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Amicus Brief Kobach v. EAC

Amicus Brief Kobach v. EAC

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Nos. 14-3062, 14-3072 THE UNITED STATES COURT APPEALS 
FOR THE TENTH CIRCUIT  

KRIS KOBACH, al., 
Plaintiff-Appellees, 
UNITED STATES ELECTION ASSISTANCE COMMISSION, al., 
Defendants-Appellants, 

and 
PROJECT VOTE, INC., al., 
Intervenors-Appellants Appeal from the United States District Court for the District Kansas 
Case No. 5:13-cv-4095
 

AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. AND  
ALLIED EDUCATIONAL FOUNDATION SUPPORT  
APPELLEES AND AFFIRMATION 

Bradley Schlozman   Robert Popper HINKLE LAW FIRM LLC Chris Fedeli 301 North Main Street, Suite 2000 JUDICIAL WATCH, INC. Wichita, 67202-4820 425 Third Street SW, Suite 800 
(316) 660-6296 Washington, 20024 
(202) 646-5172 
Counsel for Amici 
Dated: July 2014 

CORPORATE DISCLOSURE STATEMENT 
Pursuant Federal Rule Appellate Procedure 26.1, undersigned counsel for amici state that Judicial Watch, Inc. and the Allied Educational Foundation are non-profit organizations. They have stock parent corporation. such, public company owns 10% more their stock.   
TABLE CONTENTS
 
CORPORATE DISCLOSURE STATEMENT ..........................................................i 

TABLE CONTENTS .......................................................................................... 

TABLE CITATIONS ........................................................................................ iii 

INTERESTS THE AMICI ...................................................................................1 

ARGUMENT .............................................................................................................2	 
The NVRA Protects Election Integrity, Which Necessary for  
the Nation Have Confidence the Legitimacy its Elected 
Leaders ............................................................................................................................4 

II.	 
The EACs Decision Ignores the Election Integrity Purposes 
the NVRA ......................................................................................................................7 

III.	 
Even Low Levels Noncitizen Registration and Voting 
Disenfranchise U.S. Voters and Can Alter the Outcome  
Elections ..................................................................................................................... 

IV.	 
The EACs Ruling Unlawful Under Both Constitutional  

Avoidance Doctrine and Chevron..................................................................... 

CONCLUSION ........................................................................................................19 

CERTIFICATE COMPLIANCE .......................................................................20 

CERTIFICATE DIGITAL SUBMISSION .......................................................21 

CERTIFICATE SERVICE AND ELECTRONIC FILING ..............................22 

TABLE CITATIONS
 
CASES PAGE 
Arizona 
Inter Tribal Council Arizona, 133 Ct. 2247 (2013)  ......................17
 
Chevron U.S.A. Inc. Natural Res. Def. Council, Inc., 

467 U.S. 837 (1984)................................................................................. 14, 

City Arlington FCC, 133 Ct. 1863 (2013)  ............................................ 15, 

Crawford
 Marion County Election Bd., 553 U.S. 181 (2008) ..............................6 

Judicial Watch, Inc. King, 2012 U.S. Dist. Lexis 174360 (S.D. Ind. Dec. 

10, 2012) ..........................................................................................................6 

Purcell
 Gonzalez, 549 U.S. (2006)  ....................................................................9 

United States Florida, 870 Supp. 1346 (N.D. Fla. 2012) ..........................10 

CONSTITUTION AND STATUTUES 
U.S. Const. art.  cl. ................................................................................... 

U.S. Const. amend. ............................................................................................18 

U.S. Const. amend. XIX ..........................................................................................18 

U.S. Const. amend. XXVI .......................................................................................18 U.S.C.  611 ..........................................................................................................2 U.S.C.  911 ..........................................................................................................2 U.S.C.  1015(f)  ...................................................................................................2 U.S.C.  1973gg(b)(1) ..........................................................................................4 U.S.C.  1973gg(b)(3)  ................................................................................. U.S.C.  1973gg(b)(4)  ..................................................................................... U.S.C.  1973gg-3 ................................................................................................ U.S.C.  1973gg-4 ................................................................................................ U.S.C.  1973gg-4(a)(1)  .................................................................................... U.S.C.  1973gg-5 ................................................................................................ U.S.C.  1973gg-6 ...................................................................................... U.S.C.  1973gg-6(a)(4)  .............................................................................. 10, U.S.C.  1973gg-6(b) .................................................................................. 10, U.S.C.  1973gg-7(a)(2)  .................................................................................... U.S.C.  1973gg-7(b)(1)  .......................................................................... 15, 

REGULATIONS AND LEGISLATIVE HISTORY 
Final Rules: National Voter Registration Act 1993, Fed. Reg. 32311 
(FEC 1994) ................................................................................................... Rep. 103-6 17-18, 103rd Cong., 1st Sess., reprinted Implementing the 
National Voter Registration Act 1993: Requirements, Issues,  
Approaches, and Examples, Appendix Senate Committee Report  
the Act, Federal Election Commission, January 1994,  
available http://www.eac.gov/assets/1/Page/Implementing%20the%20 NVRA%20of%201993%20Requirements%20Issues%20Approaches%
 20and%20Examples%20Jan%201%201994.pdf ............................................
 
OTHER AUTHORITIES 
Yesenia Acosta, Luke Larsen, and Elizabeth Grieco, Noncitizens Under Age 35: 20102012, American Community Survey Briefs   (Feb. 2014), available http://www.census.gov/prod/2014pubs/ acsbr12-06.pdf ..............................................................................................   
Associated Press, Investigation Sought Non-Citizen Voting Michigan, (Dec. 2013), available http://detroit.cbslocal.com/2013/12/07/ investigation-sought-of-non-citizen-voting-in-michigan/ ............................   
Chris Brennan and Catherine Lucey, Philly election official details examples voter fraud, Philadelphia Daily News (July 19, 2012), available http://articles.philly.com/2012-07-19/news/32731301_1_voter-fraud-voterid-law-voters-cast-ballots ..............................................................................   
Henry Kaiser Family Foundation, Population Distribution Citizenship Status, available http://kff.org/other/state-indicator/distribution-bycitizenship-status/ ......................................................................................... 
Derek Muller, Invisible Federalism and the Electoral College, Ariz.  St. L.J. 1237 (Fall 2012)  ................................................................................. 
Press Release, Secretary State Husted Reminds Ohioans: One Vote Matters, Ohio Secretary States Office (Jan. 13, 2013), available https://www.sos.state.oh.us/SOS/mediaCenter/2014/2014-01-13.aspx .......  
Rasmussen Reports, New Low: 39% Think U.S. Elections Are Fair, (Aug. 16, 2013), available http://www.rasmussenreports.com/public_content/ politics/general_politics/august_2013/new_low_39_think_u_s_elections _are_fair ..........................................................................................................      Report The Commission Federal Election Reform, Jimmy Carter and James Baker, III (Co-Chairs), Building Confidence U.S.  
Elections, American Universitys Center for Democracy and Election 
Management, (Sept. 2005), available http://www1.american.edu/ia/cfer/
 report/full_report.pdf. ...................................................................................     

Magali Rheault and Brett Pelham, Worldwide, Views Diverge About Honesty Elections, Gallup (Nov. 2008), available http://www.gallup.com/ poll/111691/worldwide-views-diverge-about-honesty-elections.aspx ..........      
Kevin Robillard, Poll: 36% say voter fraud major issue, Politico (Oct. 26, 2012), available http://www.politico.com/news/stories/1012/82936.html ............       
Eric Shawn, Non-citizens caught voting 2012 presidential election key swing state, Fox News, (Dec. 18, 2013), available http://www.foxnews.com/ politics/2013/12/18/non-citizens-caught-voting-in-2012-presidentialelection-in-key-swing-state/ .........................................................................    
Simon Thompson, Voting Rights: Earned Entitled?, Harvard Political  Review (Dec. 2010), available http://harvardpolitics.com/united -states/voting-rights-earned-or-entitled/ .......................................................... 
Hans von Spakovsky, The Threat Non-Citizen Voting, Legal Memorandum No. 28, The Heritage Foundation, (July 10, 2008), available http://www.heritage.org/research/reports/2008/07/the-threat-of-noncitizen-voting ................................................................................................   
INTERESTS THE AMICI 
Judicial Watch, Inc. (Judicial Watch) non-partisan educational organization that seeks promote transparency, accountability, and integrity government and fidelity the rule law.  Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae various federal courts number occasions.  Judicial Watch also engaged multi-year legal effort ensure that states are keeping their voter registration lists accurate and current required Section the National Voter Registration Act (NVRA). behalf its members, Judicial Watch recently concluded litigation against the chief state election officials Indiana and Ohio concerning their obligations under Section maintain accurate voter lists. 
The Allied Educational Foundation (AEF) nonprofit charitable and educational foundation based Englewood, New Jersey.  Founded 1964, AEF dedicated promoting education diverse areas study.  AEF regularly files amicus curiae briefs means advance its purpose and has appeared amicus curiae numerous federal courts. addition, AEF regularly participates election law matters before federal courts, and since 2012 has appeared  All parties have consented the filing this brief. counsel for party has authored this brief whole part, and person other than amici their counsel has made monetary contribution intended fund the preparation submission the brief. 
amicus election integrity cases Tennessee, Virginia, and North Carolina.  AEF has also filed amicus briefs election law cases advocating the protection citizens rights participate elections and have their votes counted ballot initiative and referendum measures. the course participating the above-described election integrity litigation, amici have developed perspective and expertise concerning election law which they believe will helpful this Court. Amici are concerned that the relief requested Appellants this case, granted, would have chilling effect voter confidence the integrity elections Kansas and Arizona, well nationwide. Kansas and Arizona cannot verify the citizenship those registering vote, citizens may have their votes cancelled out unlawful ballots cast the names noncitizens.  The mere threat this outcome will undermine voters confidence that elections are being conducted fairly and honestly.  
ARGUMENT federal crime for noncitizens knowingly misrepresent their citizenship status register cast vote for candidates federal elections. 
U.S.C.  611; U.S.C.  911; U.S.C.  1015(f). Arizona and Kansas (and every other state),2 also violation state law for noncitizens vote federal elections. The U.S. Constitutions Qualification Clause gives states the power enact laws prohibiting noncitizens from voting both state and federal elections. U.S. Const. art.  cl.  The U.S. Election Assistance Commission (EAC)  apparently uninterested federal law enforcement  now seeks prevent states from enforcing their own lawfully enacted statutes designed ensure that voter-qualification laws are followed.   
The EACs interpretation the NVRA disregards the importance election integrity and preventing noncitizen voter registration.  The EAC ignores both general and specific language the NVRA which dictates that election integrity concerns must balanced evenly with concerns over ballot access.  The EAC pays heed Congress concern that voter fraud  well the widespread perception that officials not care about such fraud  corrodes Americans faith electoral institutions and diminishes their confidence that elected officials deserve hold the offices that they occupy.  Had the EAC fairly considered these things, would have been compelled reach different conclusion regarding the proper interpretation the NVRA.  Its interpretation impermissible under Chevron and this Court should overturn it.  Derek Muller, Invisible Federalism and the Electoral College, Ariz. St. 
L.J.
 1237, 1275-1276 (Fall 2012); see also Simon Thompson, Voting Rights: Earned Entitled? Harvard Political Review (Dec. 2010), available http://harvardpolitics.com/united-states/voting-rights-earned-or-entitled/.	 
The NVRA Protects Election Integrity, Which Necessary for the Nation Have Confidence the Legitimacy its Elected Leaders amicus Judicial Watch explained the comments filed with the EAC the agency proceedings, the EACs decision will thwart the states efforts comply with the election integrity provisions the NVRA.  The NVRA not statute solely focused ballot access, the EAC wrongly implies throughout its decision. See infra, Section II. Rather, the NVRA reflects compromise designed both increase lawful voter registration and increase the integrity elections ensuring that voter rolls are accurate and contain only eligible voters.  The NVRA was enacted to establish procedures that will increase the number eligible citizens who register vote, well protect the integrity the electoral process and ensure that accurate and current voter registration rolls are maintained. U.S.C.  1973gg(b)(1), (3)-(4). accomplish these goals, Section the NVRA, U.S.C.  1973gg-4, was passed expand opportunities register vote requiring states allow citizens register mail, along with Section the NVRA, U.S.C.  1973gg-5, which requires states allow citizens register vote public assistance agencies. counterparts these provisions, Section the NVRA, U.S.C.  1973gg-3, requires states use their drivers license records ensure the accuracy and currency voter registration lists, and Section the NVRA, U.S.C.  1973gg-6, was designed increase the integrity elections requiring states maintain accurate voter rolls that contain only the names 
eligible voters. The NVRAs ballot access and election integrity provisions 
function counterparts.  The law represents carefully crafted compromise 
Congress increase both voter registration and the integrity voter lists. 
According the NVRA Senate Report: important goal this bill, open the registration process, must balanced with the need maintain the integrity the election process updating the voting rolls continual basis. The maintenance accurate and up-to-date voter registration lists the hallmark national system seeking prevent voter fraud.3 
Beyond preventing voter and election fraud, key purpose the NVRAs 
election integrity provisions protect citizens confidence that elections are 
being conducted fairly and honestly. federal district court Indiana recently 
explained: 
[Citizens] who are registered vote Indiana are injured Indianas failure comply with the NVRA list maintenance requirements because that failure undermin[es] their confidence the legitimacy the elections held the State Indiana and thereby burden[s] their right vote. the Supreme Court has recognized, Confidence the integrity our electoral processes essential the functioning our participatory democracy. Voter fraud drives honest citizens out the democratic process and breeds Rep. 103-6 17-18, 103rd Cong., 1st Sess., reprinted Implementing the National Voter Registration Act 1993: Requirements, Issues, Approaches, and Examples, Appendix Senate Committee Report the Act, C-10, Federal Election Commission (Jan. 1994), available http://www.eac.gov/assets/1 /Page/Implementing%20the%20NVRA%20of%201993%20Requirements %20Issues%20Approaches%20and%20Examples%20Jan%201%201994.pdf. 
distrust our government. Voters who fear their legitimate votes will outweighed fraudulent ones will feel disenfranchised. Judicial Watch, Inc. King, 2012 U.S. Dist. Lexis 174360, *12-13 (S.D. Ind., Dec. 10, 2012) (internal citations omitted). the court observed, lack confidence the electoral process deters voters from voting the first place, because one wants waste time casting ballot election where fraudulent ballots are counted the same valid ones.   
Adding force this point, the U.S. Supreme Court has explained that ensuring that elections are legitimate with verifiable results has value that 
separate from the laudable goal preventing voter fraud: 
[P]ublic confidence the integrity the electoral process has independent 
significance, because encourages citizen participation the democratic 
process. the Carter-Baker Report observed, the electoral system cannot 
inspire public confidence safeguards exist deter detect fraud 
confirm the identity voters. Crawford Marion County Election Bd., 553 U.S. 181, 197 (2008). The Court expressly noted that the record contained no evidence [voter impersonation] fraud actually occurring Indiana, but held nevertheless that Indiana still had strong interest preventing voter fraud because fraud had occurred in other parts the country and the risk voter fraud [is] real [and] could affect the outcome close election.  Crawford, 553 U.S. 194-196.4 There are, fact, many documented cases noncitizens casting fraudulent ballots recent U.S. elections. See discussion infra note 10. necessary for states restore the American publics confidence that elections are honest enforcing election integrity laws.  Large segments the American public have recently expressed their dismay with various aspects our electoral system. poll from August 2013 reported that only 39% Americans believe elections are fair.5 2012, another poll reported that more than two-thirds registered voters thought voter fraud was problem.6 2008, when poll asked respondents around the world whether they had confidence the honesty elections, 53% Americans said that they did not.7 This data reveals startling lack confidence our own electoral institutions.  Rejecting the EACs decision and upholding states authority take measures ensure that only eligible U.S. citizens can vote will help restore Americans faith the integrity our elections and the legitimacy our elected government.  
II.	 The EACs Decision Ignores the Election Integrity Language and Purpose the NVRA  
The EAC also has ignored the direction Congress.  Specifically, the EAC 
has fundamentally misread the NVRA whole and, particular, Section  Rasmussen Reports, New Low: 39% Think U.S. Elections Are Fair (Aug. 16, 2013), available http://www.rasmussenreports.com/public_content/politics/ general_politics/august_2013/new_low_39_think_u_s_elections_are_fair.  Kevin Robillard, Poll: 36% say voter fraud major issue, Politico (Oct. 26, 2012), available http://www.politico.com/news/stories/1012/82936.html.  Magali Rheault and Brett Pelham, Worldwide, Views Diverge About Honesty Elections (Nov. 2008), available http://www.gallup.com/poll/111691/ worldwide-views-diverge-about-honesty-elections.aspx. 
9(b)(1). discussed above Section the NVRA was grand compromise designed increase both ballot access and election integrity.  The EAC errs focusing only half that equation, discounting the NVRAs purpose to protect the integrity the electoral process and ensure that accurate and current voter registration rolls are maintained. U.S.C.  1973gg(b)(3)-(4).  Only reading the goal election integrity out the NVRA can the EAC reach its preferred interpretation. The EAC barely considers the NVRAs emphasis election integrity and voter confidence, using the words integrity and confidence only once each its entire 46-page opinion.  EAC Memorandum Decision, Jan 17, 2014 (EAC Decision) apparent throughout its decision that the EAC only concerned with one the two main purposes the NVRA: ballot access.  See EAC Decision (Congress enacted the NVRA 1993 response its concern that discriminatory and unfair registration laws and procedures can have direct and damaging effect voter participation elections for Federal office.); EAC Decision (Congress enacted the NVRA part increase the number eligible citizens who register vote elections for Federal office and enhance[] the participation eligible citizens voters elections for Federal office. enacting the statute, Congress found that the right citizens the United States vote fundamental right and that it the duty the Federal, State, and local governments promote the exercise that right.) (internal citations omitted); EAC Decision (It also clear from the text the NVRA that one purpose the states mail registration provision facilitate voter registration drives.). 
Not once its ruling does the EAC describe the other equally important purposes the NVRA  protecting election integrity and ensuring that voter rolls are accurate and contain only eligible voters. U.S.C.  1973gg(b)(3)-(4). ignoring the other purposes the statute, the EAC adopts lopsided approach that treats disenfranchisement fraud and the loss public confidence elections irrelevant. See supra, Section Purcell Gonzalez, 549 U.S. (2006) ([T]he right suffrage can denied debasement dilution the weight citizens vote just effectively wholly prohibiting the free exercise the franchise.) (internal citations omitted).  
Furthermore, Section 9(b)(1) the NVRA specifically provides that the federal form must include information necessary not only for state officials to assess the eligibility voters, but also information that necessary for state officials to administer voter registration. U.S.C.  1973gg-7(b)(1). The latter phrase neither ambiguous nor afterthought.  Section the NVRA titled, Requirements with respect administration voter registration. U.S.C.  1973gg-6. NVRA Section requires states conduct general program that makes reasonable effort remove the names ineligible voters from the official lists eligible voters and to protect the integrity the electoral process ensuring the maintenance accurate and current voter registration roll for elections for Federal office. U.S.C.  1973gg-6(a)(4), 1973gg-6(b). The EAC refused consider whether proof citizenship was necessary for state officials administer accurate voter rolls required NVRA Section explained below, this omission does violence the congressionally intended scope the NVRA and the ability states administer the statutes provisions.   
The NVRA Section obligation that states maintain accurate voter rolls requires states prevent noncitizens from registering vote. federal district court recently explained, NVRA Section mandates that states take necessary measures keep noncitizens off the voter registration lists:      
Both sides agree that state can remove improperly registered noncitizen. For noncitizens, the states duty maintain accurate voting list.  See, e.g., U.S.C.  1973gg-6(b). state can and should that the front end, blocking noncitizen from registering the first place. And state finds has made error--or number errors--and wishes correct the problem, should well advance [of federal election].   
United States Florida, 870 Supp. 1346, 1351 (N.D. Fla. 2012) (emphasis added). The NVRAs broad language demonstrates that states obligation maintain accurate voter rolls carries with the implicit requirement ensure that only eligible voters are the rolls. The EACs interpretation the statute fails account for this crucial legislative goal, and will put Kansas and Arizona jeopardy violating their obligations under NVRA Section       
III. Even Low Levels Noncitizen Registration and Voting Disenfranchise 
U.S. Voters and Can Alter the Outcome Elections  
Under the NVRA, both reasonable and necessary for states ensure that noncitizens not register vote.  The EAC erred concluding otherwise.  According report from U.S. Census Bureau, 2012 there were approximately million noncitizens (both lawfully and unlawfully present) the U.S. out total population 311 million.8 This means that roughly percent the U.S. population lacks citizenship  about people. well established, moreover, that Arizona has one the highest non-citizen populations the United States, and Kansas, part due particular industries the southwestern part the state, also has sizable noncitizen population.9 light these facts, for the EAC deem these states precautions unnecessary strains the meaning the word. the EAC acknowledges, both Kansas and Arizona submitted evidence that noncitizens have registered vote regardless the requirement affirm  Yesenia Acosta, Luke Larsen, and Elizabeth Grieco, Noncitizens Under Age 35: 20102012, American Community Survey Briefs, (Feb. 2014), available http://www.census.gov/prod/2014pubs/acsbr12-06.pdf. See Henry Kaiser Family Foundation, Population Distribution Citizenship Status, available http://kff.org/other/state-indicator/distribution-by-citizenshipstatus/ (last visited July 2014). 
citizenship the mail-in form.  EAC Decision 31-33. response, the EAC 
dismissed this documented illegality not significant enough warrant greater 
enforcement. EAC Decision 33. the EACs own words: [T]he EAC finds 
that the small number registered noncitizens that Arizona and Kansas point 
not cause conclude that additional proof citizenship must required 
applications for either state assess their eligibility  EAC Decision 35.10 ruling, the EAC undermines one the NVRAs two core purposes: the 
prevention illegal voter registrations, not only for the sake preventing fraud 
but also protect voters confidence honest elections.  See supra Sections and 
II. The EAC not liberty contradict this congressional instruction, and the The experience Arizona and Kansas not unique.  Noncitizens have registered and voted number recent U.S. elections.  See Hans von Spakovsky, The Threat Non-Citizen Voting, Legal Memorandum No. 28, The Heritage Foundation, (July 10, 2008) (documenting multiple noncitizen votes, along with 2005 GAO finding that perhaps percent 30,000 persons called for jury duty from voter registration rolls single district court were not U.S. citizens), available http://www.heritage.org/research/reports/2008/07/the-threatof-non-citizen-voting; Associated Press, Investigation Sought Non-Citizen Voting Michigan, (Dec. 2013) (10 noncitizens alleged have voted Michigan elections), available http://detroit.cbslocal.com/2013/12/07/ investigation-sought-of-non-citizen-voting-in-michigan/; Eric Shawn, Noncitizens caught voting 2012 presidential election key swing state, Fox News, (Dec. 18, 2013) (at least noncitizens voted Ohio the 2012 presidential election), available http://www.foxnews.com/politics/2013/12/18/non-citizenscaught-voting-in-2012-presidential-election-in-key-swing-state/ Chris Brennan and Catherine Lucey, Philly election official details examples voter fraud, Philadelphia Daily News (July 19, 2012) (The report found seven registered voters who cast ballots the past decade  including one this year  despite not being U.S. citizens.), available http://articles.philly.com/2012-07-19/news/ 32731301_1_voter-fraud-voter-id-law-voters-cast-ballots. 
EAC wrong cite the relatively low volume proven illegal registrants Arizona and Kansas diminishing their significance. bipartisan panel convened examine the existence and impact voter fraud, the Carter-Baker Commission, had this say about the size the voter fraud relative its significance: 
While the Commission divided the magnitude voter fraud  with some believing the problem widespread and others believing that minor  there doubt that occurs. The problem, however, not the magnitude the fraud. close disputed elections, and there are many, small amount fraud could make the margin difference. And second, the perception possible fraud contributes low confidence the system.11 
And such close elections occur all the time. January this year, Ohio Secretary State Jon Husted released remarkable statistics showing that, 2013, local races and local ballot issues were decided that state either one vote, coin-flip following electoral tie.12  Illegal voting any level can change the outcome elections. And there acceptable amount fraud.  Efforts like those Arizona and Kansas eliminate illegal voter registrations fall squarely See Report The Commission Federal Election Reform, Jimmy Carter and James Baker, III (Co-Chairs), Building Confidence U.S. Elections, American Universitys Center for Democracy and Election Management, pp. 18-19 (Sept. 2005), available http://www1.american.edu/ia/cfer/report/full_report.pdf.  Press Release, Secretary State Husted Reminds Ohioans: One Vote Matters, Ohio Secretary States Office (Jan. 13, 2013), available https://www.sos.state.oh.us/SOS/mediaCenter/2014/2014-01-13.aspx. 
within the NVRAs directives the states, and are critical importance the sound functioning American democracy. 
IV.	 The EACs Ruling Unlawful Under Both the Constitutional Avoidance Doctrine and Chevron 
Amici agree with the District Courts holding that the EAC not entitled Chevron deference under the doctrine constitutional avoidance, and that the EACs interpretation the NVRA unlawful under that doctrine.  See District Court Memorandum and Order, March 19, 2014 (Order) 14-16, 26-27.  But even the EACs interpretation were entitled deferential review from the courts, should still overturned because the EACs interpretation the NVRA flawed two ways. First, the EACs interpretation what necessary under NVRA Section impermissible construction the statute.  Second, the EACs interpretation the extent its own authority judge what necessary and what not incorrect.   
Where statute silent ambiguous specific question, courts will evaluate whether agencys interpretation is based permissible construction the statute. Chevron, U.S.A., Inc. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). The EACs interpretations not constitute permissible constructions the NVRA under Chevron and must overturned.  [W]here Congress has established ambiguous line, the agency can further than the ambiguity will fairly allow.  City Arlington FCC, 133 Ct. 1863, 1874 (2013). 
The EACs interpretations the NVRA, and NVRA Section 9(b)(1) particular, are flawed.  Under the NVRA, the EAC must create mail-in voter registration form consultation with the states, which all states must use allow citizens register vote federal elections. U.S.C.  1973gg-7(a)(2), 1973gg-4(a)(1). Section the NVRA specifies that this federal mail-in registration form:    
[M]ay require only such identifying information ... and other 
information ... necessary enable the appropriate State election 
official assess the eligibility the applicant and administer voter 
registration and other parts the election process. U.S.C.  1973gg-7(b)(1) (emphasis added).   
The EACs determination that Arizonas and Kansas rules are not necessary determine eligibility under the NVRA not permissible construction the word when considering both the overall purposes the NVRA and the citizenship qualification question. previously discussed, the EACs interpretation what was necessary for state officials assess qualifications slights the NVRAs emphasis election integrity, ignores the prevalence noncitizens the U.S., discounts the impact illegal ballots, and disregards the consequences voter confidence preventing states from enforcing election integrity measures. See supra Sections II, and III. Since the NVRA has the dual purpose protecting both election integrity and ballot access, and since the EACs ruling only takes into account one those two purposes, its ruling does not provide what the agency could allowably view [an] effective reconciliation these twofold ends. . Chevron, 467 U.S. 866 (internal citations omitted).     
Indeed, the EAC did not even consider whether proof citizenship was necessary for the other purpose specifically outlined Section 9(b)  the administration voter registration, which includes maintaining accurate and current voter rolls.  See supra pp. 9-11; U.S.C.  1973gg-7(b)(1) and 
U.S.C.  1973gg-6, 1973gg-6(a)(4), 1973gg-6(b).  Accordingly, the EACs interpretation necessary disregards relevant language both the context the entire NVRA and the specific context Section 9(b)(1).  
Beyond the EACs erroneous interpretation what necessary for the states assess eligibility, the EACs interpretation its own authority make that assessment also flawed. the District Court concluded, the NVRA reserves the states the power determine what necessary enforce voter eligibility requirements. Order (Thus, natural reading the statute suggests that state election official maintains the authority assess voter eligibility and that the federal form will require the information necessary for the official make that determination.).   
Contrary the EACs characterization, this holding does not reduce the EACs role merely that rubber-stamp which must approve all state requests add registration requirements the federal form.  Appellate Brief the EAC, filed May 21, 2014, 15. the District Court observed, the EACs predecessor agency  the Federal Election Commission  has the past lawfully exercised its authority under the NVRA exclude information from the federal form. For instance, the EAC considered but excluded from the federal form requests for information deemed unnecessary assess voter eligibility such occupation, physical characteristics, and marital status.  Order 24, citing Final Rules: National Voter Registration Act 1993, Fed. Reg. 32311, 32316-17 (FEC 1994). The Supreme Court Inter Tribal preserved the EACs ability prevent states from acquiring additional information ways that not help them assess eligibility.  Arizona Inter Tribal Council Arizona, 133 Ct. 2247, 2259 (2013). Accordingly, the EAC may still refuse states request include information unrelated eligibility such voters height, least one party suggested back 1994. Fed. Reg. 32316-17.  The District Court correctly acknowledged that the EAC not powerless determine what and not valid voter qualification under Inter Tribal. Order 24-25. 
Accordingly, the role the NVRA reserves for the EAC determine whether the information state seeks either needed to assess eligibility instead irrelevant for that purpose. Kansas and Arizona both have interests actively enforcing their own eligibility laws for elections, which prohibit noncitizens from casting ballots.  Arizonas and Kansas rules are unquestionably lawful pursuant the states unambiguous powers under the Qualifications Clause,13 and the NVRA plainly expresses that the states alone decide voter qualifications for federal elections. See Order 22-25. Accordingly, the EACs interpretation its own authority went further than the [statutory] ambiguity will fairly allow when attempted prevent states from enforcing lawful voter qualifications. City Arlington, 133 Ct. 1874. The Amicus Brief Representatives Nancy Pelosi, al. filed with this Court June 2014 (Pelosi Brief) tries minimize the importance the Qualifications Clause discussing certain constitutional amendments which limit the states ability set voter qualifications.  Pelosi Brief 17-19.  However, closer look these amendments shows that they actually undercut the Pelosi amicis argument. all the voter qualifications the Constitution prohibits states from using  race, sex, age over  citizenship status not one them.  The Constitution has been amended three times specifically limit the qualifications that states may set for voters, but has never been amended prohibit states from preventing noncitizens from voting.  Indeed, the three amendments the Pelosi Brief cites  the Fifteenth, the Nineteenth, and the Twenty-Sixth  all use the same language: the right citizens the United States vote [] shall not denied abridged based race, sex, age over 18, respectively.  Three times the past 150 years when amending the Constitution  1870, 1920, and 1971  the American people used language clarifying that that they were not extending voting rights noncitizens. 
CONCLUSION 
For the foregoing reasons, amici respectfully requests that this Court affirm 
the District Courts order. 
Dated: July 2014 Bradley Schlozman 
Bradley Schlozman   
HINKLE LAW FIRM LLC 301 North Main Street, Suite 2000 Wichita, 67202-4820 
(316) 660-6296 (phone) 316.660.6596 (fax) bschlozman@hinklaw.com 
Respectfully submitted, Robert Popper 
Robert Popper Chris Fedeli 
Chris Fedeli 
JUDICIAL WATCH, INC. 425 Third Street SW, Suite 800 Washington, 20024 
(202)
 646-5172 (phone) 

(202)
 646-5199 (fax) rpopper@judicialwatch.org cfedeli@judicialwatch.org 

CERTIFICATE COMPLIANCE 
This brief complies with the type-volume limitations Federal Rule Appellate Procedure 29(d), because contains 5,847 words, less than half the 14,000 words permitted for principal brief party, excluding the parts the brief exempted Federal Rule Appellate Procedure 32(a)(7)(B)(iii). 
This brief also complies with the typeface requirements Federal Rule Appellate Procedure 32(a)(5), and the type style requirements Federal Rule Appellate Procedure 32(a)(6), because has been prepared proportionally spaced typeface using Microsoft Word 2010 Times New Roman 14-point type. 
Dated: July 2014 Chris Fedeli 

CERTIFICATE DIGITAL SUBMISSION HEREBY CERTIFY that copy the foregoing Amicus Brief, submitted digital form via the courts ECF system, exact copy the written document filed with the Clerk the 10th Circuit Court Appeals. 
The digital submission does not involve any required privacy redactions and does not include any attached written documents that were filed with the Clerk. 
The digital submission was scanned for viruses with VIPRE Business Premium, VIPRE Software Version 6.2.5530.0, Definitions Version 31048, VIPRE Engine Version 3.9.2592.2, File Dated: 7/7/14, 3:00 AM.  According this software program, the document free viruses. 

Dated: July 2014 /s/ Bradley Schlozman 

CERTIFICATE SERVICE AND ELECTRONIC FILING certify that the electronic version the foregoing Amicus Curiae Brief Judicial Watch, Inc. and Allied Educational Foundation Support Appellees and Affirmation, prepared for submission via ECF, complies with all required privacy redactions per Tenth Circuit Rule 25.5, and exact copy the paper copies that will submitted the Tenth Circuit Court Appeals. further certify that July 2014, caused the foregoing Amicus Curiae Brief Judicial Watch, Inc. and Allied Educational Foundation Support Appellees and Affirmation filed electronically with the Clerk the Court for the United States Court Appeals for the Tenth Circuit through the appellate CM/ECF system. certify that counsel for the parties this case are registered CM/ECF users and that service will accomplished the CM/ECF system. addition, certify that July 2014, will serve seven paper copies the same overnight delivery the Court.    
Dated: July 2014 Bradley Schlozman