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Judicial Watch • Kobach v. EAC 1164 SCOTUS Noncitizen Voting

Kobach v. EAC 1164 SCOTUS Noncitizen Voting

Kobach v. EAC 1164 SCOTUS Noncitizen Voting

Page 1: Kobach v. EAC  1164 SCOTUS Noncitizen Voting

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Date Created:April 20, 2015

Date Uploaded to the Library:April 22, 2015

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No. 14-1164 THE
Supreme Court the United States
_________
KRIS KOBACH, AL.,
Petitioners,
U.S. ELECTION ASSISTANCE COMMISSION, AL.,
Respondents.
_________ Petition for Writ Certiorari the United
States Court Appeals for the Tenth Circuit
_________
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT PETITIONERS
_________
Robert Popper
Counsel Record
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5185
rpopper@judicialwatch.org
Counsel for Amici Curiae
Dated: April 21, 2015
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
TABLE CONTENTS .............................................
TABLE AUTHORITIES ..................................... iii
INTERESTS THE AMICI CURIAE .....................1
SUMMARY ARGUMENT.....................................2
REASONS FOR GRANTING THE PETITION .........3
The Tenth Circuit Decision Violates Both the
Constitution and This Court Instruction
ITCA .....................................................................3
II. The States Ability Prevent Noncitizen
Voting Matter Great Public
Importance ............................................................6
CONCLUSION ..........................................................14
TABLE AUTHORITIES
CASES
Arizona Inter Tribal Council Arizona,
133 Ct. 2247 (2013) ..............................
Crawford Marion County Election Bd.,
553 U.S. 181 (2008) ....................................2,
Judicial Watch, Inc. King, 993 Supp. 919
(S.D. Ind. 2012) .....................................................9
Kobach United States Election Assistance
Comm 772 F.3d 1183
(10th Cir. 2014) .................................... 3-5, 11,
Kobach United States Election Assistance
Comm Supp. 1252 (D. Kan. 2014) ......6
CONSTITUTION AND STATUTES
U.S. Const. art. cl. ...................................... 3-6
U.S. Const. art. cl. ...................................... 3-6
U.S. Const. amend. ...............................................5
U.S. Const. amend. XIX ..............................................5
U.S. Const. amend. XXVI ...........................................5 U.S.C. 611 ............................................................4
iii U.S.C. 911 ............................................................4 U.S.C. 1015(f) .....................................................4 U.S.C. 20501 ........................................................7 U.S.C. 20504 ........................................................7 U.S.C. 20505 ........................................................7 U.S.C. 20506 ........................................................7 U.S.C. 20507 ........................................................7
REGULATIONS AND LEGISLATIVE HISTORY
Final Rules: National Voter Registration Act 1993, Fed. Reg. 32311 (FEC 1994) ...........................6 Rep. 103-6 17-18, 103rd Cong., 1st Sess. .............8
OTHER AUTHORITIES
Derek Muller, Invisible Federalism and the
Electoral College, Ariz. St. L.J. 1237
(Fall 2012) ............................................................4
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-non-citizen-voting ..........12
Henry Kaiser Family Foundation, Population
Distribution Citizenship Status, available
http://kff.org/other/state-indicator/distributionby-citizenship-status/ ........................................11
J.T. Richman al., non-citizens vote U.S.
elections?, Electoral Studies vol. 36, pp. 149
157 (Dec. 2014), available http://www.science
direct.com/science/article/ii/S026137941
4000973 ............................................................12
Kevin Robillard, Poll: 36% say voter fraud major
issue, Politico (Oct. 26, 2012), available
http://www.politico.com/news/stories/1012/82936.
html ....................................................................10
Magali Rheault and Brett Pelham, Worldwide,
Views Diverge About Honesty Elections (Nov. 2008), available http://www.gallup.com/
poll/111691/worldwide-views-diverge-abouthonesty-elections.aspx........................................10
Press Release, Secretary State Husted Reminds
Ohioans: One Vote Matters, Ohio Secretary
State Office (Jan. 13, 2013), available
https://www.sos.state.oh.us/SOS/media
Center/2014/2014-01-13.aspx ............................13
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........10
Report The Commission Federal Election
Reform, Jimmy Carter and James Baker, III
(Co-Chairs), Building Confidence U.S.
Elections, American University Center for
Democracy and Election Management, (Sept.
2005), available http://www1.american.edu
/ia/cfer/report/full_report.pdf ............................13
Simon Thompson, Voting Rights: Earned
Entitled?, Harvard Political Review (Dec.
2010), available http://harvard
politics.com/united-states/voting-rights-earnedor-entitled/ ............................................................4
Yesenia Acosta, Luke Larsen, and Elizabeth
Grieco, Noncitizens Under Age 35: 2010 2012,
American Community Survey Briefs (Feb. 2014),
available http://www.census.gov/ prod/2014
pubs/acsbr12-06.pdf ...........................................11
INTERESTS THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch nonpartisan educational foundation that seeks
promote transparency, integrity, and accountability government and fidelity the rule law.
Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and
has appeared amicus curiae this Court
number occasions.
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 this Court
number occasions.
Amici believe that the decision the U.S. Court Appeals for the Tenth Circuit raises important
issues constitutional law and federal election law
which should heard this Court. particular,
amici are concerned that the Tenth Circuit ruling, allowed stand, will undermine voter confidence the integrity elections. states cannot verify
Pursuant Supreme Court Rules 37.2 and 37.6, amici state
that all parties received timely notice the intent file this
brief, and all parties granted consent. addition, counsel
for party authored this brief whole part; and
person entity, other than amici and their counsel, made
monetary contribution intended fund the preparation and
submission this brief.
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, discouraging those voters from voting all and thereby burdening their right vote.
this Court has explained, public confidence the
integrity elections encourages citizen participation the democratic process. Crawford al. Marion
County Election Board, 553 181, 197 (2008).
Conversely, lack faith electoral integrity
undermines confidence the system and
discourages citizen participation democracy.
For these and other reasons, amici urge the
Court grant the Petition for Writ Certiorari.
SUMMARY ARGUMENT
The Tenth Circuit decision misstates the
Constitution balance power between the federal
government and the states regarding elections,
ignoring this Court instructions Arizona Inter
Tribal Council Arizona, 133 Ct. 2247 (2013) ITCA ITCA, this Court held that the states
constitutional power establish voter qualifications
necessarily includes the power enforce voter
qualifications. The Tenth Circuit decision will
thwart the states efforts comply with the election
integrity provisions the National Voter
Registration Act 1993 NVRA and undermine
confidence elections.
REASONS FOR GRANTING THE PETITION The Tenth Circuit Decision Violates Both
the Constitution and This Court Holding
ITCA.
The Tenth Circuit decision contrary the
U.S. Constitution. The framers the Constitution
carefully balanced federal and state powers and
responsibilities relating federal elections. This
was accomplished giving the states the power
determine voter eligibility under the Qualifications
Clause, U.S. Const., Art. sec. cl. while giving
Congress the power dictate the time, place, and
manner states administration federal elections
under the Elections Clause, U.S. Const. Art. sec.
cl. preventing Arizona and Kansas from
implementing
their
proof-of-citizenship
voter
registration laws, the Tenth Circuit has used the
Elections Clause contravene the Qualifications
Clause. The Tenth Circuit mischaracterizes the
constitutional question one whether the
Qualifications Clause trumps the Elections Clause.
Kobach United States Election Assistance Comm
772 F.3d 1183, 1198-1199 (10th Cir. 2014).
However, these two clauses, properly construed,
not conflict the way the Tenth Circuit imagines. this Court has explained, the Elections Clause
empowers Congress regulate how federal elections
are held, but not who may vote them. ITCA, 133 Ct. 2257. 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. Id. 2258-59.
The Tenth Circuit has now put those serious
constitutional doubts squarely before this Court.
Specifically, the Tenth Circuit has now created
conflict between the Elections Clause and the
Qualifications Clause holding that the former
empowers the federal government refuse allow
otherwise-lawful state voter qualification laws.
Kobach, 772 F.3d 1198-1199. Importantly for this
case, there question that Kansas and Arizona
imposition and enforcement citizenship
qualification for voting federal elections lawful. fact, federal crime for noncitizens
knowingly misrepresent their citizenship status
either register vote for candidates federal
elections. U.S.C. 611; U.S.C. 911;
U.S.C. 1015(f). Arizona and Kansas (and every
other U.S. state),2 also violation state law
for noncitizens vote federal elections.
Indeed, the Constitution has been amended
three times limit the states Qualifications Clause
powers certain ways, but each amendment
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-earnedor-entitled/.
specifically preserved the states power limit
voting U.S. citizens. The Fifteenth, Nineteenth,
and Twenty-Sixth amendments the Constitution
prevented states from disqualifying any voters over years age the basis race sex. But
each these amendments used identical language clarify that states retained the power restrict
voting U.S. citizens, stating: [T]he right
citizens the United States vote shall not
denied abridged U.S. Const. amends. XV, XIX,
and XXVI (italics added). Accordingly, three times the past 150 years when amending the
Constitution 1870, 1920, and 1971 the
American people used language clarifying that they
were not limiting the states powers restrict voting citizens.
The Tenth Circuit holding not only creates
conflict between the Elections Clause and the
Qualifications Clause, also puts the NVRA
conflict with the Qualifications Clause. Because the
NVRA was enacted pursuant Congress Elections
Clause powers, see ITCA, 133 Ct. 2256-2257,
the analysis both conflicts similar. Essentially,
the Tenth Circuit reads the NVRA permitting the
U.S. Election Assistance Commission EAC
deny states enforcement their lawful voter
qualifications which again requires reading the
Elections Clause conflicting with, and prevailing
over, the Qualifications Clause. Kobach, 772 F.3d
1199 (characterizing the question whether states
Qualifications Clause powers trump Congress
Elections Clause powers.
The Tenth Circuit inversion ITCA
constitutional analysis insupportable. 133 Ct. 2257, 2558-59. This Court was correct the first
time holding that states may decide what
information they need enforce their voter
qualification laws, while the federal government
may only deny states requests for registration
information unrelated voter qualifications. Id.
Under this Court reading, both constitutional
clauses exist harmony and neither trumps the
other. Id.; see also Petition for Writ Certiorari,
No. 14-1167, 20-21 (filed March 21, 2015). the
ITCA ruling explains, the EAC, vested through the
NVRA with Congress Elections Clause power, only
has the authority refuse states request for voter
registration information when unrelated
qualifications concerning voting (like information
about marital status height), such requests
bear the manner which voters are registered.
ITCA, 133 Ct. 2259; see also Kobach United
States Election Assistance Comm Supp.
1252, 1269-1270, 104 (D. Kan. 2014), citing Final
Rules: National Voter Registration Act 1993,
Fed. Reg. 32311, 32316-17 (FEC 1994). This the
constitutional bright line between federal and state
election power, and preserves both the Elections
Clause and the Qualifications Clause.
II. The States Ability Prevent Noncitizen
Voting Matter Great Public
Importance.
The Tenth Circuit decision undermines Kansas
and Arizona ability protect the integrity
federal elections their states, which ultimately
will discourage their citizens from engaging the
democratic process. Election integrity not just
concern the states; was also primary concern Congress enacting the NVRA. The NVRA was
enacted establish procedures that will increase
the number eligible citizens who register vote
and enhance[] the participation eligible
citizens voters, the one hand; and protect
the integrity the electoral process and ensure
that accurate and current voter registration rolls are
maintained, the other. U.S.C. 20501(b)(1) (b)(4). accomplish these two equally important goals,
the NVRA contains provisions designed both
increase eligible citizen participation and increase
citizens confidence the integrity elections.
Section the NVRA, U.S.C. 20505, which
requires states allow citizens register mail,
and Section U.S.C. 20506, which requires
states allow citizens register public
assistance agencies, were included expand the
opportunities register vote. Section the
NVRA, U.S.C. 20504, which requires states
use driver license records ensure the accuracy
and currency voter registration lists, and Section U.S.C. 20507, which requires states
maintain accurate voter rolls that contain only
eligible voters, were included enhance electoral
integrity.
The NVRA ballot access and election integrity
provisions function counterparts. Congress
explained enacting the NVRA: 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 NVRA 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 Indiana failure comply with the NVRA list
maintenance requirements because
that
failure
undermin[es]
their
confidence the legitimacy the 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%2019
93%20Requirements%20Issues%20Approaches%20and%20
Examples%20Jan%201%201994.pdf.
elections held the State Indiana
and thereby burden[s] their right
vote.
Judicial Watch, Inc. King, 993 Supp. 919,
924 (S.D. Ind. 2012) (internal citations omitted).
that district court observed, lack confidence
the electoral process deters voters from voting the
first place. Id. This because voters not want
waste time voting election where fraudulent
ballots may cast and counted. Accordingly, both
the NVRA voter access provisions and its election
integrity provisions ultimately function increase
voter turnout.
This 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).
Even though there was
evidence [voter impersonation] fraud actually
occurring Indiana, the Court recognized
Indiana strong interest preventing fraud. Voter
fraud had occurred other parts the country
and the risk voter fraud [is] real [and] could
affect the outcome close election. Crawford, 553
U.S. 194-196. necessary for states restore the American
public confidence the basic honesty elections enforcing election integrity laws. Large segments the American public have expressed their dismay
with various aspects our electoral system. poll
from August 2013 reported that only 39%
Americans believe that elections are fair.4 2012,
another poll reported that more than two-thirds
registered voters thought voter fraud was
problem.5 2008, when poll asked respondents
around the world whether they had confidence
the honesty elections, 53% Americans said that
they did not.6 These surveys reveal startling lack confidence our own electoral institutions.
Rejecting the Tenth Circuit decision and upholding
states authority take measures ensure that
only eligible U.S. citizens can vote will help Rasmussen Reports, New Low: 39% Think U.S. Elections
Are Fair (Aug. 16, 2013), available http://www.rasmussen
reports.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-divergeabout-honesty-elections.aspx.
restore Americans faith the integrity our
elections and the legitimacy our elected
government.
The Tenth Circuit erred concluding that
Kansas and Arizona were required produce some
additional proof their need for citizenship
information. Kobach, 772 F.3d 1196 (claiming
state must prove that [the EAC refusal] precluded from obtaining information necessary enforce its
qualifications.
Those states constitutional
authority and their concern with electoral integrity
were reason enough act. But further, there
demonstrable need for the measures they took.
According report from the U.S. Census Bureau, 2012 there were approximately million
noncitizens (both lawfully and unlawfully present)
the U.S. out total population 311 million.7
This means that roughly percent the modern
U.S. population lacks citizenship about
residents. well established, moreover, that
Arizona has one the highest noncitizen
populations the United States; and that Kansas, part due the demographics certain industries the southwestern part the state, also has
sizable noncitizen population.8
Yesenia Acosta, Luke Larsen, and Elizabeth Grieco,
Noncitizens Under Age 35: 2010 2012, American Community
Survey Briefs, (Feb. 2014), available http://www.census.
gov/prod/2014pubs/acsbr12-06.pdf. Henry Kaiser Family Foundation, Population Distribution Citizenship Status, available http://kff.org/other/stateindicator/distribution-by-citizenship-status/ (visited April 17,
2015).
There are many documented cases noncitizens
casting fraudulent ballots U.S. elections.9 Indeed, recent study concluded that noncitizen voting was
relatively common. poll noncitizens showed
that about 25% U.S. noncitizens were registered
vote 2010, and that 6.4% had voted 2008 and
2.2% had voted 2010.10 These findings suggest
that the impact American elections could
profound. The Tenth Circuit view that precautions
against noncitizen voters are not necessary
unfounded. Kobach, 772 F.3d 1196-1197.
The Tenth Circuit decision threatens
diminish Americans confidence their own
elections. The harm that results will significant
regardless the frequency with which voter fraud
occurs. bipartisan panel convened examine the
existence and impact voter fraud, the CarterBaker Commission, had this say about the
frequency voter fraud relative its significance
While the Commission divided the
magnitude voter fraud with some
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-threat-ofnon-citizen-voting. J.T. Richman, al., non-citizens vote U.S. elections?,
Electoral Studies, vol. 36, pp. 149 157 (Dec. 2014), 152,
Tables and available http://www.sciencedirect.com/
science/article/pii/S0261379414000973.
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
Such close elections occur all the time. Ohio
Secretary State Jon Husted released remarkable
statistics showing that, 2013, local races and
local ballot issues were decided his state either
one vote, the toss coin following
electoral tie.12
Illegal voting any level can change the
outcome elections. And there acceptable
amount fraud. Arizona and Kansas efforts
prevent the registration ineligible voters fall
squarely within those states constitutional
authority, are necessary part their efforts
Report The Commission Federal Election Reform,
Jimmy Carter and James Baker, III (Co-Chairs), Building
Confidence U.S. Elections, American University 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 State Office (Jan. 13,
2013), available https://www.sos.state.oh.us/SOS/media
Center/2014/2014-01-13.aspx.
comply with the NVRA, and are critical
importance the sound functioning American
democracy.
This Court should address the critical issues
raised this appeal.
CONCLUSION
For the foregoing reasons, amici respectfully
request that this Court grant the Petition for Writ
Certiorari review the Tenth Circuit ruling.
Respectfully submitted,
Robert Popper
Counsel Record
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
April 21, 2015