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Fish v. Kobach

United States District Court, D. Kansas

April 18, 2018

STEVEN WAYNE FISH, ET AL., Plaintiffs,
v.
KRIS KOBACH, KANSAS SECRETARY OF STATE, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiffs' Motion to Enforce Court Orders and for Order to Show Cause Why Defendant Kobach Should Not be Held in Contempt (Doc. 423). The motion is fully briefed, and the Court conducted an evidentiary show cause hearing on this motion after the conclusion of trial on March 20, 2018. In addition to the briefing and the evidence and argument presented at the hearing, the Court has considered Defendant's March 22, 2018 supplemental response, and Mr. Bryan Caskey's April 3, 2018 affidavit.[1] For the reasons explained below, the Court grants Plaintiffs' motion for contempt and awards them reasonable attorney fees expended litigating this motion. Any further remedies shall be deferred until after the Court issues its post-trial findings of fact and conclusions of law.

         I. Background

         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 Documentary Proof of Citizenship (“DPOC”) law until this case alleging a violation of § 5 of the National Voter Registration Act (“NVRA”) could be decided on the merits.[2] The preliminary injunction order became effective June 14, 2016, [3] and provides in relevant part:

Defendants are hereby enjoined from enforcing K.S.A. § 25-2309(1) as to individuals who apply to register to vote in federal elections at the same time they apply for or renew a driver's license. The Secretary of State is directed to register for federal elections all otherwise eligible motor voter registration applicants that have been cancelled or are in suspense due solely to their failure to provide DPOC.[4]

         Defendant sought and was denied a stay pending appeal. On September 23, 2016, Shawnee County District Court Judge Larry D. Hendricks ordered Defendant to provide notice to all voters impacted by this Court's preliminary injunction ruling that they would be “deemed registered and qualified to vote for the appropriate local, state, and federal elections for purposes of the November 8, 2016 general election, subject only to further official notice.”[5]

         Also on September 23, 2016, while the appeal in this case was still pending, Plaintiffs filed a Motion to Enforce Preliminary Injunction; for Order to Show Cause Why Defendant Kobach Should not be Held in Contempt; and for Expedited Briefing and Hearing.[6] The motion set forth compelling evidence that Defendant was in violation of the Court's preliminary injunction by: (1) failing to add covered voters to the official registration list and poll books; (2) forcing covered voters to use provisional ballots; and (3) issuing confusing and misleading notices to voters regarding their registration status. Indeed, at the recent trial, Plaintiff Charles Stricker testified that he took steps in September 2016 to make sure he was registered in time for the upcoming general election. He called the Sedgwick County, Kansas election office and the person with whom Mr. Stricker spoke stated that he was not sure whether Mr. Stricker would be allowed to vote. Mr. Stricker was told it was complicated because there were legal issues “up in the air.” When Mr. Stricker checked online to see if he was registered, there was no record of his registration.[7]

         The Court ordered Defendant to appear in person on Friday, September 30, 2016, to show cause why he should not be held in contempt given the allegations set forth in Plaintiffs' motion that he was not in compliance with the Court's preliminary injunction order. Among other things, Plaintiffs submitted evidence that the official notices received by registration applicants covered by the order, Defendant's websites, and the DMV receipt continued to suggest applicants must submit DPOC to vote in the general election, or that their status was unclear. On September 29, 2016, the parties filed a Joint Status Report setting forth an interim agreement on the matters raised in Plaintiffs' motion for contempt. Part of this agreement was that Defendant:

will instruct the county election officials to send out a new notice that unequivocally advises covered voters that they “are deemed registered and qualified to vote for the appropriate local, state, and federal elections for purposes of the November 8, 2016 general election, subject only to further official notice.” The parties will prepare a draft notice for this Court's review, revision, and approval. Upon approval by this Court, Defendant will direct county election officials to send the approved notice to covered voters on or before October 12, 2016.[8]

         The Court cancelled the show cause hearing, but ordered the parties to submit to the Court a draft of the proposed notice referenced in the joint status report that would be sent to those Kansas voter registrants affected by the Court's preliminary injunction order and a related state court matter. On October 3, 2016, the parties submitted their proposed curative notices to the Court by e-mail. The following day, the Court sent the parties by e-mail its revised notice. The Court discussed this notice with the parties at an October 5, 2016 telephone conference, and reached agreement as to its language. Again, this notice was written to remedy prior notices sent by Defendant that incorrectly suggested to voters that their registration status was uncertain.

         During the October 5 status conference, Plaintiffs also expressed concern about notice language on the Secretary of State's websites and at the DMV in advance of the November 2016 general election. The Court made clear that it held Secretary Kobach responsible for correcting the information on the State's website to provide guidance to Kansas citizens seeking registration information, and that the notices at the DMV given to new motor voter registrants also must be modified. The Court asked Defendant, who appeared on his own behalf, questions about his compliance with the preliminary injunction order. The Court specifically addressed whether voters covered by the preliminary injunction order would receive the official Kansas postcards confirming their registration, and providing their polling place:

The Court: . . . here's . . . another question I have. Most of us receive these postcards through the mail that tells us where our precinct is and where to go vote. And I was wondering what- so the- 17, 000 people, or however many it is, that are going to get the notice, are they going to also receive the postcard? I mean, how will they know where to go vote?
Mr. Kobach: Your Honor, this is Kris Kobach. They will get the same notice that others- that other voters get, that it notifies you of your polling place.
The Court: Okay. Great. And it doesn't matter that this is happening at this point in October, they should- they should still be on track for getting the postcards in the mail; is that correct?
Mr. Kobach: Your Honor, you mentioned a moment ago to update county websites too. . . .[9]

         Defendant never answered the Court's second, confirmatory question directly.[10]

         The Court heard evidence at trial and at the show cause hearing that a certificate of registration, sometimes referred to as a notice of disposition, is a postcard mailed to those who successfully register to vote in Kansas, which contains the voter's voting precinct, party affiliation, polling location, and the voter's districts for various offices, including for the United States House of Representatives (“postcards”). The postcards are typically sent two to four weeks after a person's voter registration application becomes “active” in the Kansas voter registration database. Other than the initial postcard after registration, and when a voter's polling place changes, the frequency with which these postcards are sent to registered voters varies by county and is left to each county's discretion. Kansans traditionally consider these postcards as confirmation that they are successfully registered to vote.

         The Court followed up the status conference with an Order on October 14, 2016, [11] addressing certain issues raised at the status conference, and addressing an October 13, 2016 Joint Status Report filed by the parties, which presented three more notices in dispute. The Court recounted the issues discussed at the October 5 status conference, and reiterated that “Secretary Kobach was responsible for correcting the information on the State's website to provide clear guidance to Kansas citizens seeking registration information.”[12] Because the Court was satisfied by Defendant's assurance at the October 5 status conference that the standard postcards would be sent to all registrants covered by the Court's order, no specific mandate to send notice of disposition postcards was included in the October 14 order.

         Since the election, Plaintiffs' counsel has continued to monitor Defendant's compliance with the Court's preliminary injunction, and has submitted evidence of its repeated efforts beginning in July 2017 to seek removal of language from the Kansas Secretary of State's website suggesting that covered applicants' registration status is unknown for elections that take place after November 2016. The parties were ultimately able to resolve most of these issues.

         In late 2017, Plaintiffs' counsel learned that motor voter and federal form registrants covered by this Court's preliminary injunction and other courts' orders had not received notice of disposition postcards. Plaintiffs' counsel first notified Defendant on November 10, 2017, that they believed he was required to send these postcards under the preliminary injunction order.[13]The letter therefore asked Defendant to “instruct all local elections authorities to send certificates of registration to all voters registered pursuant to th[o]se court orders immediately.”[14] On behalf of Defendant, counsel Sue Becker responded to this letter on November 21, 2017, stating that the postcards are unnecessary because “those who register to vote using the federal form or the motor-voter form but do not provide DPOC receive the court ordered notices” instead.[15]

         Plaintiffs' counsel's November 10 letter also addressed concerns with the County Election Manual. At the time counsel sent this letter, the County Election Manual was publicly available on the Kansas Secretary of State's website at https://www.kssos.org/forms/elections/ County% 20Election%20Manual%20(Combined).pdf. It is a reference guide for Kansas county election officials containing the policies and directives of the Secretary of State's office. The November 10 letter explained to Defendant that the chapter on voter registration in the County Election Manual incorrectly states that “[a]ny person who registers to vote for the first time in Kansas must provide DPOC, ” and asked Defendant to revise the identified language immediately. In Ms. Becker's November 21 response letter, she declined to correct the County Election Manual, claiming that it is only an internal document currently scheduled for revision in 2018, and that it is only revised to reflect “permanent” changes in the law. She stated that any modifications to the manual are communicated to the counties in “real time email or telephonic communications.”[16]

         The parties met and conferred on December 7, 2017. During the meet-and-confer, Defendant's counsel stated that Defendant would not instruct local elections authorities to send postcards to individuals who registered to vote at the DMV or who registered to vote using the Federal Form, but who failed to provide DPOC. Defendant's counsel claimed that these postcards are unnecessary because covered voters receive the notices that this Court approved in October 2016. Defendant's counsel also refused to make modifications to the County Election Manual, reiterating that it is scheduled to be revised by June 2018, but that even if this Court were to issue final judgment against Defendant, he would not modify the language in the County Elections Manual to reflect such a judgment unless and until all appeals were exhausted. Ms. Becker reiterated these positions in a December 11, 2017 letter to Plaintiffs' counsel: Defendant will not send the postcards to “covered individuals, ” and will not change the County Election Manual until there is a change in the law.

         Plaintiffs then filed the instant motion asking the Court to direct Defendant to show cause why he should not be held in contempt for failing to abide by this Court's preliminary injunction order, and its October 14, 2016 order on noticing. Defendant responded and took the same position he took in Ms. Becker's letters to Plaintiffs-that Defendant was not required to send postcards and instead was only required to send the Court-approved notices in October 2016, and that the County Election Manual is only periodically revised, with interim emails to the counties informing them of the correct procedure to comply with the Court's orders. Defendant submitted no evidence to the Court with his response. In reply, Plaintiffs pointed to the Court's colloquy with Defendant at the October 5, 2016 status conference where he represented that the postcards would be sent.

         The Court scheduled the show cause hearing to immediately follow the bench trial in this case. During her opening statement at the March 20 hearing, Ms. Becker for the first time claimed that Defendant in fact sent postcards to covered individuals before the November 2016 election, a position not taken in any of the letters Ms. Becker sent at the end of 2017, nor in her response to the motion. It also quickly became apparent that Defendant had no intention of putting evidence of his compliance before the Court until prompted to do so. Defendant eventually produced Mr. Caskey, the Assistant Secretary of State, Elections and Legislative Matters for the State of Kansas. Mr. Caskey had testified several days earlier at trial about the issue of the postcards. His trial testimony was consistent with Ms. Becker's 2017 letters to Plaintiffs' counsel: that individuals covered by the Court's preliminary injunction order receive the notice approved by the Court at the October 5, 2016 status conference.[17] After repeatedly refusing to directly answer Plaintiffs' counsel's yes or no questions on this subject at trial, the Court eventually intervened and reworded the question, “In other words, when you say that you have instructed them to provide all of the notices and information that this court has ordered, is that the same universe of information that other voters that were not on the suspense list received from the state of Kansas?”[18] After what the Court recounts was a lengthy pause, the following exchange ensued:

THE WITNESS: It is not the same information. We have complied with every court order that has been issued regarding this class of individuals, but we have said explicitly that we have to track this group of persons differently than we track every other registered voter for purposes of this litigation. And we have complied with every court order as relates to that and no one has told me we haven't. I mean, we -- there have been lots of discussions about notices and -- notices on websites and notices to voters and notices provided to DMV. And, to the best of my knowledge, everyone's in agreement on what's being sent and what hasn't so --
THE COURT: All right. Let me get some clarification. When you say "court orders, " you're including oral orders, are you not?
THE WITNESS: Yes.
THE COURT: So you are sending postcards to all of these people? Because I ordered Mr. Kobach to do that in a status hearing that I had with him probably well more than a year ago.
THE WITNESS: All persons receive a notice, yes.
THE COURT: Postcards, the same postcards that you and I receive, those -- the standard postcard notices that tell them where to go vote and what their precinct number is, et cetera, does everybody receive those, all the people involved in this case on this suspense list?
THE WITNESS: I would have to verify that. Off the top of my head, I just don't want to say positively for all 105 counties. I just would need to check before I can say that definitively. And I can do so before the end of this litigation.
THE COURT: Okay.
THE WITNESS: Before the end of this trial, I can do ...

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