League of Women Voters v. Harrington

The Brennan Center, along with co-counsel Stroock & Stroock & Lavan LLP and Kirkland & Ellis LLP, represents the League of Women Voters of the United States, along with its Alabama, Georgia, and Kansas state Leagues, in a lawsuit opposing U.S. Election Assistance Commission Executive Director Brian D. Newby’s action to allow three states to require documentary proof of citizenship on the federal voter registration form.

In 2013, the Supreme Court ruled that Arizona could not require documentary proof of citizenship on the federal registration form without EAC approval. Kansas implemented a law similar to Arizona’s the same year, and both states put proof of citizenship requirements into effect for voters using their state forms. Subsequently, the EAC and a federal court ruled it invalid for the federal form. Alabama and Georgia, which passed similar provisions in 2011 and 2009, respectively, had not implemented their laws. Research shows 7 percent of voters do not have documentary proof of citizenship, and tens of thousands of Kansans have been blocked from registering to vote in the state.

On January 29, 2016, Newby sent letters to the secretaries of state of Alabama, Georgia, and Kansas stating, without further explanation, that he would allow the three states to require citizenship documents for applicants using the federal registration form. If the documents, such as birth certificates or passports, are not provided, Americans will be denied the fundamental right to vote. The federal form is designed to guarantee a “simple means of registering to vote,” and already requires applicants to swear that they are U.S. citizens under penalty of perjury.

Documentary proof of citizenship requirements undermine the groups’ efforts to increase civic participation and make it more difficult for individuals to vote. The League, one of the longest standing voter registration organizations in the nation, argues that documentary proof of citizenship requirements harm its nonpartisan voter registration efforts, undermining its core mission of promoting voter participation, and that Executive Director Newby should not have taken action restricting the right to register to vote in federal elections.

Nearly identical requests from Arizona and Kansas have already been rejected by the EAC multiple times. In June 2015, the U.S. Supreme Court turned down a petition from Arizona and Kansas to hear Kobach v. United States Election Assistance Commission, thereby letting stand a 10th Circuit ruling that the states may not force applicants using the federal voter registration form to show documents.

The executive director did not have authority to allow the three states to enforce documentary proof of citizenship requirements on the federal form, and doing so violated both EAC policy and federal law. The suit is brought in response to Executive Director Newby’s sudden and unexplained decision to allow three states to require applicants using the federal registration form to show documents proving their citizenship. The Brennan Center is joined in its complaint by other counsel and groups. The Lawyers’ Committee for Civil Rights Under Law, American Civil Liberties Union, and pro bono counsel Steptoe & Johnson LLP represent the Georgia State Conference of the NAACP and the Georgia Coalition for the People’s Agenda. The Lawyers’ Committee and ACLU also represent Marvin and JoAnn Brown. Project Vote joins in the lawsuit representing itself and with pro bono counsel Arnold & Porter LLP.

On February 12, 2016, the Brennan Center along with co-counsel filed suit against Executive Director Newby’s wrongful action, and on February 17, filed motions for a temporary restraining order and preliminary injunction to prevent the Executive Director and the EAC from enforcing the decision granting state requests to require documentary proof of citizenship on the federal voter registration form.

The parties met in court on February 22, 2016 for a hearing on the Plaintiffs’ motion for a temporary restraining order, and Judge Richard Leon denied the Plaintiffs’ motion on February 23. On March 9, the parties again met in court to argue the Plaintiffs’ motion for a preliminary injunction. On June 29, Judge Leon denied the Plaintiffs’ preliminary injunction. The Brennan Center along with co-counsel filed a brief appealing that order in the D.C. Circuit on July 18. 

On September 9, 2016, the D.C. Circuit preliminarily enjoined the EAC from changing the federal voter registration form to allow Kansas, Alabama, and Georgia to require documentary proof of citizenship. That means documentary proof of citizenship is not on the federal form. The case is proceeding in the district court. 

On February 24, 2017, the district court remanded the decision to the EAC. Judge Leon instructed the Commission to determine whether Executive Director Newby had authority to allow the three states to require proof of citizenship on the federal form. 

On June 1, 2017, the EAC announced in a federal court filing that they were split along partisan lines over whether the panel’s executive director acted within his authority last year when granting the requests at issue in the case. The disagreement means that the September 2016 injunction against the burdensome registration requirements still stands.

On September 16, 2021, the district court granted Plaintiffs’ request for summary judgment, finding that Executive Director Newby’s decision allowing the three states to amend the federal voter registration form to require documentary proof of citizenship from registrants in those states violated the federal Administrative Procedures Act (APA). The judge ruled that Newby’s actions, on behalf of the EAC, violated the APA because he did not make a determination that the proposed changes were “necessary” to enable the states to assess voter eligibility before approving the changes, as required by the NVRA.

Though these registration requirements have not been in place due to the preliminary injunctions issued in 2016, the district court’s final decision means that no state can require documentary proof of citizenship as part of the federal voter registration form going forward unless they make a new request to the EAC, and the EAC makes a new finding that the requirement is necessary to give effect to the state’s eligibility requirements.

District Court Documents

• Complaint (2/12/2016)
• Motion for Temporary Restraining Order and Preliminary Injunction (2/17/2016)
• Filed Declarations (2/17/2016)
• Motion of the Kansas Secretary of State to Intervene as Defendant and Memorandum in Support (2/19/2016)
• Motion of the Public Interest Legal Foundation to Intervene as Defendant and Memorandum of Law in Support (2/20/2016)
• Memorandum and Points and Authorities in response to Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction (2/21/2016)
• Affidavit of Bryan Caskey (2/21/2016)
• Defendants’ Response to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (2/22/2016)
• Answer and Defenses of Proposed Intervenor-Defendant Kris W. Kobach, Kansas Secretary of State, to Plaintiffs’ Complaint (2/22/2016)
• Proposed Answer and Defenses of Intervenor-Defendant the Public Interest Legal Foundation (2/22/2016)
• Order Denying Temporary Restraining Order (2/23/2016)
• Plaintiffs’ Supplemental Memorandum in Support of Motion for Preliminary Injunction (3/6/2016)
• Public Interest Legal Foundation Memorandum of Points and Authorities in Response to Plaintiffs’ Motion for a Temporary Restraining Order and a Preliminary Injunction (3/6/2016) [Portions redacted by Court]
• Order Denying Plaintiffs’ Preliminary Injunction (6/29/2016)
• Defendants’ Motion for Summary Judgment (7/22/2016)
• Plaintiffs’ Cross-Motion for Summary Judgment and Opposition to Federal Defendants’ Motion for Partial Summary Judgment (8/5/2016)
• Intervenor-Defendant Public Interest Legal Foundation’s Cross-Motion For Summary Judgment (8/19/2016)
• Memorandum in Support of Intervenor-Defendant Kansas Secretary of State Kris Kobach’s Cross-Motion for Summary Judgment (Public Copy—Sealed Material Deleted) (8/19/2016)
• Intervenor-Defendant Public Interest Legal Foundation’s Reply to Federal Defendants’ Combined Response to Plaintiffs’ and Defendant-Intervenors’ Cross-Motions for Summary Judgment (9/2/2016)
• Plaintiffs’ Reply Brief in Support of Their Cross-Motion for Summary Judgment and Opposition to Defendant-Intervenors’ Cross-Motion for Summary Judgment (9/2/2016)
• Reply by Defendant-Intervenor Kansas Secretary of State Kris Kobach to Federal Defendants’ Combined Response to Plaintiffs’ and Defendant-Intervenors’ Cross Motions for Summary Judgment and Reply Memorandum (9/2/2016)
• Federal Defendants’ Notice of Compliance (9/12/2016)
• Supplemental Memorandum in Support of Plaintiffs’ Cross-Motion for Summary Judgment (10/7/2016)
• Intervenor-Defendant Public Interest Legal Foundation’s Supplemental Brief in Support of Its Cross-Motion for Summary Judgment (10/7/2016)
• Federal Defendants’ Supplemental Memorandum (10/7/2016)
• Supplemental Brief on Summary Judgment of Defendant Intervenor Kansas Secretary of State Kris Kobach (10/7/2016)
• Opinion Remanding to the EAC (2/24/2017)
• Memorandum By EAC Commissioners (6/1/2017)
• Plaintiffs’ Supplemental Brief Concerning the EAC’s Response to the Court’s Remand Order (8/07/2017)
• Federal Defendants’ Supplemental Memorandum Regarding the Significance of the EAC’s Submission to the Court (8/07/2017)
• Intervenor-Defendant Kansas Secretary’s Supplemental Brief in Support of His Motion for Summary Judgment (8/07/2017)
• Intervenor-Defendant Public Interest Legal Foundation’s Supplemental Brief in Support of Its Cross-Motion for Summary Judgment (8/07/2017)
• Intervenor-Defendant Public Interest Legal Foundation’s Reply to Its Supplemental Brief (8/28/2017)
• Federal Defendants’ Reply Memorandum (8/28/2017)
• Defendant Intervenor Kansas Secretary of State Kobach’s Reply Brief (8/28/2017)
• Plaintiffs’ Post-Remand Reply Brief (8/28/2017)
• Opinion Granting Summary Judgment (9/16/2021)

Appeals Court Documents

• Appellants’ Emergency Motion to Expedite (7/7/2016)
• Appellee-Intervenors’ Response to Appellants’ Emergency Motion to Expedite (7/11/2016)
• Response of Federal Appellees to Motion to Expedite (7/11/2016)
• Appellants’ Reply to Responses to Motion to Expedite (7/12/2016)
• Opening Brief of Appellants (7/18/2016)
• Brief of Amicus Curiae Asian Americans Advancing Justice in Support of the Appellants (7/21/2016)
• Brief of Amicus Curiae Fair Elections Legal Network in Support of the Appellants (7/21/2016)
• Brief of Appellees Brian Newby, et al (7/27/2016)
• Brief of Appellee-Intervenor Secretary of State of Kansas (Public Copy—Sealed Material Deleted) (8/3/2013)
• Brief of Appellee-Intervenor Public Interest Legal Foundation (8/3/2016)
• Reply Brief of Appellants (8/10/2016)
• Order Granting Motion for Preliminary Injunction (9/9/2016)
• Opinion Granting Motion for Preliminary Injunction (9/26/2016)