[EL] Kobach v. EAC

[Josh Douglas]

I can't speak to why he did not make the APA claim, but the argument that a
photo ID law is itself an additional qualification finds support in some
recent state case law.  Several state courts (in Missouri, Pennsylvania,
Arkansas, Wisconsin trial courts that were reversed) have concluded that,
because possession of a photo ID is not universal, requiring one to vote
amounts to an additional qualification that goes beyond what the state
constitutions allow.  I explore this question in depth in my article The
Right to Vote Under State Constitutions
<http://www.vanderbiltlawreview.org/2014/01/the-right-to-vote-under-state-constitutions/>.
The argument is, in essence, that because not having an ID precludes
someone from voting who otherwise meets all of the eligibility
requirements, possession of a qualifying ID becomes an additional
qualification, as it's the only thing that stops an otherwise-eligible
voter (who could prove their eligibility through less strict means).  What
is ironic is that Kobach is using this argument in reverse; state courts
have concluded that strict photo ID laws amount to additional
qualifications to strike them down under state constitutions, not support
their existence.

Josh

On Sat, May 30, 2015 at 1:32 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  Here is a link to govt brief:
>
> http://electionlawblog.org/wp-content/uploads/14-1164-Kobach-Fedl-opp.pdf
>
> Rick Hasen
>
>  Sent from my iPhone. Please excuse typos.
>
> On May 30, 2015, at 10:30 AM, Marty Lederman <lederman.marty at gmail.com>
> wrote:
>
>   Having now read the petition and BIO, I'm a bit surprised by the way
> Kobach has framed the case.  The Supreme Court as much as *invited *him
> to ask the EAC to include certain proof of citizenship on the federal form,
> and if the Commission decided that such proof was not "necessary . . . to
> assess the [applicant's] eligibility" to vote (that's the statutory
> standard), to then challenge the merits of the EAC's decision as arbitrary
> and capricious under the APA.
>
>  But, far as I can tell, the government is correct:  Kobach doesn't
> challenge the merits of the EAC's decision.  Instead, he tries to argue
> that the EAC was obligated to defer to the states' own determinations of
> what information is "necessary" to assess eligibility, which on first
> glance strikes me as a very weak argument.
>
>  He then tries to reframe the question by suggesting that photo ID proof
> of citizenship is *itself* a "qualification" for voting under state law.
> But that's too clever by half, right?  As the Supreme Court explained in
> *ITCA*, "[t]o be eligible to vote under Arizona law, a* person must be a
> citizen of the United States*. Ariz. Const., Art. VII, § 2;
> Ariz.Rev.Stat. Ann. § 16–101(A) (West 2006)."  The Prop 200 requirement of
> photo ID is not itself a qualification, but instead part of "Arizona's
> efforts to enforce *that* qualification [i.e., citizenship]."  That is to
> say, it's an evidentiary requirement, not the relevant voter qualification
> itself, which remains U.S. citizenship.
>
>  I would have thought that the much stronger argument would have been the
> arbitrary and capricious claim on the merits of whether photo ID is
> "necessary."  Not that I think such an argument should prevail:  On a quick
> read, I tend to think the EAC's decision was *not *arbitrary or
> capricious (see footnote 6 of the USG brief).  But, even so, wouldn't that
> have been a stronger argument than insisting that the EAC must defer to the
> states, or that photo ID is itself a voter "qualification"?
>
>  Can anyone offer insight as to why they appear to have abandoned the APA
> claim?
>
> On Fri, May 29, 2015 at 8:44 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>  Before the Supreme Court Term Ends, It Could Take Another Blockbuster
>> Elections Case <http://electionlawblog.org/?p=72962>
>>  Posted on May 29, 2015 5:37 pm <http://electionlawblog.org/?p=72962> by Rick
>> Hasen <http://electionlawblog.org/?author=3>
>>
>> Kobach v. EAC
>> <http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-1164.htm>
>>  is getting close to the end of briefing and a decision on whether to
>> take the case. (Does anyone have a copy of the Government’s brief in the
>> case, which is not yet on the SG’s site?)  The case could be a doozy on the
>> question of federal vs. state power in setting the rules for federal
>> elections, and I think there’s a pretty good chance the Supreme Court
>> agrees to hear it. Here wasmy coverage
>> <http://electionlawblog.org/?p=68115> of the 10th Circuit’s ruling:
>>
>>  *Breaking: 10th Circuit, in Major Voting Case, Rejects Kansas and
>> Arizona Citizenship Proof Requirement*
>>
>>   Posted on November 7, 2014 2:18 pm
>> <http://electionlawblog.org/?p=68115> by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>>   You can read the unanimous 10th Circuit opinion in Kobach v. U.S. EAC,
>> reversing the lower court,at this link.
>> <http://electionlawblog.org/wp-content/uploads/kobach-eac-10th.pdf>
>> Kansas and Arizona tried to force the federal government to require those
>> who register to vote using a simple federal form for voter registration
>> include proof of citizenship if the voter is a KS or AZ resident. (Update:
>> To be clear, this case concerns only whether AZ or KS have to accept
>> federal form without additional proof of citizenship. For those who
>> register with AZ or KS forms, the states can still demand proof of
>> citizenship.)
>>
>> The lower court sided with the states, but the federal government won
>> with a reversal on appeal. The case could well be headed to the Supreme
>> Court as a major dispute over federal versus state power in voting.
>>
>> From the opinion’s conclusion:
>>
>> Kobach’s and Bennett’s argument that the states’ Qualifications Clause
>> powers trump Congress’ Elections Clause powers is foreclosed by precedent.
>> In ITCA, the Court clearly held that Congress’ Elections Clause powers
>> preempt state laws governing the “Times, Places and Manner” of federal
>> elections, including voter registration laws. 133 S. Ct. at 2253. Citing
>> the Federalist Papers, the Court noted that the Framers expressly rejected
>> giving the states exclusive authority to regulate federal elections because
>> “an exclusive power of regulating elections for the national government, in
>> the hands of the State legislatures, would leave the existence of the Union
>> entirely at their mercy.” Id.Only the dissenting opinion by Justice Thomas
>> endorses the theory that Arizona and Kansas press before this court. Id. at
>> 2266-69 (Thomas, J., dissenting). The dissent proves the point….
>>
>> In sum, the EAC had valid authority under HAVA to subdelegate
>> decisionmaking authority to its Executive Director relating to the contents
>> of the Federal Form. Under the unique circumstances of this case (involving
>> a quorum-less EAC), an appeal from the Executive Director’s decision to
>> deny the states’ requests to modify the contents of the Federal Form was
>> impracticable. Consequently, the Executive Director’s decision constitutes
>> final agency action. And that action—which fell within the bounds of
>> the subdelegation that the EAC issued when it had a quorum—was procedurally
>> valid.
>>
>> Contrary to Kobach’s and Bennett’s claims, the NVRA does not impose a
>> ministerial duty on the EAC to approve state requests to change the Federal
>> Form. The Executive Director’s denial of the states’ requests survives our
>> APA review, and the states’ constitutional claims are unavailing. We
>> therefore REVERSE the ruling of the district court and REMAND the case to
>> the district court with instructions to vacate its order instructing the
>> EAC to modify the Federal Form.
>>
>>
>>
>>
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-- 
Joshua A. Douglas
Robert G. Lawson & William H. Fortune Associate Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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