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Fish v. Kobach

United States District Court, D. Kansas

June 18, 2018

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

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.

         To register to vote, one must be a United States citizen. The Kansas legislature passed the Secure and Fair Elections (“SAFE”) Act in 2011, which included a new requirement that Kansans must produce documentary proof of citizenship (“DPOC”) when applying to register to vote. These cases were consolidated for trial because they both challenge the DPOC law as a method for enforcing the citizenship qualification. In No. 16-2105, the Fish Plaintiffs challenge the law as it applies to “motor voter” applicants-individuals who apply to register to vote at the same time they apply for or renew their driver's license online or at a Division of Motor Vehicles (“DOV”) office. Plaintiffs include the Kansas League of Women Voters, as well as several Kansas residents who applied to register to vote when applying for a driver's license, but were denied voter registration for failure to submit DPOC. One claim remained for trial in that case alleging that under the Election Clause in Article 1 of the United States Constitution, the Kansas DPOC law is preempted by § 5 of the National Voter Registration Act (“NVRA”), which provides that voter registration applications may only require the minimum amount of information necessary for a State to determine applicants' eligibility to register to vote, and to perform its registration duties.

         In No. 15-9300, Plaintiff Parker Bednasek challenges the DPOC law on constitutional grounds. His remaining claim for trial is brought under 42 U.S.C. § 1983, based on a violation of the right to vote under the Fourteenth Amendment's Equal Protection Clause.[1]Mr. Bednasek's claim is not limited to motor-voter applicants.

         The seven-day bench trial in these matters concluded on March 19, 2018. After hearing and carefully considering the evidence presented by the parties at trial, this Court first resolves the remaining motions by Plaintiffs to exclude expert testimony, and next issues its Findings of Fact and Conclusions of Law under Fed.R.Civ.P. 52(a). As explained more fully below, the Court grants in part and denies in part the motion to exclude Dr. Steven Camarota, and grants the motion to exclude Patrick McFerron. Under the test set forth by the Tenth Circuit Court of Appeals that governs whether the DPOC law violates § 5 of the NVRA, the Court finds in favor of Plaintiffs in the Fish case. The Court further finds in favor of Plaintiff Bednasek on his constitutional challenge to the law. Declaratory and injunctive relief is granted in both matters as set forth in this opinion. Further, the Court imposes specific compliance measures given Defendant's history of non-compliance with this Court's orders. And, the Court imposes sanctions responsive to Defendant's repeated and flagrant violations of discovery and disclosure rules.

         I. Motions to Exclude Defense Experts Camarota and McFerron

         The parties filed several motions to exclude expert testimony before trial. The Court orally ruled on all but two: Plaintiffs' written Motion to Exclude the Testimony and Report of Steven A. Camarota, [2] and Plaintiffs' oral and written motion to exclude the expert testimony of Patrick McFerron under Rule 702, Daubert, and the rule against hearsay.[3] These experts were offered by Defendant in both cases. The Court discusses each in turn after setting forth the appropriate legal standards.

         A. Standards

         The Court has broad discretion in deciding whether to admit expert testimony.[4] 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.”[5]First, the Court must determine whether the expert is “qualified by ‘knowledge, skill, experience, training, or education' to render an opinion.”[6] “[A] district court must [next] determine if the expert's proffered testimony . . . has ‘a reliable basis in the knowledge and experience of his discipline.'”[7] To determine reliability, the court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid.”[8] The district court must further inquire into whether the proposed testimony is sufficiently “relevant to the task at hand.”[9]

         It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert.[10] The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.[11] In this case, the parties proffered each experts' testimony, which the Court provisionally admitted subject to later review under Rule 702 and Daubert.

         B. Steven A. Camarota

         Defendant called Dr. Camarota to testify about the impact of the Kansas DPOC law on voter registration and participation rates. Specifically, Defendant offered Dr. Camarota “as an expert . . . in the fields of demography, census data, voter registration statistics, and voter participation statistics.”[12] Dr. Camarota earned a Ph.D. in American Government with a focus on policy analysis from the University of Virginia. He is currently the Director of Research at the Center for Immigration Studies (“CIS”), where his primary responsibility for the last nineteen years has been to analyze United States Census Bureau data. In this position, he helped construct the American Community Survey, which is a large annual survey conducted by the Census Bureau that includes questions about citizenship and voting. Dr. Camarota has also published peer-reviewed articles and book chapters about census data relating to immigration issues, but not on any issue related to voting. He has served as a peer reviewer for several scholarly journals. Dr. Camarota has published many non-peer-reviewed conference papers and reports for the Census Bureau and CIS, and he has testified before Congress several times about Census Bureau Data, mostly as it relates to immigration issues.

         In his report and testimony, Dr. Camarota looked at Kansas administrative data provided by the SOS's Office, and data from the Current Population Survey (“CPS”), a large Census Bureau survey that asks about registration and voting in November of every other year when federal elections are held. Dr. Camarota observed that the administrative data showed an increase in registration and turnout between October 2010 and October 2014. Dr. Camarota then compared registration and voting rates in Kansas between November 2010 and November 2014, before and after the effective date of the DPOC law, based on the CPS data. Dr. Camarota also compared the Kansas registration and turnout rates to those rates nationally, and in neighboring states without DPOC laws, and found that there was no significant deviation. Dr. Camarota opined that because registration and turnout rates in Kansas increased between 2010 and 2014, the DPOC law did not unduly burden Kansans' ability to register and vote.

         The Court finds that Dr. Camarota is qualified to testify as an expert in this case about Census Bureau data, including the CPS. His education and work experience qualify him to explain and present this Census data. However, the Court does not find him qualified to interpret these survey results as they relate to the DPOC law, particularly to the extent he challenges Professor Michael McDonald, whose expertise and scholarship in election law is extensive, and who more closely evaluated the administrative data. Dr. Camarota's experience at CIS is limited to scholarship and reports that generally deal with immigration and citizenship issues, not election issues such as voter registration. He has never published peer-reviewed research on the subjects relevant to this litigation, nor do his non-peer-reviewed articles contain analysis of the issues relevant to this case. To the extent Defendant offers Dr. Camarota as an expert on “voter registration statistics, and voter participation rates” beyond presenting Census Bureau data, that opinion is excluded. Dr. Camarota is qualified as an expert to explain the results of CPS data showing voter registration and turnout changes in Kansas between 2010 and 2014. And he is certainly qualified to explain how the CPS data was collected and whether it is reliable. But Dr. Camarota is not qualified to explain the reasons for the change in data between 2010 and 2014, or to insert assumptions into the record based on studies or academic literature regarding voter registration and turnout. These are not his areas of expertise.

         The limitations of Dr. Camarota's expertise in this field were similarly evident in the recent NVRA case of Bellitto v. Snipes.[13] There, the district court initially limited his testimony because he was not qualified to “offer testimony as to the degree of accuracy of . . . rates [of voter registration from the Census Bureau's American Community Survey].”[14] That case went to trial and the district court issued its findings of fact and conclusions of law after this trial concluded, on March 30, 2018. In that order, the court found Dr. Camarota's population analysis to be misleading and inaccurate by comparing mismatched data.[15]

         Plaintiffs further challenge the reliability of Dr. Camarota's opinions in this matter on several grounds: (1) he fails to control for confounding factors, such as general interest in the election, whether an advocacy group took an interest in the election, get-out-the vote efforts, competitiveness of the election, laws governing registration, education levels, ethnicity, age, and natural population growth; (2) the choice to compare non-presidential election year data fails to account for any change that may be due to the DPOC law as opposed to other factors; (3) he relied on and cherry-picked flawed statistical data from the SOS's Office; and (4) he relied on conclusory assumptions, such as that some noncitizens mistakenly believe they are citizens when they register to vote.[16] Plaintiffs also point to evidence of Dr. Camarota's bias based on public positions taken by CIS, and based on statements made by executives at CIS. Defendant maintains that these issues go to the weight and not the admissibility of the evidence.

         The Court agrees with Defendant that Plaintiffs' reliability challenges largely go to the weight and not the admissibility of Dr. Camarota's report and testimony, to the extent the testimony relates to his area of expertise. As described below in its findings of fact and conclusions of law, the Court does not credit Dr. Camarota's opinion that: (1) CPS data about registration and turnout is a better measure of registration and turnout than the actual numbers maintained by the SOS's Office; (2) comparing election years 2010 and 2014 is an accurate measure for determining how the SAFE Act impacted registration and voting rates; (3) that election years 2010 and 2014 in Kansas are comparable to one another, or to other states; and (4) registration rates and voter turnout is the best measure of how burdensome the DPOC law is. The Court therefore grants in part and denies in part Plaintiffs' motion to exclude Dr. Camarota's testimony. As to the Census Bureau data described in Dr. Camarota's report, the Court gives it little weight in determining the overall burdensomeness of the DPOC law, as described in the Court's findings of fact and conclusions of law.

         C. Patrick McFerron

         In May 2016, Patrick McFerron conducted a telephone survey of 500 Kansans by CHS & Associates to help determine the rates of possession of DPOC. The survey purports to control “for gender, age, and geographic region in order to replicate U.S. Census information.”[17] The executive summary of the survey concludes that it “reveals requiring proof of citizenship in order to register to vote is not a concern for residents and is not hampering voter registration.”[18] The study surveyed a sample of 500 Kansans, and found 83% are registered to vote. Of those not registered, only one reported that lack of DPOC was the reason.

         Mr. McFerron drafted the survey results, but did not complete his own expert report, nor was he ever designated as an expert in this case. Instead, Hans von Spakovsky, one of Defendant's other experts, attached it to his expert report. Mr. McFerron is listed on the executive summary as the President of CHS & Associates, which is in Oklahoma City, Oklahoma. Plaintiffs deposed him on June 7, 2016, during which Plaintiffs' counsel asked him whether he purported to testify as an expert in this case, and he testified that he did not believe so. Mr. McFerron testified about the survey, its methodology, and its results. On January 30, 2018, Defendant filed his final witness disclosures, [19] listing Mr. McFerron as a fact witness by written deposition.

         Plaintiffs moved in limine to exclude McFerron's testimony, strike and exclude from trial his deposition designations, and exclude his survey. They argued that his testimony is inadmissible lay opinion, that it should be excluded as expert opinion because it was not disclosed under Rule 26(a)(2), and Defendant's failure to disclose was neither harmless nor substantially justified. The Court ruled that McFerron's testimony was not lay opinion, and as a sanction for failing to designate him as an expert witness, the Court required him to testify at trial as a live witness instead of by deposition. The Court took under advisement Plaintiffs' motion to exclude as inadmissible hearsay, and at trial, Plaintiffs also moved to exclude the survey under Rule 702 and Daubert. The Court provisionally admitted his testimony, subject to a later admissibility ruling.[20]

         Defendant vacillated at trial between offering Mr. McFerron as a fact and expert witness, despite the Court's ruling that his testimony was not admissible lay opinion. Mr. McFerron testified for the first time on cross-examination that he was paid an hourly rate of $100 per hour for research, and $150 per hour for his testimony based on an agreement reached with Defendant two weeks before trial that was not previously disclosed to Plaintiffs.[21] This fact, in conjunction with the nature of Mr. McFerron's substantive testimony, reinforces this Court's previous ruling that he is clearly offered as an expert witness.[22] He testified not only about the methodology of his survey, but about its accuracy and conclusions, including that the DPOC law is not burdensome because most Kansans possess DPOC, or can obtain it easily. Mr. McFerron's testimony illustrates the prejudice involved in allowing an expert to testify without first meeting the requirements of Rule 26(a)(2)(B). Mr. McFerron's “Report” contains a two-page summary of the survey's results; it does not contain a statement of his compensation, qualifications, or a list of all publications he has either authored or co-authored in the last ten years. He did not sign the report. In fact, Mr. McFerron admitted during his testimony that he was not sure whether he was being paid to testify as a fact or expert witness.

         The Court has already excluded Mr. McFerron's testimony to the extent Defendant offers it as lay opinion. With respect to the admissibility of Mr. McFerron's expert testimony, the Court grants Plaintiffs' motion to exclude because he is not qualified to render the opinion contained in the report's summary, and because his survey is unreliable and not relevant. Also, because it fails to adhere to generally accepted survey principles, the survey lacks the indicia of trustworthiness required for survey evidence to meet an exception to the hearsay rule.

         1. Qualifications

         Plaintiffs argue that Mr. McFerron is not qualified to provide expert testimony on the subject matter of his survey because he is a pollster, and not a trained statistician. The Court agrees. It is true that McFerron's qualifications are based on his experience, and not an academic background in statistics. It is also true that Mr. McFerron has spoken to numerous university classes regarding polling, and that the firm he works for conducts approximately 50 to 70 public opinion surveys in any given year. Mr. McFerron has conducted approximately 15 to 20 polls in Kansas since 1993. But, as Plaintiffs point out, Mr. McFerron only took one statistics course as an undergraduate and one while he was studying for his master's degree, though he cannot recall the name of the graduate statistics course. Mr. McFerron has never written a peer-reviewed article, nor has he ever served as a peer reviewer for a journal. Mr. McFerron has not published anything on survey methodology or polling methodology. At the time of deposition, Mr. McFerron was not familiar with the American Association of Public Opinion Research, nor other standard survey research principles described by Dr. Matthew Barreto, Plaintiffs' rebuttal expert. He is unfamiliar with the basic concept of social desirability bias leading to overreporting in survey research, a concept that applies to surveys concerning voter registration and voting, or that asks if one possesses an underlying document deemed socially important.[23] Notably, Mr. McFerron has never previously testified as an expert witness.

         While an academic background is not required to testify as an expert witness, the expert testimony in this case requires a background in survey methodology that Mr. McFerron does not have. In sum, while the Court finds that Mr. McFerron obviously is an experienced pollster, particularly in the Midwest, he is not qualified to render an expert opinion about the accuracy of the results of this study about DPOC possession under well-accepted survey principles.

         2. Reliability and Trustworthiness

         Survey evidence is admissible in this circuit as an exception to the hearsay rule “if the survey is material, more probative on the issue than other evidence and if it has guarantees of trustworthiness.”[24] The Court will find a survey trustworthy “if it is shown to have been conducted according to generally accepted survey principles.”[25] Therefore, the survey standards for reliability under Daubert and trustworthiness under the hearsay exception are parallel. Assuming Mr. McFerron is qualified to render an expert opinion about the survey's methodology and the accuracy of the conclusions stated in the report's summary, the survey must be excluded because Plaintiffs established during Mr. McFerron's cross-examination, and with their rebuttal expert Dr. Matthew Barreto, that the survey relies on flawed methodology and is thus unreliable and untrustworthy for several reasons.

         The Court finds Dr. Barreto credible and qualified to discuss accepted survey methodology.[26] He explained the myriad flaws with the McFerron Survey that render it inadmissible under Rule 702, Daubert, and the rule against hearsay. First, the McFerron Survey does not contain a large enough sample for reliable estimates about individuals who might be burdened by the DPOC requirement. The survey targeted eligible Kansas voters generally, rather than the pool of individuals who are subject to the DPOC requirement: eligible Kansas voters who are not yet registered to vote. The McFerron Survey contained a sample of only 65 individuals who were not yet registered to vote.[27] This is substantially less than the sample size of 300-500 people that Mr. McFerron himself testified would be necessary for reliable statistical results at the statewide level.

         Second, the sample of 500 Kansas adults in the McFerron Survey was not a representative sample of the entire eligible voting population. The “most important and single first principle” one considers in a survey is whether the survey sample is representative of the population as a whole.[28] But the McFerron Survey did not look at respondents' educational attainment, household income categories, and homeownership or renter status to ensure representativeness. Moreover, as Mr. McFerron admitted during his testimony, surveys typically use weights to achieve a representative sample, yet he relied on a quota-based approach. He acknowledged that academic literature for decades has discredited quotas, but believes that criticism is outdated because it was based on the prevalent use of landlines to conduct surveys, which does not pose a concern today. He could provide no citation to authority that contradicted Dr. Barreto's strongly-cited opinion that generally accepted survey methodology relies on weighting, and not quotas. Indeed, the results of Mr. McFerron's survey, which substantially differ from the Census Bureau data relied on by Dr. Camarota, illustrates the problems with Mr. McFerron's approach. For example, Mr. McFerron reported in his survey that 39% of households had incomes below $50, 000, while the Census data shows that this figure is 48%.

         Third, the McFerron Survey was only conducted over a three-day period in the evening hours between a Monday and a Wednesday. This sampling schedule precluded participation from individuals who, due to their work schedule, may not have been available during those limited days and hours. This practice violated the norms of survey research.

         Fourth, when reporting his survey results, Mr. McFerron did not include a response rate, which makes it impossible to assess the reliability and the generalizability of the data collected. As another district court explained, “[n]on-response bias typically becomes a concern when the response rate falls below eighty percent. Response rates below that point-even far below that point-are commonplace and do not necessarily invalidate a survey, but they do require an analysis as to the reasons for the nonresponses and the effect they may have on the results.”[29] Here, Mr. McFerron has provided no response rate to evaluate.

         Fifth, the questions on the McFerron Survey about DPOC possession are contaminated by bias because their wording primed respondents to state that they possessed DPOC even if they did not. Before any questions about possession of DPOC were asked, respondents were asked a series of nine questions prefaced by the following:

Now I want to read you a short list of documents. Only one of these documents is needed in order to register to vote in Kansas. For each of these, please let me know if you have that document at your home, office, or other location or if someone else keeps the document for you and could get it to you if necessary, or if the document does not exist.[30]

         The following nine questions asked about the types of documents that can be used to meet the DPOC requirement (e.g., birth certificates). The prefatory statement to that series of nine questions, “primed” the respondent that one of the documents on a list he/she would hear was needed to register to vote in Kansas. Extensive political science research suggests that such priming will lead to overreporting of access to documents.

         Respondents were also asked in Question 18: “In 2011 because of evidence that aliens were registering and voting in Kansas elections, the Kansas legislature passed a law requiring that people who register to vote for the first time must prove that they are United States citizens before they can become registered. Do you support or oppose this law?”[31] The Court easily finds that this question primed the respondent to answer that they support the law. Indeed, the Defendant himself drafted this loaded question and demanded that Mr. McFerron include it. Mr. McFerron “had reservations about” the question, so much so that he decided to place it toward the end of the survey so that it would not impact the earlier questions.

         For these reasons, the Court finds the McFerron Survey is neither reliable nor trustworthy.

         3. Relevance

         Finally, even assuming the reliability of Mr. McFerron's methodology, the relevance of the survey is nominal at best. As already discussed, only 65 of the survey's 500 respondents were unregistered voters. Because the law does not apply to registered voters, there is no constitutional burden to assess for these individuals as a matter of law. Setting aside the fact that this percentage of the sample does not match the Census data touted by Defendant's other expert, Dr. Camarota, [32] it is simply not relevant how burdensome the law is on individuals who need not comply with the law because they were registered before the law's effective date.

         The survey also failed to ask several relevant questions. The survey's possession questions were compound, so it is impossible to know whether each respondent did not have the particular document addressed in the question, or whether someone else keeps the document for them. Respondents were not asked how long it would take for them to get a copy of their DPOC if they did not personally possess it. Nor were they asked how much it would cost them to obtain a birth certificate or other form of DPOC. Respondents were also not asked whether the name on any document that could have been used to meet the DPOC requirement matches their current name. Mr. McFerron acknowledged that people sometimes change their names, and thus, a person who answered that they do possess DPOC might still be unable to satisfy the DPOC requirement because of a name mismatch. For these reasons, the Court does not find the McFerron Survey is helpful to the trier of fact.

         For all of these reasons, the Court grants Plaintiffs' motion to entirely exclude the McFerron Survey and his expert testimony. He is not qualified to render an expert opinion on the survey's methodology or conclusions. Moreover, the survey is unreliable and untrustworthy because it fails to follow accepted survey methods and practices. Finally, the survey is not helpful to the trier of fact. Even if the Court admitted Mr. McFerron's testimony and report, for the same reasons identified above, the Court would give it little to no weight.

         II. Findings of Fact

         A. Kansas Law Governing Citizenship Eligibility

         Under Kansas law, legally qualified voters must register to be eligible to vote, [33] and only United States citizens over the age of 18 may register to vote.[34] Before January 1, 2013, Kansas voter registration applicants met these eligibility requirements by signing an attestation of eligibility on the registration application. The attestation states: “I swear or affirm that I am a citizen of the United States and a Kansas resident, that I will be 18 years old before the next election, that if convicted of a felony, I have had my civil rights restored, that I have abandoned my former residence and/or other name, and that I have told the truth on this application.”[35]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.”[36]

         Defendant Kansas Secretary of State (“SOS”) Kris Kobach does business in and is an elected official of the State of Kansas. In his capacity as SOS, he is the Chief Election Officer for the State of Kansas. During his campaign to become SOS, news stories about the problem of noncitizen voting fraud began to increase. Defendant campaigned on that issue, asserting it was a pervasive problem. After becoming SOS, he helped craft the SAFE Act, which became law in April 2011.[37]In addition to an attestation of eligibility, the SAFE Act requires that voter registration applicants submit DPOC at the time they apply to register to vote. The law provides thirteen forms of acceptable documentation:

(1) The applicant's driver's license or nondriver's identification card issued by the division of vehicles or the equivalent governmental agency of another state within the United States if the agency indicates on the applicant's driver's license or nondriver's identification card that the person has provided satisfactory proof of United States citizenship;
(2) the applicant's birth certificate that verifies United States citizenship to the satisfaction of the county election officer or SOS;
(3) pertinent pages of the applicant's United States valid or expired passport identifying the applicant and the applicant's passport number, or presentation to the county election officer of the applicant's United States passport;
(4) the applicant's United States naturalization documents or the number of the certificate of naturalization. If only the number of the certificate of naturalization is provided, the applicant shall not be included in the registration rolls until the number of the certificate of naturalization is verified with the United States bureau of citizenship and immigration services by the county election officer or the SOS, pursuant to 8 U.S.C. § 1373(c);
(5) other documents or methods of proof of United States citizenship issued by the federal government pursuant to the immigration and nationality act of 1952, and amendments thereto;
(6) the applicant's bureau of Indian affairs card number, tribal treaty card number or tribal enrollment number;
(7) the applicant's consular report of birth abroad of a citizen of the United States of America;
(8) the applicant's certificate of citizenship issued by the United States citizenship and immigration services;
(9) the applicant's certification of report of birth issued by the United States department of state;
(10) the applicant's American Indian card, with KIC classification, issued by the United States department of homeland security;
(11) the applicant's final adoption decree showing the applicant's name and United States birthplace;
(12) the applicant's official United States military record of service showing the applicant's place of birth in the United States; or
(13) an extract from a United States hospital record of birth created at the time of the applicant's birth indicating the applicant's place of birth in the United States.[38]

         The DPOC requirement became effective on January 1, 2013.[39]

         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 SOS's Office. Although information about the subsection (m) hearing alternative has been available on the SOS's website, it is not publicized to applicants at the time they apply to register to vote. To avail oneself of this option, an applicant must submit a “RCD” form with the SOS's Office, and schedule a hearing. The form requires a declaration under penalty of perjury that the applicant does “not possess any of the documents . . . that may be used for proof of citizenship according to Kansas law.”[40] The form also states that a false statement on the affirmation is a severity level 9 nonperson felony.

         The hearing must be before the State Election Board, which will assess the alternative evidence of citizenship to determine whether it is satisfactory.[41] The State Election Board is comprised of three high-ranking State officials: the SOS, the Attorney General, and the Lieutenant Governor.[42] The RCD form states that the Board will give the applicant five days' notice of the date, time, and location of the hearing. In practice, a hearing may be held with two out of the three members of the Board, and one representative of the third member. Personal attendance by the applicant is not required.

         There is no statute, regulation, or list maintained by the SOS of specific documents that would satisfy the State Election Board. Bryan Caskey, the Director of Elections at the SOS's Office, testified and Defendant argued that an applicant's own declaration explaining his or her circumstances and why he or she does not possess a proof of citizenship document would satisfy the board. Five individuals have completed this hearing process since the law became effective, and all had their citizenship approved.[43]

         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.[44]

         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” and therefore held “in suspense.” Such applications are “canceled” 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.

         The Bednasek case was filed on September 30, 2015, just before K.A.R. § 7-23-15 became effective. The Fish case was filed on February 18, 2016. On May 17, 2016, this Court issued an extensive Memorandum and Order granting in part the Fish Plaintiffs' motion for a preliminary injunction barring enforcement of the Kansas DPOC law until the case could be decided on the merits.[45] It was effective on June 14, 2016.[46] 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.[47] On remand, the Court reopened discovery in Fish as to evidence relevant to the Tenth Circuit's guidance.

         B. DOV Policies and Procedures

         Driver's license applicants in Kansas must provide proof of lawful presence when they apply for the first time.[48] As part of this requirement, the Kansas Division of Vehicles (“DOV”)

shall require valid documentary evidence that the applicant: (A) Is a citizen or national of the United States; (B) is an alien lawfully admitted for permanent or temporary residence in the United States; (C) has conditional permanent resident status in the United States; (D) has an approved application for asylum in the United States or has entered into the United States in refugee status; (E) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States; (F) has a pending application for asylum in the United States; (G) has a pending or approved application for temporary protected status in the United States; (H) has approved deferred action status; or (I) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.[49]

         The DOV website identifies five documents that purportedly “show your date of birth, identity, and lawful status as a U.S. citizen” when applying for an original Kansas driver's license or non-driver identification card: a certified U.S. birth certificate, an unexpired United States Passport or Passport Card, a U.S. Consular Report of Birth Abroad, a Certificate of Naturalization, and a Certificate of Citizenship. These documents also meet the DPOC requirement for voter registration.[50] In order to renew a Kansas driver's license, the applicant must also provide the DOV with proof of identity (such as an expiring Kansas driver's license), a Social Security number, and proof of Kansas residency.

         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. Currently, DOV procedure and training provides that driver's license examiners are to scan all documents an applicant provides during a driver's license renewal.[51] If a proof of citizenship document was scanned into the DOV system during a prior transaction and a voter applies to register to vote during a renewal, the DOV is to inform the SOS's Office that such document is on file. The DOV only has documents scanned into the system since 2013.

         As part of the driver's license application and renewal processes, the driver's license examiner is to ask each applicant if they want to register to vote. The DOV currently has a policy of not offering voter registration to driver's license applicants who self-identify as noncitizens, such as TDL applicants or driver's license applicants who show a green card to demonstrate lawful presence while applying for a driver's license. The examiners are trained to enter a “Y” in the appropriate field of the computer interface if a customer answers “yes” to the voter registration question. The examiner then directs the applicant to read a voter oath located on the counter in front of the applicant and to ask the applicant to read that oath.[52] Next, the examiner is to ask the applicant if he/she affirms the voter oath. Applicants are not required to provide a signature after reading the voter oath. The signature occurs during the photo and signature portion of driver's licensing process before the voter registration part of the process begins.

         The examiners are to ask applicants who affirm the voter oath a series of questions including whether they are citizens of the United States, whether they will be 18 years of age before the next election, whether they want to register with a political party, and whether they want to provide their telephone numbers. The examiners are to record the customers' answers to these questions in the computer interface.

         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 lawful permanent residents who apply for a driver's license receive a standard six-year license. Lawful permanent residents are not required to provide a lawful presence document when they renew their driver's license. The DOV does not keep statistics on the number of driver's licenses issued to permanent residents.

         A voter registration receipt prints automatically when someone applies to register to vote at the DOV. DOV procedure requires examiners to provide the applicant with the voter registration receipt. The receipt is on a small piece of paper that resembles a fast-food receipt, according to one witness, and it contains the applicant's picture. The following language appears on the receipt in small font:

Thank you for your voter registration application. Your application will be sent to your county election office for processing.
Unless you already submitted to the division of vehicles a document proving U.S. citizenship, you need to submit one to your county election office before you will be added to the voter registration list. Visit www.gotvoterid.com for a list of acceptable documents. If you were a registered voter in Kansas before 2013 and are still registered, you do not need to provide a citizenship document.
A notice will be mailed to you when processing is completed. If you have questions about your application, please call the county election office . . . or call the Kansas SOS . . . .[53]

         C. Impact of the DPOC Law on Kansas Applicants

         1. Administrative Data

         The Kansas Election Voter Information System (“ELVIS”) is a statewide voter registration database, maintained by Defendant; ELVIS assigns a unique identification number to all voters. Each county election office is responsible for maintaining the voter lists for its county, so this central database reflects data that is entered by the counties. 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 voter registration applications regardless of whether the applicant provided proof of citizenship. When a person applies for a driver's license or a renewal at the DOV but does not apply to register to vote at that time, an ELVIS file is not created and the SOS is not notified.

         ELVIS contains codes for “source of information description, ” showing how the applicant registered to vote. “MV” is the code recorded in ELVIS to indicate that an applicant has applied to register to vote at the DOV in conjunction with a driver's license application. ELVIS contains status codes, including “A” for Active, “R” for Canceled, and “S” for Suspense. ELVIS contains voter registration reason codes, which explain the reason an applicant is or is not registered to vote. “CITZ” is the code recorded in ELVIS to indicate that an applicant has failed to provide DPOC.

         Defendant and county election officers may accept DPOC at a different time or in a different manner than an application for voter registration, as provided in (1), “as long as the applicant's eligibility can be adequately assessed by the SOS or county election officer as required by this section.”[54] Under this authority, Defendant has established interagency agreements with two Kansas agencies to verify whether one of the thirteen forms of DPOC listed in § 25-2309(1) may be on file.

         First, on January 7, 2014, Defendant and Robert Moser, MD, Secretary of the Kansas Department of Health and Environment (“KDHE”), entered into an Interagency Agreement called the “Birth/Voter Registration Data Link, ” whereby the KDHE agreed to crosscheck the names of incomplete voter registration applicants with the database of birth certificates and marriage licenses on file with the Kansas Department of Vital Statistics (“OVS”), and provide Defendant with the results. Defendant sends a list of new voter registration applicants on the suspense list to the KDHE on approximately a monthly basis. The agreement makes clear that “The Kansas OVS maintains records only on Kansas vital events occurring in the State of Kansas. The voter registration form does not collect State of birth for the voter.”[55] The SOS' Office does not currently check with any agencies outside of Kansas to verify citizenship of voter registration applicants.

         Second, in May 2016, after the preliminary injunction hearing in the Fish case, Defendant implemented an interagency policy for coordinating with the Kansas Department of Revenue (“KDOR”) to verify citizenship documents that may have been provided by voter registration applicants when they applied for a Kansas driver's license. Defendant and the county clerks were given access to a secure internet portal whereby they may check the DOV database for records of any registration applicant on the suspense list to determine if the DOV possesses DPOC for that resident. Defendant has instructed the counties to check for every applicant on their suspense list to determine whether incomplete voter registration applicants may have provided acceptable DPOC to the DOV when applying for a driver's license.

         The SOS's Office has instructed the counties to contact each voter registration applicant on the suspense list at least three times before the 90-day period under K.A.R. § 7-23-15 expires. The notices from Douglas County in evidence at trial list the various acceptable forms of citizenship under § 25-2309(1), and state the applicant can send copies to the county election office by regular mail or e-mail. The notices do not reference the hearing procedure in § 25-2309(m).[56]

         According to ELVIS records, as of January 1, 2013, there were 1, 762, 330 registered voters in Kansas. As of October 2016, there were 1, 817, 927 registered voters.[57] As of March 28, 2016, before the preliminary injunction was issued requiring Defendant to register to vote applicants suspended or canceled for failure to provide DPOC, there were 14, 770 applicants on the suspense list. Of these, 5, 655 were motor voter applicants. As of March 28, 2016, 16, 319 individuals had their applications canceled under K.A.R. § 7-23-15 due to lack of DPOC.[58] Of these, 11, 147 were motor voter applicants. These figures amount to 31, 089 total applicants who were denied registration for failure to provide DPOC, 16, 802 of whom applied through the DOV.

         Professor Michael McDonald testified as an expert witness for Plaintiffs about the composition of the suspense and cancellation lists. Dr. McDonald is an Associate Professor of Political Science at the University of Florida and a leading scholar on American elections, voter registration, and factors affecting voter behavior and turnout.[59] He has received numerous research grants and honors for his academic work. Dr. McDonald has offered expert testimony in numerous election law cases, including cases involving voter registration and the NVRA.[60] He has written numerous peer-reviewed books, book chapters, and articles about elections and voter registration.

         Dr. McDonald examined data extracts from the ELVIS database to evaluate the individuals whose applications were canceled or suspended for lack of DPOC, and he offered opinions about the effect of the law based on that analysis. He looked at three sources of information: (1) a list of suspended applicants as of September 24, 2015, provided to him by the Plaintiffs; (2) the electronic voter registration file dated December 11, 2015, including the list of suspended applications as of that date, provided by Defendant; and (3) a list of canceled and suspended applicants as of March 31, 2016, disclosed by Defendant.

         Dr. McDonald examined the voter registration data and determined that most of the individuals on the suspense list as of September 25, 2015 did not become registered by December 11, 2015. 22, 814, or 70.9% of the applicants on the September 2015 list, remained on the December 2015 list. Canceled or suspended applicants represented 12.4% of new voter registrations between January 1, 2013 and December 11, 2015. Dr. McDonald acknowledges that a few of these suspended or canceled applicants may in fact be noncitizens, however given the individual-level data he reviewed, he believes that the majority are eligible citizens.

         As of March 31, 2016, the confidential ELVIS data provided to Dr. McDonald pursuant to the protective order in this case showed a total of 30, 732 voter registration applications were either held in suspense or canceled due to the DPOC requirement-16, 749 applications were canceled, and 13, 983 applications were suspended. These 30, 732 unregistered applicants represented approximately 12% of the total voter registration applications submitted since the law was implemented in 2013. Of the 30, 732 applicants whose applications were, as of March 31, 2016, suspended or canceled due to failure to provide DPOC, approximately 75% were motor-voter applicants.[61] Dr. McDonald opined that these numbers would have increased further before the 2016 presidential election but for the Court's preliminary injunction order, in part because voter registration activity typically increases in the months leading up to a presidential election. Indeed, Mr. Caskey's testimony and Defendant's own statements during the contempt hearing that followed this trial support Dr. McDonald's opinion. They suggested that problems coordinating certificates of registration to those affected by the preliminary injunction were tied to their increased activity and workload associated with the runup to that election.

         Dr. McDonald further credibly opined that the DPOC law disproportionately affects the young and those who are not politically affiliated. He testified that 43.2% of motor voter applicants held in suspense or canceled were between the ages of 18-29, and 53.4% of suspended and canceled motor voter applicants were unaffiliated. To be sure, the law only applies to new voter registration applicants-those registering for the first time in Kansas after January 1, 2013. Those voters tend to be young and unaffiliated with a political party. But that is the point: the fact that the law affects only new applicants means that it disproportionately affects certain demographic groups. Dr. McDonald explained that there is a consensus in social science that barriers to voter registration increase the cost of voting and dissuade individuals from participating in the political process. Moreover, these groups-the young and unaffiliated-already have a lower propensity to participate in the political process and are less inclined to shoulder the costs associated with voter registration. This opinion is borne out by Ms. Marge Ahrens' testimony, discussed infra, which provided examples of how difficult it has been for the Kansas League of Women Voters to help register young voters due to the DPOC law.

         2. Current Population Survey Data

         As described in the Court's Daubert ruling, Dr. Camarota disagrees with Dr. McDonald about whether the DPOC law poses a burden on voter registration and voting. He primarily relies on the Census Bureau's Current Population Survey to opine that the burden must be low because voter registration and turnout rates in Kansas increased between 2010 and 2014. The Court has already ruled that Dr. Camarota's qualifications limit his expert opinion to explaining the CPS data; he is not qualified as an expert in voter registration, voting trends, or election issues, so he is not qualified to opine on issues of causation.

         Even if Dr. Camarota is deemed qualified, the Court gives little weight to his ultimate opinion for several reasons. Primarily, the Court finds that the best evidence about the DPOC law's burden is the actual data from the suspense and cancellation lists, evaluated by Dr. McDonald. This data demonstrates a concrete burden for thousands of voter registration applicants, many of whom were not registered in time to vote in the 2014 election by operation of the DPOC law. Because this data was presented to the Court, it need not look at indirect survey data that is based on sampling, nor must the Court look at how Kansas compares in terms of Census data to neighboring states. As Dr. McDonald explained, the individual-level data that he analyzed is the “gold standard, ” so there is no need to rely on statistical sampling. In the same vein, the Court gives no weight to Dr. Camarota's bare observations about the uptick in new registration and voter turnout numbers between 2010 and 2014, as shown in the administrative data. As the Court discussed in its Daubert ruling, Dr. Camarota is not qualified to opine about this administrative data. He did not verify this data, as Dr. McDonald did, with the individual data. Importantly, Dr. Camarota's observation that the stipulated registration and turnout numbers are larger in 2014 is not helpful to the trier of fact-the Court has accepted the parties' stipulations as to these numbers and can glean for itself that the 2014 figures are higher. For the reasons described below, such a comparison tells the Court little about the impact of the DPOC law.

         Moreover, comparing 2010 and 2014 election data is not a reliable way to measure the impact of the DPOC law. To make a valid comparison between the voter registration and turnout statistics between these two election years, one would have to assume that the only difference in Kansas between 2010 and 2014 is the DPOC law. But as Plaintiffs submitted, this isn't true. First, the 2014 election in Kansas was highly competitive compared to 2010. The Gubernatorial and U.S. Senate races were close elections. Sam Brownback won the race for governor by only 3.7 points; the Democratic candidate for U.S. Senate withdrew and consolidated support behind an independent candidate. Also, there were several Kansas Supreme Court justices on the ballot and a strong advertising effort had been made by groups urging Kansans to vote against retention. The states with which Dr. Camarota compared, Oklahoma and Nebraska, did not have similarly competitive races. The competitiveness of these high-profile races could easily account for the increased registration and turnout between 2010 and 2014. Dr. Camarota conceded that he did not take these facts into account when comparing 2010 to 2014, nor when comparing Kansas rates to those of other states. Similarly, he did not control for differences in state laws between 2010 and 2014 that may have explained his observation that Kansas “bucked the national trend” of a decline in voter registration.

         Importantly, comparing 2010 and 2014 registration data does not provide a reliable measure of the impact of the DPOC law because there is no way to know when the increased registration occurred-the 2014 data represents an increase from 2010, but the DPOC law did not become effective until January 1, 2013. Dr. Camarota's analysis does not demonstrate when the increased registrations occurred, before or after the law was passed. Similarly, as Dr. McDonald testified, because the DPOC law only applies to new registrants, it makes sense that the law would not have a large impact on the overall registration numbers and turnout rates, as measured by survey data. Most registered voters surveyed in Kansas in 2014 were registered before January 1, 2013, before the law became effective, and were thus exempt from the DPOC requirement.

         3. Kansas League of Women Voters

         Margaret Ahrens, the immediate past co-president of Plaintiff League of Women Voters of Kansas (the “Kansas League”) and an advisor and mentor to the current leadership, testified on behalf of the Kansas League. The Kansas League is a nonpartisan, nonprofit volunteer organization that encourages informed and active participation of citizens in government and works to influence public policy through education and advocacy. Founded almost 100 years ago, the Kansas League is active throughout Kansas, with nine local affiliates and more than 800 members. The Kansas League was established to encourage and assist voters to access the vote, register, and “participate in the vote” in an informed manner. As Ms. Ahrens testified, “[t]he biggest passion of the [Kansas L]eague is to engage every possible citizen in the vote.”[62]

         To accomplish this mission, the Kansas League provides educational resources and holds voter registration drives at various locations including schools, libraries, grocery stores, nursing homes, naturalization ceremonies and community events. The Kansas League also performs studies on a variety of public policy issues to inform membership action and advocacy efforts as well as to educate its members and the public on these issues. The Kansas League assists all prospective voters, but it is particularly committed to engaging individuals who are “underrepresented in the vote, ” including the first-time voter, the elderly, and individuals with limited resources and time.

         Ms. Ahrens was President of the Kansas League from 2015-2017, after the DPOC law became effective. She explained that the Kansas League has opposed the SAFE Act since before its passage because it “saw [the law] as a complex network of hoops and jumps for the average Kansas citizen” that would “create barriers to the vote.”[63]

         Once it went into effect, the DPOC requirement substantially affected the Kansas League's work in at least three respects. First, the DPOC requirement significantly hampered the Kansas League's voter registration work. Ms. Ahrens described the impact of the DPOC Law on the Kansas League's ability to fulfill its mission as “huge. It was a dead hit. It was absolutely a blow and I found the word shock to be appropriate in thinking about this.”[64] When the law came into effect, the Kansas League initially stopped all registration activity in every county but one, to protect volunteer members from any liability that could arise from handling or copying applicants' personal documents. The Kansas League leadership spent considerable resources on developing a copying policy to mitigate the risks associated with handling DPOC.

         Once the copying policy was in place, the Kansas League re-initiated registration efforts, but the number of individuals the Kansas League could successfully register declined significantly. Ms. Ahrens provided several examples during her testimony. In Wichita, the Kansas League estimated that it helped register 4, 000 individuals the year before the DPOC became effective. In 2013, after the law became effective, the Kansas League estimated it registered 400. Ms. Ahrens explained that this decline was because many individuals do not have the necessary documents at hand, or are not willing to provide such documents to League volunteers, to satisfy the DPOC requirement. She estimated that before the law passed, it took the League 3-4 minutes to assist a voter registration applicant, but after the DPOC law, it would take an hour per applicant.

         In one registration effort, Kansas League volunteers in Douglas County went to high schools to register voters but returned with such “large numbers of incomplete voter registrations” due to the fact that the students did not have DPOC at hand that the volunteers called the students' families and schools and went back three times “to try to get as many young people registered [as possible].”[65] During another voter registration effort at Washburn University, Kansas League volunteers provided multiple opportunities for students to complete their voter registration applications and to provide DPOC, by maintaining a voter registration table at the university over multiple weeks. Despite this concerted effort, out of approximately 400 students who attempted to register to vote, only about 75 students successfully completed their registration applications.

         Second, the DPOC requirement forced the Kansas League to devote substantial resources to assist voters whose applications are in suspense due to the failure to provide DPOC. To reach these suspended voters, the Kansas League purchased from the SOS both the suspense list as well as the full voter file several times. The Kansas League has published the suspense list on the Kansas League website and circulated the list to local newspapers to do the same to notify applicants that their registrations are not complete. Kansas League volunteers also spent considerable time and effort to reach individuals on the suspense list directly to assist them in completing their registration applications. Ms. Ahrens provided the notable example of efforts by Kansas League volunteers in Douglas County who, after unsuccessful attempts to reach individuals on the suspense list by phone and email, visited the residences of 115 people whose voter registration applications were on the suspense list with a mobile copy machine. Of those 115 people, only 30 ultimately registered. At least half of these 30 individuals who completed their registrations did not personally possess or were not able to provide DPOC to the Kansas League volunteers and were unable to complete their registrations immediately onsite. Since the DPOC Law went into effect, the Kansas League has devoted thousands of hours to contacting the tens of thousands of voters on the suspense list and attempting to help them satisfy the DPOC requirement.

         Third, the DPOC requirement has forced the Kansas League to spend a considerable amount of member resources-including volunteer time-and money to educate the public about registering under the DPOC law. The Kansas League created thousands of informational trifolds “to help people understand the changes in the law and how to participate in the vote” that volunteers distributed to community colleges, public libraries, and high schools across the state. The Kansas League had in the past developed written educational materials to assist voters in registering but “not to this extent.”[66] The Kansas League also developed a teaching module and an accompanying instructional video to distribute on its website and to universities, community colleges, vocational and technical schools, and high schools throughout the state in order to educate new voters about how to register to vote under the SAFE Act.

         Following the Court's preliminary injunction in this case, the Kansas League again obtained a copy of the suspense list from the SOS. This list included the names of voters who were registered under court orders, including this Court's preliminary injunction ruling.[67]The SOS refused the Kansas League's request for a list of suspended applicants that did not include voters registered under court orders.[68] As a result, the Kansas League is no longer able to effectively use the suspense list to inform and reach voters who are unable to vote because their registration applications are on the suspense list because it lacks confidence that the list is accurate.

         4. Access to DPOC by Suspended and Canceled Applicants

         There was little admissible evidence presented at trial about the rate of DPOC possession by suspended and canceled applicants. As already discussed, the McFerron Survey is inadmissible, but even if admissible, the Court gives its findings no weight due to its many methodological flaws. There is no evidence about how many canceled and suspended applicants in fact lack DPOC, although the Court can reasonably infer from the suspense and cancelation numbers that either (1) these applicants lack immediate access to such documents because they were repeatedly notified of the need to produce DPOC in order to register, yet they did not complete the registration process; or (2) these applicants were not well enough informed about the DPOC requirement to locate their DPOC and provide it to the county election office in order to become registered; or (3) these applicants were otherwise unable or unwilling to go through the steps to produce DPOC.

         Dr. Jesse Richman estimates that only 2.2% of the applicants on the suspense list lack access to DPOC, based on a survey he conducted of individuals on the suspense list.[69] Yet Dr. Richman's results are not statistically distinguishable from zero, as the margin of error is 2.7%.[70] Furthermore, Dr. Richman concludes that 97.8% of citizens on the suspense list have what he describes as “immediate access” to DPOC, but his estimate includes individuals who do not personally possess DPOC, but have someone who “keeps” such a document for them. Obtaining a document from another person constitutes an additional step in the voter registration process, which increases the costs of voting. As Dr. Richman himself has written in published articles, “electoral rules that increase the costs of voting are expected to diminish voter participation.”[71]

         Although Dr. Richman speculated that it would be relatively easy for a registration applicant to obtain a citizenship document from another person who “keeps” the document for them, his survey provides no support for this conclusory statement. As such, Dr. Richman conceded during his trial testimony that it was an overstatement to say that a respondent has “immediate access” to DPOC when answering yes to his survey question.[72]

         Defendant argues that the suspense list is dynamic and constantly in flux, therefore it does not represent the universe of applicants prevented from registering to vote-many are ultimately registered under the State's interagency agreements, or because they later submit DPOC. There are several problems with this argument. First, while the suspense list may be dynamic, the cancelation list (before the preliminary injunction) is not. More than 16, 000 voter registration applicants had been canceled under K.A.R. § 7-23-15 at the time of the Court's preliminary injunction. Moreover, at the time of the Court's preliminary injunction, more than 13, 000 individuals were on the suspense list. To be sure, the evidence established that some portion of this number may come off the list due to the State's interagency agreement with the DOV, but as of March 2016, the KDHE agreement had been in place for three years. Yet, each time Dr. McDonald took a snapshot of the suspense list between September 2015 and March 2016, the combined number of suspended and canceled applicants represented about 12% of all new voter registration applications. Dr. McDonald found that 22, 814, or 70.9% of the applicants on the September 2015 list, remained on the December 2015 list. While that number certainly was lower by March 2016, that is undoubtedly because many of those on the suspense list were canceled under the regulation by that point, given that in December 2015, the 90-day rule had not yet been effective for 90 days. Defendant, by contrast, provided no data about the number of those on the suspense list who have come off because DPOC was ultimately verified, or provided, as opposed to cancellation. The Court finds that the majority of those on the suspense list ultimately did not become registered.

         5. Lay Testimony by Individuals Lacking DPOC

         Dr. McDonald's analysis demonstrates that tens of thousands of individuals who applied to register to vote after the DPOC law became effective were held in suspense or canceled for failure to submit DPOC. He further credibly opined that the clear majority of those suspended or canceled are in fact United States citizens. Ms. Ahrens' testimony demonstrates that the DPOC law made the Kansas League's mission of helping register voters difficult, by substantially reducing the number of individuals it could assist in registering to vote, particularly within the groups it targets: first time voters, the elderly, and individuals with limited resources and time. This evidence leads the Court to the conclusion that tens of thousands of eligible citizens were blocked from registration before this Court's preliminary injunction, and that the process of completing the registration process was burdensome for them.

         The experiences of several lay witnesses, including the individual Plaintiffs in both cases, illustrate Dr. McDonald's findings and Ms. Ahrens' concerns about the barriers to registration after the DPOC law became effective. Plaintiff Steven Wayne Fish is a U.S. citizen, a resident of Kansas, and over 18 years old. He works the overnight shift at an American Eagle distributor. In August 2014, he applied to register to vote while renewing a Kansas driver's license at the DOV in Lawrence, Kansas. Mr. Fish brought documents to fulfill the Kansas residency requirement for obtaining a driver's license. The driver's license examiner did not inform him that he needed a citizenship document to register to vote; when he left the DOV, he believed he had registered to vote. Subsequently, he received notices in the mail from the Douglas County election office telling him that he needed to provide DPOC in order to become registered. Those notices listed the 13 acceptable forms of DPOC under the K.S.A. § 25-2309(1). They make no mention of the alternative hearing process under subsection (m).[73] He searched for his birth certificate but could not find it. He attempted to obtain a replacement birth certificate but could not determine how to do so-he was born on a decommissioned Air Force base in Illinois. Mr. Fish was unable to vote in the 2014 general election, and his voter registration application was subsequently canceled for failure to provide DPOC under the 90-day rule.

         Later, in May 2016, Mr. Fish's sister located a copy of his birth certificate that had apparently been placed in a safe by Mr. Fish's mother, who passed away in 2013. Although the birth certificate was ultimately located, it took nearly two years to find it. Due to the preliminary injunction in this case, Mr. Fish became registered to vote in June 2016. In September or October 2016, Mr. Fish relocated within Douglas County and changed his address with the DOV in person. At that time, Mr. Fish filled out a second voter registration application and provided his birth certificate. He is now registered to vote based on this October 2016 application, having provided DPOC. He voted in the 2016 general election.

         Plaintiff Donna Bucci is a U.S. citizen, a resident of Kansas and over 18 years old. She was born in Baltimore, Maryland. Ms. Bucci has been employed at the Kansas Department of Corrections for the last six years. She is a cook in the prison kitchen on the 3:00 a.m. to 12:00 p.m. shift. She is provided with limited time off, and must provide two-weeks' notice to use it. In 2013, Ms. Bucci applied to register to vote while renewing a Kansas driver's license at the DOV in Sedgwick County, Kansas.[74] The driver's license examiner did not tell Ms. Bucci that she needed to provide proof of citizenship, and did not indicate that she lacked any necessary documentation. When she left the DOV, she believed she had registered to vote. Later, she received a notice in the mail informing her that she needed to show a birth certificate or a passport to become registered to vote. It did not include information about how to pursue the hearing process in K.S.A. § 25-2309(m). Ms. Bucci does not possess a copy of her birth certificate or a passport. She cannot afford the cost of a replacement birth certificate from Maryland and she credibly testified that spending money to obtain one would impact whether she could pay rent. Ms. Bucci's voter registration application was canceled for failure to provide DPOC. She could not vote in the 2014 election, but was able to vote in the 2016 election by operation of the preliminary injunction. Ms. Bucci first learned of the alternative hearing procedure when defense counsel informed her of it during her deposition in this case. She testified that it would be hard for her to even participate in a telephonic hearing because she is not allowed to use her cell phone on a work break.

         Plaintiff Charles Stricker is a U.S. citizen, a resident of Kansas, and over 18 years old. He was born in Missouri and has lived in Kansas since late 2013, after a period of living in Chicago. Prior to living in Chicago, Mr. Stricker lived in Kansas and was registered to vote in Kansas during that time. He works as a hotel manager in downtown Wichita. Mr. Stricker applied to register to vote while renewing a Kansas driver's license at the Sedgwick County DOV in October 2014. He was told that he had insufficient documentation, and a clerk provided him with a list of documents he needed. Mr. Stricker was attempting to register on the last day of registration before an election, it was so important to him to become registered that he took the day off work to accomplish it. Mr. Stricker rushed home and “grabbed every single document that I could and started shoving them into a file folder to try to get back before the DMV closed, ”[75] including his birth certificate. He made it back to the DOV in time to complete his application, and recalls telling the clerk that he wanted to register to vote. The DOV clerk did not tell him that he needed any further documentation to register. The clerk printed a small receipt for Mr. Stricker and explained to him that it would be his temporary driver's license until he received his license in the mail. He asked the clerk if there was anything else he needed to do, including whether he needed a voting card. The clerk told him nothing more was necessary. He believed that he was registered to vote.

         Mr. Stricker attempted to vote in the 2014 midterm election. He presented his driver's license to the poll worker, but she could not find a record of his registration. He was given a provisional ballot to fill out at an open table with another voter. Mr. Stricker testified that he was confused and embarrassed by the experience. Election day was the first time Mr. Stricker learned that he was not registered to vote. He testified that he learned about the DPOC law sometime later through a press report and wondered if it could explain why he was not allowed to vote. He does not recall receiving any notices from Sedgwick County asking him to provide proof of citizenship.

         In 2015, Mr. Stricker's voter registration application was canceled in the ELVIS system. His registration was reinstated by operation of the preliminary injunction on June 22, 2016. At some point in advance of the November 2016 election, Mr. Stricker attempted to check his registration status online and by calling the Sedgwick County election office. The person with whom he spoke told him that it was unclear whether he would be able to vote in the upcoming election because there were legal issues that were still up in the air. When he checked online, there was no record of his registration. On October 26, 2016, the Sedgwick County Election Office sent Mr. Stricker a “Notice of Voter Registration Status.”[76] It states:

This notice is to inform you that you have been granted full voter registration status in Kansas and that you are qualified to vote in all official elections in which voters in your precinct are eligible to participate.
According to Kansas Statutes Annotated 25, 2309(1), any person registering to vote for the first time in Kansas on or after January 1, 2013, must provide evidence of United States citizenship along with the registration application in order to be granted full registration status.
Our records indicate that you submitted a voter registration application during the above-mentioned time period, but you did not provide evidence of your U.S. citizenship. We have since received information from the Kansas Department of Health and Environment's Office of Vital Statistics indicating that you have a Kansas birth certificate on file. Based on that determination, your registration status is deemed complete, and we have granted you full voter registration status.[77]

         This notice was signed by Tabitha Lehman, the Sedgwick County Election Commissioner. Ms. Lehman testified that, despite Fed.R.Evid. 615 being invoked at the beginning of trial, she read media reports about the trial, including reports of Mr. Stricker's testimony. She testified that ELVIS records indicate Mr. Stricker is active and “fully registered, ” and that after reviewing his file prior to her testimony, she believes that the notice he received erroneously referenced his Kansas birth certificate, when in fact his citizenship document was in the DOV's database. She testified that in October 2016, just prior to the election, her office had not updated the generic notice sent to applicants whose DPOC was verified by the county to include the DOV database check, a policy that had changed in May 2016. Therefore, between May 2016 when the DOV policy went into effect, and the 2016 election, Sedgwick County-the second largest county in the State-was apparently sending out erroneous and confusing notices to individuals stating that citizenship was confirmed through the department that maintains Kansas birth certificates, when in fact that was not true.

         Plaintiff Thomas Boynton is a U.S. citizen, a resident of Kansas, and over 18 years old. He was given a code of “suspense” in ELVIS for failure to provide DPOC. He moved to Kansas for the first time in July 2014 to begin teaching as a professor of English at Wichita State University. In August 2014, Prof. Boynton attempted to register to vote at a DOV in Wichita. He recalls being asked if he would like to register to vote, and responded that he did. Prof. Boynton brought several documents with him that he suspected he might need to obtain a driver's license, including his Illinois birth certificate. He does not recall which documents he specifically showed the clerk, but he produced the documents the clerked requested during the transaction. The DOV clerk did not tell him that he did not have the necessary documentation to register to vote, and when he left the DOV, Prof. Boynton understood he was registered to vote. He went to his polling place in November 2014, but the poll worker told him that his name was not on the rolls and offered him a provisional ballot. He was surprised to learn for the first time that his registration had not been completed at the DOV.

         In December 2014 or January 2015, Prof. Boynton received a notice in the mail informing him that he would need to submit DPOC to complete the voter registration process. It did not advise him about the hearing process under K.S.A. § 25-2309(m). Prof. Boynton was frustrated upon receiving this notice, believing that he had registered before the November 2014 election, and understanding that his provisional ballot had not been counted. He was disappointed and irritated upon learning that his vote did not count. Voting is important to him and he had regularly voted in federal elections up until that point.

         Prof. Boynton visited the DOV two times in 2015 to obtain replacement driver's licenses. Both times he declined when the clerk asked him if he wanted to register to vote. He testified that he was dissuaded from registering after his 2014 attempt failed. “I thought to myself, this doesn't seem to be the kind of process that leads to me being successfully registered, so I might as well just save myself the effort and say no this time . . . .”[78]

         Prof. Boynton's ELVIS file shows that a certified United States birth certificate was submitted on August 4, 2014, contradicting Mr. Caskey's testimony that Prof. Boynton did not apply to register to vote until November 4, 2014, Election Day. On November 5, 2015, Prof. Boynton's voter registration application was canceled. According to Mr. Caskey, the SOS found a citizenship document through the DOV web portal after access had been granted in 2016. The fact that the web portal located a citizenship document-likely the birth certificate he took to the DOV that day-supports Prof. Boynton's testimony that he in fact applied to register to vote in August 2014. His ELVIS record now shows that he is active based on the citizenship document the SOS office located on June 20, 2016, after this Court issued its preliminary injunction.

         Plaintiff Douglas Hutchinson is a U.S. citizen, a resident of Kansas, and over 18 years old. Mr. Hutchinson applied to register to vote while renewing a Kansas driver's license at a Johnson County DOV in 2013. His application was suspended for failure to provide DPOC and it was ultimately canceled on January 27, 2016. He was later registered by operation of this Court's preliminary injunction order. On July 30, 2016, his status changed to active after he submitted DPOC at the Johnson County Election Office and is now considered “fully registered.”

         Plaintiff Parker Blake Bednasek is a United States citizen over the age of 18, who moved to Kansas in August 2014 to attend school at the University of Kansas (“KU”). Plaintiff was born in Oklahoma. His parents, who live in Texas, possess his Oklahoma birth certificate. Prior to moving to Kansas, Mr. Bednasek was registered to vote in Tarrant County, Texas. In the fall of 2015, Mr. Bednasek volunteered with the Kansas Democratic Party. Through this work, he discussed the issue of voter registration, including the DPOC law, with the party's field and political director. He canceled his Texas voter registration on December 3, 2015. On December 4, 2015, Mr. Bednasek applied to register to vote in person at the Douglas County Election Office. He did not provide DPOC for two reasons: (1) he did not physically possess DPOC at the time of application; and (2) he does not agree with the law requiring DPOC. The Douglas County Clerk's Office accepted Plaintiff's application, but deemed it incomplete for failure to submit DPOC. Mr. Bednasek received two or three letters from the Douglas County election office, informing him that he needed to provide his DPOC and advising him that he had been placed on a 90-day waiting list. Plaintiff's voter registration application was canceled on March 4, 2016 under K.A.R. § 7-23-15.

         Since the DPOC law was passed, 6 individuals have applied for a hearing under § 25-2309(m) with the State Election Board. One of these individuals, Ms. Jo French, lost her birth certificate after moving several times. She testified about the lengthy and burdensome process of registering to vote without a citizenship document. Ms. French's many encounters with the SOS's office led her to characterize her relationship with former-Deputy SOS Eric Rucker as a friendship. She testified that she hoped her testimony would make Defendant “look good.” But her testimony contradicted Defendant's position that the DPOC requirement is not burdensome. As she testified, Ms. French's first of many hurdles was to pay $8 for the State of Arkansas to search for her birth certificate to prove that it did not exist, even though she already knew did not exist because she had requested it twice before. Second, she had to collect documents with the help of several other people-her baptismal record through an old friend in Arkansas and school records from her old school district in Arkansas. Third, she spoke with Mr. Rucker, who in turn reached out to her friends and cousin to vouch for her citizenship. Fourth, Ms. French relied on a friend to drive her 40 miles to the hearing; it was difficult for her to drive because she had recently had knee replacement surgery.

         Ms. French's hearing before the State Election Board lasted 30 to 35 minutes and was attended by Defendant, the Lieutenant Governor, and a representative from the Kansas Attorney General's office. Also present were members of the media. The entire process from application to the date of her hearing took more than five months. After the hearing, Ms. French was interviewed, and stated: “I just thought it was strange that I had to go through this procedure to be able to vote. And any other state, you go in, throw down your driver's license and that gives you the right to vote. So this was totally off the wall for me. . . . I don't look funny. I don't talk funny, I've been here all my life.”[79]

         The hearing records contain information on the other four individuals who availed themselves of the hearing process. One established citizenship through a hearing and was represented by retained counsel. Another individual, Mr. Dale Weber, stated that he did not possess DPOC and that procuring such a document would be cost-prohibitive. The State Election Board ultimately accepted an affidavit that Mr. Weber executed on his own behalf as proof of his citizenship, attesting that he had been born on a military base and was a U.S. citizen.[80] The State Election Board apparently found that Mr. Weber's mere attestation was sufficient to establish his citizenship.

         D. Noncitizen Registration in Kansas Before and After the DPOC Law

         1. Empirical Cases of Noncitizen Registration or Attempted Registration

         Pretrial, Defendant stipulated that it had confirmed instances of 127 noncitizens who either registered to vote, or attempted to register to vote since 1999, based on data collected from Mr. Caskey and Tabitha Lehman, the Sedgwick County Election Officer. Of the 127 individuals identified by Mr. Caskey and Ms. Lehman, 43 had successfully registered to vote, and 11 have voted. 88 are motor-voter applicants, 25 of whom successfully registered to vote; 5 have voted.

         At trial, Mr. Caskey asserted that his office had uncovered 129 instances where noncitizens had registered or attempted to register to vote. But the documentary evidence does not fully support this testimony. The underlying ELVIS records reveal that many of these instances are a result of false positive matches, confusion, or administrative error by either the county election office or a driver's license examiner. At trial, Defendant submitted evidence of: (1) 38 incidents of noncitizen registration or attempted registration in Sedgwick County;[81] (2) 79 possible incidents of noncitizen registration by comparing the voter rolls with the DOV's list of TDL holders;[82] and (3) 3 noncitizens who were found because they stated on juror questionnaires that they were noncitizens.[83]

         Ms. Lehman testified about the first category, based on a spreadsheet she helped maintain for several years, reflecting incidents of noncitizen registration in Sedgwick County. She did not create the spreadsheet; it was created by and is now maintained by the SOS's Office. The spreadsheet was last updated in January 2018, reflecting 38 incidents of noncitizen registration or attempted registrations going back to 1999, 18 of whom successfully registered to vote between 1999 and 2011, 5 of whom voted. The other 13 were on the voter rolls for extended periods of time, but never voted. Between 2013 and November 2016, the spreadsheet reflects 16 noncitizens who attempted to register to vote. And the spreadsheet reflects 4 individuals who are now citizens, but had been held in suspense because they applied to register to vote before becoming naturalized citizens. Because these 4 applied to register after the DPOC law passed, they were registered to vote pursuant to the Court's preliminary injunction order. Most of the individuals on this spreadsheet were discovered during naturalization ceremonies held in Wichita, Kansas, which members of Ms. Lehman's office regularly attend to help register to vote newly-naturalized citizens.

         The ELVIS records for many of the individuals on the Lehman spreadsheet demonstrate instances of applicant confusion and administrative error. For example, one individual listed an “A-number” in the field for “Naturalization number (if applicable)” on the voter registration form.[84] Another individual voted four times between 2004 and 2008, but stated that she “was a permanent resident of the U.S. and did not know she wasn't allowed to vote until after 2008 when one of her friends told her she couldn't, she then stopped voting.”[85]

         The records for several “attempted registrations” on this spreadsheet are in fact instances where a noncitizen applicant did not intend to register to vote. One person Ms. Lehman lists as an attempted registrant on January 1, 2014, indicated to the DOV that she was not a citizen, but the DOV processed the voter registration application anyway. In fact, Ms. Lehman had an email exchange about this applicant with former election director Brad Bryant, who stated, “I just wish DMV would not register people who they know to be noncitizens.”[86] This applicant also wrote to the DOV “Please put in the record that I am not a citizen. I cannot vote.” She underlined “am not” and “I cannot vote.”[87]

         Another applicant indicated to the DOV that she was not a citizen, but the DOV nonetheless processed the application. This applicant “came into the office w/a POC notification letter and stated that her registration was a mistake on the part of the DMV when she renewed her license. She is not a U.S. citizen. She filled out a [c]ancellation form.”[88] Another applicant replied in the negative when the DOV clerk asked if she was a United States citizen and produced a “Resident Alien” card, yet the DOV submitted an application, prompting the applicant to request cancellation. There are also two examples of voter registration forms being submitted to the county election office despite the applicants' failure to answer the question, “Are you a citizen of the United States of America” on the form.

         Ms. Lehman personally transmitted to Defendant an application that had checked “no” to the citizenship question on the form. Ms. Lehman disingenuously testified that this “would be a case where it would be something anomalous to report up. . . . I think it's a dicey one so I send it on.”[89] The Court does not find this testimony credible. Ms. Lehman testified that she is one of four county election commissioners directly appointed by Defendant, and that she reports directly to him. She stated that her office was charged with helping determine instances of noncitizen registration, and that when they “see something they suspect” could be noncitizen registration, her staff reports that to her, and she in turn reports it to Defendant. It appears that Ms. Lehman was either instructed or took it upon herself to pass along to Defendant even noncolorable attempts at noncitizen registration caused by State employee oversight or lack of training, rather than deliberate attempts to register to vote.

         For his second category of empirical evidence, Defendant identified 79 instances of purported noncitizen voter registration by comparing a list of TDL holders generated by the DOV, with the voter rolls. Mr. Caskey testified that he compared these lists 4 times, in 2009, 2011, 2016, and 2017. Plaintiffs' expert Eitan Hersh was retained to conduct his own matching analysis of these two lists. Dr. Hersh is an expert in voter registration records and matching analysis. He is a tenured professor of political science at Tufts University, whose academic research is focused on studying large-scale individual databases, such as the ELVIS system, and matching those databases to other sources of individual-level data. The Court finds Dr. Hersh qualified, and that his testimony was credible as to the significance of Mr. Caskey's TDL list matches. Dr. Hersh conducted an extensive and thorough matching analysis, which is fully set forth in his report. He found that of the 79 individuals matched by Mr. Caskey, only 14 successfully registered to vote, and 12 had the “CITZ” code in their ELVIS records at some point, indicating they applied to register to vote and were suspended or canceled for lack of DPOC.[90] Therefore, of these 79 individuals, 26 either successfully registered to vote or were stopped from registering under the DPOC requirement. One of these 26 individuals voted. Nine of the 79 individuals successfully registered to vote at a DOV, 1 of whom had a “CITZ” code at some point.[91]

         Moreover, as Dr. Hersh testified, Mr. Caskey's TDL matches to the voter file do not necessarily represent cases of noncitizen registration or attempted registration. Even where there are correct matches, as with the 79 individuals identified by both Mr. Caskey and Dr. Hersh, it is possible a person could obtain a TDL and later naturalize prior to registering to vote. Dr. Richman agreed with Dr. Hersh, testifying that a person is not necessarily a noncitizen simply by virtue of appearing in the TDL file. Thus, Defendant has not demonstrated that all 79 individuals matched on the TDL list were noncitizens at the time they registered to vote.

         Giving full credit to Mr. Caskey's evidence that 3 noncitizens were discovered to be registered voters through juror questionnaires, and ignoring evidence that several of the Lehman spreadsheet applicants were confused about whether they had the right to register to vote, and/or State employees submitted their applications despite having knowledge that they were noncitizens, the evidence shows that 67 noncitizen individuals registered to vote under the attestation regime, or attempted to register after the DPOC law was passed. Of these, 39 successfully registered to vote despite the attestation requirement, [92] and 28 noncitizens attempted to register to vote after the DPOC law was passed but were thwarted by operation of that law. Extrapolating percentages based on these numbers, the total number of confirmed noncitizens who successfully registered to vote between 1999 and 2013 is .002% of all registered voters in Kansas as of January 1, 2013. Of the estimated 115, 500 adult noncitizens in Kansas, [93] .06% have successfully registered or attempted to register to vote since 1999. And, the number of attempted noncitizen registrations since the DPOC law became effective in 2013 is .09% of the total number of individuals canceled or suspended as of March 31, 2016, for failure to provide DPOC.

         2. Expert Testimony Regarding Incidents of Noncitizen Registration in Kansas

         The Court admitted in part the expert opinion and testimony of Defendant's expert Hans von Spakovsky in the areas of elections, election administration, and voter fraud. Mr. von Spakovsky is a senior legal fellow at The Heritage Foundation, “a think tank whose mission [is to] formulate and promote conservative public policies.”[94] He is an adjunct, non-tenured professor at the Law School of George Mason University. He has never testified as an expert witness before and has published no peer-reviewed research on any subject. Notably, Mr. von Spakovsky could not identify any expert on the subject of noncitizen voter registration. The methodology Mr. von Spakovsky utilized in his expert report entailed collecting information on prosecutions, and various other reports of noncitizens voting and summarizing that information.

         Mr. von Spakovsky opined that there is a problem with noncitizen voter registration and that attestation is not sufficient to prevent noncitizens from registering to vote. These opinions are premised on his assertion that any time a noncitizen registers to vote, regardless of that person's intent, it defrauds the votes of legitimate citizens. In his view, the numbers of individuals held in suspense or canceled under the Kansas DPOC law is irrelevant because those individuals could become fully registered with effort. Although he could provide no example of a noncitizen vote affecting the outcome of a close election, he opines that the mere possibility of that happening justifies the DPOC law.[95] He based his opinions on the summary of noncitizen voting in his expert report.

         The Court gives little weight to Mr. von Spakovsky's opinion and report because they are premised on several misleading and unsupported examples of noncitizen voter registration, mostly outside the State of Kansas. His myriad misleading statements, coupled with his publicly stated preordained opinions about this subject matter, convinces the Court that Mr. von Spakovsky testified as an advocate and not as an objective expert witness.

         As to Kansas noncitizen registration, Mr. von Spakovsky is aware of only 30 instances of noncitizen registration or attempted registration provided to him on the Lehman spreadsheet at the time he prepared his report. He did nothing to verify this information. Yet, he opined that “[c]learly aliens [in Sedgwick County] who applied to register at the DMV were not dissuaded from falsely asserting U.S. citizenship by the oath requirement.”[96] He later admitted during cross-examination that he had no personal knowledge as to whether or not any of these individuals had in fact falsely asserted U.S. citizenship when they became registered to vote and that he did not examine the facts of these individual cases. As the Court has already discussed, several of the individual ELVIS records for those on the Lehman spreadsheet include noncitizens who disclosed their noncitizen status to the DOV clerk, so his statement that they “were not dissuaded from falsely asserting U.S. citizenship” is not supported by the record.

         Mr. von Spakovsky stated in his report that a local NBC television station in Florida identified 100 individuals excused from jury duty who were possible noncitizens on the voter rolls; but on cross-examination, he admitted that he failed to include a follow-up story by the same NBC station that determined that at least 35 of those 100 individuals had documentation to prove that they were, in fact, U.S. citizens. He claimed that, at the time of his expert report, he was unaware of the NBC follow-up report, and only learned about it at his deposition. Yet after his deposition Mr. von Spakovsky never submitted a supplement or correction to his expert report to acknowledge this omission.

         Mr. von Spakovsky also cited a U.S. GAO study for the proposition that the GAO “found that up to 3 percent of the 30, 000 individuals called for jury duty from voter registration rolls over a two-year period in just one U.S. district court were not U.S. citizens.”[97] On cross-examination, however, he acknowledged that he omitted the following facts: the GAO study contained information on a total of 8 district courts; 4 of the 8 reported that there was not a single-noncitizen who had been called for jury duty; and the 3 remaining district courts reported that less than 1% of those called for jury duty from voter rolls were noncitizens. Therefore, his report misleadingly described only the district court with the highest percentage of people reporting that they were noncitizens, while omitting any mention of the 7 other courts described in the GAO report, including 4 that had no incidents of noncitizens on the rolls.

         Mr. von Spakovsky wrote an editorial in 2011, alleging that 50 noncitizens from Somalia voted in an election in Missouri. Yet, nearly one year earlier, the Missouri Court of Appeals issued an opinion, Royster v. Rizzo, [98] affirming the trial court's finding that no fraud had taken place in that Missouri election. While he testified that he was not aware of the court opinion at the time he wrote the op-ed, Mr. von Spakovsky admitted that he never published a written retraction of his assertion about Somalian voters illegally participating in that election.

         The record is replete with further evidence of Mr. von Spakovsky's bias. Dr. Minnite testified to, and Mr. von Spakovsky's CV demonstrates, his longtime advocacy of voting restrictions. He admitted during his testimony that, at least as early as 2012, he was already an advocate for DPOC requirements like the one at issue in this case. Moreover, as early as 2001, Mr. von Spakovsky was already of the view that the NVRA was “a universal failure, ” and “was so flawed as to actually undermine our registration system.”[99] Mr. von Spakovsky also contributed to Defendant's first campaign for SOS and wrote an email promoting a fundraiser for that campaign. He did not disclose these facts in his report or on direct examination. When Mr. von Spakovsky opined in his report that the incidence of noncitizen registration collected by Ms. Lehman in Sedgwick County is likely just the “tip of the iceberg, ” he used the exact same phrase employed by Defendant to describe the same 30 incidents of noncitizen registration in Sedgwick County in a press release issued just a few months earlier.[100] Indeed, that phrase has been Defendant's refrain in this case in describing the problem of noncitizen voter registration.

         As stated above, the Court gives little weight to Mr. von Spakovsky's opinions. While his lack of academic background is not fatal to his credibility in this matter, the lack of academic rigor in his report, in conjunction with his clear agenda and misleading statements, render his opinions unpersuasive. In contrast, Plaintiffs offered Dr. Lorraine Minnite, an objective expert witness, who provided compelling testimony about Defendant's claims of noncitizen registration. Dr. Minnite is an associate professor at Rutgers University-Camden, a tenured position, where her research focuses on American politics and elections. Dr. Minnite has extensively researched and studied the incidence and effect of voter fraud in American elections. Her published research on the topic spans over a decade and includes her full-length, peer reviewed book, The Myth of Voter Fraud, for which Dr. Minnite has received grants and professional distinction, and numerous articles and chapters in edited volumes.[101] This topic has been the focus of her work and research for the past seventeen years. Dr. Minnite has been offered and accepted as an expert on the incidence and effect of voter fraud in numerous cases.[102]

         Notably, Dr. Minnite testified that when she began researching the issue of voter fraud, which includes noncitizen voter fraud, she began with a “blank slate” about the conclusions she would ultimately draw from the research. This stands in stark contrast to Mr. von Spakovsky's starting point as an advocate. In forming her opinions on the incidence of voter fraud and noncitizen registration in Kansas, Dr. Minnite relied on numerous quantitative, qualitative and archival sources. These include, among other sources, thousands of news reports, publicly available reports, court opinions, as well as various documents relied on by Defendant as evidence of noncitizen registration, including various iterations of Ms. Lehman's spreadsheet and underlying voter registration records. To evaluate these sources, Dr. Minnite employed a “mixed methods” research approach, in which different data sources are triangulated in order to identify patterns across the sources. This Court found on the record at trial Dr. Minnite's methodology is reliable under Daubert.

         Although she admits that noncitizen registration and voting does at times occur, Dr. Minnite credibly testified that there is no empirical evidence to support Defendant's claims in the in this case that noncitizen registration and voting in Kansas are largescale problems. Of the nominal number of noncitizens who have registered and voted, many of these cases reflect isolated instances of avoidable administrative errors on the part of government employees and/or misunderstanding on the part of applicants.

         This testimony is supported by the ELVIS records underlying the Lehman spreadsheet, discussed supra. Although the ELVIS records at times are less than pellucid, mostly due to the many codes insisted upon by Defendant's office to continue to track individuals registered by operation of law pursuant to this Court's order, Dr. Minnite could comment and interpret them without undergoing training as “an election administrator or DMV clerk.” In fact, both Dr. Minnite and this Court can draw the reasonable inference from an ELVIS record where the applicant replied “No” they were not a United States citizen, that a State employee erroneously completed the voter registration application in the face of clear evidence that the applicant was not qualified.

         Dr. Minnite's testimony is further supported by Dr. Hersh's expert testimony. Dr. Hersh explained that the number of purported incidents of noncitizen registration found by Defendant is consistent with the quantity of other low-incidence idiosyncrasies in ELVIS and in voter files more generally, and is suggestive of administrative errors. For example, 100 individuals in ELVIS have birth dates in the 1800s, indicating that they are older than 118. And 400 individuals have birth dates after their date of registration, indicating that they registered to vote before they were born. In a state with 1.8 million registered voters, issues of this magnitude are generally understood as administrative mistakes, rather than as efforts to corrupt the electoral process. Accidental registrations could have occurred as a result of clerks' administrative errors in inputting handwritten data from paper forms. Moreover, the very low incidence of voting among purported noncitizen registrants suggests that those individuals ended up in ELVIS due to accidents, as opposed to intentional unlawful registrations. The voting rate among purported noncitizen registrations on Mr. Caskey's TDL match list is around 1%, whereas the voting rate among registrants in Kansas more generally is around 70%. If these purported noncitizen registrations were intentional, one would expect these individuals to vote more frequently; the fact that they do not suggests that these registrations are the product of administrative mistakes by State employees or by the applicants themselves.

         In short, the Court gives more weight to the careful, documented, and nonmisleading testimony of Dr. Minnite and Dr. Hersh on the issue of the significance of noncitizen voter registration in Kansas.

         3. Statistical Estimates of Noncitizen Registration in Kansas

         The remaining category of evidence offered by Defendant to demonstrate the degree of noncitizen registration in Kansas is statistical estimates generated by his expert, Dr. Jesse Richman. The Court admitted Dr. Richman's expert report and testimony, finding him qualified as an expert in the fields of elections, voter registration, survey construction and analysis, and political methodology.

         Dr. Richman holds a M.A. and a Ph. D. in Political Science from Carnegie Mellon University. He is an associate professor at Old Dominion University and was the Director of University Social Science Research Center there for 3 years. Dr. Richman teaches research, research design, and advanced statistics, including statistical analysis. His academic research includes, among other topics, voting and participation, and he has published 12 or 13 peer-reviewed articles, several of which involve elections or voting.

         Dr. Richman has published one peer-reviewed article on noncitizen registration, in the British journal, Electoral Studies. The article was based on data collected through a survey known as the Cooperative Congressional Elections Study (“CCES”), a large online survey concerning American voting behavior. Dr. Richman is not and has never been involved in designing or implementing the CCES. He has published one peer-reviewed paper based on a survey that he designed, and he has never published any peer-reviewed research addressing the accuracy of survey responses for a survey that he designed, or any peer-reviewed research involving his own efforts to compare survey responses to government records to assess the validity of those survey responses. He has never, other than in this case, designed or implemented any survey to measure citizenship rates of survey respondents.

         Plaintiffs offered the testimony of their rebuttal expert, Dr. Stephen Ansolabehere to assess Dr. Richman's various statistical estimates. Dr. Ansolabehere is the Frank G. Thompson Chair at Harvard University in the Department of Government. He has been on the board of American National Election Studies for 12 years, which is the longest running political science research project in the country, was the founding director of the Caltech/MIT voting technology project, and has worked for CBS News since 2006 on the election night decision desk that designs the surveys used and the data collection process. He has published a substantial body of peer-reviewed work: 5 books and approximately 80 articles on a variety of topics, including survey research methods, statistics for analyzing large sample data, and for matching large surveys. He has received a variety of research grants. Dr. Ansolabehere has testified in numerous voting rights cases, which all cite to his testimony favorably.[103]

         Dr. Ansolabehere is the creator and principal investigator of the CCES, the survey on which Dr. Richman relied in his Electoral Studies article on noncitizen registration. Dr. Richman considers Dr. Ansolabehere to be knowledgeable about survey research, and believes that Dr. Ansolabehere has a good reputation as a political scientist among other political scientists. Indeed, the Court found his testimony and report to be persuasive, consistent, supportable, and methodologically sound. Dr. Ansolabehere opined that Dr. Richman's various estimates-collectively and individually-did not provide statistically valid evidence of noncitizen registration in Kansas. For the following reasons, the Court credits Dr. Ansolabehere's testimony and finds that Dr. Richman's estimates are not statistically valid.

         a. Estimates of Noncitizen Registration or Attempted Registration in Kansas

         Dr. Richman offers four different estimates based on four different data sources of noncitizen registration or attempted registration in Kansas: (1) 14 Kansas respondents in the 2006-2012 CCES who stated that they were noncitizens, out of which 4 stated that they were registered to vote, [104] (2) records of approximately 800 newly-naturalized citizens in Sedgwick County, 8 of whom had records of pre-existing registration applications;[105] (3) a survey of 37 TDL holders, 6 of whom stated that they were registered or had attempted to register to vote;[106]and (4) 19 survey responses from a group of “incidentally-contacted” noncitizens, 1 of whom stated that they were registered or had attempted to register to vote.[107] Dr. Richman failed to provide margins of error with his original report for the first three estimates he discussed, and he admitted during his testimony that such failure does not conform to ...


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