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Kobach v. United States Election Assistance Commission

United States District Court, Tenth Circuit

February 6, 2014

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

MEMORANDUM AND ORDER

ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

Defendant-Intervenor Valle del Sol and others associated with its group seek dismissal of this lawsuit based on the primary assertion that the Secretary of State has no legal authority to bring this claim in the name of the State of Kansas. The Court finds that the Kansas Attorney General has authorized this lawsuit. For the following reasons, the motion to dismiss is denied.

I. Factual and Procedural Background

In August 2013, this lawsuit was filed against the United States Election Assistance Commission and Alice Miller, the EAC’s acting executive director and chief operating officer. The Complaint lists four plaintiffs—Kris W. Kobach, the Kansas Secretary of State; Ken Bennett, the Arizona Secretary of State; the State of Kansas; and the State of Arizona. The Plaintiffs seek a writ of mandamus to order the EAC or Miller to modify the state-specific instructions of the federal mail voter registration form to require applicants from Kansas and Arizona to submit proof-of-citizenship documents in accordance with Kansas and Arizona law.

On December 12, 2013, the magistrate judge granted four motions for leave to intervene permissively. One of the groups allowed permissive intervention is made up of Valle del Sol, the Southwest Voter Registration Education Project, Common Cause, Chicanos Por La Causa, Inc., and Debra Lopez. The same day, the Valle del Sol group filed this Motion to Dismiss (Doc. 107) under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(3).

II. Legal Standard

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to move for the dismissal of any claim when the court lacks subject matter jurisdiction.[1] Federal courts are courts of limited jurisdiction.[2] Whether a plaintiff has standing to file a lawsuit is an element of subject matter jurisdiction.[3] A plaintiff in federal court bears the burden of establishing standing.[4] A court must dismiss the action if it determines at any time that it lacks subject matter jurisdiction.[5]

Rule 12(b)(6) permits a party to move for dismissal for failure to state a claim for which relief can be granted.[6] Under Rule 12(b)(6), the court must accept as true all facts in the complaint, but it is not required to afford the same presumption to legal conclusions.[7] Rule 12(b)(3) permits a party to move for dismissal based on improper venue.[8] The plaintiff has the burden of showing that venue is proper.[9]

III. Analysis

Valle del Sol seeks dismissal for two reasons. First, Valle del Sol argues that Kobach, as Secretary of State, lacks authority to file suit on behalf of Kansas. Rather, Valle del Sol contends, Kansas law requires that all actions on behalf of the State must be brought by the Attorney General. Accordingly, Valle del Sol argues, the claims of Kobach and Kansas should be dismissed because Kobach has failed to allege that he has suffered any injury apart from the State. Second, Valle del Sol argues that if Kobach and the State of Kansas are dismissed as parties, then the remaining plaintiffs—Bennett and the State of Arizona—fail to allege any basis for establishing venue in the District of Kansas. Valle del Sol seeks dismissal or a transfer to the United States District Court for the District of Arizona.

Kansas law outlines the duties and responsibilities of the Attorney General:

The attorney general shall appear for the state, and prosecute and defend any and all actions and proceedings, civil or criminal, in the Kansas supreme court, the Kansas court of appeals and in all federal courts, in which the state shall be interested or a party, and shall, when so appearing, control the state’s prosecution or defense.[10]

In response to this motion, the Plaintiffs have submitted a letter from Attorney General Derek Schmidt addressed to Secretary of State Kobach authorizing this litigation. The letter bears the same date as the ...


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