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Kobach v. United States Election Assistance Commission

United States District Court, Tenth Circuit

December 12, 2013

KRIS W. KOBACH, et al., Plaintiffs,
v.
THE UNITED STATES ELECTION ASSISTANCE COMMISSION, et al., Defendants.

MEMORANDUM AND ORDER

DAVID J. WAXSE, Magistrate Judge.

The Court has before it the following four motions: Motion to Intervene as Defendants (ECF No. 33) filed by proposed intervenors Inter Tribal Council of Arizona, Inc., Arizona Advocacy Network, League of United Latin American Citizens Arizona, and Steve Gallardo (collectively "AZ Applicants"); Motion for Leave to Intervene as Defendant (ECF No. 36) filed by proposed intervenor Project Vote, Inc.; Motion to Intervene as Defendants (ECF No. 52) filed by proposed intervenors League of Women Voters of the United States, League of Women Voters of Arizona, and League of Women Voters of Kansas (collectively "League"); and Motion for Leave to Intervene as Defendants (ECF No. 62) filed by proposed intervenors Valle del Sol, the Southwest Voter Registration Education Project, Common Cause, Chicanos Por La Causa, Inc., and Debra Lopez ("Valle Applicants"). All movants request leave to intervene as defendants in this case as of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure, or, in the alternative, to intervene permissively pursuant to Rule 24(b)(1)(B).

In their Responses (ECF Nos. 49, 50, 76, & 77), Plaintiffs Kris W. Kobach, Ken Bennett, The State of Kansas, and the State of Arizona oppose intervention under either basis. Defendants United States Election Assistance Commission ("EAC") and Alice Miller also responded, stating that they believe permissive intervention is available, which they do not oppose. For the reasons set forth below, the Court concludes that the requests for leave to intervene permissively should be granted. As a result, the Court finds it unnecessary to consider whether applicants are entitled to intervene as of right pursuant to Rule 24(a).[1]

I. Background

A. The Instant Action

In their complaint, Plaintiffs request, among other things, a writ of mandamus ordering Defendants to modify the Kansas - and Arizona-specific instructions of the mail voter registration application form ("Federal Form"), which is developed by the EAC in consultation with the States pursuant to the National Voter Registration Act, 42 U.S.C. ยง 1973gg et seq. ("NVRA"), to include the requirement that voter registration applicants utilizing the Federal Form submit proof-of-citizenship documentation in accordance with Kansas and Arizona law. The current version of the Federal Form only requires a voter registration applicant to attest under oath that he or she is a United States citizen. Plaintiffs also seek a declaratory judgment that the NVRA is unconstitutional as applied to Plaintiffs in determining voter registration requirements.

B. The Applicants for Intervention

Inter Tribal Council of Arizona, Inc. is a private, non-profit Arizona corporation whose members include 21 Arizona Indian tribes, involved in, among other things, promoting Native American voting rights in Arizona and providing voter education programs for its members. Arizona Advocacy Network and League of United Latin American Citizens Arizona are nonpartisan advocacy groups that seek to increase citizen participation in Arizona's electoral process through voter education and registration, focusing on underrepresented communities and Hispanic citizens, respectively. Steve Gallardo is an Arizona State Senator who seeks to protect the voting rights of all eligible citizens, particularly those in his District.

Project Vote, Inc. is a nonpartisan corporation that develops, funds, and supports voter registration drives in underprivileged communities, including in Arizona.

The League is an organization that conducts voter registration drives in both Arizona and Kansas and advocates for voters' rights, with a mission of encouraging voting and civic participation, particularly among minorities and underprivileged communities.

Valle del Sol is a nonprofit, nonpartisan Arizona organization that delivers services primarily to the Latino community, including conducting voter registration campaigns and education. The Southwest Voter Registration Education Project is a nonpartisan Latino organization that sponsors voter registration drives in support of its mission of increasing participation in the democratic process. Common Cause is a nonpartisan, nonprofit advocacy that conducts voter education towards preserving citizen voting rights. Chicanos Por La Causa, Inc. is an Arizona community development corporation that provides assistance to underprivileged individuals. It registers voters and conducts registration drives in support of its social agenda. Debra Lopez is a political consultant/campaign manager who manages voter registration projects, including events and door-to-door drives, in areas with large Latino populations and low voter turnout.

C. The Supreme Court case of Arizona v. Inter Tribal Council of Arizona

AZ Applicants, Project Vote, and the League of Women Voters of Arizona were also Plaintiffs in Arizona v. Inter Tribal Council of Arizona, 133 S.Ct. 2247 (2013) (" ITCA "), wherein the Supreme Court held that the State of Arizona was required by the NVRA to "accept and use" the Federal Form and was prohibited from requiring that voter registration applicants using the Federal Form submit additional proof-of-citizenship documentation beyond that required by the Federal Form. In ITCA, the Supreme Court also stated that Arizona could submit a request to the EAC to include its proof-of-citizenship requirement in the Federal Form's state-specific instructions.[2] If the EAC did not grant such a request, Arizona could then seek judicial ...


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