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Fish v. Kobach

United States District Court, D. Kansas

January 3, 2018

STEVEN WAYNE FISH, et al., Plaintiffs,



         The individual Plaintiffs in this case are United States citizens who attempted to register to vote at the time they applied for a Kansas driver's license after January 1, 2013. They failed to present Documentary Proof of Citizenship (“DPOC”) as required by the 2011 Kansas Secure and Fair Elections Act.[1] Under a 2015 regulation passed by Defendant Kansas Secretary of State Kris Kobach, [2] Plaintiffs' voter registration applications were deemed “incomplete, ” and some of these applications were cancelled in the Kansas voter registration database due to the failure to submit DPOC.

         These Plaintiffs, along with the Kansas League of Women Voters, bring claims against Secretary Kobach for a Fourteenth Amendment violation under 42 U.S.C. § 1983, and for statutory violations of the National Voter Registration Act (“NVRA”). On May 17, 2016, the Court issued an extensive Memorandum and Order granting in part Plaintiffs' motion for a preliminary injunction barring enforcement of the Kansas DPOC law until this case could be decided on the merits.[3] It was effective on June 14, 2016.[4] The Tenth Circuit affirmed that ruling on October 19, 2016, providing significant guidance on Plaintiffs' preemption claim that § 5 of the NVRA displaces the Kansas DPOC law.[5]

         After the Tenth Circuit's decision, the Court reopened discovery, which is now complete. According to the Pretrial Order, three claims remain in this matter: (1) Count 1 alleges a violation of § 5 of the NVRA based on preemption under the Election Clause in Article 1 of the United States Constitution; (2) Count 4 alleges a violation of § 10 of the NVRA; and (3) Count 6 alleges a violation of 42 U.S.C. § 1983, based on the Fourteenth Amendment's privileges or immunities clause. Before the Court are cross-motions for summary judgment (Docs. 366, 382), and Plaintiffs' motions to exclude evidence related to defense experts Jesse T. Richman and Hans von Spakovsky (Docs. 389 and 391), to the extent Defendant relies on those expert opinions on summary judgment. These motions are fully briefed, and the Court has considered the parties' arguments and evidence. As explained more fully below, the Court grants in part and denies in part the motions to exclude. The Court also grants in part and denies in in part the parties' motions for summary judgment.

         I. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.[6] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[7] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”[8] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[9] An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”[10]

         To prevail on a motion for summary judgment on a claim upon which the moving party also bears the burden of proof at trial, the moving party must demonstrate “no reasonable trier of fact could find other than for the moving party.”[11] The facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”[12] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[13] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[14] “Where, as here, the parties file cross-motions for summary judgment, we are entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts.”[15]

         Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[16] In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”[17]

         II. NVRA Claims

         The parties have filed cross-motions on the remaining NVRA claims in this matter brought under §§ 5 and 10. Shortly after this case was filed, Plaintiffs successfully moved for a preliminary injunction based on their likelihood of success on the merits of their § 5 claim. Defendant appealed, and the Tenth Circuit affirmed, providing guidance on whether the Kansas DPOC law is preempted by § 5's mandate that a motor-voter registration application contain the minimum-amount of information necessary for the state to exercise its eligibility-assessment and registration duties. This is the first time this Court has been called upon to consider Plaintiffs' § 5 claim since the Tenth Circuit's remand. Thus, before the Court addresses the uncontroverted facts or the Daubert motions, the Court finds it helpful to set forth the Kansas DPOC law, and the standards that will apply to the § 5 claim under the Tenth Circuit's binding precedent.[18]

         A. Preemption under the Elections Clause and § 5 of the NVRA

         Section 5 of the NVRA requires that every application for a driver's license, “shall serve as an application for voter registration with respect to elections for Federal office.”[19] Subsection (c)(2)(B)-(C) of section 5 provides:

(2) The voter registration application portion of an application for a State motor vehicle driver's license-
(B) 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;
(C) shall include a statement that-
(i) states each eligibility requirement (including citizenship);
(ii) contains an attestation that the applicant meets each such requirement; and
(iii) requires the signature of the applicant, under penalty of perjury.[20]

         Under Kansas law, legally qualified voters must register in order to be eligible to vote, [21] and only United States citizens over the age of eighteen may register to vote.[22] Before January 1, 2013, Kansas voter registration applicants met the citizenship requirement by signing an attestation of United States citizenship on the registration application. The SAFE Act became law in April 2011. In addition to an attestation, the SAFE Act requires that voter registration applicants submit DPOC at the time they apply to register to vote, and lists thirteen forms of acceptable documentation, including a birth certificate and a passport.[23] The DPOC requirement was made effective on January 1, 2013.[24]

         If an applicant is a United States citizen but unable to provide one of the thirteen forms of identification listed in subsection (1), the statute allows that applicant to submit another form of citizenship documentation by directly contacting the Secretary of State's (“SOS”) Office. In these cases, the state election board shall give the applicant an opportunity for a hearing before assessing the evidence of citizenship to determine whether it is satisfactory.[25] The state election board is composed of the Secretary of State, the Attorney General, and the Lieutenant Governor.[26]

         If a voter registration applicant fails to submit the requisite DPOC before the registration deadline in Kansas, that applicant can still submit DPOC to the county election office in person, by mail, or electronically (including by text message) before midnight on the day before an election.[27]

         On June 25, 2015, Defendant Kobach promulgated K.A.R. § 7-23-15, which became effective on October 2, 2015. The regulation applies to registration applications that have been deemed “incomplete.” Such applications are “cancelled” if they do not produce DPOC, or otherwise cure the deficiency in the application, within 90 days of application. The applicant must submit a new, compliant voter registration application in order to register to vote.

         On October 19, 2016, the Tenth Circuit Court of Appeals issued a lengthy decision in this case affirming the Court's preliminary injunction ruling.[28] In its opinion, the Tenth Circuit set forth the applicable rules of statutory interpretation and preemption under the Elections Clause, interpreted the NVRA's requirements under § 5, and applied that interpretation to the facts as found by this Court in its preliminary injunction order.

         In the course of its detailed analysis, the Tenth Circuit “rejected Secretary Kobach's readings of the NVRA.”[29] Defendant spends significant time in his summary judgment briefs rearguing the legal issues resolved by the Tenth Circuit, and suggests that they may not be binding on this Court since they were issued upon review of a preliminary injunction order. This argument has no merit. To be sure, the legal standard at the preliminary injunction stage of the proceedings is different than the standard that applies on summary judgment, and the findings of fact at the preliminary injunction phase are not binding.[30] But these different standards of proof do not change the binding nature of the Tenth Circuit's legal holdings about the correct way to interpret and apply § 5 of the NVRA, and the extent to which it preempts state law. At the preliminary injunction phase, the Court evaluated Plaintiffs' likelihood of success on the merits of their § 5 claim. Here, the Court determines whether there is a genuine issue of material fact, based on a more developed record, about whether Defendant has satisfied the test formulated by the Tenth Circuit in its October 2016 opinion.

         The Tenth Circuit's mandate in this case remanded “for further proceedings not inconsistent with this opinion.”[31] Under both the law of the case doctrine, and the mandate rule, the Tenth Circuit's opinion with regard to issues of law governs at all subsequent stages of the litigation.[32] The Court therefore proceeds to apply the standards announced by the Tenth Circuit in its October 19, 2016 published opinion in this case to the summary judgment record.[33] The Court declines to revisit Defendant's arguments that were resolved by that opinion.

         On appeal, the Tenth Circuit held that the attestation requirement in subsection (c)(2)(C) of § 5 presumptively satisfies the minimum-information requirement for motor voter registration in subsection (c)(2)(B).[34] However, this presumption is rebuttable if the state can demonstrate “that the attestation requirement is insufficient for it to carry out its eligibility-assessment and registration duties.”[35] The court went on:

More specifically, in order to rebut the presumption as it relates to the citizenship criterion, we interpret the NVRA as obliging a state to show that “a substantial number of noncitizens have successfully registered” notwithstanding the attestation requirement. In EAC, we held that the EAC was not under a nondiscretionary duty to add state-specific DPOC instructions to the Federal Form at two states' behest. We reached this conclusion because “[t]he states have failed to meet their evidentiary burden of proving that they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the Federal Form.” The failure to make such an evidentiary showing was seemingly dispositive there of Secretary Kobach's Qualifications Clause challenge.
This results in the preemption analysis here being quite straightforward: if Kansas fails to rebut this presumption that attends the attestation regime, then DPOC necessarily requires more information than federal law presumes necessary for state officials to meet their eligibility-assessment and registration duties (that is, the attestation requirement). Consequently, Kansas's DPOC law would be preempted.[36]

         In a footnote, the court explained that if a state could show that attestation does not satisfy the minimum-information standard by demonstrating that substantial noncitizens are able to register to vote notwithstanding attestation of citizenship, then the court would need to consider whether DPOC should be deemed “adequate to satisfy” the minimum-information standard.[37] This second inquiry would require the state to “show that nothing less than DPOC is sufficient to meet those duties.”[38]

         At the preliminary injunction phase, this Court found that between 2003 and the effective date of the DPOC law, fourteen noncitizens had registered or attempted to register to vote in Sedgwick County, Kansas. The Tenth Circuit found that this number “fall[s] well short of the showing necessary to rebut the presumption that attestation constitutes the minimum amount of information necessary for Kansas to carry out its eligibility-assessment and registration duties.”[39]In addressing this evidence, the court considered and rejected Defendant's argument that “even if one noncitizen successfully registers under the attestation regime, then DPOC is necessary to ensure applicant eligibility.”[40] This is because in adopting the NVRA registration procedures, Congress intended “to ensure that whatever else the states do, ‘simple means of registering to vote in federal elections will be available.'”[41] If one vote by a noncitizen is too many, then states would be able to justify even harsher means of verifying citizenship.[42] The court explained, “[t]he NVRA does not require the least amount of information necessary to prevent even a single noncitizen from voting.”[43]

         Therefore, in deciding the parties' motion for summary judgment on the NVRA claims, this Court confines its analysis to the test set forth in the Tenth Circuit's October 19, 2016 decision: whether Defendant has submitted evidence that, if assumed to be true, would meet his burden of showing that a substantial number of noncitizens successfully registered to vote under the prior attestation regime.

         B. Motions to Exclude under Daubert, and Rule 702

         Before setting forth a summary of uncontroverted facts, the Court must rule on Plaintiffs' motions to exclude defense experts Hans von Spakovsky and Jesse Richman, whose opinions are submitted in support of Defendant's claim that a substantial number noncitizens registered under the attestation regime, and nothing less than DPOC is sufficient to meet its eligibility-assessment and registration duties.

         The Court has broad discretion in deciding whether to admit expert testimony.[44] The proponent of expert testimony must show “a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation.”[45]First, the Court must determine whether the expert is “qualified by ‘knowledge, skill, experience, training, or education' to render an opinion.”[46] “[A] district court must [next] determine if the expert's proffered testimony . . . has ‘a reliable basis in the knowledge and experience of his discipline.'”[47] To determine reliability, the court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid.”[48] The district court must further inquire into whether the proposed testimony is sufficiently “relevant to the task at hand.”[49]

         It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert.[50] The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.[51] In this case, the parties do not request a hearing. The Court has carefully reviewed the submissions filed with the motions, which include deposition testimony by both experts, and believes this review is sufficient to render a decision for purposes of summary judgment.

         1. Hans von Spakovsky

         For purposes of summary judgment, Defendant relies on expert Hans von Spakovsky, and the third-party survey attached to his report, to support the following assertions: (1) that the State of Kansas conducted a survey to determine the extent to which the DPOC law placed a burden on Kansas citizens when registering to vote; (2) that the survey produced certain results relevant to determining whether the DPOC law imposes a burden on Kansas citizens registering to vote; (3) that the DPOC law is not a burden; (4) that most discoveries of noncitizen registration by Defendant are accidental; and (5) that noncitizens are registered to vote in states other than Kansas.

         Plaintiffs challenge the admissibility of both von Spakovsky's expert report and the attached survey on the grounds that he is unqualified and his opinion is based on unreliable methodology.

         a. Survey

         The survey appended to the expert report was completed by Cole Hargrave Snodgrass & Associates in May 2016, and is directly cited by Defendant in support of his statements of fact 76, and 78-81.[52] It was not written or administered by von Spakovsky. This Court has “<wide discretion' in determining whether a witness's experience is sufficient to qualify him as an expert.”[53] “As long as an expert stays ‘within the reasonable confines of his subject area, ' our case law establishes ‘a lack of specialization does not affect the admissibility of [the expert] opinion, but only its weight.'”[54]

         Although the survey is attached to von Spakovsky's report, he did not take part in designing or conducting this survey-he does not offer himself up as an expert witness on polling or surveying.[55] Instead, he testified that he “can read the results of a survey or poll and see what it means on a particular subject. For example, I cite a polling survey that was done in Kansas that shows an overwhelming number of Kansas residents in fact have access to birth certificates and passports.”[56] When asked what expertise he employs to read a poll or survey, von Spakovsky responded that “I believe I can read them the way any other individual who is either a social scientist or historian or anything else can look at survey results.”[57] The witness then admitted he is neither a social scientist, nor a historian, although he has significant experience researching the issue of voter fraud.[58] He testified that he took a class in statistics as an undergraduate student at MIT, and that he has published work “some years ago” critical of another survey on this topic.[59]

         It is clear that von Spakovsky is not qualified to testify as an expert about this survey. Defendant has not demonstrated that von Spakovsky possesses any special skill or experience required to testify about the survey results; indeed, all but one paragraph simply recites the survey's findings, rather than any opinion.[60] “[T]he persons conducting the survey must be experts.”[61] Von Spakovsky did not participate in designing or conducting this survey, and he has failed to demonstrate that he has even general experience with survey design or methodology that would qualify him to testify about this survey.[62] A single undergraduate class thirty years ago and a policy paper critical of another survey is simply insufficient.[63] The person conducting the survey has not been offered as a witness. Because von Spakovsky is not qualified to testify about the survey's methodology, the Court finds that the survey itself must be excluded for purposes of summary judgment.

         b. Expert Opinion

         To the extent von Spakovsky offers a legal opinion about the meaning of the survey results, or any other matter, it is also inadmissible under Fed.R.Evid. 704(a). That rule provides that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”[64] Still, “testimony on ultimate questions of law, i.e., legal opinions or conclusions, is not favored.”[65] Nor may a witness “state legal conclusions drawn by applying the law to the facts.”[66] Therefore, legal conclusions asserted by von Spakovsky about the survey or any other matter are inadmissible.[67]

         Only two of Defendant's remaining statements of fact rely on von Spakovsky's expert report: that most discoveries of noncitizen registration by Defendant are accidental, and that noncitizens are registered to vote in states other than Kansas. Defendant responds that von Spakovsky's experience qualifies him to testify about these matters. The Court has reviewed von Spakovsky's extensive experience working in the area of election law, and finds that he is qualified by that experience to testify about these remaining facts. To the extent Plaintiffs argue that this expert is biased, that issue goes the weight, and not the admissibility of his opinion.[68]Similarly, Plaintiffs' arguments as to the reliability of von Spakovsky's statements based on the underlying evidentiary support go to the weight and not the admissibility of his statements. Plaintiffs will be able to effectively explore any remaining alleged deficiencies in von Spakovsky's opinion through cross-examination at trial.

         2. Jesse T. Richman

         Defendant relies on Richman's expert report to support his estimates of the numbers of noncitizens that have registered or attempted to register to vote in Kansas, and to support his assertion that these numbers are substantial because they could make a difference in a close election. Richman analyzes several pieces of data to determine how many noncitizens in Kansas registered or attempted to register to vote prior to the DPOC law. He points to four types of data in his report to extrapolate statewide estimates and to reach his meta analysis: (1) an internet-based Cooperative Congressional Elections Study (“CCES”);[69] (2) pre-existing registration by newly naturalized citizens;[70] (3) matching of temporary driver's license (“TDL”) holders and voter registration lists;[71] and (4) a January 2017 telephone survey commissioned by the State of Kansas, and conducted by a national polling firm, of TDL holders, individuals on the suspense list, registered voters in Ford, Seward, Finney, and Grant counties, and “incidentally contacted” individuals.[72] He considers the strengths and weaknesses of each piece of data in determining rates of noncitizen registration, and he extrapolates the data to estimate statewide noncitizen registration rates. He also includes a “meta-analysis” of four of his estimates in his rebuttal report to support his opinion that a substantial number of registrants in Kansas are noncitizens. Plaintiffs argue that Richman is not qualified to offer an opinion on the survey data appended to his report, and that methodological flaws in those surveys and in his analysis of the surveys render his opinions unreliable.

         Like von Spakovsky, and contrary to the parties' repeated assertions in the Daubert and summary judgment briefs, Richman did not personally conduct the surveys upon which he relies in forming an opinion about the prevalence of noncitizen voter registration in Kansas. But unlike the von Spakovsky report, Defendant does not submit the underlying data itself in support of his motion for summary judgment; he only submits Richman's opinion and extrapolations based on these data sources.[73]

         Plaintiffs first argue that Richman is not qualified as an expert on this survey data. Defendant responds that Richman will testify as an expert on survey analysis, not design, for which he has published peer-reviewed work, and that he is duly qualified to testify about this data. Richman is an associate professor in the Department of Political Science and Geography at Old Dominion University. He has designed nine or ten surveys as a principal drafter, and has assisted in designing many others. He has experience in the field of public opinion, having supervised several public opinion and evaluation studies. He has published one peer-reviewed study on the issue of noncitizen voting in 2014, which he also relies on in this expert report. The Court is satisfied that Richman's general experience designing and analyzing surveys qualify him to testify about the surveys he discusses in his report. To the extent his experience is too generalized, it is an issue that goes to the weight and not the admissibility of his opinion.

         Plaintiffs next argue that Richman's analyses contain serious methodological flaws that render his opinions completely unreliable. An expert opinion “must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation . . . absolute certainty is not required.”[74] It is not necessary to prove that the expert is “indisputably correct, ” but only that the “method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702's reliability requirements.”[75]

         Daubert sets forth a non-exhaustive list of four factors that the trial court may consider when conducting its inquiry under Rule 702: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community.[76] But “the gatekeeping inquiry must be tied to the facts of a particular case.”[77] With regard to nontechnical expert testimony, “these factors are ‘neither definitive nor exhaustive and . . . a trial judge has wide discretion both in deciding how to assess an expert's reliability and in making a determination of that reliability.'”[78] “Regardless of the specific factors at issue, the purpose of the Daubert inquiry is always ‘to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'”[79]

         Plaintiffs argue that Richman's opinions are unreliable for three reasons: (1) his estimates of noncitizen registration are based on unreliable data in both the CCES and Kansas surveys;[80] (2) both surveys rely on sample sizes that are too small to generate statistically reliable results; and (3) the surveys' samples are not representative of noncitizens in Kansas. The Court agrees that the flaws identified by Plaintiffs raise serious questions about the weight that should be afforded Richman's opinion in this matter. Nonetheless, after reviewing the parties' submissions, the Court has determined that because “a logical basis exists for [the] expert's opinion . . . the weaknesses in the underpinnings of the opinion[ ] go to the weight and not the admissibility of the testimony.”[81]

         There is one exception to the Court's ruling deeming Richman's opinion admissible: to the extent he testifies that noncitizen registration in Kansas is substantial, that is an ultimate legal conclusion. Defendant is free to argue, based on Richman's opinion, about the proper way to determine the meaning of “substantial” in the Tenth Circuit's opinion affirming this Court's preliminary injunction order. But, testimony about the ultimate legal issue of how many noncitizens registrants is substantial is an ultimate legal question, which the Court addresses infra. As with von Spakovsky, the Court will disregard any conclusory legal assertions by Richman in his report.

         Accordingly, the Court grants in part and denies in part the motions to exclude Defendant's experts. The survey attached to von Spakovsky's expert report is inadmissible, [82]but von Spakovsky's opinions based on other data are admissible. Both experts' opinions on ultimate legal conclusions are inadmissible. The experts' opinions are otherwise admissible for purposes of summary judgment.[83]

         C. Uncontroverted Facts

         The Court incorporates the facts set forth in its May 4, 2017 Memorandum and Order denying Plaintiffs' motion for summary judgment on the Fourteenth Amendment privileges or immunities clause “right to travel” claim alleged in Count 6. The following additional facts are material to the remaining NVRA claims and are either uncontroverted or stipulated by the parties.

         Defendant Kansas Secretary of State Kris Kobach does business in and is an elected official of the State of Kansas. Defendant is considered the Chief Election Officer for the State of Kansas.

         Kansans may apply to register to vote in person, by mail, through a voter registration agency, in conjunction with applying for a Kansas driver's license, or “by delivery to a county election officer to be registered.”[84] The individual Plaintiffs in this case all applied to register to vote at the time they applied for a Kansas driver's license.

         The Kansas Election Voter Information System (“ELVIS”) is a statewide voter registration database, maintained by Defendant. Each county election officer is responsible for maintaining the voter lists for their own counties. The central database reflects data that is entered by the counties. ELVIS assigns a unique identification number to all voters. When a voter registration application is received by the relevant county election office, a record is created in the ELVIS database. County election officers have been instructed to enter into ELVIS all people who submit voter registration applications regardless of whether they provided proof of citizenship. ELVIS contains codes that demonstrate whether a person has registered successfully. “CITZ” is the code recorded in ELVIS to indicate that an applicant has failed to provide documentary proof of citizenship. “MV” is the code recorded in ELVIS to indicate that an applicant has applied to register to vote at the Kansas Division of Vehicles (“DOV”) in conjunction with a driver's license application. If an applicant has not provided DPOC, or if the application is otherwise missing required information, the record is deemed “incomplete, ” until the application is completed. After 90 days, an incomplete application is cancelled under K.A.R. § 7-23-15.

         Noncitizens 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 the DOV permits their presence in the United States. Noncitizen legal permanent residents who apply for a driver's license receive a regular driver's license. Bryan Caskey, the Director of Elections in the Kansas Secretary of State's Office, believes that green card holders apply for regular driver's licenses using their green cards as legal presence documents.

         1. Direct Evidence of Noncitizen Registration as of January 1, 2013

         As of January 1, 2013, there were 1, 762, 330 registered voters in Kansas. Caskey has identified 125 non-citizens who “either attempted to register to vote or successfully registered to vote prior to the proof-of-citizenship requirement's implementation, or attempted to register after the requirement was implemented.”[85] This figure is equal to approximately .0007% of registered voters in Kansas. Tabitha Lehman is the County Election Officer of Sedgwick County. She has identified an additional 2 noncitizens who registered to vote before January 1, 2013, in Sedgwick County.

         Of the 127 individuals identified by Caskey and Lehman, 43 successfully registered to vote in Kansas, 47 currently have or have had the “CITZ” code in their ELVIS record at one point, and 11 have voted in an election. Eighty-eight of these individuals are motor-voter applicants, 25 of whom successfully registered to vote in Kansas, 32 have or have had the “CITZ” code in their ELVIS records at some point, and 5 have voted in an election.

         Defendant has also identified possible noncitizens who registered to vote by comparing the TDL list with the ELVIS database. Defendant compared the TDL list to the voter registration list in 2009, 2010, 2011, and 2017. As of January 30, 2017, Kansas had identified 79 TDL holders on the voter rolls, several of whom have been referred for prosecution. One of Plaintiffs' experts, Eitan Hersh, also compared the TDL list to the voter registration list. He found 82 matches.

         The DMV has compared the list of individuals on the suspense list to information in the driver's licenses database concerning driver's license holders who presented proof of permanent residency (or “green cards”) in the course of applying for a driver's license, and identified some possible noncitizens.

         In Kansas, people who are called for jury service are sent jury duty questionnaires that include a question about United States citizenship. Monthly, district courts send Defendant lists of individuals who requested to be excused from jury service based on their claims of noncitizenship. Defendant has compared lists of individuals who indicated on their jury questionnaires that they were not citizens, to his list of registrants and identified at least 5 individuals who were potentially noncitizens. In November 2013, Defendant referred these five individuals to a local county police department for investigation and possibly prosecution.

         Defense expert von Spakovsky surmises that Kansas has no access to information about who is in the United States legally or otherwise, so most discoveries of ...

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