Order – Kobach v EAC
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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT KANSAS KRIS KOBACH, al., Plaintiffs, vs. Case No. 13-cv-4095-EFM-TJJ THE UNITED STATES ELECTION ASSISTANCE COMMISSION, al., Defendants. MEMORANDUM AND ORDER Does the United States Election Assistance Commission (EAC) have the statutory and constitutional authority deny states request include its proof-of-citizenship requirement the state-specific instructions the federal mail voter registration form? The Plaintiffs Arizona and Kansas and their secretaries statesay does not, and have asked this Court order the EAC add the requested language immediately. Because the Court finds that Congress has not preempted state laws requiring proof citizenship through the National Voter Registration Act, the Court finds the decision the EAC denying the states requests unlawful and excess its statutory authority. Since the Courts decision turns the plain statutory language, the Court need not resolve the question whether the Constitution permits the EAC, Congress, disregard the states own determination what they require satisfactorily determine citizenship. Therefore, the Court orders the EAC, the EACs acting executive director, add the language requested Arizona and Kansas the state-specific instructions the federal mail voter registration form, effective immediately. Factual and Procedural Background 2011, the Kansas Legislature amended Kansas Statutes Annotated 25-2309 require any person applying vote provide satisfactory evidence United States citizenship before becoming registered. August 2012, Brad Bryant, the Kansas election director, requested that the EAC make three revisions the national voter registration forms state-specific instructions reflect changes Kansas voter registration law. The third request was for the EAC provide instruction reflect the new proof-of-citizenship requirement that was effective January 2013. October 2012, Alice Millerthe EACs acting executive director and chief operating officerinformed Bryant that the EAC would make the first two changes but postponed action the proof-of-citizenship requirement until quorum was established the commission. All four the EACs commissioner positions were vacant the time, and they remain vacant now. 2013, similar proof-of-citizenship requirement under Arizona voter registration law was addressed the United States Supreme Court. Arizona Inter Tribal Council Arizona, Inc. (ITCA),1 the Supreme Court addressed the question whether Arizona statute that required state officials reject federal voter registration form unaccompanied documentary evidence citizenship conflicted with the National Voter Registration Acts mandate that Arizona accept and use the federal form.2 June 2013, the Supreme Court held that the NVRA precluded Arizona from requiring that anyone registering vote using the federal voter registration form submit information beyond that required the form itself.3 ruling, the Court concluded, Arizona may, however, request anew that the EAC include such requirement among the Federal Forms state-specific instructions, and may seek judicial review the EACs decision under the Administrative Procedure Act.4 The day after the ITCA decision, Kansas Secretary State Kris Kobach renewed Kansas request that the EAC include state-specific instructions the federal form reflect Kansas proof-of-citizenship requirement.5 Two days after the ITCA decision, Arizonas Secretary State, Ken Bennett, made similar request, asking that the EAC include instructions reflect Arizonas proof-of-citizenship requirements outlined Arizona Revised Statutes Annotated 16-166(F).6 August 2013, Miller informed Kobach and Bennett that the EAC staff was constrained defer acting the states requests until the EAC has quorum commissioners.7 Millers letters indicated that her decision was based 2011 memorandum, Id. 2260. Id. Doc. 95, Specifically, Kobach requested the following sentence added the instructions: To cast regular ballot applicant must provide evidence U.S. citizenship prior the election day. Doc. 95, Exh. Doc. 80, 2-3. Arizonas requested language more extensive: If this your first time registering vote Arizona you have moved another county Arizona, your voter registration form must also include proof citizenship the form will rejected. you have Arizona driver license non-operating identification issued after October 1996, write the number box the front the federal form. This will serve proof citizenship and additional documents are needed. not, you must attach proof citizenship the form. Only one acceptable form proof needed register vote. The proposed language then lists five acceptable forms proof citizenship, such birth certificate, passport, naturalization documents, and tribal number tribal documentation. Id. August 2013, Georgia made similar request change the state-specific instructions reflect its proof-of-citizenship law passed 2009. Similarly, Miller informed the Georgia secretary state that she lacked authority make the change the absence quorum commissioners. Doc. 132, Exh. 17, 57-58. Georgia not party this lawsuit, and its request not before this Court. prepared former EAC executive director Thomas Wilkey, that established internal procedure deal with requests change the state-specific instructions the absence quorum commissioners. The Wilkey memorandum, which was directed the EAC staff, stated, Requests that raise issues broad policy concern more than one State will deferred until the re-establishment quorum.8 August 21, 2013, this lawsuit was filed against the EAC and Miller, challenging the EACs deferral the states requests. The Complaint was brought four plaintiffsKobach, Bennett, the State Kansas, and the State Arizona. The Plaintiffs sought writ mandamus order the EAC Miller modify the state-specific instructions the federal mail voter registration form require applicants residing Kansas and Arizona submit proof-ofcitizenship documents accordance with Kansas and Arizona law. Similarly, the Plaintiffs asked this Court enjoin the EAC and its officers from refusing modify the instructions. The Plaintiffs sought finding that the EACs failure act was agency action unlawfully withheld unreasonably delayed. Further, the Plaintiffs requested that this Court declare the NVRA unconstitutional applied and declare that the Wilkey memorandum unlawful regulation. December 2013, this Court granted four motions for leave intervene. The first motion was granted group that includes the Inter Tribal Council Arizona, Inc., the Arizona Advocacy Network, the League United Latin American Citizens Arizona, and Steve Gallardo. The second motion granted was Project Vote, Inc. The third motion was granted the League Women Voters the United States, the League Women Voters Arizona, and the League Women Voters Kansas. The fourth motion was granted group that includes Valle del Sol, the Southwest Voter Registration Education Project, Common Cause, Chicanos Por Causa, Inc., and Debra Lopez. These organizations and individuals, with the exception the League Women Voters Kansas and the League Women Voters the United States, were plaintiffs ITCA.9 December 13, 2013, this Court found that there had been final agency action the states requests the EAC. The Court expressed doubt about the agencys ability act without commissioners but ordered that the agency provided with the opportunity address these matters, including the matter the agencys ability make ruling this issue. Accordingly, the Court remanded the matter the EAC with instructions that render final agency action later than January 17, 2014. that date, Miller issued 46-page decision purportedly behalf the EAC denying the states requests. The EAC decision concluded, among other things, that the EAC has the authority determine what necessary for state election official assess the eligibility those applying register vote. Based this authority, the EAC decision then concluded that requiring applicant provide proof citizenship beyond signing oath was not necessary for state election official assess whether the applicant U.S. citizen. Two weeks later, the Plaintiffs filed Motion for Judgment asking this Court review the EACs decision under the Administrative Procedure Act, issue writ mandamus ordering the EAC make the changes the instructions, and declare the EACs denial violation the states constitutional rights. After status conference, the Court ordered that its review would limited the agency record. After oral argument February 11, 2014, the motion ripe. 133 Ct. 2247 (U.S. 2013). Arizona Inter Tribal Council Arizona, Inc., 133 Ct. 2247, 2254 (U.S. 2013). Doc. 95, Exh. 8-9. Doc. 105, 3-4. II. Legal Standard Plaintiffs bring this action under the Administrative Procedure Act, which subjects federal agency action judicial review.10 Under APA review, the reviewing court must decide all relevant questions law, interpret constitutional and statutory provisions, and determine the meaning and applicability the terms agency action.11 The APA gives the reviewing court the authority compel agency action unlawfully withheld unreasonably delayed.12 The only agency action that can compelled action legally required.13 This means that court limited compelling agency perform ministerial nondiscretionary act, other words, discrete agency action that required take.14 The reviewing court also has authority hold unlawful and set aside agency action, findings, and conclusions found (A) arbitrary, capricious, abuse discretion, otherwise not accordance with law; (B) contrary constitutional right, power, privilege, immunity; (C) excess statutory jurisdiction, authority, limitations, short statutory right; (D) without observance procedure required law; (E) unsupported substantial evidence case subject sections 556 and 557 this title otherwise reviewed the record agency hearing provided statute; (F) unwarranted the facts the extent that the facts are subject trial novo the reviewing court.15 U.S.C. 706; Olenhouse Commodity Credit Corp., F.3d 1560, 1573 (10th Cir. 1994). U.S.C. 706. U.S.C. 706(1). Norton Southern Utah Wilderness Alliance, 542 U.S. 55, (2004). Id. 64. U.S.C. 706(2). The Court must review the entire administrative record those parts cited party, and due account must taken the rule prejudicial error.16 the agency action upheld, must upheld for the reasons articulated the agency.17 Ordinarily, the APA standard review deferential one, but courts not afford any deference agency interpretation that clearly wrong where Congress has not delegated administrative authority the agency the particular issue.18 III. Analysis initial matter, the Court skeptical that Miller has authority make this decision for the EAC. The Court notes that Miller herself initially thought that she couldnt make this decision and informed the states her letters that whether add the instructions was policy question that must decided the EAC commissioners.19 However, the Court finds unnecessary address Millers authority act acting executive director because the Courts decision would the same full commission had voted 4-0 deny the states requests. For the purposes the following analysis, the Court assumeswithout decidingthat Miller authorized make the decision behalf the EAC. This Courts review the EACs decision deny the states requests change the instructions the federal form hinges the answer two questions. First, does Congress have the constitutional authority preempt state voter registration requirements? And, so, has Congress exercised that authority under the National Voter Registration Act? U.S.C. 706(2). See Cherokee Nation Oklahoma Norton, 389 F.3d 1074, 1078 (10th Cir. 2004). Mission Group Kansas, Inc. Spellings, 515 Supp. 1232, 1235 (D. Kan. 2007). Doc. 80, Exh. Doc. 95, Exh. Constitutional framework The Constitution gives each state exclusive authority determine the qualifications voters for state and federal elections.20 Article section clause 1often called the Qualifications Clauseprovides that the voters for the U.S. House Representatives each state shall have the same qualifications required for voters the largest branch the state legislature.21 The Seventeenth Amendment adopts the same requirement for voters for the U.S. Senate.22 The U.S. Supreme Court has read these provisions conclude that the states, not Congress, set the voter qualifications for federal elections.23 But the Constitution does give Congress the power regulate how federal elections are held.24 Article section clause 1often called the Elections Clauseprovides: The Times, Places and Manner holding Elections for Senators and Representatives, shall prescribed each State the Legislature thereof; but the Congress may any time Law make alter such Regulations, except the Places chusing Senators.25 other words, the States have the initial authority determine the time, place, and manner holding federal elections, but Congress has the power alter those regulations ITCA, 133 Ct. 2257-58. U.S. Const. art. cl. (The House Representatives shall composed Members chosen every second Year the People the several States, and the Electors each State shall have the Qualifications requisite for Electors the most numerous Branch the State Legislature.). U.S. Const. amend XVII, cl. (The Senate the United States shall composed two Senators from each State, elected the people thereof, for six years; and each Senator shall have one vote. The electors each State shall have the qualifications requisite for electors the most numerous branch the State legislatures.). ITCA, 133 Ct. 2258. Id. 2257. U.S. Const. art. cl. supplant them altogether.26 practice, this means that the States are responsible for the mechanics federal elections, but only far Congress chooses not preempt state legislative choices.27 ITCA, the U.S. Supreme Court stated that the scope the Elections Clause broad, noting Times, Places, and Manner, have written, are comprehensive words, which embrace authority provide complete code for congressional elections, including, relevant here and petitioners not contest, regulations relating registration.28 ITCA decided, among other things, that Congress has the power regulate voter registration and that Congress exercised that power through the NVRA. ITCA, the issue was whether federal law preempted Arizona law how the federal voter registration form was treated state election officials.29 The NVRA provided that each state must accept and use the federal mail voter registration form.30 Meanwhile, Arizona law specified that county election official must reject any application for registration that not accompanied satisfactory evidence United States citizenship.31 Specifically, ITCA decided that the NVRAs accept and use provision preempted Arizonas requirement that election official must reject federal form without proof citizenship.32 Therefore, ITCA validates Congress ITCA, 133 Ct. 2253. Id. Id. (quoting Smiley Holm, 285 U.S. 355, 366 (1932)). Id. 2254 (The straightforward textual question here whether Ariz. Rev. Stat. Ann. 16-166(F), which requires state officials reject Federal Form unaccompanied documentary evidence citizenship, conflicts with the NVRAs mandate that Arizona accept and use the Federal Form.). U.S.C. 1973gg-4(a)(1). Ariz. Rev. Stat. Ann. 16-166(F). ITCA, 133 Ct. 2260. power regulate voter registration under its broad authority regulate the manner holding elections. But ITCA also strongly indicated that this broad power not unlimited. The opinion emphasizes that the Elections Clause empowers Congress regulate how federal elections are held, but not who may vote them.33 Indeed, all parties here concede, nothing the Elections Clause lends itself the view that voting qualifications federal elections are set Congress.34 The Court concluded, Since the power establish voting requirements little value without the power enforce those requirements, Arizona correct that would raise serious constitutional doubts federal statute precluded State from obtaining the information necessary enforce its voter qualifications.35 this point, the Court was unanimous.36 other words, the States exclusive constitutional authority set voter qualifications necessarily includes the power enforce those qualifications.37 Id. 2257. Id. 2258. Id. 2258-59. See id. 2264 (Thomas, J., dissenting) (For this reason, the Voter Qualifications Clause gives States the authority not only set qualifications but also the power verify whether those qualifications are satisfied.); id. 2273 (Alito, J., dissenting) (noting that the Constitution reserves for the States the power decide who qualified vote federal elections and that a federal law that frustrates States ability enforce its voter qualifications would constitutionally suspect). But see Smiley, 285 U.S. 366. The Court provided more explanation Smiley: The subject-matter the times, places and manner holding elections for senators and representatives. cannot doubted that these comprehensive words embrace authority provide complete code for congressional elections, not only times and places, but relation notices, registration, supervision voting, protection voters, prevention fraud and corrupt practices, counting votes, duties inspectors and canvassers, and making and publication election returns; short, enact the numerous requirements procedure and safeguards which experience shows are necessary order enforce the fundamental right involved. And these requirements would nugatory they did not have appropriate sanctions the definition offenses and punishments. All this comprised the subject times, places This premise suggests that Congress has authority preempt States power enforce its voter qualifications. The ITCA opinion stops short making this declaration, choosing avoid resolving this constitutional question because Arizonas ability renew its request change the instructions the federal form and pursue this action.38 But there are indications the opinion and oral argument that imply that state authority may have prevailed the Court had been forced resolve this constitutional question.39 the ITCA opinion, the Court acknowledged that serious constitutional doubts would raised the NVRA precluded Arizona from obtaining the information necessary enforce its voter qualifications.40 Then, the Court referred this action challenging the EACs denial Arizonas request alternative means enforcing its constitutional power determine voter qualifications.41 The Court also suggested that Arizona may have a constitutional right demand concrete evidence and manner holding elections, and involves lawmaking its essential features and more important aspect. This passage could read stand for the idea that the manner holding elections comprehensive enough include the power enforce voter qualifications, which could regulated Congress. But Justice Thomas points out, and the parties concede, this passage dicta. See ITCA, 133 Ct. 2268 (Thomas, J., dissenting). any event, the majority opinion deliberately did not include this passage from Smiley, other than acknowledge that voter registration included within the broad scope the Elections Clause. See id. 2253 (majority opinion). See ITCA, 133 Ct. 2259 (Happily, are spared that necessity, since the statute provides another means which Arizona may obtain information needed for enforcement.). oral argument, Justice Scalia, who authored the majority opinion ITCA, expressed concern multiple times about Arizonas failure challenge the EACs 2-2 vote 2005 that resulted action being taken Arizonas initial request add identical proof-of-citizenship language. Transcript Oral Argument 11, 15-16, 18, Arizona Inter Tribal Council Arizona, Inc., 133 Ct. 2247 (2013) (No. 12-71). Justice Scalia expressed skepticism about how the EAC would fare such challenge under the APA. Id. 56-57 (So youre going bein bad shapethe government going bethe next time somebody does challenge the Commission determination court under the Administrative Procedure Act.). ITCA, 133 Ct. 2258-59. Id. 2259. citizenship apart from the Federal Form.42 These statements intimate that the Court may have declared the NVRAs accept and use provision unconstitutional Arizona had exhausted its administrative remedies through the EAC. denying the states request update the instructions the federal form, the EAC effectively strips state election officials the power enforce the states voter eligibility requirements. Thus, the EAC decision has the effect regulating who may vote federal electionswhich ITCA held that Congress may not do.43 one hand, the ITCA decision acknowledges the broad scope Congress power under the Elections Clause, which includes the authority the NVRA preempt state law regarding voter registration. But the ITCA opinion also emphasizes the States exclusive constitutional authority set voter qualificationswhich Congress may not preemptand appears tie that authority with the power the States enforce their qualifications. Ultimately, the ITCA opinion avoids definitively answering this constitutional question favor allowing Arizona pursue the course action leading this lawsuit. Similarly, this Court also finds that need not answer the question whether Congress may constitutionally preempt state laws regarding proof eligibility vote elections. Answering this constitutional question unnecessary because the Court finds the next section that Congress has not attempted preempt state laws requiring proof citizenship through the text the NVRA. Statutory framework the Court found that Congress had preempted state law regarding the procedure for determining qualifications for voter registration through the NVRA, serious constitutional Id. 2260 n.10. Id. 2257 (Arizona correct that the Elections Clause empowers Congress regulate how federal elections are held, but not who may vote them.). questions about Congress authority would have addressed.44 noted above, one question whether the scope the Elections Clause broad enough give Congress the authority regulate voter registration. that question were answered the affirmative, which ITCA did, second question arises whether such congressional authority could exercised delegating authority the EAC decide what may may not included the state-specific instructions the federal form. ITCA, the U.S. Supreme Court declined definitively answer this second question but declared that serious constitutional doubts exist.45 Instead, the Court suggested that Arizona could make another request and pursue this lawsuit that request were denied.46 That the procedural posture presented this Court today. This action for review agency action was brought after the EAC acting executive director declined make the changes requested Arizona and Kansas. However, this Court concludes that does not need answer the constitutional question either. The U.S. Supreme Court has advised that [I]t cardinal principle statutory interpretation, however, that when Act Congress raises a serious doubt its constitutionality, this Court will first ascertain whether construction the statute fairly possible which the question may avoided.47 Where possible, this Court will construe federal statute avoid serious constitutional doubt.48 That means, when deciding which two plausible statutory constructions adopt, court must consider the necessary consequences Id. 2258-59. Id. Id. 2259-60. Zadvydas Davis, 533 U.S. 678, 689 (2001) (quoting Crowell Benson, 285 U.S. 22, (1932)). See Stern Marshall, 131 Ct. 2594, 2605 (U.S. 2011). its choice. one them would raise multitude constitutional problems, the other should prevail.49 The prevailing interpretation, however, may not plainly contrary the intent Congress.50 This canon constitutional avoidance statutory interpretation based the reasonable presumption that Congress did not intend enact statute that raises serious constitutional doubts.51 Thus, this Courts duty adopt the construction that avoids doubtful constitutional questions.52 ITCA, the Court concluded, Since the power establish voting requirements little value without the power enforce those requirements, Arizona correct that would raise serious constitutional doubts federal statute precluded State from obtaining the information necessary enforce its voter qualifications.53 Here, the EACs decision deny the states requested instructions has precluded the states from obtaining proof citizenship that the states have deemed necessary enforce voter qualifications. Therefore, the EACs interpretation the NVRA raises the same serious constitutional doubts expressed ITCA. The canon constitutional avoidance also comes into play this Court considers the degree deference give the EAC decision. Normally, courts may owe deferenceoften referred Chevron deferenceto agencys construction statute that administers when the statute silent ambiguous the issue question and the agencys reading Clark Martinez, 543 U.S. 371, 380-81 (2005); see also Almendarez-Torres U.S., 523 U.S. 224, 238 (1998) (Thus, those who invoke the doctrine must believe that the alternative serious likelihood that the statute will held unconstitutional.); U.S. Franca, 282 U.S. 568, 574 (1931) (The decisions this court are uniformly the effect that A statute must construed, fairly possible, avoid not only the conclusion that unconstitutional, but also grave doubts upon that score.). Miller French, 530 U.S. 327, 341 (2000). Clark, 543 U.S. 381. Jones U.S., 529 U.S. 848, 857 (2000). ITCA, 133 Ct. 2258-59. permissible construction the statute.54 But when administrative interpretation statute invokes the outer limits congressional power, there should clear indication that Congress intended that result.55 The assumption that Congress does not casually authorize administrative agencies interpret statute push the limit congressional authority heightened the agencys interpretation alters the federal-state framework permitting federal encroachment traditional state power.56 Circuit courts have concluded that the canon constitutional avoidance trumps Chevron deference owed agencys interpretation statute.57 This conclusion has been held true the context federal election law.58 Here, the U.S. Supreme Court has indicated that interpretation the NVRA that keeps state from obtaining the information necessary enforce its voter qualifications raises serious constitutional doubts.59 Such interpretation alters the federal-state framework permitting federal encroachment the traditional state Hernandez-Carrera Carlson, 547 F.3d 1237, 1244 (10th Cir. 2008) (quoting Chevron U.S.A., Inc. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). Solid Waste Agency Northern Cook County U.S. Army Corps Engineers, 531 U.S. 159, 172 (2001). Id. 173; Rapanos U.S., 547 U.S. 715, 738 (2006) (We ordinarily expect clear and manifest statement from Congress authorize unprecedented intrusion into traditional state authority.). See, e.g., Hernandez-Carrera, 547 F.3d 1249 (It well established that the canon constitutional avoidance does constrain agencys discretion interpret statutory ambiguities, even when Chevron deference would otherwise due.); Union Pacific Railroad Company United States Department Homeland Security, 738 F.3d 885, 893 (8th Cir. 2013) (Constitutional avoidance trumps even Chevron deference, and easily outweighs any lesser form deference might ordinarily afford administrative agency.); Rural Cellular Assn F.C.C., 685 F.3d 1083, 1090 (D.C. Cir. 2012) (Because the canon constitutional avoidance trumps Chevron deference, will not accept the Commissions interpretation ambiguous statutory phrase that interpretation raises serious constitutional difficulty.) (citation omitted); Kim Ashcroft, 257 F.3d 1095, 1105 n.15 (9th Cir. 2001) (Chevron principles are not applicable where substantial constitutional question raised agencys interpretation statute authorized construe.). See Chamber Commerce U.S. Federal Election Comn, F.3d 600, 605 (D.C. Cir. 1995) (holding that FEC was not entitled Chevron deference with regard its interpretation the Federal Election Campaign Act because the FECs interpretation statutory language raised serious constitutional difficulties). ITCA, 133 Ct. 2258-59. power establish and enforce voting requirements.60 And critically, the NVRA lacks clear and manifest statement that Congress intends intrude into the states authority enforce voting requirements even that the EAC has broad discretion decide what goes the state-specific instructions.61 Therefore, the Court finds that the EAC decision not entitled Chevron deference this case. noted earlier, when federal statute raises serious constitutional doubts, then this Court first must determine whether construction the statute fairly possible avoid the constitutional question. Here, this Court need not resolve the constitutional question because Congress has not clearly exercised its preemption power this issue, even assuming has preemption power this issue, the NVRA. The text the NVRA provides: The Election Assistance Commissionin consultation with the chief election officers the States, shall develop mail voter registration application form for elections for Federal office.62 The statute also allows the EAC prescribe regulations necessary carry out this provision, again in consultation with the chief election officers the States.63 result, the EAC has adopted the following regulation concerning the state-specific instructions issue here: The state-specific instructions shall contain the following information for each state, arranged state: the address where the application should mailed and information regarding the states specific voter eligibility and registration requirements.64 See Solid Waste, 531 U.S. 172. See Rapanos, 547 U.S. 738. U.S.C. 1973gg-7(a)(2). U.S.C. 1973gg-7(a)(1). C.F.R. 9428.3(b) (emphasis added). The NVRA includes the following provisions concerning the contents the mail voter registration form: The mail voter registration form developed under subsection (a)(2) this section (1) may require only such identifying information (including the signature the applicant) and other information (including data relating previous registration the applicant), necessary enable the appropriate State election official assess the eligibility the applicant and administer voter registration and other parts the election process; (2) shall include statement that (A) specifies each eligibility requirement (including citizenship); (B) contains attestation that the applicant meets each such requirement; and (C) requires the signature the applicant, under penalty perjury; (3) may not include any requirement for notarization other form authentication.65 Again, the question here whether these provisions the NVRA preempt Arizona and Kansas laws that require that residents applying vote provide documentary proof U.S. citizenship part the voter registration process. Gonzalez Arizona, which was affirmed ITCA, the Ninth Circuit provided test determine whether federal law preempts state law under the Elections Clause.66 The U.S. Supreme Court neither adopted nor rejected the Ninth Circuits test ITCA, but this Court finds useful here. Highly summarized, the Ninth Circuit examined U.S. Supreme Court precedent Parte Siebold67 and Foster Love68 addressing Elections Clause preemption.69 finding there U.S.C. 1973gg-7(b). 677 F.3d 383, 393-94 (9th Cir. 2012). 100 U.S. 371 (1879). 522 U.S. (1997). Gonzalez, 677 F.3d 393-94. presumption against preemption under the Elections Clause, the Ninth Circuit noted that Siebold the Court compared the relationship between state and federal election laws prior and subsequent laws passed the same legislature.70 that way, state lawlike prior existing lawis allowed stand federal lawlike subsequently passed lawdoes not alter it.71 The Ninth Circuit also noted that Foster clarified what constitutes conflict between state and federal law under the Elections Clause.72 The Ninth Circuit then articulated the following test: Reading Siebold and Foster together, derive the following approach for determining whether federal enactments under the Elections Clause displace states procedures for conducting federal elections. First, suggested Siebold, consider the state and federal laws they comprise single system federal election procedures. the state law complements the congressional procedural scheme, treat were adopted Congress part that scheme. Congress addressed the same subject the state law, consider whether the federal act has superseded the state act, based natural reading the two laws and viewing the federal act were subsequent enactment the same legislature. the two statutes not operate harmoniously single procedural scheme for federal voter registration, then Congress has exercised its power alter the states regulation, and that regulation superseded.73 Gonzalez, the Ninth Circuit considered the conflict between the NVRAs accept and use provision and Arizonas requirement reject any application without documentary proof citizenship.74 The Ninth Circuit concluded that the two laws covered the same subject matter and did not operate harmoniously when read together naturally. result, the Ninth Circuit Id. 393. Id. Id. Id. 394 (Citations omitted). Id. 398. concluded that Arizonas law was preempted the NVRA, applied the federal form, under Congress power under the Elections Clause.75 This result was affirmed ITCA.76 Here, not clear which provisions Arizona and Kansas law and the NVRA are alleged conflict. The EAC decision enumerated nine reasons deny the states requests but didnt directly address preemption other than restate that ITCA was decided based preemption.77 Here, Arizona law states that [t]he county recorder shall reject any application for registration that not accompanied satisfactory evidence United States citizenship.78 Similarly, Kansas law states that [t]he county election officer secretary states office shall accept any completed application for registration, but applicant shall not registered until the applicant has provided satisfactory evidence United States citizenship.79 Both statutes list evidence that would satisfy the proof-of-citizenship requirements.80 ITCA, the question was whether the Arizona law conflicted with the NVRAs requirement that the states accept and use the federal form, and the answer was yes.81 this case, the Court considers the question whether there conflict between state and federal law pertains adding information the federal forms state-specific Id. 403. ITCA, 133 Ct. 2260. Memorandum Decision, Doc. 129, Exh. 24-25. Ariz. Rev. Stat. Ann. 16-166(F). Kan. Stat. Ann. 25-2309(l). Ariz. Rev. Stat. Ann. 16-166(F)(1)-(6); Kan. Stat. Ann. 25-2309(l)(1)-(13). Arizona, satisfactory evidence includes drivers license state-issued identification, birth certificate, passport, naturalization documents, tribal number. The Kansas statute lists the same evidence plus other documents that indicate place birth citizenship such adoption records, military records, and hospital records. ITCA, 133 Ct. 2260. instructions. First, the Court considers the state and federal laws together one system federal election procedures.82 Then the Court determines whether the state laws complement conflict with the NVRA.83 conflict exists only the state and federal law cannot coexist.84 make this determination, the Court considers whether the NVRA addresses the same subject the state laws.85 Ultimately, the Court may find that the NVRA supersedes state law they not operate harmoniously one procedural scheme.86 For the immediate purpose making this comparison, the Court setting aside the question whether the Congress constitutionally can supersede state law this narrow issue. clear that the text the NVRA does not addresses the same subject the states lawsdocumentary proof citizenship. fact, Millers August 2013 letter Kobach deferring action states that citizenship documentation not addressed the National Voter Registration Act 1993 the Help America Vote Act 2002 and the inclusion such information with the Federal Form currently designed constitutes policy question which EAC Commissioners must decide.87 The statute requires the applicants signature that attests that the applicant meets each eligibility requirement, including citizenship.88 Notably, the NVRA See Gonzalez, 677 F.3d 394. Id. See Siebold, 100 U.S. 386 (The regulations Congress being constitutionally paramount, the duties imposed thereby upon the officers the United States, far they have respect the same matters, must necessarily paramount those performed the officers the State. both cannot performed, the latter are pro tanto superseded and cease duties.). See Gonzalez, 677 F.3d 394. Id. Doc. 95, Exh. 6-7. U.S.C. 1973gg-7(b)(2)(A)-(C). expressly prohibits the notarization other formal authentication the applicants signature.89 state would decide require notarized signature either state federal voter registration form, that state law would preempted the clear text the NVRA pertains federal elections.90 turn, that means that the EAC would have statutory authority deny states request include notarization requirement the state-specific instructions. But the NVRA does not include similar clear and manifest prohibition against state requiring documentary proof citizenship.91 fact, the NVRA does not address documentary proof citizenship all, neither allowing nor prohibiting it.92 Therefore, the Court must find that the NVRA silent the subject. Because Congress has not addressed the same subject the state law, there basis determine that the NVRA has preempted Arizona Kansas law U.S.C. 1973gg-7(b)(3) (The mail voter registration form developed under subsection (a)(2) this sectionmay not include any requirement for notarization other formal authentication.). See U.S.C. 1973gg-4(a)(2) (In addition accepting and using the [federal mail voter registration form], State may develop and use mail voter registration form that meets all the criteria stated section 1973gg-7(b) this title for the registration voters elections for Federal office.). Because the notarization prohibition included among the criteria Section 1973gg-7(b), even state-developed form could not include notarization requirement and used register applicant for federal elections. The Court acknowledges that the EAC decision contains footnote noting that the NVRA prohibits formal authentication and that requiring additional proof citizenship would tantamount requiring formal authentication individuals voter registration application. Memorandum Decision, Doc. 129, Exh. n.9. The Court rejects this suggested interpretation. noted above, the Court reads the statute the context prohibiting formal authentication the applicants signature. The EAC decision considered the NVRAs legislative history significant factor justifying denial, finding that Congress considered and rejected proof-of-citizenship requirements when enacting the NVRA 1993. Memorandum Decision, Doc. 129, Exh. 20-21. According the EAC decision, Congress considered including language that would allow states require documentary evidence citizenship requirement that state had the time) and decided not include such language the NVRA. Id. 20. its motion, the Plaintiffs point other parts the legislative history that purport show that the NVRAs sponsor argued that the proposed language was unnecessary redundant because nothing the NVRA prevented state from requiring proof citizenship. Doc. 140, 8-9. Either way, the Court not impressed with the legislative history presented the absence statutory language addressing the subject. See U.S. Cheever, 423 Supp. 1181, 1191 (D. Kan. 2006) (noting that it can dangerous proposition interpret statute what does not say and that [s]uch negative inference weak indicator legislative intent.). The Court finds unnecessary consider the legislative history here. See Shannon U.S., 512 U.S. 573, 583 (1994) (noting that courts have authority enforce principle gleaned solely from legislative history that has statutory reference point). the subject documentary proof citizenship. the federal and state laws operate harmoniously one scheme for federal voter registration, then Congress has not exercised its power alter state law under the Elections Clause.93 that the case, state and federal law may coexist.94 The better question here, then, whether the text the NVRA authorizes the EAC deny states request list its statutory registration requirement the federal forms state-specific instructions. The NVRA authorizes the EAC develop the federal form and contemplates cooperation with state officials so.95 Similarly, the NVRA authorizes the EAC prescribe such regulations are necessary develop the form, again, in consultation with the chief election officers the States.96 The state-specific instructions issue here are authorized such regulation.97 The regulation describes the mandatory contents the instructions: The state-specific instructions shall contain the following information for each state, arranged state: the address where the application should mailed and information regarding the states specific voter eligibility and registration requirements.98 The regulations contemplate that state may have additional See Siebold, 100 U.S. 384 (There not the slightest difficulty harmonious combination into one system the regulations made the two sovereignties, any more than there the case prior and subsequent enactments the same legislature.); see also Gonzalez, 677 F.3d 394. See Siebold, 100 U.S. 383 (If only alters, leaving, manifest convenience requires, the general organization the polls the State, there results necessary co-operation the two governments regulating the subject.). U.S.C. 1973gg-7(a)(2) (The Election Assistance Commissionin consultation with the chief election officers the States, shall develop mail voter registration application form for elections for Federal office.). U.S.C. 1973gg-7(a)(1). C.F.R. 9428.3(a). C.F.R. 9428.3(b). eligibility requirements that must listed the instructions. The regulation dictates that the form shall also: (1) Specify each eligibility requirement (including citizenship). The application shall list U.S. Citizenship universal eligibility requirement and include statement that incorporates reference each states specific additional eligibility requirements (including any special pledges) set forth the accompany state instructions.99 The regulations also address the mechanics how the EAC acquires each states specific voter eligibility information and registration requirements from state election officials: (a) Each chief state election official shall certify the Commission within days after July 25, 1994: (1) All voter registration eligibility requirements that state and their corresponding state constitution statutory citations, including but not limited the specific state requirements, any, relating minimum age, length residence, reasons disenfranchise such criminal conviction mental incompetence, and whether the state closed primary state. (c) Each chief state election official shall notify the Commission, writing, within days any change the states voter eligibility requirements other information reported under this section.100 natural reading the regulations suggests that the EAC anticipated that state may change its voter eligibility requirements and outlined procedure for the states chief election official notify the EAC any such change. And under C.F.R. 9428.3(b), the state-specific instructions must contain each states specific voter eligibility and registration requirements. Notably, the regulations require state election official notify the EAC any change. The regulations not require the state official request that the EAC change the C.F.R. 9428.4(b)(1). Alabama, Florida, and Vermont require that the applicant swear affirm oath containing specific language. State Instructions, Doc. 95, Exh. 18. Louisiana requires that documentary proof the applicants name and address must attached the applicant does not have drivers license, identification card, social security number. State Instructions, Doc. 95, Exh. 100 C.F.R. 9428.6(a), (c) (emphasis added). instructions, and the regulations are silent the discretion, any, that the EAC has decline make changes the state-specific instructions.101 Therefore, naturally reading these regulations together suggests that state may have additional voter eligibility requirements, state must inform the EAC its voter eligibility requirements, and the EAC must list those requirements the state-specific instructions.102 This scheme suggests that state and federal laws can coexist, thus there conflict. And there conflict, there preemption. The NVRA, Section 1973gg-7(b)(1), mandates that the federal form may require only such information as necessary enable the appropriate State election official assess the eligibility the applicant.103 other words, the federal form may not require unnecessary information. For example, the Federal Election Commissionthe EACs predecessor considered but excluded from the federal form requests for information deemed unnecessary assess voter eligibility such occupation, physical characteristics, and marital status.104 ITCA, the U.S. Supreme Court noted that Section 1973gg-7(b)(1) acts both ceiling and floor with respect the contents the Federal Form, and concluded that necessary information 101 The EAC decision recognizes that [n]either the NVRA nor the EAC regulations specifically provide procedure for states request changes the Federal Form. Memorandum Decision, Doc. 129, Exh. 13. The EAC decision also acknowledges the states duty notify the EAC changes but concludes, The regulations leave solely the EACs discretion whether and how incorporate these changes. Id. However, there discretionary language the regulations supporting this conclusion. Notably, the administrative record includes public comment from former commissioner the Federal Election Commission (the predecessor agency the EAC) who opined that the EAC has authority refuse approve state-specific instructions that deal with the eligibility and qualifications voters. Doc. 132, Exh. 13-17. 102 C.F.R. 9428.6(c); C.F.R. 9428.3(b). noted earlier, there one limited exception. The EAC would not obligated list states notarization requirement the instructions because the NVRA expressly prohibits notarization, preempting any potential change state law the subject. U.S.C. 1973gg-7(b)(3). 103 U.S.C. 1973gg-7(b)(1). 104 Fed. Reg. 32311, 32316-17 (1994). that may required will required.105 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. This leads the conclusion that, consistent with the determination both states legislatures, proof citizenship necessary enable Arizona and Kansas election officials assess the eligibility applicants under their states laws. contrast, the EAC decision concludes that proof citizenship, beyond signing the form, not necessary for state election officials assess the eligibility applicants.106 The EAC determined that has discretionary authority decide what information will the federal form and its instructions because the NVRAs language that the EACs duty develop the federal form.107 result, the EAC decision concludes that the federal form already provides all that necessary for state officials assess eligibility and that the states proposed instructions will require more information than necessary.108 The EAC decision asserts that the EAC has the discretionary authority determine whether the requests change the instructions are necessary enable the states assess voter eligibility. The EAC decision does not cite the NVRA its regulations baldly stating: conclude that the States contention that the EAC under nondiscretionary duty grant their requests incorrect. Rather, the Court explained Inter Tribal Council, the EAC obligated grant such requests only determines, based the evidence the record, that necessary order enable state election officials enforce their states voter qualifications. the States can 105 ITCA, 133 Ct. 2259. 106 Memorandum Decision, Doc. 129, Exh. 28-41. 107 Id. 13. 108 Id. 28-31. enforce their citizenship requirements without additional proof-of-citizenship instructions, denial their requests for such instructions does not raise any constitutional doubts.109 The EAC decision provides citation analysis how ITCA leads Millers conclusion that the EAC has the authority decide what necessary. Nor there express language the NVRA the ITCA opinion granting the EAC such broad authority determine what information necessary for state official enforce voter qualifications. Again, natural reading the statute question supports the conclusion that state election officials maintain authority determine voter eligibility. ITCA, the Court characterizes proof citizenship information the State deems necessary determine eligibility.110 result, the EACs declaration that alone has the authority determine what deemed necessary information without legal support and incorrect. Further, the U.S. Supreme Court characterizes the EAC having a nondiscretionary duty include Arizonas proof-of-citizenship requirement the instructions Arizona can establish this Court that mere oath will not suffice effectuate its citizenship requirement.111 So, the least, the ITCA opinion establishes that there point which the EAC loses whatever discretion possesses determine the contents the state-specific instructions. 109 Id. 27. 110 ITCA, 133 Ct. 2259 (Since, pursuant the Governments concession, State may request that the EAC alter the Federal Form include information the State deems necessary determine eligibility, and may challenge the EACs rejection that request suit under the Administrative Procedure Act, constitutional doubt raised giving the accept and use provision the NVRA its fairest reading.) (citations omitted). 111 Id. 2260 (Should the EACs inaction persist, Arizona would have the opportunity establish reviewing court that mere oath will not suffice effectuate its citizenship requirement and that the EAC therefore under nondiscretionary duty include Arizonas concrete evidence requirement the Federal Form.). Here, Arizona and Kansas have established that their state laws require their election officials assess the eligibility voters examining proof their U.S. citizenship beyond mere oath. The EAC decision makes the case that the states have other means available enforce the citizenship requirement.112 But the Arizona and Kansas legislatures have decided that mere oath not sufficient effectuate their citizenship requirements and that concrete proof citizenship required register vote. Because the Constitution gives the states exclusive authority set voter qualifications under the Qualifications Clause, and because clear congressional enactment attempts preempt this authority, the Court finds that the states determination that mere oath not sufficient all the states are required establish. Therefore, the Court finds that Congress has not preempted state laws requiring proof citizenship through the NVRA. This interpretation not plainly contrary the intent Congress because the NVRA silent the issue.113 Consistent with ITCA, because the states have established that mere oath will not suffice effectuate their citizenship requirement, the EAC therefore under nondiscretionary duty include the states concrete evidence requirement the state-specific instructions the federal form.114 The EAC Decision Constitutes Agency Action Unlawfully Withheld result, the EACs nondiscretionary duty perform the ministerial function updating the instructions reflect each states laws. Accordingly, the Court finds that the EACs refusal perform its nondiscretionary duty change the instructions required constitutes 112 Memorandum Decision, Doc. 129, Exh. 36-41. 113 See Miller, 530 U.S. 341. 114 See ITCA, 133 Ct. 2260. agency action unlawfully withheld.115 The Court orders the EAC add the language requested Arizona and Kansas the state-specific instructions the federal mail voter registration form immediately. Because the Court has declined reach the constitutional question, the Court denies the Plaintiffs requests declare that the states constitutional rights were violated the EACs refusal change the instructions. addition, the Court dismisses Plaintiffs Motion for Preliminary Injunction (Doc. 16) moot. ACCORDINGLY ORDERED this 19th day March, 2014, that the Plaintiffs Motion for Judgment (Doc. 139) hereby GRANTED part and DENIED part. FURTHER ORDERED that Plaintiffs Motion for Preliminary Injunction (Doc. 16) DENIED moot. ORDERED. 115 See U.S.C. 706(1).