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Fish v. Kobach

United States District Court, D. Kansas

June 20, 2017

STEVEN WAYNE FISH, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
KRIS KOBACH, in his official capacity as Secretary of State for the State of Kansas, Defendant.

          AMENDED PRETRIAL ORDER

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

         A pretrial conference was conducted in this case on June 5, 2017, by U.S. Magistrate Judge James P. O'Hara. The plaintiffs, Steven Wayne Fish, Donna Bucci, Charles Stricker, Thomas J. Boynton, Douglas Hutchinson, and the League of Women Voters of Kansas (“LWVK”), appeared through counsel, Dale E. Ho, Douglas D. Bonney, and Sophia Lin Lakin. The defendant, Secretary of State Kris Kobach, appeared through counsel, Garrett R. Roe and Bethany J. Lee. Mr. Kobach, who's lead defense counsel, failed to appear, even though the pretrial conference was re-scheduled from May 31, 2017 to accommodate his travel schedule.

         This pretrial order supersedes all pleadings and controls the subsequent course of this case. It will not be modified except by consent of the parties and the court's approval, or by order of the court to prevent manifest injustice. Fed.R.Civ.P. 16(d) & (e); D. Kan. Rule 16.2(b).

         1. PRELIMINARY MATTERS.

         a. Subject-Matter Jurisdiction.

         This action is brought pursuant to the private right of action provisions of the National Voter Registration Act (“NVRA”), 52 U.S.C. § 20510, and 42 U.S.C. § 1983. Subject-matter jurisdiction is invoked under 28 U.S.C. § 1331 because this is a civil action arising under the laws of the United States, and pursuant to 52 U.S.C. § 20510 which provides for jurisdiction of actions brought under the NVRA. Defendant continues to assert plaintiffs lack standing which can be raised at any time, even on appeal, and cannot be waived.

         b. Personal Jurisdiction.

         The court's personal jurisdiction over the parties is not disputed.

         c. Venue.

         Venue in this court is not disputed.

         d. Governing Law.

         Subject to the court's determination of the law that applies to the case, the parties believe and agree the substantive issues in this case are governed by the following law: 52 U.S.C. §§ 20504, 20507, 20509, 20510; U.S. Const. Art. I, § 2, cl. 2; U.S. Const. Art. I, § 4, cl. 1; U.S. Const. Art. IV, § 2, cl.1; U.S. Const. Amend. XIV, § 1. Defendant also believes that U.S. Const. Art. VI, cl. 2 and U.S. Const. Amend. XVII are applicable.

         2. STIPULATIONS.

         a. The following facts are stipulated:

         1. Defendant Kansas Secretary of State Kris Kobach does business in and is an elected official of the State of Kansas.

         2. Defendant is the Chief Election Officer for the State of Kansas.

         3. On January 24, 2011, House Bill No. 2067 (“HB 2067”) was formally introduced in the Kansas Legislature.

         4. Among other things, HB 2067 contained a provision that would become K.S.A. § 25-2309(1).

         5. After the amendment process, HB 2067 gained final passage in the Kansas Senate on March 23, 2011, and in the House on March 29, 2011.

         6. Governor Sam Brownback signed the bill into law on April 18, 2011.

         7. K.S.A. § 25-2309(1) among other provisions took effect on January 1, 2013.

         8. On June 25, 2015, defendant proposed an administrative rule that would become Kansas Administration Regulation (“K.A.R.”) § 7-23-15, which went into effect on October 2, 2015.

         9. Between July 1, 2015, and October 13, 2016, defendant has not brought charges against a noncitizen for illegal registration and/or voting.

         10. Plaintiff Steven Wayne Fish is a U.S. citizen, a resident of Kansas, and over eighteen years old.

         11. Plaintiff Fish applied to register to vote while renewing a Kansas driver's license at the Division of Vehicles (“DOV”).

         12. The Electronic Voter Information System (“ELVIS”), which is maintained by the Kansas Secretary of State (“SOS”), indicates that plaintiff Fish has not provided satisfactory evidence of citizenship.

         13. Plaintiff Fish was given a code of “suspense” in ELVIS for failure to provide documentary proof of citizenship (“DPOC”).

         14. Plaintiff Fish provided a copy of his birth certificate during discovery in this case.

         15. Plaintiff Fish has not sought a hearing under K.S.A. § 25-2309(m).

         16. Plaintiff Donna Bucci is a resident of Kansas and over eighteen years old.

         17. Plaintiff Bucci applied to register to vote while renewing a Kansas driver's license at the DOV.

         18. ELVIS indicates that plaintiff Bucci has not provided satisfactory evidence of citizenship.

         19. Plaintiff Bucci was given a code of “suspense” in ELVIS for failure to provide DPOC.

         20. Plaintiff Bucci has not sought a hearing under K.S.A. § 25-2309(m).

         21. Plaintiff Charles Stricker is a U.S. citizen, a resident of Kansas, and over eighteen years old.

         22. Plaintiff Stricker applied to register to vote while renewing a Kansas driver's license at the DOV.

         23. Plaintiff Stricker was given a code of “suspense” in ELVIS for failure to provide satisfactory evidence of citizenship.

         24. Plaintiff Stricker provided a copy of his birth certificate during discovery in this case.

         25. Plaintiff Stricker has not sought a hearing under K.S.A. § 25-2309(m).

         26. Plaintiff Thomas Boynton is a U.S. citizen, a resident of Kansas, and over eighteen years old.

         27. Plaintiff Boynton was given a code of “suspense” in ELVIS for failure to provide DPOC.

         28. Plaintiff Boynton provided a copy of his birth certificate during discovery in this case.

         29. Plaintiff Boynton has not sought a hearing under K.S.A. § 25-2309(m).

         30. Plaintiff Douglas Hutchinson is a U.S. citizen, a resident of Kansas, and over eighteen years old.

         31. Plaintiff Hutchinson applied to register to vote while renewing a Kansas driver's license.

         32. Plaintiff Hutchinson was given a code of “suspense” in ELVIS for failure to provide DPOC.

         33. The SOS' Office does not currently check with any agencies outside of Kansas to verify citizenship of voter registration applicants.

         34. Between January 1, 2006 and March 23, 2016, 43.7% of Kansas voters applied to register to vote at the DOV.

         35. As of March 28, 2016, there were 14, 770 applicants on the “suspense list” for failure to provide DPOC.

         36. As of March 28, 2016, there were 5, 655 applicants on the “suspense list” who had applied to register at the DOV.

         37. As of March 28, 2016, there were 16, 319 applicants whose applications were canceled under K.A.R. § 7-23-15 due to lack of DPOC.

         38. As of March 23, 2016, there were 11, 147 applicants who applied to register at the DOV whose applications were canceled under K.A.R. § 7-23-15 due to lack of DPOC.

         39. ELVIS reflects that at one time plaintiff Fish's voter registration was canceled.

         40. On October 27, 2016, ELVIS did not reflect plaintiff Fish's registration status as canceled.

         41. ELVIS reflects that at one time plaintiff Boynton's voter registration was canceled.

         42. On October 27, 2016, ELVIS did not reflect plaintiff Boynton's registration status as canceled.

         43. ELVIS reflects that at one time plaintiff Bucci's voter registration was canceled.

         44. On October 27, 2016, ELVIS did not reflect plaintiff Bucci's registration status as canceled.

         45. ELVIS reflects that at one time plaintiff Stricker's voter registration was canceled.

         46. On October 27, 2016, ELVIS did not reflect plaintiff Stricker's registration status as canceled.

         47. ELVIS reflects that at one time plaintiff Hutchinson's voter registration was canceled.

         48. On October 27, 2016, ELVIS did not reflect plaintiff Hutchinson's registration status as canceled.

         49. Hutchinson is recorded in ELVIS as not having submitted DPOC at the time he applied to register to vote at the DOV in May 2013.

         50. There were more than 1.8 million registered voters in Kansas as of the 2016 general election.

         51. ELVIS is a statewide voter registration database.

         52. ELVIS is maintained by the SOS.

         53. Each county election officer has responsibility maintaining the voter lists for their own counties. The central database reflects data that is entered by the counties.

         54. ELVIS assigns a unique identification number for all voters.

         55. When a voter registration application is received by the relevant county election office, a record is created in the ELVIS database.

         56. County election officers have been instructed to enter into ELVIS system all people who submit voter registration applications regardless of whether they provided proof of citizenship.

         57. ELVIS contains codes that demonstrate whether a person has registered successfully.

         58. “CITZ” is the code recorded in ELVIS to indicate that an applicant has failed to provide documentary proof of citizenship.

         59. “MV” is the code recorded in ELVIS to indicate that an applicant has applied to register to vote at the DOV.

         60. Non-citizens who apply for a driver's license may receive a temporary driver's license (“TDL”), the duration of which is tied to the length of time that the documentation they provided to DOV permits their presence in the U.S.

         61. Non-citizen legal permanent residents who apply for a driver's license receive a regular driver's license.

         62. Mr. Bryan Caskey, the Director of Elections in the SOS' Office, stated that he believes that green card holders apply for regular driver's licenses using their green cards as legal presence documents.

         63. After reviewing an applicant's documentation, a DOV employee enters the applicant's name and date of birth into the DOV database and takes the applicant's photo as well as captures their signature.

         64. Documentation is scanned into the DOV database.

         65. DOV employees also enter an applicant's Social Security Number, if applicable, height, weight, eye color, address, the type of license applied for (e.g., commercial driver's license or motorcycle driver's license), organ donor status, and the results of applicant's vision test.

         66. Only after all of the foregoing information is entered is an applicant asked if they would like to register to vote.

         67. If an applicant does wish to register to vote, they begin the process for voter registration.

         68. If driver's license applicants (first-time or renewal) verbally confirm they would like to register to vote, the DOV employee prompts them to read a voter oath located on the DOV ...


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