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Fish v. Kobach

United States District Court, D. Kansas

April 5, 2017

STEVEN WAYNE FISH, et al., Plaintiffs,
v.
KRIS KOBACH, in his official capacity as Secretary of State for the State of Kansas, Defendant.

          ORDER

          James P. O'Hara U.S. Magistrate Judge.

         This voting-rights case challenging the Kansas documentary proof of citizenship (“DPOC”) law is before the court on plaintiffs' motion to compel defendant, Kansas Secretary of State Kris Kobach, to produce two documents allegedly responsive to plaintiffs' Sixth Request for Production of Documents (ECF No. 272). As discussed below, the court overrules defendant's objection to the request on the ground that it seeks information beyond the scope of the limited additional discovery the court has permitted. But the court orders defendant to submit the documents for in camera review so that the court may adequately evaluate defendant's objection that the documents do not contain information relevant to the reopened discovery categories. After reviewing the submitted documents, the court will issue a subsequent order addressing the remainder of plaintiffs' motion to compel and defendant's privilege objections to production.

         As relevant to the instant dispute, plaintiffs allege that the National Voter Registration Act (“NVRA”) preempts Kansas's DPOC requirement[1] as applied to the federally mandated voter-registration form that is a required part of any driver's license application or renewal.[2]Section 5 of the NVRA provides that the voter-registration form “may require only the minimum amount of information necessary to (i) prevent duplicate voter registrations; and (ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.”[3] Section 5 further mandates that the form include an attestation, signed under penalty of perjury, that the applicant meets “each eligibility requirement (including citizenship).”[4]

         On May 17, 2016, the presiding U.S. District Judge, Julie A. Robinson, entered a preliminary injunction barring enforcement of Kansas's DPOC requirement until this case can be decided on the merits.[5] Judge Robinson found plaintiffs had made a strong showing that the Kansas DPOC law, as enforced, did not meet § 5's provision that a voter-registration form require only the “minimum amount of information necessary” to enable state officials to assess an applicant's citizenship (as a criteria for voting eligibility).[6]

         Defendant filed an interlocutory appeal of Judge Robinson's opinion to the Tenth Circuit Court of Appeals. While the appeal was pending, discovery in the case closed under a deadline set in the scheduling order issued by the undersigned U.S. Magistrate Judge, James P. O'Hara, on March 24, 2016.[7]

         On October 19, 2016, the Tenth Circuit issued a decision affirming Judge Robinson's preliminary injunction ruling and clarifying the standards that apply to claims under § 5.[8] The Tenth Circuit ruled that § 5's attestation requirement

is the presumptive minimum amount of information necessary for state election officials to carry out their eligibility-assessment and registration duties. As it pertains to the citizenship requirement, the presumption ordinarily can be rebutted (i.e., overcome) only by a factual showing that substantial numbers of noncitizens have successfully registered to vote under the NVRA's attestation requirement.[9]

         Thus, the Circuit recognized a presumption under the NVRA that the attestation requirement satisfies the minimum-information principle, but permitted states to rebut the presumption by showing that “a substantial number of noncitizens have successfully registered”[10] notwithstanding the requirement, such “that attestation falls below the minimum necessary to carry out [the state's] eligibility-assessment and registration duties.”[11]

         Under this clarified standard, the question arose as to what happens if a state like Kansas is able to rebut the presumption: Is a DPOC regime definitively deemed adequate to satisfy the minimum-information principle? In a footnote (“Footnote 14”), the Tenth Circuit stated that the question remains open, but suggested that the state likely would have to satisfy a second step by showing “that nothing less than DPOC is sufficient to meet [the eligibility-assessment and registration] duties.”[12] The Circuit concluded that because defendant had failed (at least at the preliminary-injunction stage) to satisfy the first step of showing a substantial number of noncitizens had registered to vote when only the attestation requirement was in place, “the DPOC required by Kansas law is more than the minimum amount of information necessary and, therefore, is preempted by the NVRA.”[13]

         Based on the Tenth Circuit's opinion, defendant moved the court to reopen discovery “for the limited purpose of allowing the State to attempt to rebut [the] newly created presumption.”[14] In considering the motion, Judge Robinson recognized, “it is now clear that Secretary Kobach must rebut a presumption that attestation of citizenship is the minimum amount of information necessary for Kansas to carry out its assessment of eligibility and its registration duties, and that he must do so by showing that ‘a substantial number of noncitizens have successfully registered to vote under the attestation requirement.'”[15] Judge Robinson further stated that if defendant could meet the first step of producing “evidence to rebut the attestation presumption, ” then “an inquiry ‘into whether DPOC is the minimum amount of information necessary for Kansas to carry out its eligibility-assessment and registration duties would . . . be appropriate.'”[16] Judge Robinson concluded that “fairness dictates that Secretary Kobach be permitted some additional time to marshal evidence that could rebut the attestation presumption under § 5, ” and then she reopened discovery for both parties.[17]

         A few days later, the undersigned conducted a scheduling and discovery conference, [18]and issued an amended scheduling order setting deadlines for additional “discovery as contemplated and limited by Judge Robinson's recent order.”[19] During the conference, the undersigned and parties discussed the “two-step analysis” contemplated (but not definitively set) by the Tenth Circuit in Footnote 14 for determining a state's compliance with § 5 of the NVRA.[20] With the agreement of the parties, the undersigned ruled that the additional discovery could be “conducted by both plaintiffs and defendant with regard to both aspects of the two-part analysis described in footnote 14 [of] the Tenth Circuit's October 19, 2016 decision.”[21] In other words, under both Judge Robinson's and the undersigned's orders, the scope of additional discovery was limited to the following two issues:

(1) whether a substantial number of noncitizens have successfully registered to vote in Kansas under the NVRA's attestation-of-citizenship requirement (showing that attestation falls below the minimum necessary for Kansas to carry out its eligibility-assessment and registration duties); and
(2) whether DPOC is the minimum amount of information necessary for Kansas to carry out its eligibility-assessment and registration duties.

         On November 15, 2016, plaintiffs served their Fifth Request for Production of Documents, containing thirteen individual document requests.[22] Then on November 22, 2016, plaintiffs served their Sixth Request for Production of Documents, which contained one additional individual request.[23] It is this Sixth Request that is now before the court. After modification resulting from counsel's meet-and-confer discussions, the Sixth Request now seeks “all documents and communications regarding potential amendments or changes to the National Voter Registration Act affecting how officials may assess the eligibility of a voter registration applicant.[24]

         The parties have identified two documents arguably responsive to this request: (1) a draft of a possible future amendment to the NVRA that was created by Secretary Kobach and shared only with counsel in defendant's office (“the draft amendment”); and (2) a document created by Secretary Kobach to share with then President-elect Trump referencing a possible amendment to the NVRA, which was photographed by the Associated Press in late November 2016 as Secretary Kobach was walking into a meeting with Mr. Trump (“the photographed document”). Defendant has refused to produce the documents and objects to the Sixth Request on multiple grounds, including that the request is beyond the scope of the limited additional discovery permitted by the court, does not seek relevant information, and is overbroad.[25] Defendant further asserts that the documents are privileged, asserting the draft amendment is protected by the attorney-client and deliberative-process privileges, and the photographed document is protected by the executive privilege.

         Fed. R. Civ. P. 26(b)(1) sets broad parameters for discovery. “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . . . Information within this scope of discovery need not be admissible in evidence to be discoverable.”[26] As noted above, the court has limited the scope of this second round of discovery to information relevant to the two-pronged analysis contemplated by the Tenth Circuit's opinion. Information is relevant if it ...


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