KRIS W. KOBACH, et al., Plaintiffs,
THE UNITED STATES ELECTION ASSISTANCE COMMISSION, et al., Defendants.
MEMORANDUM AND ORDER
ERIC F. MELGREN UNITED STATES DISTRICT JUDGE
Does the United States Election Assistance Commission (“EAC”) have the statutory and constitutional authority to deny a state’s request to include its proof-of-citizenship requirement in the state-specific instructions on the federal mail voter registration form? The Plaintiffs— Arizona and Kansas and their secretaries of state—say it does not, and have asked this Court to order the EAC to add the requested language immediately. Because the Court finds that Congress has not preempted state laws requiring proof of citizenship through the National Voter Registration Act, the Court finds the decision of the EAC denying the states’ requests to be unlawful and in excess of its statutory authority. Since the Court’s decision turns on the plain statutory language, the Court need not resolve the question of whether the Constitution permits the EAC, or Congress, to disregard the states’ own determination of what they require to satisfactorily determine citizenship. Therefore, the Court orders the EAC, or the EAC’s acting executive director, to add the language requested by Arizona and Kansas to the state-specific instructions on the federal mail voter registration form, effective immediately.
I. Factual and Procedural Background
In 2011, the Kansas Legislature amended Kansas Statutes Annotated § 25-2309 to require any person applying to vote provide satisfactory evidence of United States citizenship before becoming registered. In August 2012, Brad Bryant, the Kansas election director, requested that the EAC make three revisions to the national voter registration form’s state-specific instructions to reflect changes in Kansas’ voter registration law. The third request was for the EAC to provide an instruction to reflect the new proof-of-citizenship requirement that was effective January 1, 2013. In October 2012, Alice Miller—the EAC’s acting executive director and chief operating officer—informed Bryant that the EAC would make the first two changes but postponed action on the proof-of-citizenship requirement until a quorum was established on the commission. All four of the EAC’s commissioner positions were vacant at the time, and they remain vacant now.
In 2013, a similar proof-of-citizenship requirement under Arizona voter registration law was addressed by the United States Supreme Court. In Arizona v. Inter Tribal Council of Arizona, Inc. (“ITCA”),  the Supreme Court addressed the question of whether an Arizona statute that required state officials to reject a federal voter registration form unaccompanied by documentary evidence of citizenship conflicted with the National Voter Registration Act’s mandate that Arizona “accept and use” the federal form. In June 2013, the Supreme Court held that the NVRA precluded Arizona from requiring that anyone registering to vote using the federal voter registration form submit information beyond that required by the form itself. In so ruling, the Court concluded, “Arizona may, however, request anew that the EAC include such a requirement among the Federal Form’s state-specific instructions, and may seek judicial review of the EAC’s decision under the Administrative Procedure Act.”
The day after the ITCA decision, Kansas Secretary of State Kris Kobach renewed Kansas’ request that the EAC include state-specific instructions on the federal form to reflect Kansas’ proof-of-citizenship requirement. Two days after the ITCA decision, Arizona’s Secretary of State, Ken Bennett, made a similar request, asking that the EAC include instructions to reflect Arizona’s proof-of-citizenship requirements as outlined in Arizona Revised Statutes Annotated § 16-166(F). In August 2013, Miller informed Kobach and Bennett that the EAC staff was constrained to defer acting on the states’ requests until the EAC has a quorum of commissioners. Miller’s letters indicated that her decision was based on a 2011 memorandum, prepared by former EAC executive director Thomas Wilkey, that established an internal procedure to deal with requests to change the state-specific instructions in the absence of a quorum of commissioners. The Wilkey memorandum, which was directed to the EAC staff, stated, “Requests that raise issues of broad policy concern to more than one State will be deferred until the re-establishment of a quorum.”
On August 21, 2013, this lawsuit was filed against the EAC and Miller, challenging the EAC’s deferral of the states’ requests. The Complaint was brought by four plaintiffs—Kobach, Bennett, the State of Kansas, and the State of Arizona. The Plaintiffs sought 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 residing in Kansas and Arizona to submit proof-of-citizenship documents in accordance with Kansas and Arizona law. Similarly, the Plaintiffs asked this Court to enjoin the EAC and its officers from refusing to modify the instructions. The Plaintiffs sought a finding that the EAC’s failure to act was agency action unlawfully withheld or unreasonably delayed. Further, the Plaintiffs requested that this Court declare the NVRA unconstitutional as applied and declare that the Wilkey memorandum is an unlawful regulation.
In December 2013, this Court granted four motions for leave to intervene. The first motion was granted to a group that includes the Inter Tribal Council of Arizona, Inc., the Arizona Advocacy Network, the League of United Latin American Citizens of Arizona, and Steve Gallardo. The second motion granted was to Project Vote, Inc. The third motion was granted to the League of Women Voters of the United States, the League of Women Voters of Arizona, and the League of Women Voters of Kansas. The fourth motion was granted to a group that includes Valle del Sol, the Southwest Voter Registration Education Project, Common Cause, Chicanos Por La Causa, Inc., and Debra Lopez. These organizations and individuals, with the exception of the League of Women Voters of Kansas and the League of Women Voters of the United States, were plaintiffs in ITCA.
On December 13, 2013, this Court found that there had been no final agency action on the states’ requests by the EAC. The Court expressed doubt about the agency’s ability to act without commissioners but ordered that the agency be provided with the opportunity to address these matters, including the matter of the agency’s ability to make a ruling on this issue. Accordingly, the Court remanded the matter to the EAC with instructions that it render a final agency action no later than January 17, 2014. On that date, Miller issued a 46-page decision purportedly on behalf of the EAC denying the states’ requests. The EAC decision concluded, among other things, that the EAC has the authority to determine what is necessary for a state election official to assess the eligibility of those applying to register to vote. Based on this authority, the EAC decision then concluded that requiring an applicant to provide proof of citizenship beyond signing an oath was not necessary for a state election official to assess whether the applicant is a U.S. citizen.
Two weeks later, the Plaintiffs filed a Motion for Judgment asking this Court to review the EAC’s decision under the Administrative Procedure Act, issue a writ of mandamus ordering the EAC to make the changes to the instructions, and declare the EAC’s denial a violation of the states’ constitutional rights. After a status conference, the Court ordered that its review would be limited to the agency record. After oral argument on February 11, 2014, the motion is ripe.
II. Legal Standard
Plaintiffs bring this action under the Administrative Procedure Act, which subjects federal agency action to judicial review. Under APA review, the reviewing court must “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of an agency action.” The APA gives the reviewing court the authority to compel agency action unlawfully withheld or unreasonably delayed. The only agency action that can be compelled is action legally required. This means that a court is limited to compelling an agency to perform a ministerial or nondiscretionary act, or in other words, a discrete agency action that it is required to take.
The reviewing court also has authority to “hold unlawful and set aside agency action, findings, and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.”
The Court must review the entire administrative record or those parts of it cited by a party, and due account must be taken of the rule of prejudicial error. If the agency action is upheld, it must be upheld for the reasons articulated by the agency. Ordinarily, the APA standard of review is a deferential one, but courts do not afford any deference to an agency interpretation that is clearly wrong or where Congress has not delegated administrative authority to the agency on the particular issue.
As an initial matter, the Court is skeptical that Miller has authority to make this decision for the EAC. The Court notes that Miller herself initially thought that she couldn’t make this decision and informed the states in her letters that whether to add the instructions was a policy question that must be decided by the EAC commissioners. However, the Court finds it unnecessary to address Miller’s authority to act as acting executive director because the Court’s decision would be the same if a full commission had voted 4-0 to deny the states’ requests. For the ...