered a New Mexico tax
exemption statute that applied only to Vietnam veterans residing in New Mexico on or before a
certain date.93 The Court determined that this law contained a “fixed-date residence
requirement,” and thus created fixed, permanent distinctions between similarly situated
residents.94 As already discussed, Zobel considered a law that tied the amount of Alaska
residents’ dividend distributions from the State’s mineral income to length of residency.95
Again, the Court found that the statute “creates fixed, permanent distinctions between an everincreasing number of perpetual classes of concededly bona fide residents, based on how long
they have been in the State.”96
Here, Plaintiffs have not been penalized solely based on their right to migrate. There is
no permanent and fixed classification that is tied to the date of a person’s residence. Plaintiffs in
this case were penalized for failure to register prior to January 1, 2013.97 Two bona fide
residents of Kansas prior to January 1, 2013, may be subject to different requirements: one who
had registered before the effective date would not be required to submit DPOC and re-register to
vote, while a person who had been eligible but had not registered before would be subject to the
new law. Therefore, unlike the classifications in Soto-Lopez, Hooper, and Zobel, the grandfather
clause here does not create a permanent, fixed deprivation tied to a person’s State of residence at
a particular point in time.
92

Id. at 909.

93

472 U.S. at 614.

94

Id. at 616–17.

95

457 U.S. at 60–61

96

Id. at 60.

97

There are no statements of fact in the summary judgment record about whether these Plaintiffs were
residents before January 1, 2013. The preliminary injunction record included evidence that Fish, Bucci, and
Hutchinson were residents before January 1, 2013, while Stricker and Boynton moved to Kansas after January 1,
2013. Fish v. Kobach, 189 F. Supp. 3d 1107, 1121–24 (D. Kan. 2016).

26

To be sure, the grandfather clause effectively requires all residents who move to Kansas
after January 1, 2013, to submit DPOC when registering to vote for the first time. Based on the
figures provided on summary judgment, more than 1.4 million registered voters in Kansas were
thus exempted from the DPOC requirement by operation of the grandfather clause. But it treats
nonresidents and residents equally if they were not registered prior to the effective date.
Importantly, newly established residents are not the only group impacted by the grandfather
clause. The law also affects all Kansas residents who were not yet eighteen years old on January
1, 2013, and all Kansas residents who were eligible to vote but chose not to register prior to the
effective date.
As the Seventh Circuit has explained:
Grandfather provisions always grant preferences to a special group, and
newcomers or those who never arrive in the favored area rarely share the benefits.
We recognize that such clauses create a risk of political exploitation working to
the disadvantage of unfavored classes, and courts must certainly scrutinize
grandfather clauses to learn whether they are masks for exploitation or invidious
discrimination.
However, in challenging a grandfather clause such as that incorporated in the
handgun ordinance here, plaintiffs cannot invoke compelling governmental
interest scrutiny by showing only that new residents will not share its benefits.
Grandfather clauses almost always favor established residents or businesses over
newer ones. Where the purpose of the grandfather clause is the protection of
reliance interests, only established residents or businesses will have relied on prior
laws and thus will have reliance interests to protect.
If compelling governmental interest scrutiny were appropriate based merely on a
showing that newer residents would not benefit from the provision, then virtually
any grandfather clause would be vulnerable under that exacting standard. Few
would be likely to withstand scrutiny. Yet grandfather provisions are a familiar
means in the law for protecting reliance interests, and we are reluctant to unsettle
these provisions by applying an unnecessarily demanding standard of review.
Where plaintiffs can show that a grandfather provision impinges on a fundamental
personal right (other than through its indirect effects on those who travel), or that
the provision is a substitute for a suspect form of discrimination, courts should
apply the compelling governmental interest standard.98
98

Sklar v. Byrne, 727 F.2d 633, 639 (7th Cir. 1984) (citations omitted).

27

The Court finds that the grandfather clause in the Kansas DPOC law itself does not impinge on a
fundamental right other than the indirect effect on the right to travel, and that it is not masking a
suspect form of discrimination.99 It does not create a strict classification based solely on
residency. Thus, the Court applies rational basis review.
On rational basis review, the Court considers whether the DPOC law’s grandfather clause
“rationally furthers a legitimate governmental purpose.”100 Defendant argues that the state had a
compelling interest in avoiding logistical difficulties with deregistering and then re-registering
over one million voters when the DPOC law became effective. He further asks the Court to rely
on the Seventh Circuit’s analysis in Sklar, which includes a finding that Chicago had a legitimate
interest in protecting those who relied upon the prior law allowing residents to possess, purchase,
and register handguns.101 The Court agrees that these are legitimate state interests.
The Court also agrees that the grandfather clause here rationally furthers the State’s
legitimate purposes by restricting the law’s applicability to those residents who registered to vote
after January 1, 2013. Again, the law does not apply a durational residency requirement, or a
permanent, fixed classification based on residency. It applies only to those who had not
previously availed themselves of the prior law. The DPOC law, which was passed in 2011, thus
99

While Plaintiffs certainly challenge § 25-2309(l) as infringing on the fundamental right to vote, the
grandfather clause in subsection (n) is not part of that challenge. In Dunn, the Court found that the durational
residency requirement represented “a separate voting qualification imposed on bona fide residents.” 405 U.S. at
344. Strict scrutiny applied because the law at issue imposed a penalty only on those who recently exercised their
right to travel. Id. at 3412. Here, the grandfather clause is not a separate voting qualification for nonresidents. It
exempts from the law only those residents who complied with the prior law before the effective date. Residents
who did not comply, whether by choice or not, are subject to the law. Moreover, the DPOC law, unlike the
durational residency requirement in Dunn, is not a prohibition on the right to vote for new residents; it is an
additional registration requirement. See id. at 341 (explaining “[t]he right to travel is merely penalized, while the
right to vote is absolutely denied.”); Connelly, 706 F.3d at 214 (“strict scrutiny applies when the state conditions the
receipt of certain government benefits on the duration of the recipient's residence in the state.”).
100

Sklar, 727 F.2d at 639 (citing Dukes, 427 U.S. at 303).

101

Id. at 641–42 (“the city’s purpose in protecting the reliance interests of those who purchased and
registered handguns in Chicago was a legitimate purpose.”); Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d
522, 531 (6th Cir. 1998) (“the governmental interest at stake here is clearly legitimate.”).

28

allowed Kansas residents who had already complied with the prior registration law not to
deregister and re-register, but instead to rely upon the law as it existed at the time of their
registration.102 And the law allowed those who had not yet registered a grace period of almost
two years between the law’s passage in 2011, and its effective date in 2013, to register without
providing DPOC. Although the grandfather clause indirectly affects new residents, among other
groups of eligible voters, the Court easily finds that the provision is rationally related to the
state’s legitimate purpose of protecting the reliance interests of those who had already registered
to vote when the law was passed, and the administrative interests in reducing the amount of
applicants that must be processed when the law became effective. The Court thus denies
Plaintiff’s motion for summary judgment on this claim.
2.

Interagency Cooperation with the KDHE (As-Applied Challenge)

Plaintiffs maintain that Defendant’s interagency agreement with the KDHE (the “Birth
Link/MOU”), whereby he verifies incomplete voter registration applicants’ citizenship by crossreferencing Kansas birth and marriage records, discriminates against individuals not born in
Kansas and therefore violates the Fourteenth Amendment. This is an as-applied challenge to the
law because the interagency agreement is not part of the statute itself. Plaintiffs argue that strict
scrutiny applies to determine whether Defendant’s enforcement of the DPOC law violates the
Privileges or Immunities clause because the interagency practice only benefits applicants born in
Kansas, and because, like Dunn, it implicates the right to vote. Defendant argues that his
enforcement efforts treat all Kansas citizens equally and therefore, they should be subject to
rational basis review.
102

Although not discussed by Defendant, the Court is also cognizant that an attempt by Defendant to
deregister Kansas residents would have likely run afoul of the NVRA, which governs the circumstances under which
a State may remove a person’s name from its official list of voters. See 52 U.S.C. § 20507 (providing the limited
circumstances under which the name of a registrant may be removed from the official list of eligible voters). The
State has a compelling interest in complying with federal election law.

29

Before determining the appropriate standard of review, the Court notes the limits of
Plaintiff’s as-applied challenge. Despite Plaintiffs’ characterization of Defendant’s interagency
agreement with the KDHE as an “exemption” to the DPOC law, Plaintiff does not argue that the
law on its face exempts native-born Kansans. It is undisputed that the DPOC law applies and is
enforced against all Kansas residents who apply to register to vote after January 1, 2013,
regardless of the length of their residency. All Kansas residents are placed in suspense status if
they fail to provide DPOC with their voter registration application, regardless of their state of
birth. Those born in Kansas are not “deemed to have complied” with the law.
Instead, Plaintiff challenges the “back end” verification efforts used by Defendant to
whittle down the list of applicants on the incomplete list. Defendant has exercised his statutory
authority103 to obtain and verify citizenship documents for incomplete applicants by entering into
agreements with both the KDHE and the KDOR. These agreements allow Defendant to
periodically run the list of incomplete applications through those agencies’ databases to
determine if they have qualifying citizenship documents on file. Additionally, the KDOR has
created a web portal so that Defendant’s office and county election offices can manually query
for citizenship documents. If they are able to confirm DPOC through one of these sources, the
incomplete application is deemed completed and the applicant is registered to vote. Defendant
argues that because he attempts to verify citizenship for everyone on the incomplete list,
regardless of where they are born, his enforcement efforts cannot be construed to discriminate
against those not born in Kansas. He also points out that the KDOR verification process would
apply to any resident that had submitted DPOC during the driver’s license application process,
with no limitation on length of residency or place of birth.

103

K.S.A. § 25-2309(t).

30

To trigger strict scrutiny, Plaintiffs need to demonstrate that Defendant’s agreement with
the KDHE discriminates against Kansas residents who were not born in Kansas.104 It is
undisputed that the KDHE only maintains birth records for individuals born in the State of
Kansas. And the evidence demonstrates that between 40 and 50% of applicants who are deemed
incomplete are eventually completed automatically after Defendant runs the list of names against
the KDHE’s database. Regardless of whether Defendant is aware of the state of birth for each
applicant, the face of the interagency agreement makes clear that he could only expect to find
matches to Kansas-born citizens through this verification process.
Perhaps if KDHE verification happened at the time of application and was Defendant’s
only effort to verify DPOC, this Court would review Defendant’s enforcement efforts under
strict scrutiny because the enforcement scheme would essentially exempt those who were born in
Kansas from manually providing DPOC at the time of application. But the procedure does not
apply automatically at the time of application, and the Court declines to evaluate Defendant’s
KDHE agreement in a vacuum. All Kansas citizens, regardless of the duration of their residency,
are required to produce DPOC at the time they apply to register to vote. The individual Plaintiffs
in this case were not subject to a different requirement than a Kansas resident who was born in
Kansas. Defendant also verifies citizenship documents on file with the KDOR as part of his
efforts to confirm citizenship of those on the incomplete list. The KDOR verification process is
not limited to those born in Kansas, nor to established residents.
Given Defendant’s evidence that his efforts to verify citizenship for incomplete voter
registration applicants include verifying any Kansas resident that obtains a Kansas driver’s
license, the Court cannot find that Defendant creates an enforcement classification based on

104

Saenz v. Roe, 526 U.S. 489, 504 (1999).

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length of residency. Again, there is no facial residency requirement in the statute. Instead,
Plaintiff challenges an interagency memorandum that applies only to Kansas residents who lack
DPOC and thus find themselves in incomplete status. But Defendant has interagency agreements
with both the KDHE and the KDOR to attempt to verify DPOC that may be on file for any
individual on the incomplete list. Although the KDHE only maintains records for Kansas-born
citizens, the KDOR maintains records without regard to state of birth or length of residency. The
Court therefore finds that Defendant’s KDHE agreement is subject to the rational basis test.105
The policy will survive rational basis scrutiny if it “rationally furthers a legitimate state
purpose.”106
The Court must evaluate the State’s interests furthered by the KDHE policy—the policy
challenged by Plaintiff on this claim—not the DPOC law in general. While the State’s interests
in combatting voter fraud or ensuring the integrity of the election process may or may not be
served by the DPOC law, Defendant does not contend that the KDHE policy furthers that goal.107
To be sure, while the agreement certainly allows Defendant to verify citizenship of individuals
born in Kansas, there are at least 20,000 individuals who could not be verified through this
effort. There is no evidence that Kansas-born citizens are any more qualified than citizens born
in other states. But Defendant does contend that the State’s interest in administering the DPOC
law efficiently is compelling. County election officers save time and resources attempting to
obtain DPOC from individuals held in suspense status by verifying batches of names from these
other Kansas agencies, rather than pursuing DPOC through repeated contacts with the applicants.
And applicants are relieved from producing their DPOC to Kansas agencies twice.
105

See, e.g., Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 214 (3d Cir. 2013).

106

Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612, 618 (1985).

107

Evidence of voter fraud either before or after the effective date of the SAFE Act, is therefore not material
to the inquiry on this claim.

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The Court finds that Defendant has demonstrated a legitimate and important State interest
in administering the DPOC law efficiently, and that verifying birth records in other states is not
feasible. First, the State undoubtedly has a legitimate interest in efficiently administering the
DPOC law, and also in ensuring that qualified applicants for whom the State already possesses
citizenship documents are registered to vote. While it may be true that it is more burdensome for
a non-Kansas born citizen to have an incomplete voter registration application in Kansas, the
Court finds that this burden is not unreasonable in the context of the law’s enforcement as a
whole. And this slightly more onerous burden on incomplete voter registration applicants not
born in Kansas is justified by the State’s legitimate interest in administering the DPOC law
efficiently and verifying citizenship for those qualified applicants for whom the State already
possesses DPOC. Moreover, Defendant has demonstrated that he has explored other methods of
verifying birth records for Kansas citizens born in other States, but that these options are not
feasible. These showings are sufficient to demonstrate that the State’s interest in efficiently
administering the DPOC law is rationally related to the KDHE policy.
The Court denies Plaintiffs’ motion for summary judgment on this Privileges or
Immunities claim because there is no genuine issue of material fact that either the law’s
grandfather clause or Defendant’s attempts to verify citizenship of Kansas residents on the list of
incomplete voters unreasonably burdens the right to travel. Because neither the statute nor
Defendant’s enforcement of the statute create classifications that discriminate against Kansas
citizens based on their length of residency or state of birth, the Court applies rational basis
review to these provisions.108 Under this review, the Court finds that the State’s legitimate
interest in administering the DPOC law efficiently is furthered by its policy to verify DPOC that
108

Because the Court applies rational basis review to these claims, it does not reach the question of whether
there are “less drastic means” available to the State to achieve the State’s interest with a lesser burden on the right to
travel. See, e.g., Atty. Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 900 (1986).

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may be on file in Kansas, whether it is on file with the KDHE or the KDOR. And the State’s
legitimate interest in reducing administrative burdens and in the reliance interests of Kansas
residents already registered to vote are rationally related to the grandfather clause.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion for Partial
Summary Judgment (Doc. 267) is denied.
IT IS SO ORDERED.
Dated: May 4, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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