League of Women Voters of the United States v. Newby ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LEAGUE OF WOMEN VOTERS OF THE
UNITED STATES, et al.,
Plaintiffs,
v. Civil Case No. 16-236 (RJL)
BRIAN D. NEWBY, in his capacity as the
Executive Director of the United States E1ection
Assistance Commission, and UNITED
STATES ELECTION ASSISTANCE
COMMISSION,
FILED
JuN29 2016
C|erk. U.S. D|strict & Bankruptcy
Courts for the D|strict of Co|umbla
Defendants,
KANSAS SECRETARY. OF STATE KRIS
W. KOBACH and PUBLIC INTEREST
LEGAL FOUNDATION,
\./\/\/»/\/\.¢\y\¢\/\/\/»/\./\/\/\./\/\/»/\/
Defendant-Intervenors.
MEMORA DUM. OPINION
(June , 2016) [Dkt. #11]
On January 29, 2016, the Executive Director of the United States Election
Assistance Commission ("EAC" or "Commission") Brian Newby granted Kansas’s,
Georgia’s, and Alabama’s requests to modify the instructions on the National Mail Voter
Registration Form ("the Federal Form") to direct voter registration applicants in those three
states to submit proof of their United States citizenship in accordance with the states’
respective laws and regu1ations. Shortly thereafter, a modified version of the Federal Form
was posted on the EAC’s Website. Plaintiffs argue Newby acted outside the scope of his
authority and in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706.
Presently before the Court is plaintiffs’ Motion for a Preli1ninary Injunction [Dkt. #l l],
requesting that l void Newby’s changes to the Federal Form and vacate the letters granting
Kansas’s,“G,eorgia’s, and Alabama’s requests by ordering defendants to immediately
reverse the changes on the Federal Form and on the EAC website, to immediately withdraw
the letters, and to instruct election officials in those states to replace physical copies of the
modified Federal Form with reinstated, unmodified versions that do not include the
documentary proof of citizenship requirements at issue. See Pls.’ Proposed Order l-2
[Dkt. #l l-22]. Upon consideration of the parties’ pleadings and oral arguments, the brief
of Amicus Curiae Landmark Legal Foundation, the relevant law, and the entire record
herein, plaintiffs’ l\/_lotion is DENlED.
BACKGROUND
The Elections Clause of the Constitution states, "The Times, Places and Manner of
holding Elections for Senators and Representatives;'shall be prescribed in each State by the
Legislature thereof., but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators." U.S. Const. art. l, § 4, cl. l.
.Acting under its Elections Clause authority, and in order to "increase the number of eligible
citizens who register to vote in elections for Federal office," Congress directed the Federal
Election Commission ("l*;EC"), "in consultation with the chief election officers of the
States," to create a single federal voter registration form that "[e]ach State shall accept and
I set a hearing for February 22, 2016 and ordered defendants to submit any written
opposition no later than l0:O0 Al\/l that day. Scheduling Order (Feb. 18, 2016).
Astonishingly, instead of submitting an opposition, defendants submitted their written
consent to the entry ofa preliminary injunction ! Defs.’ Response to Pls.’ Motion for TRO
and Prelim. Inj. l [Dkt. #28]. Thereafter, l granted the Secretary of State of Kansas Kris
Kobach ("Secretary Kobach") and the Public Interest Legal Foundation’s ("PILF")
motions to intervene as defendants and permitted them to appear at the hearing. Minute
()rders (Feb. 22, 2016). After consideration of the parties’ briefing and oral arguments, I
denied plaintiffs’ l\/Iotion for a Te1nporary Restraining Order on February 23, 2015, but
reserved judgment on the propriety of a preliminary injunction. l\/lem. Order [Dkt. #34].
On March 4, 2016, l again heard argument from the parties regarding the Motion for a
Preli1ninary lnjunction," and the parties submitted supplemental briefing thereafter on
March 21,2016.'2
would-be voters who have submitted a registration form before that date have until close of business on
August l, 2016 to provide their proof of citizenship. Prelim. [nj. Hearing. Tr. at 5 l.
ll Already pending before this Court on that date were a l\/l``otion for a Preliminary and/or Permanent
injunction filed in Grace v. District ofColumbia, Civ. No. 15-2234, and Motion for Preliminary injunction
filed in Swcinsc)n Gr()up Wg. LLC v. Jewell, Civ. No. l5-l4l9, and. Both ofthose motions presented novel,
complicated, and significant issues. I issued opinions on those preliminary injunction motions on l\/lay l7,
2016 and june 28, 20l6, respectively.
'2 On l\/lay l7, 20l6, judge julie A. Robinson of the United States District Court for the District of Kansas
preliminarily enjoined Secretary Kobach from enforcing Kansas’s documentation of citizenship
requirement "as to individuals who apply to register to vote in federal elections at the same time they apply
for or renew a driver’s license." Fish v. Kr)bach, No. l6-2lO5, 2016 WL 2866195, *32 (D. Kan. l\/Iay l7,
2016), appeal docketed No. l6-3l75 (l0th Cir. june l6, 2016). Her order, which went into effect on june
l4, 20l6, directed Secretary Kobach to "register for federal elections all otherwise eligible motor voter
-ii~<~ bee-r1 air alia 'i_r=z- -s;-;e_;i._§:r,.;_;_-§w' '~ ~- ' g-L screw .D.
i<&i»:i:.._~i@za;: ,.5, 2_;*:_1_
to help others do so.
ll
STANDARD 01<`` REVIEW
A preliminary injunction is an "extraordinary remedy," and, as such, "should be
granted only when the party seeking the relief, by a clear showing, carries the burden of
persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail on a motion
for a preliminary injunction, a plaintiff must demonstrate "that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an injunction is in the public
interest."” Wz``mer v. NRDC, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Our Circuit
has traditionally applied a "sliding scale" approachr'to these four factors. Davis v. Pensz``on
Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009). In other words, "a strong
3
showing on one factor could make up for a weaker showing on another.’ Sherley v.
Sebelius, 644 F.3d 388, 392 (D.C. Cir. 201 1). 14 Nevertheless, "a movant must demonstrate
at least some injury for a preliminary injunction to issue, for the basis of injunctive relief
in the federal courts has always been irreparable harm." Chaplaz'ncy of Full Gospel
C//zurches, 454 F.3d 29(), 297 (D.C. Cir. 2006) (internal citations and quotation marks
13 Where, as here, a plaintiff seeks a mandatory injunction, i.e. an injunction that would require a positive
act on the part of the defendant, certain courts have held_pl_aintiffs to an even higher burden of persuasion.
mich v. Danzzg, 135 F. supp. 2d 32, 35 n. 2 (D.D.C. ``g_~e~.=iazi;;_r;i;;w;z;zi_i"-' <;;?vii;:r':=€.~“-'=i»;:‘i;ii_‘:r§§z_z-irz;_lz~z-tvie»:¢>.x;_ .
has yet to address whether such plaintiffs must carry.``:a``_ 1143 _
to impose a heightened standard ofpersuasion. See,
;_eh;._.r xc-I_:;iii§e~
Corp., 746 F.2d 816, 834 n. 31 (D.C. Cir. 1984) ("In t_'i_$ _¢;``.ffl"_¢_»ii§ii'l;, 'ITQW-B":»``*»'-‘Y_:'ZS_‘, iirl»,-r:"£'zs.'-A%£*~ii ar ;°Sx<._}``_’ti_&t‘€@.x. €1_"§;!1_1?1-``1?``¢§
a heightened showing, and we express no view as to whether a heightened showing should i fact be
required."). _
‘4 Following the S_upreme Court’s decision in Winter, our Circuit Court "has suggested, without decid_ing,
t;l``i§-``£ .35?’°§§2``1"5€§‘~ G§ifl``r'i'-il_il_"=_l§.cti ?¢i.-``:‘;§``ii_f “l?:_z_.``»ii §li§i_§jiz*_s_g'~$::»z;le ~ar;:j,-lysis in 'i``§%.v'¢;``.?i*=. of a ‘more demanding_-l§m‘€;i'~?,n``-”
;vi§:__)¢;=_lt_i_i°.ii;``,§.§=_``?i _ . ,_ i;'i:ii.*iil‘.{€'*.``r``".*-I:``;‘ __ it,l _ a``i/i~,*' l'ili¢_a-_iiliood o``f``.';=;``ize'.':-i;*»ess on the merits-~i&_fx'€.?``l-~irriiif;»%;¢l:i;';i%i§:]_'&.
!§g;,;~§;;;_;``*§ ``j’_~£§;'.,i§z_£é;-‘.§z£``:i§»;i.s .. . _ j ._.,., __ »96 (D.D.C. 2013) (quoting Sherley, 644 F.3d at 392).
For the time being, however, the sliding scale analysis remains the law of our Circuit.
.a-
§§
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12
omitted). "A movant’s failure to show any irreparable harm is therefore grounds for
refusing to issue a preliminary injunction, even if the}other three factors entering the
calculus merit such relief." Ia'.
ANALYSIS
I. The State Leagues have demonstrated a substantial likelihood of standing.
Defendant-1ntervenor Secretary Kobach argues the Court lacks jurisdiction because
plaintiffs have not demonstrated their standing to sue. A federal court is, of course, a court
of li1nited jurisdiction, Kokkonen v. Guam’ian Lzfe Ins. C0. ofAm., 511 U.S. 375, 377
(1994), and is restricted to hearing and deciding actual cases or controversies, U.S. Const.
art. III, § l. "[T]he core component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III." Lujan v. De/’s. of Wildlzfe, 504 U.'S. 555,
560 (l992). "The plaintiff bears the burden of . . . establishing the elements of standing,"
which are "injury in fact, causation, and redressability." Arpczz``o v. Obama, 797 F.3d ll,
19 (D.C. Cir. 2015). Where, as here, a plaintiff seeks injunctive relief, "he must establish
an ongoing or future injury that is ‘certainly impeding’ and may not rest on past injury."
Id. (quoting Clapper v. Amnesly Int’l USA, 133 S. Ct. 1138, 1147 (2()13)). "ln reviewing
the standing question, [the Court] must be careful not to decide the questions on the merits
for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would
b_e successful in their claims." In re Navy Chaplaincy, 534 F.3d 7516, 76(1 (D.C.n\Cir. 2008)
(internal quotation marks omitted). "[E]ach element [of standing] must be supported in the
same way as any other matter on which the plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the successive stages of the litigation."
13
Lujan, 504 U.S. at 56,1. When moving for a preliminary injunction, a plaintiff "must show
a ‘substantial likelihood’ of standing." Food & Wczzer Watch, Inc. v. Vilsack, 808 F.3d
905, 913 (D.C. Cir. 2015).
Relying on Havens Really Corp. v. Coleman, 455 U.S, 363 (1982), the
organizational plaintiffs maintain they have standing to sue on their own behalf based on
injuries they, as organizations, have suffered. Pls.’ l\/lem. 27~30. When assessing whether
an organization has suffered an injury in ``fact, the "key issue" in this Circuit is whether the
organization "has suffered a concrete and demonstrable injury to its activities." PETA v.
US. Dep’t ofAgric., 797 F.3d 1087, 1093 (D.C. Cir. 2015) (internal quotation marks and
alterations o1nitted). For such an injury to exist, "there must . . . be a direct conflict between
the defendant’s conduct and the organization’s mission." Abigail All. for Better Access to
Developmem‘al Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006); see also Nat’l
Treasury Emps. Union v. Um``teo’ States, 101 F.3d 1423, 1429-30 (D.C. Cir. 1996)
(requiring that the "purportedly illegal action taken by the defendants was at loggerheads
with and squarely countered the plaintiffs’ organizational objective"j (internal quotation
marks o1nitted). But “a mere setback_to [an organization’s] abstract social interests is not
sufficient." Equal Rz``ghz‘s Cir. v. Post Props., Inc., 633 F.3d ll36, 1138 (D.C. Cir. 2011).
In order to distinguish a concrete and demonstrable injury from a mere setback, courts in
this Circuit confirm first that the defendant’s allegedly illegal "action or omission to act
injured the organization’s interest." PETA, 797 F.3d at 1094 (internal quotation marks and
alterations omitted); see also Am. Legal Found. v. FCC, 808 F.Zd 84, 92 (D.C. Cir. 1987j
("The organization must allege that discrete programmatic concerns are being directly and
14
adversely affected by the defendant’s actions."); Abz'gail All., 469 F.3d at 133
(differentiating "between organizations that allege that their activities have been impeded
from those that merely allege that their mission has been coinpromised"). Next the court
ascertains whether "the organization used its resources to counteract that harm." PETA,
797 F.3d at 1094 (internal quotation marks and alterations omitted); see also Havens
Really, 455 U.S. at 379 (stating an organization must demonstrate a "drain on [its]
resources_constitut[ing] far more than simply a setback to the organization’s abstract
social interests").
At ininimurn, the League of Women Voters of Georgia, the League of Women
Voters ofKansas, the League of Women Voters of Alabama, and Project Vote (collectively
"the State Leagues") have met their burden to demonstrate organizational standing._l$ They
each have a mission of encouraging civic participation in both state and federal elections,
which is carried out in part by assisting individuals in properly completing voter
registration forms at voter registration drives. Poythress Decl. 1111 4, ll [Dkt. #13-6];
Furtado Decl. 1111 4, 7, 13 [Dkt. #13-7]; Permaloff Decl. 1111 6~7, 18 [Dkt. #13-81; Slater
Decl. 11 ll [Dkt. #13-9]. The State League’s voter registration drives are often conducted
at community events, on college campuses, at high schools, and in in high-traffic public
places like train stations. Poythress Decl. 11 9; Furtado Decl. 11 7; Permaloff Decl. 11 24;
Slater 11 9. The League of Women Voters of Kansas ("the Kansas League") explains that
‘5 While it is conceivable Georgia State Conference of the NAACP and the Georgia Coalition for the
}i_*é§;¢ple’s could also de~l"i’fzf’_ii_'_.*?.``~.frate._~'grg§ndiiig, their conclusory affidavits are devoid of the specific
``_l'°_¢',ie.f:_i;s necje$f~;s_aafgg@_ support a sub:``ft€f§»:it'i'l§"_al liki§'.l~i'fiood of standing at this stage of the pr0ceedings.
l5
requiring documentation of citizenship adversely affects its voter registration drives
because``some_people do not carry proof of citizenship around with them, others do not
possess documentation of citizenship at all and are unable to afford it, and some individuals
that do have documentation of citizenship on their person would not feel comfortable
allowing voter registration volunteers to handle it. Furtado Decl. 1]1[ l7, 20, 22, 32, 37;
Krehbiel Decl. jljl 5, 6 [Dkt. #47_-5]. As a result, the Kansas League states, its "registration
events will require more effort and will likely register fewer voters." Furtado Decl. 11 32.
The Kansas League further explains that, outside of its voter registration drives, it will have
to expend additional resources to help applicants gather and obtain documentation of
citizenship. Furtado Decl. {l 32, _5>3, 36, 37. But the Kansas League’s efforts were, and will
continue to be, undertaken largely as a general response to Kansas’s documentation of _
_ citizenship requirement and its current enforcement as to all who apply to register to vote
in stale elections_rather than in response to the requirement now appearing on the Federal
Form. See Pls.’ Mem. 19-22; Pls.’ Supplemental Mem. in Supp. of Mot. for Prelim. lnj.
l2-l5 [Dkt. #47] Furtado Decl. 111 15-26, 36, 38, 39. The validity of Kansas’s
documentation of citizenship requirement and its application in contexts outside of
registration through the Federal Form are'not at issue her_e, and the Kansas League’s
registration efforts will continue to be somewhat affected by the requirement regardless of
the outcome of this litigation.'° However, the Court agrees that Newby’s approval of
-r
." F.’laintiffs hint at, but do not develop, an argument that a Kansas District Court’s ruling in Belenlcy v.
Kobach, No. 20l3CVl33l (Shawnee Cnty., Kan. Dist. Ct. Jan. l5, 2016) is relevant to their injury here
because °'l_rhaz- state '~:_r'¢r;,s._r;rt concluded i;l_j.a.§ Kan sas State Legisl§§]_=l_u``!‘z§--'I``!_;;£_€I not authoz*§i_"z;x‘__»'°§l Secretary_'?§§;s;‘i_l.'_:_._¥i£.%'_lt
limit Fe§r";'?_r;§_l For§?.F;--izzgp'plicants to reg,»‘_i§a“__l_;;‘z_;z‘,'_ion to vote only for for feder.§z;l__~ -'£_;.nd not stat°r_.§--€;q»f``§'“i".z’t_§-
The Kansas District Court appears to have issued only a declaratory judgment, and the parties have not
l6
Kansas’s request does mean that the Kansas League will now have to help individuals
understand and comply with the documentation of citizenship requirement to the extent it
uses the Federal Form in its voter registration endeavors. Furtado Decl. 11 28-29.
T he League of Women Voters of Alabama, the League of Women Voters of
Georgia, and Project Vote, which operates in Georgia, submitted similar declarations
regarding how documentation of citizenship requirements could impede their voter
registration drives, but their situation is different from that of the Kansas League because
the record indicates that Alaba1na and Georgia, unlike Kansas, are not actually enforcing
their respective documentation of citizenship requirements as to Federal Form applicants.
As such, the Alabama and Georgia state leagues merely provide conclusory claims that as
long as the state-specific instructions remain on the F ederal Form their voter registration
activities will be hindered. PermaloffDecl. ll il ll [Dkt. #47-6]; Poythress Decl. ll 1[1] ll-
l3 [Dkt. #47-7]. Curiously, they fail to explain how this can be so when they could simply
inform the voter registration applicants they assist that the requirement is not being
enforced
However, each of the State Leagues also has a mission of educating the public about
voting laws, which is closely tied to their mission of encouraging civic participation.
Poythress Decl. ii 19-; Furtado Decl. il 4; Per1naloff Decl. il 31-32; Slater ii 25. Ifthe state-
specific instructions remain on the Federal Form, the State Leagues will have to expend
demonstrated to this Couit that the Belenky case has had or will have any effects on how Kansas will
administer registration for state and federal elections. Instead, pl_§ii-_x.rt_i:ffs mj.i,*_-rié-'i§$-'si§z;‘c_e:~_;?.t§é¥FiréZ/€)) has gen~ex-‘»§``.iti)e.d
confusion in Kansas. Prelim. Inj. Hearing Tr. 33-34. l\/loreover, §§\if:>.~‘;'x'~‘etary f€;§>_:l%‘;z§»;l"i_I‘:-*;.;',_lin§§§,``ins he is pui=’§tt'iiig
an appeal o'f the Kansas District Couit’s decision. TRO Hearing Tr. 72-74.
l7
some resources to clarify the effects of the requirements to their members and volunteers
and to potential voters they encounter in order to minimize confusion the instructions may
cause. Poythress 1 19; Furtado Decl. 11 4l; Permaloffjl 3 l, 35 Slater M 8, 25-29. Because
they will be expending resources "in response to, and to counteract, the effects of the
defendants’ alleged[ly unlawful conduct]," Equal Righz‘s Ctr., 633 F.3d at ll40, the State
L-``eagues have demonstrated a substantial likelihood of organizational standing."
II. Newby’s actions are subject to judicial review.
Defendant-intervenors argue that Newby’s actions are not subject to judicial review
under the~ APA, implying they are "general statements of policy." Kobach’s Opp’n 19
(quoting Cem‘er for Auto Safety v. NHTSA, 452 F.3d 798, 806-07 (D.C. Cir. 2006)); see
also Public interest Legal Foundation’s Mem. of P&A in Resp. to Pls.’ Mot. for a TRO
and a Prelim. lnj. 8-9`` [Dkt. #53]. The APA provides a "limited cause of action for parties
adversely affected by agency action."’ Trudeau v. Fed, Trade Comm ’n, 456 F.3d 178, l85
(D.C. Cir. 2006). Pursuant to Section 704 of the APA, "fmal agency action for which there
is no other adequate remedy in a court [is] subject to judicial review." 5 I=J.S.C. § 704.
"[T]o be ‘fmal,’ agency action must ‘mark the consummation of the agency’s
decisionmaking process,’ and must either determine ‘rights or obligations’ or occasion
‘legal consequences."’ Alaska Dep’t ofEnvtl. Conservaz‘z``on v. EPA,"540 461, 483
(2004) (quoting Berznett v. Spear, 520 U.S. l54, 177-78 (l997)). Ifthere is no final agency
'7 Having con_``:§l°;¥,_¢'§ied at l':z_j§a§§??" one pl;§i§i_§iff ‘f``_t"r)m ela``éi.:``lii .fx'£. PI£_?§§ -''i°:r plaintl§';_f§€“§aj’ stz;§;'_i_;:iiing. § _§``r&z:/Z.i.<",v°§‘ ..-fi;:€``»Is"~"-.»".i``.§,"s- _ _ _e°e*f -.~.§_F-_
F.Zd 806, 810 (D.C, Cir. 1993) ("[I]f one palty has stage-ix ' '§1_1-», <:‘§§:£?1‘{'_-,__=?.~.-&’,-``€‘.1_.¥3'.§.-"°€'i.l?§i§s§.l-l_t ._*.‘- ‘t``~ . _
eftne standing er ether parties when n inakee ne di~i*i?eeenna'=.#te'retz¢e:-za=eri.is'_Q?i?l#»eei§¢;="``§= ‘t``~i~¢)z#-"ci324
F.3d 726, 731 (D.C. Cir. 2003)). As our Circuit Court has explained, a policy statement or
an interpretive rule is not final agency action_and therefore is unreviewable under the
APA-because it "does not establish a binding norm and is not finally determinative of the
issues or rights to which it is addressed." Nat’l Envtl. Dev. Assoc. ’s Clean Az'r Project v.
EPA, 752 F.3d 999, 1007 (D.C. Cir. 2014) (quoting Edwards, Elliott, & Levy, Federal
Stancz’ards ofRevz'ew 157 (2d ed. 2013)).
.Newby’s grants of Alabama’s, Georgia’s, and Kansas’s requests constitute final
agency action. Newby’s actions clearly ended any decisionmaking process at the EAC as
to whether the States’ documentation of citizenship requirements should be included on
the Federal Form. Indeed, the Federal Form was immediately revised to include the newly
approved instructions. Moreover, the State of I.(ansas promptly began enforcing its
documentation of citizenship requirement as to Federal Form applicants, demonstrating
that Newby’s actions had immediate legal consequences. Finally, although Secretary
Kobach suggests that the Commissioners themselves may reconsider Newby’s decisions,
"[t]he mere possibility that an agency might reconsider . . . does not suffice to make
otherwise final agency action nonfinal." Sackett v. EPA, 132 S. Ct. 1367, 1372 (2012); cf
Appalachz``an Power Co. v. EPA, 208 F.3d 10l5, 1022 (D.C. Cir. 2000) ("[A]ll laws are
subject to change . . . . The fact that a law may be altered in the future has nothing to do
with whether it is subject to judicial review at the moment." (citation omitted)).
19
Secretary Kobach’s final threshold argument is that plaintiffs have failed to exhaust
their administrative remedies by not pursuing anl appeal of Newby’s actions to the
Commissioners. See TRO Hearing Tr. at 57; Kobach’s Opp’n 17. But Secretary Kobach
does not cite any rule or statute mandating that a plaintiff seek commissioner review of
actions taken by the Executive Director before pursuing judicial review, and the APA itself
"imposes no prerequisite of administrative exhaustion unless it isi‘expressly required by
statute or agency rule."’ Um``z‘ed Sz‘azes Hughes, 813 F.?>d 1007, 1010 (D.C. Cir. 20lb)
(quoting Darby v. Cz``sneros, 509 U.S. 137, 143 (1993)). Accordingly, judicial review is
proper here even if plaintiffs did not seek further review at the agency level.
III. Plaintiffs have not demonstrated they will be irreparably injured absent
injunctive relief.
To say the least, irreparable harm is the cornerstone of injunctive relief. Our Circuit
Court has set a "high standard for irreparable injury," requiring the movant’s injury to first
"be both certain and great" and second be "beyond remediation." Ia’. =lndeed, our Circuit
Court has explained that "[m]ere injuries, however substantial, in terms of money, time
and energy necessarily expended in the absence of a stay are not enough." Wisc. Gas Co.
v. FERC, 758 F.Zd 669, 674 (D.C. Cir. 1985). Instead, "[t]ihe possibility that adequate
compensatory of other corrective relief will be available at a later date, in the ordinary
'course of litigation weighs heavily against a claim of irreparable harm." Id. The burden,
of course, is on the movant to demonstrate that he has suffered such a harm and a "movant’s
failure to show any irreparable harm is [] grounds for refusing to issue a preliminary
injunction, even if the other three factors entering the calculus merit such relief."'
20
use" to register voters for elections for federal officeivia mail.' National Voter Registration
Act of 1993 ("NVRA"), 52 U.S.C. §§ 2050l(b)(l); 20505(a)(l); 205()8(a)(l). That
responsibility has since been conferred upon the EAC. Ia’. §§ 2()5()8, 2()929. The NVRA
set certain requirements for the contents of the Federal Form. Ia’. § 205()8(b). Of relevance
here, the Federal Form "may require only such identifying information . . . and other
information . . . as is necessary to enable the appropriate State election official to assess
the eligibility of the applicant and to administer voter registration and other parts of the
election process." Id. § 20508(b)(l). Moreover, the form is to "include a statement that -
(A) specifies each eligibility requirement (including citizenship), (B) contains an
attestation that the applicant meets each such requirement, and (C) requires the signature
of the applicant, under penalty of perjury." Icz’. § 205()8(b)(2). Finally, states must "ensure
that any eligible applicant" who submits a complete Federal Form by the relevant deadlines
"is registered to vote" in an election for federal office.z Ia’. § 20507(a)(l).
Pursuant to _ authority granted in the NVRA, the FEC promulgated further
requirements regarding the Federal Form through regulations, including that the Federal
Form "shall list U.S. Citizenship as a universal eligibility requirement, ll C.F.R
§ 9428.4(b)(l), and must also "[p]iovide a field on the application for the signature of the
applicant, under penalty of perjury, and the date of the applicant’s signature," Ia’.
§ 20503(b).
2 The NVRA "requires States to provide simplified systems for registering to vote in_federal elections, i.e.,
elections for federal officials, such as the President, congressional Representatives, and United States
Senators." Young v. Fordice, 520 U.S. 273, 275 (l997).
3
Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (internal citations and quotation
marks omitted). Unfortunately for the plaintiffs, they have failed to do so here. How so‘?
The organizational plaintiffs argue that they and their members will be irreparably
harmed absent injunctive relief because their voter registration drives will be less
successful and require more effort, they will expend efforts on educating the public about
the changes to the state-specific instructions, and many eligible citizens_including some
of the organizational plaintiffs members-will be unable to register to vote. ‘8 I disagree.
The modification of the Federal For1n to include the state-specific documentation of
citizenship requirements, although an inconvenience, in no way precludes the
organizational plaintiffs and their members from conducting their core activities of
encouraging civic participation in both state and federal elections and educating the public
about the requirements for registering to vote in each. l\/loreover, as discussed above,
injuries to voter registration drive efforts are far from certain in Alabama and Georgia.
where, on the record before 1ne, the documentation of citizenship requirements are not even
being enforced.
As for Kansas, the organizational plaintiffs and their members are focused on
registering eligible citizens to vote in both federal and state elections. See Prelim. lnj.
Hearing Tr. 34-35. Regardless of the outcome of this litigation they will have to endeavor
to help eligible citizens understand and comply with the documentation of citizenship
'8 Because the individual plaintiffs Joann and l\/larvin Brown have not contested that they submitted their
Federal _Form applications before Newby modified the form to include Kansas’s documentation of
citi;gsé_ris§_l``z``i,fp i'é‘._q_'i,a-.iremer:.i;“ajzzd that accordingly ap§_';i;.".%iz.*#'ed their Fe"_923 F. Supp. 2d 143,
147 (D.D.C. 2()13) ("[Al court may refuse to issue an injunction without considering any
other factors when irreparable harm is not demonstrated.").
IV. The relief plaintiffs seek is inappropriate at this preliminary stage.
33
issuance of a preliminary injunction is always "an extraordinary remedy. Winter,
555 U.S. at 24. That said, the breadth of the preliminary injunction plaintiffs seek here is
truly astonishing. They do not ask the Court simply to enjoin the EAC from enforcing
2' Plaintiffs’ arguments regarding their education efforts do not fare better. The Kansas League merely
speculates that it "will likely spend thousands of dollars on producing and distributing additional
instructional videos." Fiirtado Decl. il 39. To say the least, this injury is far from "certain."“ Chaplaz'ncy of
Full Go.s'pe/ Churches, 454 F.3d at 297. Further, the Kansas League states one of its paid interns "will
spend additional time . . . planning ways to educate voters and solve problems created by the documentary
proof of citizenship requirement." Furtado Decl. il 39. While this injury may be sufficient in the standing
analysis, it is nowhere close to the threshold ofa "great" injury required for the issuance ofa preliminary
injunction. Chaplaz'ncy ofFu/l Gospel Churches, 454 F.3d at 297. The same goes in spades for the League
of Women Voters of the United States’s declaration that it will have to update its website in response to
Newby’s actions. Leonard Decl. il 24. And to the extent the organizational plaintiff,s’ declarants suggest
that the organizations will incur monetary losses through their efforts related to the state-specific
instructions on the Federal Form, the declarations are devoid of specifics necessary for the Court to evaluate
whether such pecuniary losses constitute irreparable harm under the law of this Circui_t._ See_ Leonard_ _D_ecl.
il 24; Johnson l'?.-``.»*i:'a'zl. il-‘:i‘.';f~ }§litler il 9; Gaddy Decl. il _i``f;.;l‘ li"§’k"i)'l'106 F. Supp. 3d 125, 126 (D.D.C. 20l5) ("[W]hen a court issues a
preliminary injunction, it acts to preserve the parties’ respective rights and interests while
the case is pending, and it does not typically declare the challenged rule unlawful or vacate
the rule."). Prudence, alone, therefore dictates against granting such comprehensive relief
masquerading as a preliminary injunction
To put it mildly, there are extremely important competing interests atistake in this
case. On the one hand, states are seeking to enforce their voting requirements, and, as the
Supreme Court has recognized, the states’ authority under the Constitution "to establish
22 And even were plaintiffs to prevail on their argument that Newby’s explanation for his actions was
iii_``ri£x:j``;¥``éqtlate un'_¢;?"s;@.``r the APA, in this Circuit, "[a]n y si;f§§'f._>.i:``r'r°l``¢:£l ``t"?ll-l``=§i'_=if. v -f'i``_€*l-``_?_€;§ :3``3_§1.?_¥ “€*§‘§»" " " ``
ifé_z_i¥iated." All£»``ec``f?_»-Sz'gnal, Inc. v. U.S. Nuclear Re_gf;_rziirzt»£>=i_#; __J't#:z‘tr?-‘.ilfl_,_ 5333; i'fr"§'§'§'l"l __1 -'{§}I?..C. £-`` "
lnstead, the Court’s consideration of whether to vacate garza ;fam;,a'i;'gj'_:_g;:.‘~__¢_;;;l_ I"_+;*,_Fc``='tar_l£'i`` ’s’t``ii``rf``ifi?z?r‘it =.v'ac:i"t``iz_ _
_
turn on "the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose
correctly) and the disruptive consequences of an interim change that may itself be changed." Id. 150-51
(quoting Irtt ’1 Union, UMW v. FMSHA, 920 F.Zd 960, 967 (D.C. Cir. l990)).
24
voting requirements is of little value without the power to enforce those requirements."
ITCA, 133 S. Ct. at 2258. On the other hand, Congress has exercised and delegated its
constitutional authority to regulate "the Times, Places and Manner of holding"
congressional elections, U.S. Const. art. I, § 4, cl. l, which includes some power to issue
' "regulations relating to registration," ITCA, 133 S. Ct. at 2253 (internal quotation marks
omitted). But, in the final analysis, what lies at the heart of this case are the scope of the
authority and the legality of the actions of an independent federal agency that is represented
here by Executive Branch counsel who, for the most part, decline to defend it. The Court
will carefully weigh these competing positions on the merits when it turns to the dispositive
motions phase of this litigation in the weeks ahead. But for now, for all the foregoing
reasons, the Court DENIES plaintiffs’ Motion for a Preliminary Injunction. An Order
consistent with this Memorandum Opinion is issued separately on this same date.
25
§ 9428.4(b)(3). The F ederal Form must also "include a statement that incorporates by
reference each state’s specific additional eligibility requirements (including any special
pledges) as set forth in the accompanying state instructions." Id. § 9428.4(b)(l). Examples
of state-specific instructions are those explaining "what type of voter identification
number, if any, is required or requested by the applicant’s state," and whether "the
applicant’s state is a closed primary state." Id. § 9428.4(a)(6)(i); (7)(i). ``
Congress established the Election Assistance Commission through The Help
America Vote Act of 2002 ("HAVA"). The HAVA specified that the "Commission shall
have four members appointed by the President, by and with the advice and consent of the
Senate."3 52 U.S.C. §§ 20921, 20923(a)(l). Among other function___s, the HAVA
transferred authority over the Federal Form from the FEC to the newly formed EAC. Ia’.
§§ 2050& 20929. The HAVA specifies that "[a]ny action which the Commission is
authorized to carry out under this Act, may be carried out only with the approval of at least
three ofits inembers." ll6 Stat. 1666, 1678.4 The NVRA, the HAVA, and the associated
regulations do not, however, set forth a particular processifor EAC review-of proposed
3 The Couit will refer to the members of the Commission as "commissioners" or "members."
4 When the HAVA was codified, the language entered into the United States Code was "[a]ny action which
the Com1nission is authorized to carry out under this chapter [that is, Cha``pter 209,] may be carried out only
with the approval of at least three of its inembers." 52 U.S.C. § 20928. As the EAC’s authority over the
Federal Form derives from a different chapter ofthe Code-Chapter 205_the codified version could cause
one to conclude the three-vote requirement does not apply when the EAC is exercising its authority over
the Federal Form. However, unless a title ofthe U.S. Code has been enacted into positive law, "[i]t is well-
settled that . . . the United States Code is prima facie evidence of what the law is[ and that] the Statutes at
Large constitutes legal evidence of what the law is. When the two differ, the Statutes at Large controls."
Cheney R. Cc). v. R.R. Rel. Bd., 50 F.3d l07l, l076 (D.C. Cir. 1995) (internal citations omitted). As Title
52 of the United States Code has not been enacted into positive law, the Statute at Large version of the
HAVA controls here, and it makes the three-member requirement applicable to actions taken in regards to
the Federal Form. Help America Vote Act, Pub. L. No. 107-252,§ 208, ll6 Stat. l666, 1678 (2002).
4
state-specific instructions. Instead, the practice has varied over the years and at times has
been "entirely informal." Arz``zona v. Inter Trz'bal Councz``l of Arz``zona, Inc. [hereinafter
"ITCA"], 133 S. Ct. 2247, 2260 n.lO (2013); see also Defs.’ Resp. to Pls.’ Mot. for TRO
and Prelim. Inj. 5-6 [Dkt. #28].
l ln essence, the Federal Form is a voter registration application for would-be voters
to fill out. Notably, the first question on the application is, "Are you a citizen of the United
States of America?" F ederal Form 5 [Dkt. #l l-l6]. Applicants may check either a box for
"Yes" or "No." Ia’. at 5. A statement next to the signature box at the end ofthe application
reads, "I have reviewed my state’s instructions and l swear/affirm that: l am a United States
citizen . . . [and t]he information I have provided is true to the best of iny knowledge, under
penalty of perjury." Ia’. at 5. The application is attached to both general instructions for
all applicants and a state-by-state guide that includes state-specific instructions "which tell
residents of each State what additional information they must provide and where they must
submit the form." ITCA, 133 S. Ct. at 2252. "Each state-specific instruction must be
approved by the EAC before it is included on the Federal Form." Id. Some states,
including Kansas, Georgia, Alabama, and Arizona, additionally list U.S. citizenship as a
requirement in their respective state-specific instructions. Federal Form 9-10, l2~l5.
On November-l7, 2015, Kansas submitted a request that the EAC modify its state-
specific instructions to include its proof of citizenship requirement.$ Letter from Bryan
5 This was not Kansas’s first attempt to request inodiflcatioii of the Federal _Form to reflect its_
documenl:féit_iizii of citizenship 1*-§.¥§§{``1``132;?€'11'~1"1§:§'§£§_?£``5§ l°0r VO‘£€F W;§§i§>‘.``§./_Yatm“~ FOF €Xaln``§._\'f€_,- in Ef‘§_``l"3, submi?‘$t¢.£_§'.
a siniiiar_~z»,=q~t_iesr_thar was i~ej.c¢jz§:i.j=i ing 'i:r_i»;':¢--EAC. see _-,isf.~;-z_§zach v. EAC, 772 :F;:z=@; 11``.__&§;§; iié'zz-St,,»§#§i``(iorh
20l4), cerl. dem'ed, l35 S. Ct. 2891 (2015). In subsequent litigation challenging the EAC’s decision, the
Court of Appeals for the Tenth Circuit ruled in favor of the Commission. Id. at ll99.
5
Caskey to Brian Newby [hereinafter "Kansas Request"] [Dkt. #ll-ll]. The request
included a proposed instruction setting forth the requirement under Kansas law that voter
registration applicants prove their U.S. Citizenship by submitting one of thirteen types of
acceptable documentary evidence, Kan. Stat. Ann. § 25-2309(1), or through an alternative
process that involves the use of witnesses, z``a’. § 25-2309(111). Kansas Request l-2. The
request noted that Kansas’s regulations had recently been amended and that applicants now
have 90 days from the date they submit their application to provide the necessary
documentation of citizenship Kansas Request l (citing Kan. Ad1nin. Regs. § 7-23-15).
Kansas also provided the EAC with a spr_eadsheet identifying instances of noncitizens
registering or atteinpting to register to vote in Sedgwick County, Kansas. Kansas Request
4~5. On Nove1nber l9, 2015, Newby wrote to Kansas’s Election Director to report that
the request was under review. Letter from Brian Newby to Bryan Caskey [Dkt. #l l-l2].
Also pending before the EAC at the time was a ``request made by Alabama on
December l8, 2014 that its state-specific instructions be amended, inter alia, to provide
that "an applicant may not be registered until the applicant has provided satisfactory
evidence of United States citizenship." Letter from Ji1n Bennett to EAC Commissioners 2
[Dkt. #ll-l7]. Under Alabama law, voter registration applicants must submit one of
thirteen forms of documentary evidence of citizenship, or prove citizenship by submitting
alternative evidence at a hearing before the county board. Ala. Code § 3l-l3-28(k)-(l).
Georgia’s request, submitted on August l, 2013, asked the EAC to modify its state-specific
instructions to inform applicants they must "be found eligible to vote by supplying
satisfactory evidence of citizenship." 6 Letter from Brian P. Kemp to Alice Miller [Dkt.
#l 1- l 8]. Georgia law states that voter registration applicants"must demonstrate citizenship.
Ga. Code Ann. § 2l-2-2l6(g). In some cases an applicant may satisfy this requirement by
providing his or her driver’s license or state identification card numbers or a photocopy of
the license or identification card. Ia’, § 2l-2-216(g)(2)(A). Otherwise, an applicant may
submit one ofseveral other forms of docu1nentary evidence or may demonstrate citizenship
through alternative processes. Ia’. § 2l-2-2l6(g)(2)(B)-(G).
In evaluating Kansas, Alabama, and Georgia’s requests, the EA-C_ did not undergo
notice and comment rule1naking. The Com1nission had at that ti1ne, and continues to have,
only three commissioners, and the commissioners did not formally-consider or vote upon
the states’ requests. lnstead, on January 29, 25()16, the EAC’s Executive Director Brian
Newby notified Kansas, Alabama, and-Georgia via letters that he had approved their
requests. Letter from Brian Newby to Bryan Caskey [Dkt. #l l-l5]; Letter from Brian
Newby to John H. Merrill [Dkt. #l l-l9]; Letter form Brian Newby to Brian P. Kemp [Dkt.
#l l-ZO]. The approved modifications to the state-specific instructions were promptly
inputted, and a new version of the Federal Form was posted on the EAC website. 7 Newby’ s
" Plaintiffs maintain that the Georgia request that Newby granted was not a pending request but instead was
a request that had already been denied by former EAC Executive Director Alice Miller on January l7, 2014.
Pls.’ l\/Iein. of P&A in Supp. of Mot. for TRO and Prelim. Inj. l7 [hereinafter "Pls.’ l\/_lem."] [Dkt. #l l-l].
7 ln the 2014 election cycle, Kansas employed a bifurcated system in which Federal Form applicants, who
at that time were not instructed to submit documentation of citizenship, were registered to vote only in
federal_and not state_elections. TRO Hearing Tr. 71-72 (Feb. 22, 2016) [Dkt. #37]. Since Newby’s
modification of the Federal Form, Kansas has begun requiring documentation of citizenship from Federal
Forxn applicants for registration to vote in federal elections as well. Pls.’ Mem. l9. On the record before
this Court, Aiaba1na and Georgia are not currently enforcing their proof of citizenship requirements as to
Federal Form applicants. See Pls. Supplemental l\/lem. in Supp. of Prelim. Inj. 2, 3 [Dkt. #71]; Aff. ofJohn
H. l\/Ierrill [Dkt. #Sl-S]; Aff. ofTimothy K. Fle1ning[Dkt.#5l-l].
'?
letters were matter of fact and did not contain any explanation as to how he reached his
decisions. He did, however, provide an explanation in a roughly contemporaneous internal
memorandum dated February l, 2()16.8 See Brian D. Newby, Acceptance of State-
Instructions ,to Federal Form for Alabama, Georgia, and Kansas [hereinafter "Newby
l\/lem."] [Dl;,_ TRO Hea§‘ifii``g
Tr. at 45~46, and, of course, was not enforcing its documen``t’ar itt of citizenship requir'ga__fr»;'€_z;r£'~, The
next relevant deadline is for title .E_P"§§is``i;‘;zsas primary, which will be held ot‘t_'.'$?~,‘t_'1§fust2, 20l6. Prelim. §``r_aj'._-l"l‘£.f’~aring
Tr. at 51 (l\/Iar. 4, 2016) [Dkt. #96]. While registration closes twenty-one days in advance of the primary,
lO``