Fish et al v. Kobach et al
ORDER granting #351 unopposed motion to amend pretrial order and AMENDED PRETRIAL ORDER. Signed by Magistrate Judge James P. O'Hara on 6/20/2017. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al., on behalf
of themselves and all others similarly
KRIS KOBACH, in his official capacity as
Secretary of State for the State of Kansas,
Case No. 16-2105-JAR
AMENDED PRETRIAL ORDER
A pretrial conference was conducted in this case on June 5, 2017, by U.S. Magistrate
Judge James P. O’Hara. The plaintiffs, Steven Wayne Fish, Donna Bucci, Charles Stricker,
Thomas J. Boynton, Douglas Hutchinson, and the League of Women Voters of Kansas
(“LWVK”), appeared through counsel, Dale E. Ho, Douglas D. Bonney, and Sophia Lin Lakin.
The defendant, Secretary of State Kris Kobach, appeared through counsel, Garrett R. Roe and
Bethany J. Lee. Mr. Kobach, who’s lead defense counsel, failed to appear, even though the
pretrial conference was re-scheduled from May 31, 2017 to accommodate his travel schedule.
This pretrial order supersedes all pleadings and controls the subsequent course of this
case. It will not be modified except by consent of the parties and the court’s approval, or by
order of the court to prevent manifest injustice. Fed. R. Civ. P. 16(d) & (e); D. Kan. Rule
Subject-Matter Jurisdiction. This action is brought pursuant to the private right
of action provisions of the National Voter Registration Act (“NVRA”), 52 U.S.C. § 20510, and
42 U.S.C. § 1983. Subject-matter jurisdiction is invoked under 28 U.S.C. § 1331 because this is
a civil action arising under the laws of the United States, and pursuant to 52 U.S.C. § 20510
which provides for jurisdiction of actions brought under the NVRA. Defendant continues to
assert plaintiffs lack standing which can be raised at any time, even on appeal, and cannot be
Personal Jurisdiction. The court’s personal jurisdiction over the parties is not
Venue. Venue in this court is not disputed.
Governing Law. Subject to the court’s determination of the law that applies to
the case, the parties believe and agree the substantive issues in this case are governed by the
following law: 52 U.S.C. §§ 20504, 20507, 20509, 20510; U.S. Const. Art. I, § 2, cl. 2; U.S.
Const. Art. I, § 4, cl. 1; U.S. Const. Art. IV, § 2, cl.1; U.S. Const. Amend. XIV, § 1. Defendant
also believes that U.S. Const. Art. VI, cl. 2 and U.S. Const. Amend. XVII are applicable.
The following facts are stipulated:
1. Defendant Kansas Secretary of State Kris Kobach does business in and is an elected
official of the State of Kansas.
2. Defendant is the Chief Election Officer for the State of Kansas.
3. On January 24, 2011, House Bill No. 2067 (“HB 2067”) was formally introduced in
the Kansas Legislature.
4. Among other things, HB 2067 contained a provision that would become K.S.A. § 252309(l).
5. After the amendment process, HB 2067 gained final passage in the Kansas Senate on
March 23, 2011, and in the House on March 29, 2011.
6. Governor Sam Brownback signed the bill into law on April 18, 2011.
7. K.S.A. § 25-2309(l) among other provisions took effect on January 1, 2013.
8. On June 25, 2015, defendant proposed an administrative rule that would become
Kansas Administration Regulation (“K.A.R.”) § 7-23-15, which went into effect on
October 2, 2015.
9. Between July 1, 2015, and October 13, 2016, defendant has not brought charges
against a noncitizen for illegal registration and/or voting.
10. Plaintiff Steven Wayne Fish is a U.S. citizen, a resident of Kansas, and over eighteen
11. Plaintiff Fish applied to register to vote while renewing a Kansas driver’s license at
the Division of Vehicles (“DOV”).
12. The Electronic Voter Information System (“ELVIS”), which is maintained by the
Kansas Secretary of State (“SOS”), indicates that plaintiff Fish has not provided
satisfactory evidence of citizenship.
13. Plaintiff Fish was given a code of “suspense” in ELVIS for failure to provide
documentary proof of citizenship (“DPOC”).
14. Plaintiff Fish provided a copy of his birth certificate during discovery in this case.
15. Plaintiff Fish has not sought a hearing under K.S.A. § 25-2309(m).
16. Plaintiff Donna Bucci is a resident of Kansas and over eighteen years old.
17. Plaintiff Bucci applied to register to vote while renewing a Kansas driver’s license at
18. ELVIS indicates that plaintiff Bucci has not provided satisfactory evidence of
19. Plaintiff Bucci was given a code of “suspense” in ELVIS for failure to provide
20. Plaintiff Bucci has not sought a hearing under K.S.A. § 25-2309(m).
21. Plaintiff Charles Stricker is a U.S. citizen, a resident of Kansas, and over eighteen
22. Plaintiff Stricker applied to register to vote while renewing a Kansas driver’s license
at the DOV.
23. Plaintiff Stricker was given a code of “suspense” in ELVIS for failure to provide
satisfactory evidence of citizenship.
24. Plaintiff Stricker provided a copy of his birth certificate during discovery in this case.
25. Plaintiff Stricker has not sought a hearing under K.S.A. § 25-2309(m).
26. Plaintiff Thomas Boynton is a U.S. citizen, a resident of Kansas, and over eighteen
27. Plaintiff Boynton was given a code of “suspense” in ELVIS for failure to provide
28. Plaintiff Boynton provided a copy of his birth certificate during discovery in this case.
29. Plaintiff Boynton has not sought a hearing under K.S.A. § 25-2309(m).
30. Plaintiff Douglas Hutchinson is a U.S. citizen, a resident of Kansas, and over eighteen
31. Plaintiff Hutchinson applied to register to vote while renewing a Kansas driver’s
32. Plaintiff Hutchinson was given a code of “suspense” in ELVIS for failure to provide
33. The SOS’ Office does not currently check with any agencies outside of Kansas to
verify citizenship of voter registration applicants.
34. Between January 1, 2006 and March 23, 2016, 43.7% of Kansas voters applied to
register to vote at the DOV.
35. As of March 28, 2016, there were 14,770 applicants on the “suspense list” for failure
to provide DPOC.
36. As of March 28, 2016, there were 5,655 applicants on the “suspense list” who had
applied to register at the DOV.
37. As of March 28, 2016, there were 16,319 applicants whose applications were
canceled under K.A.R. § 7-23-15 due to lack of DPOC.
38. As of March 23, 2016, there were 11,147 applicants who applied to register at the
DOV whose applications were canceled under K.A.R. § 7-23-15 due to lack of
39. ELVIS reflects that at one time plaintiff Fish’s voter registration was canceled.
40. On October 27, 2016, ELVIS did not reflect plaintiff Fish’s registration status as
41. ELVIS reflects that at one time plaintiff Boynton’s voter registration was canceled.
42. On October 27, 2016, ELVIS did not reflect plaintiff Boynton’s registration status as
43. ELVIS reflects that at one time plaintiff Bucci’s voter registration was canceled.
44. On October 27, 2016, ELVIS did not reflect plaintiff Bucci’s registration status as
45. ELVIS reflects that at one time plaintiff Stricker’s voter registration was canceled.
46. On October 27, 2016, ELVIS did not reflect plaintiff Stricker’s registration status as
47. ELVIS reflects that at one time plaintiff Hutchinson’s voter registration was canceled.
48. On October 27, 2016, ELVIS did not reflect plaintiff Hutchinson’s registration status
49. Hutchinson is recorded in ELVIS as not having submitted DPOC at the time he
applied to register to vote at the DOV in May 2013.
50. There were more than 1.8 million registered voters in Kansas as of the 2016 general
51. ELVIS is a statewide voter registration database.
52. ELVIS is maintained by the SOS.
53. Each county election officer has responsibility maintaining the voter lists for their
own counties. The central database reflects data that is entered by the counties.
54. ELVIS assigns a unique identification number for all voters.
55. When a voter registration application is received by the relevant county election
office, a record is created in the ELVIS database.
56. County election officers have been instructed to enter into ELVIS system all people
who submit voter registration applications regardless of whether they provided proof
57. ELVIS contains codes that demonstrate whether a person has registered successfully.
58. “CITZ” is the code recorded in ELVIS to indicate that an applicant has failed to
provide documentary proof of citizenship.
59. “MV” is the code recorded in ELVIS to indicate that an applicant has applied to
register to vote at the DOV.
60. Non-citizens who apply for a driver’s license may receive a temporary driver’s
license (“TDL”), the duration of which is tied to the length of time that the
documentation they provided to DOV permits their presence in the U.S.
61. Non-citizen legal permanent residents who apply for a driver’s license receive a
regular driver’s license.
62. Mr. Bryan Caskey, the Director of Elections in the SOS’ Office, stated that he
believes that green card holders apply for regular driver’s licenses using their green
cards as legal presence documents.
63. After reviewing an applicant’s documentation, a DOV employee enters the
applicant’s name and date of birth into the DOV database and takes the applicant’s
photo as well as captures their signature.
64. Documentation is scanned into the DOV database.
65. DOV employees also enter an applicant’s Social Security Number, if applicable,
height, weight, eye color, address, the type of license applied for (e.g., commercial
driver’s license or motorcycle driver’s license), organ donor status, and the results of
applicant’s vision test.
66. Only after all of the foregoing information is entered is an applicant asked if they
would like to register to vote.
67. If an applicant does wish to register to vote, they begin the process for voter
68. If driver’s license applicants (first-time or renewal) verbally confirm they would like
to register to vote, the DOV employee prompts them to read a voter oath located on
the DOV counter in front of them and to verbally indicate if they agree.
69. Applicants are then asked several questions including: “Are you a U.S. citizen?”
70. After a motor-voter applicant answers these questions, a voter registration receipt is
printed, the applicant pays the appropriate fees, and gets his/her photo taken. At this
point, they have finished the voter registration application process at the DOV.
71. DOV employees do not ask for DPOC during a renewal, but will accept and scan
DPOC if it is offered on a renewal.
72. Motor-voter registration applications are sent from the DOV computer system into
ELVIS on a nightly basis, and ELVIS then batches that information to county election
officials in the applicant’s county.
73. Mr. Caskey stated that he believes DOV policy is to not offer voter registration
services to TDL applicants.
74. Mr. Caskey stated that he believes DOV policy is to not offer voter registration
applications to driver's license applicants who show a green card (i.e., legal
permanent residents) in their course of applying for a regular license.
75. DOV employees have sometimes mistakenly offered non-citizens voter registration
76. Driver's license clerks in Kansas receive, on average, no more than thirty minutes of
training regarding motor voter registration laws during their two-day in classroom
77. Between February 2015 and June 2016, the Office of the SOS did not provide any
new written training materials to the DOV concerning motor voter registration laws.
78. Bryan Caskey is the Director of Elections at the Kansas SOS’ office.
79. Mr. Caskey is not a DOV employee.
80. Bryan Caskey submitted a declaration dated March 24, 2017, which identifies 125
individuals who he believes were non-citizens and who "either attempted to register
to vote or successfully registered to vote prior to the proof-of-citizenship
requirement's implementation, or attempted to register after the requirement was
81. The number of non-citizens Mr. Caskey specifically identified in his declaration as
registered or attempted to register, and not including the non-citizens that were not
identified in his declaration, is equal to approximately .0007% of registered voters in
82. Tabitha Lehman is the County Election Officer of Sedgwick County.
83. In addition to the 125 individuals identified by Bryan Caskey, a spreadsheet from
Tabitha Lehman identifies an additional 2 non-citizens who registered to vote.
84. Collectively, Mr. Caskey and Ms. Lehman have identified a total of 127 individuals
who they believe were non-citizens at the time that they registered to vote or
attempted to register to vote.
85. Of the 127 individuals identified by Mr. Caskey and Ms. Lehman, 43 successfully
registered to vote in Kansas.
86. Of the 127 individuals identified by Mr. Caskey and Ms. Lehman, 47 individuals
currently have or have had the "CITZ" code in their ELVIS record at one point.
87. Of the 127 individuals identified by Mr. Caskey and Ms. Lehman, 11 have voted in
88. Of the 127 individuals identified by Mr. Caskey and Ms. Lehman, 88 are motor-voter
89. Of the 127 individuals identified by Mr. Caskey and Ms. Lehman, 25 are motor-voter
applicants that have successfully registered to vote in Kansas.
90. Of the 127 individuals identified by Mr. Caskey and Ms. Lehman, 32 are motor-voter
applicants that have or have had the "CITZ" code in their ELVIS records at one point.
91. Of the 127 individuals identified by Mr. Caskey and Ms. Lehman, 5 are motor-voter
applicants who have voted in Kansas.
92. The Office of the SOS has identified possible non-citizens who had registered to vote
by comparing the TDL list with the ELVIS database.
93. The SOS compared the TDL to the voter registration list in 2009, 2010, 2011, and
94. As of January 30, 2017, Kansas had identified 79 TDL holders on the voter rolls.
95. Several of those identified by TDL comparisons were referred for prosecution.
96. The DOV has compared the list of individuals on the suspense list to information in
the driver's licenses database concerning driver’s license holders who presented proof
of permanent residency (or “green cards”) in the course of applying for a driver's
license, and identified possible non-citizens.
97. In Kansas, people who are called for jury service are sent jury duty questionnaires
that include a question about U.S. citizenship.
98. District Courts send to the SOS on an at least monthly basis the lists of individuals
who requested to be excused from jury service based on their claims that they are not
99. The SOS Office has compared lists of individuals who had answered on their jury
questionnaires indicating that they were not citizens to voter registration rolls.
100. In 2013, through a comparison of the voter rolls with the lists of individuals who
requested to be excused from jury service based on their claims that they are not
citizens, the SOS’ Office identified at least 5 individuals who were potentially noncitizens.
101. The Electronic Verification of Vital Events ("EVVE") database is operated by the
National Associations for Public Health Statistics and Information Systems
102. EVVE provides customers with the ability to quickly, reliably, and securely verify
and certify birth and death information. Electronic inquiries from authorized users can
be matched against over 250 million birth and death records from state and
jurisdiction owned vital record databases nationwide.
103. In order to conduct an EVVE database search, it is the Kansas SOS’
understanding that an individual’s state of origin and mother’s maiden name are
104. The Systematic Alien Verification for Entitlements ("SAVE") program is
overseen by United States Department of Homeland Security (“DHS”).
105. “A-numbers” or Alien Verification Numbers (“AVNs”) are required to run SAVE
106. In a letter dated August 20, 2012, and signed by Alexander Mayorkas, the DHS
notified Kansas that “States will be able to access SAVE to verify the citizenship
status of individuals who are registered to vote in that state provided that the
requesting state has a signed information sharing agreement with the Department of
Homeland Security and that each state be able to supply for each individual it seeks to
verify (1) a specific type of unique identifier like an alien number or certificate
number that appears on immigration-related documentation, and (2) a copy of the
immigration-related documentation in question to complete the verification process.”
Since July 1, 2015, defendant has had the independent authority to prosecute any
person who has committed or attempted to commit any act that constitutes a Kansas
108. Since July 1, 2015, defendant has brought prosecutions for acts that constituted
Kansas elections crimes.
109. Since July 1, 2015, the Office of the SOS has become aware of multiple instances
of non-citizens registering to vote in Kansas.
110. Since obtaining prosecutorial authority over Kansas elections crimes, the Office
of the SOS has filed zero criminal complaints against a non-citizen for allegedly
registering to vote.
111. Since obtaining prosecutorial authority has filed one criminal complaint against
an individual who voted while being a noncitizen.
112. Since obtaining prosecutorial authority over Kansas elections crimes, the Office
of the SOS has obtained zero convictions against non-citizens for registering to vote.
In 2017, defendant filed a criminal action against an individual who registered to
vote and voted while being a noncitizen.
In 2017, defendant obtained a conviction against that individual for voting as a
115. Only noncitizens called for jury duty can be identified by comparing ELVIS
records with jury questionnaires.
116. The DOV website identifies five documents that purportedly “show your date of
birth, identity, and lawful status as a U.S. citizen” when applying for an original
Kansas Driver’s License or Non-Driver Identification card: a certified U.S. birth
certificate, an unexpired United States Passport or Passport Card, a U.S. Consular
Report of Birth Abroad, a Certificate of Naturalization, a Certificate of Citizenship.
117. The DOV website identifies four documents that purportedly “show your date of
birth, identity and lawful status or presence as a non-U.S. citizen” when applying for
an original Kansas Driver’s License or Non-Driver identification card: a valid
Permanent Resident Card, a valid Employment Authorization Card, a valid I-94, or an
unexpired foreign Passport with valid U.S. entry marking and/or documentation.
118. The DOV website states that, “For non-U.S. citizen applicants, the Examiner will
need documentation sufficient to initiate and complete a SAVE verification.”
Mr. Caskey became Elections Director in 2015.
120. KSOS has not promulgated training manuals about voter registration to DOV
personnel since Mr. Caskey became Elections Director in 2015.
121. KSOS has not drafted in written form an instruction to DOV clerks to not offer
voter registration applications to noncitizens in any written guidance since Mr.
Caskey became Elections Director in 2015.
122. Mr. Caskey believes there is a DMV policy to not offer voter registration to those
applying for a TDL.
123. KSOS does not assess or evaluate individual frontline DMV employees with
respect to their day-to-day voter registration duties.
KSOS helped draft the bill that resulted in KSA § 43-174.
125. In November 2013, KSOS referred five individuals who had self-identified as
noncitizens on jury questionnaires to a local county police department for
investigation and possibly prosecution.
126. In 2017, as of March 24, 2017, KSOS identified three individuals who were on
the voter rolls but who had self-identified as non-citizens on their jury questionnaires.
127. An investigator employed by KSOS provided the full names and dates of birth of
the three individuals who had self-identified as non-citizens on their jury
questionnaires to the U.S. Department of Homeland Security (“DHS”) via email.
128. After receiving the full names and dates of birth of the three individuals who had
self-identified as non-citizens on their jury questionnaires from the investigator, DHS
responded with an email describing information known to DHS about the
immigration and citizenship status of these three individuals.
129. The response from DHS was the first time in Mr. Caskey’s experience that DHS
has provided assistance to KSOS, despite seeking assistance in the past.
Neither DHS nor employees or agents of DHS are controlled by KSOS.
KSOS does not have oversight over DHS or its employees or agents.
132. KSOS was involved in the drafting of and advocacy in favor of the bill that
granted KSOS the independent prosecutorial authority to prosecute non-citizens for
registering to vote and for voting.
Bryan Caskey has had conversations with DMV officials related to their training.
The parties have stipulated to the foundation (but not the admissibility) of the
following exhibits for purposes of summary judgment and trial:
Untitled Chart regarding noncitizens voting in Kansas, Exhibit 4 to Lehman Dep.,
Kansas Election Standards, FOBSBH001309-1510 and FISH 5TH RFP 019762019961.
Untitled excel spreadsheet containing a summary of known reported incidents of
election crimes from 1997 to 2012, FOBSBH001512.
Multiple driver’s licenses (Nevada and Kansas DL - issued 3-30-2010 & 8-14-2013),
work IDs, and social security card for plaintiff Donna Jean Bucci, Bucci000001.
Birth certificate, Kansas driver’s license issued 10-14-14 and social security card for
plaintiff Charles Stricker, Stricker000001-3.
Birth certificates, billing statement, Kansas driver’s license issued 12-30-15,
residential lease agreement, provisional ballot receipt, employee ID, social security
card, and Cox Westar Energy billing statement for plaintiff Thomas Boynton,
Birth certificates, Kansas driver’s license issued 5-24-13, U.S. passport for plaintiff
Douglas Hutchinson, Hutchinson00001-12.
Birth Certificate, Kansas driver’s license issued 8-15-2014 for plaintiff Fish,
E-mail correspondence, 5TH RFP 000035-000036
Memorandum of Agreement, FISH 5TH RFP 000038-000047
Letter from Secretary Kobach to Secretary Janet Napolitano, FISH 5TH RFP 000265000266
Letter from Director Alejnadro Mayorkas to Secretary Kobach, FISH 5TH RFP
Memorandum of Ryan Kriegshauser, FISH 5TH RFP 000696-000697
Affidavit of Bryan Caskey, dated March 29, 2016, FOBSBH000185-190.
Affidavit of Bryan Caskey, dated May 18, 2016, ECF No. 134-2.
Affidavit of Bryan Caskey, dated May 20, 2016, ECF No. 137-4.
Affidavit of Bryan Caskey, dated June 9, 2016, ECF No. 163-1.
Affidavit of Bryan Caskey, filed in League of Women Voters v. Newby, No. 16-cv236 (D.D.C. Feb. 21, 2016), ECF No. 27-1.
Affidavit of Bryan Caskey, filed in League of Women Voters v. Newby, No. 16-cv236 (D.D.C. Aug. 19, 2016).
Affidavit of Bryan Caskey, filed in Brown v. Kobach, No. 2016-CV-550 (Shawnee
Dist. Ct. Kan. Sept. 1, 2016).
Affidavit of Bryan Caskey, dated January 30, 2017.
Affidavit of Bryan Caskey, dated March 24, 2017.
Declaration of Tabitha Lehman, dated April 13, 2016, Prelim. Inj. Hr’g. Ex. 8.
Affidavit of Tabitha Lehman, dated March 29, 2016, FOBSBH000196-199.
Declaration of Tabitha Lehman, filed in Brown v. Kobach, No. 2016-CV-550
(Shawnee Dist. Ct. Kan. July 29, 2016).
Excerpts of the 30(b)(6) deposition of Bryan Caskey, which took place on April 6,
Excerpts of the deposition of Bryan Caskey, which took place on June 15, 2016
Excerpts of the deposition of Tabitha Lehman, which took place on April 6, 2016.
Excerpts of the 30(b)(6) deposition of Julie Earnest, which took place on June 6,
Excerpts of the 30(b)(6) deposition of Lisa Kaspar, which took place on June 6, 2016.
Excerpts of the 30(b)(6) deposition of Michaela Butterworth, which took place on
June 6, 2016.
Excerpts of the 30(b)(6) deposition of Nick Jordan, which took place on June 6, 2016.
Excerpts of the 30(b)(6) deposition of Douglas Appenfeller, which took place on June
Excerpts of the 30(b)(6) deposition of Gail Haid, which took place on June 6, 2016.
Excerpts of the 30(b)(6) deposition of Scott Abbott, which took place on June 6,
Excerpts of the transcript of the discovery and scheduling conference that took place
before Judge O’Hara on March 23, 2016.
Excerpts of the transcript of the preliminary injunction hearing that took place before
Judge Robinson on April 14, 2016.
Excerpts of the transcript of the class certification hearing that took place before
Judge Robinson on June 14, 2016.
Excerpts of the transcript of the status conference that took place before Judge
Robinson on October 5, 2016.
Excerpts of the transcript of a February 22, 2016 hearing on the plaintiffs’ motion for
temporary restraining order and preliminary injunction in League of Women Voters v.
Newby, No. 1:16-cv-00236 (D.D.C.).
Excerpts of the transcript of the July 29, 2016 hearing on the plaintiffs’ motion for a
temporary restraining order and temporary injunction in Brown v, Kobach, No. 2016CV-550 (Shawnee Dist. Ct., Kan.)
Excerpts of the transcript of the September 21, 2016 hearing on the plaintiffs’ motion
for permanent injunction in injunction in Brown v, Kobach, No. 2016-CV-550
(Shawnee Dist. Ct., Kan.).
Alice P. Miller, U.S. Election Assistance Commission, Memorandum of Decision
Concerning State Requests to Include Additional Proof-of-Citizenship Instructions on
the National Mail Voter Registration Form, January 17, 2014.
Contentions of plaintiffs.
Each of the individual plaintiffs, Steven Wayne Fish, Donna Bucci, Charles “Tad”
Stricker, Thomas J. “T.J.” Boynton, and Douglas Hutchinson, is over 18 years old, a citizen of
the United States, and a resident of Kansas, and thus eligible to vote in local, state, and federal
elections in Kansas. Each of the individual plaintiffs submitted a valid and complete voter
registration application in conjunction with a driver’s license application (including those who
applied for renewals) in accordance with the NVRA but was placed on the suspense list for
purportedly failing to submit documentary proof of citizenship.
The organizational plaintiff, LWVK, is a nonpartisan, volunteer, community-based
organization that, for more than 90 years, has encouraged informed and active participation of
citizens in government and worked to influence public policy through education and advocacy.
The LWVK has a long history of supporting voter registration and voter education efforts. The
LWVK’s efforts mirror the NVRA’s stated goals of “increas[ing] the number of eligible citizens
who register to vote in elections for Federal offices” and implementing procedures at all levels of
government to “enhance the participation of eligible citizens as voters in elections for Federal
office.” 52 U.S.C. § 20501. The DPOC law, K.S.A. § 25-2309(l), has adversely impacted both
the LWVK and its members by directly interfering with the LWVK’s core commitment to
conducting voter registration drives and assisting voters in becoming registered in a number of
Because prospective registrants typically do not have acceptable documentary proof of
citizenship with them in locations where the LWVK has historically done voter registration
drives, the organization has been able to register far fewer individuals at their voter registration
The LWVK has also been forced to divert its limited resources toward contacting the
thousands of motor-voter registrants on the suspense list and attempting to help them satisfy the
DPOC law. The LWVK has dedicated large amounts of volunteer hours attempting to educate
citizens and help them meet the DPOC requirement and researching and developing a policy to
mitigate the risk of legal liability associated with copying, retaining, and disposing of proof of
citizenship documents that had stopped several local affiliates of the LWVK from conducting
voter registration activities altogether. The LWVK has also expended substantial funds and
resources producing a video and printing thousands of flyers to educate the public regarding
registration barriers imposed by the DPOC law. All of these activities have diverted the LWVK
away from its core public policy priorities and required it to expend ever more resources on voter
registration. If defendant had not suspended such large numbers of motor-voter registrants, the
LWVK would be much freer to pursue its central priorities.
Defendant Secretary of State Kris Kobach is, in his capacity as SOS of Kansas, the
State’s chief election official responsible for overseeing all Kansas elections.
is charged with the general supervision of Kansas election laws, including the
implementation of the DPOC law as well as compliance with the NVRA.
Pursuant to Section 5 of the NVRA, “[e]ach State motor vehicle driver’s license
application (including any renewal application) . . . shall serve as an application for voter
registration with respect to elections for Federal office.” 52 U.S.C. § 20504(a)(1). The statute
requires “[e]ach State [to] include a voter registration application form for elections for Federal
office as part of an application for a State motor vehicle driver’s license.” 52 U.S.C. §
20504(c)(1). The statute further provides that each state “shall . . . ensure that any eligible
applicant is registered to vote in an election” so long as a “valid voter registration form of the
applicant is submitted to the appropriate State motor vehicle authority” within a specified
timeframe – i.e., “the lesser of 30 days” before the election, or the deadline “provided by State
law [for registration] before the date of the election.” 52 U.S.C. § 20507(a)(1)(A).
Section 5 of the NVRA delineates information a motor-voter application must include:
the “voter registration application portion of an application”
(C) shall include a statement that-(i) states each eligibility requirement (including citizenship);
(ii) contains an attestation that the applicant meets each such requirement;
(iii) requires the signature of the applicant, under penalty of perjury.
52 U.S.C. § 20504(c)(2)(C).
Section 5 of the NVRA further states that: “[t]he voter registration application
portion of an application for a State motor vehicle drivers license”
(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
52 U.S.C. § 20504(c)(2)(B).
Prior to January 1, 2013, the effective date of the DPOC law, this attestation as to
eligibility signed by the applicant under penalty of perjury was all that Kansas required of voter
registration applicants, including motor voter applicants. Since January 1, 2013, a person
applying to register to vote in Kansas must, under the DPOC law, provide DPOC on top of this
attestation in order to be registered. See K.S.A. § 25-2309(l). The applicant can satisfy this
requirement by providing the DPOC either when filing a registration form in person, or by
submitting a photocopy of DPOC along with a completed registration application in the mail. Id.
The statute lists thirteen documents that constitute satisfactory proof of citizenship. If an
applicant is unable to produce one of those documents, there is an alternative hearing procedure,
during which the applicant may submit other evidence of U.S. citizenship at a hearing before the
state election board, which is comprised of the Secretary of State, Lieutenant Governor, and the
Attorney General. This procedure is not publicized, and as of June 15, 2016, there have been
only 3 such hearings.
The SOS’ Office also coordinates with the Kansas Department of Health & Environment
(“KDHE”) to obtain evidence of birth certificates on behalf of Kansas-born applicants who did
not provide documentary proof of citizenship. The SOS’ Office, however, does not currently
check with any agencies outside of Kansas to verify citizenship of voter applicants.
Under the DPOC law, any applicant who does not provide DPOC at the time her or she
applies to register is not registered to vote and is instead placed on a list of incomplete voter
registration applicants, i.e., the “suspense list.” If the applicant fails to provide “satisfactory
evidence of United States citizenship” within 90 days or receipt of the incomplete application,
then, under K.A.R. § 7-23-15, promulgated by defendant, the “application shall be deemed
insufficient . . . and the voter registration application [shall be] canceled.” After cancellation, a
person must restart the Kansas voter registration application.
Since the DPOC law became effective, it has prevented tens of thousands of qualified
voters from being registered and ultimately from voting.
Approximately 18,000 would-be Kansas voters who applied to register to vote at
the DOV have been placed on a “suspense list” or were purged or canceled solely because they
purportedly did not submit DPOC.
The individuals on the “suspense list” are disproportionately young and
unaffiliated with a political party. This is unsurprising because the DPOC law increases the cost
of political participation.
The barriers to political participation erected by the DPOC law have been imposed
despite the lack of any showing that the DPOC is necessary to evaluate voter eligibility in
Kansas. There is at best only nominal evidence of non-citizens getting registered or actual noncitizen voter or registration fraud in Kansas:
Defendant’s repeated public statements characterizing the threat of noncitizens
voting as “massive” and pervasive” are unsubstantiated, relying on anecdotal reports and
Defendant sought and obtained extraordinary authority from the Kansas
Legislature to prosecute cases of voter fraud directly but has not, as of this date, prosecuted a
single noncitizen in Kansas for unlawful registration.
Defendant’s other evidence of noncitizens who got registered to vote or were allegedly
prevented from registering by the DPOC law shows at best a handful of noncitizens in Kansas
over more than a decade who got on the rolls under the attestation regime or who submitted
registration applications. According to defendant’s evidence, moreover, these incidences are a
result of applicant confusion and/or mistake or negligence by state and county officials.
The evidence at trial will also show that there are multiple alternatives to a DPOC
requirement for identifying and preventing noncitizen registration, including various methods
employed by Defendant, as well as other methods that Defendant has not yet meaningfully
attempted to implement.
Contentions of defendant.
Kansas law requires an individual seeking to register to vote to complete a voter
registration application form and provide certain information evidencing United States
citizenship to either the Kansas SOS’ Office or a county election office. See, e.g. K.S.A. § 252309. An individual has 90 days after submitting an application to provide this evidence.
K.A.R. § 7-23-15 After the 90-day period has expired, the individual may re-apply and thereby
restart the 90-day clock. See id.
An individual is permitted provide the required citizenship information in a number of
ways, including by text, by e-mail, or by hard copy to either the SOS’ Office or a Kansas county
election office. If a person lacks any of the enumerated documents, a citizen can alternatively
demonstrate U.S. citizenship sufficient to satisfy K.S.A. § 25-2309(l) through an informal
administrative process described in K.S.A. § 25-2309(m).
Additionally, agreements exist between the SOS’ office and other Kansas agencies allow
those agencies to provide confirmation that a document that meets the requirements of K.S.A. §
25-2309(l) is in their possession for a given registration applicant. Whether an applicant’s
information is verified with a Kansas agency is not dependent upon where the individual was
Indeed, the SOS has no information indicating where an applicant is born when
verifications are made. The SOS merely sends names and certain identifying information of
individuals who have applied to register to vote but who have not yet provided satisfactory
evidence of citizenship to the KDHE and to the DOV. Those agencies then verify whether a
citizenship document is on file. Additionally, the SOS and the county election officers manually
check names with the DOV as well. In making these verifications, it is unknown where an
applicant was born. These checks are done for all names on the list of applicants who have not
yet provided proof of citizenship, and they are not limited to individuals who are born in in
The Kansas Legislature enacted the law requiring evidence of citizenship, in part,
because noncitizens were registering to vote despite existing laws that prohibited noncitizen
registration and despite the attestation of citizenship that is included in voter registration
applications. Evidence exists that noncitizens registered to vote in numerous counties in Kansas
prior to the implementation of the proof-of-citizenship requirement. Indeed, in just one of
Kansas’s 105 counties—Sedgwick County--numerous noncitizens have registered to vote and
have voted despite having attested under penalty of perjury to being United States citizens. The
Sedgwick County Election Office has provided evidence that additional noncitizens applied to
register to vote, but were prevented from completing their registrations due to the proof-ofcitizenship requirement. Those noncitizens would have become registered to vote, but for
Kansas’s Safe and Fair Elections (“SAFE”) Act. The law successfully prevents noncitizens from
registering to vote, whereas a mere attestation of citizenship has been demonstrated to be
insufficient to prevent noncitizens from registering to vote.
Additionally, other methods
attempted by the State to prevent noncitizens from registering to vote have not been successful.
As required by the Tenth Circuit’s opinion of October 19, 2016, affirming the
preliminary injunction in this case, defendant will demonstrate that a substantial number of
noncitizens successfully registered to vote in the State of Kansas prior to the implementation of
the proof-of-citizenship requirement on January 1, 2013. This substantial number is sufficient to
rebut the “presumption” established by the Tenth Circuit that an attestation requirement is the
minimum information necessary for a state to carry out its assessment of applicants’ eligibility
and its registration process. See Fish v. Kobach, No. 16-3147 (10th Cir. 2016), slip op. at 48-52.
LEGAL CLAIMS AND DEFENSES.
Legal claims of plaintiffs.
During the pretrial conference, plaintiffs abandoned the claims previously pleaded in
Counts 2, 3, and 5 of their first amended complaint (ECF No, 39).
In Count 6 of the first amended complaint, plaintiffs alleged that, when a Kansas
registrant purportedly fails to provide DPOC, defendant takes affirmative steps to register voters
born in Kansas by checking birth and marriage records retained by the KDHE; that defendant
does not typically verify suspended registrants’ citizenship with agencies outside of Kansas; and
that defendant’s discriminatory application of the DPOC law violates the right to travel protected
under the Privileges and Immunities Clauses in Article IV and the Fourteenth Amendment to the
U.S. Constitution. During the pretrial conference, plaintiffs acknowledged that, as a practical
matter, this claim already has been fully adjudicated by the presiding U.S. District Judge, Julie
A. Robinson, in her memorandum and order dated May 4, 2017(ECF No. 334), denying
plaintiffs’ motion for partial summary judgment; plaintiffs, however, have expressly preserved
this claim for purposes of appeal. Prior to the dispositive motion deadline, defendant has
indicated he may file a short motion for partial summary judgment simply to confirm his
entitlement to affirmative relief on the claim in Count 6.
Moving forward, plaintiffs assert they are entitled to recover upon the following
alternative theories, as pleaded in Counts 1 and 4 of the first amended complaint:
Count 1: 52 U.S.C. § 20504 requires that every motor vehicle driver’s license application
serve as a simultaneous application to register to vote. The “motor-voter” registration
form “may not require any information that duplicates information required in the
driver’s license portion of the form” other than a signature, and “may require only the
minimum amount of information necessary to . . . enable State election officials to assess
the eligibility of the applicant.” 52 U.S.C. § 20504(c)(2)(B)(ii). 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.” 52 U.S.C. § 20504(c)(2)(C).
This signed attestation under penalty of perjury that the applicant meets the state’s
eligibility criteria, including citizenship, “is the presumptive minimum amount of
information necessary for state election officials to carry out their eligibility-assessment
and registration duties.” Fish v. Kobach, No. 16-3147, slip op. at 5 (Oct. 19, 2016 10th
Cir.). “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.” Id. at 5-6. Because defendant fails to make this showing, Kansas’ DPOC
requirement conflicts with the NVRA by requiring “more than the minimum amount of
information necessary and, therefore, is preempted by the NVRA.” Id. at 6.1.
Count 4: Defendant is the chief election officer of the State of Kansas, and is
“responsible for coordination of State responsibilities” under 52 U.S.C. § 20509.
Defendant fails in this duty.
Defenses of defendant.
Some or all plaintiffs lack standing to bring a claim under Counts 1 and 4, because they
lack an injury in fact, their claims are not traceable to the challenged action, and an order by this
court would not redress their asserted injuries. Additionally, some or all plaintiffs’ claims are
More specifically, defendant asserts:
Plaintiffs are not entitled to relief under Count 1 because the challenged statute is not
preempted by 52 U.S.C. § 20504. 52 U.S.C. § 20504 provides that an “application” must be
provided as part of an application for a State motor vehicle driver’s license.” Additionally, 52
U.S.C. § 20504(b) provides that the “application portion” of the State motor vehicle driver’s
license application (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.” Kansas law complies with 52 U.S.C. § 20504 and thus is not preempted by
these provisions or any other provisions of the NVRA. The information described by the NVRA
is information provided by the applicant on the face of the form, not other documentation that a
state may require the applicant to provide in addition to a completed application form. The
NVRA’s reference to “minimum” information concerns the state’s purpose of preventing
duplicate registrations, not the purposes of assessing eligibility or effectuating the state’s
registration requirements. If proof of citizenship is required by state law, then it is necessary that
an applicant provide it in order for the state to “administer voter registration . . . parts of the
election process.” 52 U.S.C. § 20504(c)(2).
Plaintiffs’ attempt to find preemption of proof-of-citizenship requirements in the NVRA
is defeated by the fact that the NVRA does not expressly mention any such preemption. The
plain statement rule requires that any preemption occur by a plain statement in federal law. The
text of the NVRA does not indicate that preempting proof-of-citizenship requirements was the
unmistakable intent of Congress. Moreover, preemption is not a fact-bound inquiry that is
dependent upon the specific facts of particular states. Certain states or regulations in all states
are either preempted by federal law or they are not preempted, irrespective of particular facts in
those states. To the extent that the Tenth Circuit has made preemption under the NVRA
dependent upon factual findings in the State of Kansas, the Tenth Circuit’s test is erroneous as a
matter of law. Assuming arguendo that preemption is averted by a state’s factual showing that a
substantial number of noncitizens have successfully registered to vote under a regime of mere
attestation, Kansas will make that showing and satisfy the Tenth Circuit’s test.
Plaintiffs’ preemption theories are inconsistent with Supreme Court precedent.
Supreme Court has made clear that the NVRA does not restrict other information that a state may
request of applicants outside of the information written by the applicant on the application form.
The Supreme Court has also made clear that a state may deem proof of citizenship “necessary”
for the state either to assess the eligibility applicants or to effectuate the requirements of its voter
registration process. Further, plaintiffs’ interpretation of the NVRA would render the NVRA
unconstitutional. Article I, § 2 of the United States Constitution grants the states the authority to
set and enforce voter qualifications.
Additionally, Article I, § 2 requires that the same
individuals vote in both state and federal elections. The Seventeenth Amendment likewise
provides the same for elections for Senators. Thus, plaintiffs’ position violates United States
Constitution because the federal government, not the State, would be setting and enforcing voter
qualifications and their interpretation would cause different sets of voters to exist for state and
Moreover, in Kansas, completing the registration process is itself a
qualification for voting. Count I also fails for the other reasons set out in the pleadings and the
memoranda filed up to this point in this case in both this court and in the Tenth Circuit.
Substantial numbers of noncitizens have registered or attempted to register to vote and
means less burdensome than requiring proof of citizenship have not been successful in
preventing such registration.
Plaintiffs are seeking to modify their requests for relief which are not included in their
Amended Complaint through the Pretrial Order. This is improper. Additionally, Plaintiffs are
seeking relief which this Court lacks jurisdiction to grant.
Plaintiffs are not entitled to relief under Count 4. 52 U.S.C. § 20509 only requires a State
to designate an officer or employee as the chief State election official. The statute provides no
avenue for relief against defendant. The statute does not create any duty that plaintiffs envision.
To the extent that 52 U.S.C. § 20509 can be read as providing some form of relief to recovery
under the NVRA or creates a duty that plaintiffs envision, defendant has complied with his
responsibilities under the statute. To the extent that plaintiffs are asserting purported violations
by the defendant, they were required to assert those violations in a mandatory letter under 52
U.S.C. § 20510. Their failure to do so deprives them of standing to now raise those issues.
Finally, to the extent that plaintiffs are presenting a new claim or seeking additional relief that
was not plead in their first amended complaint, it is untimely.
Plaintiffs are seeking to modify their requests for relief which are not included in their
Amended Complaint through the Pretrial Order. This is improper. Additionally, Plaintiffs are
seeking relief which this Court lacks jurisdiction to grant.
DAMAGES AND NON-MONETARY RELIEF REQUESTED.
Plaintiffs don’t seek any damages. Instead, plaintiffs only seek the following declaratory
and injunctive relief pursuant to 52 U.S.C. § 20510(b):
A declaration that the DPOC law and K.A.R. § 7-23-15 are invalid with respect to
motor-voter registrants who have validly registered to vote in accordance with
Section 5 of the NVRA and preempted by the NVRA;
An order enjoining Defendant from enforcing the DPOC law and K.A.R. § 7-23-15
with respect to motor-voter registrants who have validly registered to vote in
accordance with Section 5 of the NVRA, regardless of whether they have submitted
documentary proof of citizenship;
An order directing Defendant, pursuant to the NVRA, to register to vote and to treat
as validly registered voters plaintiffs and all other similarly situated motor-voter
registrants who, apart from compliance with the DPOC law, submitted a completed
and valid voter registration form, and to restore any such registrants who have been
purged pursuant to K.A.R. § 7-23-15, including all people who apply to register to
vote through an NVRA-covered driver’s license transaction, regardless of whether it
is conducted in-person or online. See Stringer v. Pablos, 16-cv-257-olg, ECF No. 52,
at *11 (W.D. Tex. March 31, 2017).An order directing defendant to provide adequate
notice to plaintiffs and all similarly situated motor-voter registrants informing them
unequivocally that they are fully registered voters and need not provide any additional
information in order to complete their voter registration applications, and updating all
instructions to local elections workers and public education materials (printed and
online) accordingly. See Joint Status Report 2, Sep. 29, 2016, ECF No. 225; Order,
Sep. 29, 2016, ECF No. 226.
An order directing Defendant to maintain the “Voter View” website “so that motor
voter [registrants] are listed as registered to vote in the same way that other
registered voters are displayed.” Joint Status Report, Sep. 29, 2016, ECF No. 225;
Order, Sep. 29, 2016, ECF No. 226.
An order directing that, in counties that use paper poll books, motor voter registrants
should appear in the same manner and in the same list as all other registered voters’
names. See Joint Status Report, Sep. 29, 2016, ECF No. 225; Order, Sep. 29, 2016,
ECF No. 226.
An order directing that all motor voter registrants should be “entitled to vote using
standard ballots rather than provisional ballots at polling places on Election Day or
when they request advance mail-in ballots.” Joint Status Report, Sep. 29, 2016, ECF
No. 225; Order, Sep. 29, 2016, ECF No. 226.
An order declaring the DPOC law invalid under the Privilege and Immunities clauses
of the U.S. Constitution or, in the alternative, directing defendant to take steps to
verify citizenship status for all Kansas voter registration applicants whose
applications are placed on the suspense list due to the DPOC requirement, including
all applicants born outside of Kansas, in the same manner that defendant Kobach
works with KDHE to confirm the citizenship of suspended voters born in Kansas.
Any other relief the court deems proper.
Plaintiffs also seek attorneys’ fees and costs pursuant to 52 U.S.C. § 20510 and 42 U.S.C.
AMENDMENTS TO PLEADINGS.
Under the scheduling order and any amendments, all discovery was to have completed by
April 26, 2017 (see ECF No. 258). Discovery is complete.
Unopposed discovery may continue after the deadline for completion of discovery so
long as it does not delay the briefing of or ruling on dispositive motions or other pretrial
preparations. Although discovery may be conducted beyond the deadline for completion of
discovery if all parties are in agreement to do so, under these circumstances the court will not be
available to resolve any disputes that arise during the course of such extended discovery.
Plaintiffs’ motion for sanctions, filed May 22, 2017 (ECF No. 343).
Additional Pretrial Motions.
After the pretrial conference, plaintiffs as well as defendant intend to file motions for
summary judgment, and may also file motions to exclude testimony of expert witnesses
pursuant to Fed. R. Evid. 702-705, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), or similar case
The dispositive-motion deadline, as established in the scheduling order and any
amendments, is July 7, 2017.
Consistent with the current scheduling order filed earlier in this case, the arguments and
authorities section of briefs or memoranda must not exceed 30 pages, absent an order of the
Motions Regarding Expert Testimony.
Plaintiffs don’t intend to rely on expert testimony for their summary judgment motion.
But if defendant relies on the testimony of his expert witnesses in any summary judgment motion
that he files (or in his opposition to plaintiffs’ motion for summary judgment), plaintiffs intend to
file Daubert motions to exclude the testimony of those witnesses.
If defendant relies on
testimony of his expert witnesses at trial, plaintiffs may file Daubert motions to exclude the
testimony of those witnesses.
Defendant doesn’t yet know whether he’ll rely on expert testimony for his motion for
However, to the extent plaintiffs rely on expert testimony either for
summary judgment or for trial, defendant may file Daubert motions to exclude the testimony of
those witnesses pursuant to Fed. R. Evid. 702-705.
As discussed during the pretrial conference, all Daubert motions pertinent to summary
judgment must be filed no later than concurrent with that party’s response to the opposing
party’s summary judgment motion; and, if expert testimony is relied upon for the first time in a
brief opposing summary judgment, then any Daubert motions related to same must be filed
concurrent with the summary judgment movant’s reply brief. All trial-related Daubert motions
must be filed no later than 45 days before trial, as set forth in Judge Robinson’s September 14,
2016 scheduling order (ECF No. 216).
The trial docket setting, as established in the scheduling order and any amendments, is
March 6, 2018, at 9:00 a.m., in Kansas City, Kansas. This case will be tried by the court
sitting without a jury. Trial is expected to take approximately 5 days. The court will attempt to
decide any timely filed dispositive motions approximately 60 days before trial. If no dispositive
motions are timely filed, or if the case remains at issue after timely dispositive motions have
been decided, then the trial judge will convene another pretrial conference (or enter a separate
order) to address, among other things, the setting of deadlines for filing final witness and exhibit
disclosures, exchanging and marking trial exhibits, designating deposition testimony for
presentation at trial, motions in limine, and proposed findings of fact and conclusions of law.
During Judge Robinson’s May 10, 2017 telephone status conference with counsel, she
indicated this case would be tried by seriatim with the action styled Bednasek v. Kobach, D. Kan.
Case No. 15-9300-JAR only to the extent there is overlap, with the details of consolidation to be
worked out at a later pretrial conference closer to trial (see ECF No. 339). As discussed during
the pretrial conference, within 5 business days of the filing of Judge Robinson’s rulings on the
parties’ anticipated cross-motions for summary judgment, if issues remain for trial in this case,
counsel must confer and then jointly file a status report outlining their respective positions
concerning how to most efficiently try Bednasek and this case.
IT IS SO ORDERED.
Dated June 20, 2017, at Kansas City, Kansas.
James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge
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