Keener et al v. Kobach

MOTION for Summary Judgment

D. Kan.December 5, 2016

IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS PARKER BEDNASEK, ) ) Plaintiff, ) ) Case No. 15-9300-JAR-JPO v. ) ) KRIS KOBACH, KANSAS SECRETARY ) OF STATE, ) ) Defendant. ) ____________________________________) PLAINTIFF BEDNASEK’S MOTION FOR SUMMARY JUDGMENT COMES NOW Plaintiff Parker Bednasek, by and through his undersigned counsel of record, and pursuant to Federal Rule of Civil Procedure 56(a), moves this Court for summary judgment on Plaintiff’s claims. In support of this motion, Plaintiff Bednasek respectfully refers the Court to the attached memorandum below. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 1 of 30 i Table of Contents Introduction .................................................................................................................................................. 1 Background ................................................................................................................................................... 4 A. Kansas’s Documentary Proof-of-Citizenship Law ............................................................. 4 B. The Requirements of the Documentary Proof-of-Citizenship Law ................................ 5 C. Immediate Impact on Voter Registration in Kansas .......................................................... 7 D. Defendant Selectively Registers Voters Born Within the State of Kansas ..................... 8 E. The Absence of Justification of the Documentary Proof-of-Citizenship Law .............. 9 Standard of Review ...................................................................................................................................... 10 Statement of Undisputed Facts .................................................................................................................. 11 Argument ...................................................................................................................................................... 13 The DPOC Law, With its Barriers to the Franchise and Right to Interstate Travel, Fails Fourteenth Amendment Review ..................................................................................................... 13 I. Strict Scrutiny Applies Because the DPOC Law Severely Restricts Citizens’ Voting and Interstate-Travel Rights ........................................................................ 13 II. Disenfranchising 22,000 Kansans in Order to Remedy 5 Cases of Illegal Voting over 13 Years Constitutes the Epitome of a Non-Narrowly Tailored State Action ................................................................................................................ 16 III. The Rationale behind Crawford v. Marion County is Distinguishable from the DPOC Law ................................................................................................................. 20 IV. The DPOC Law Discriminates Against Kansas Residents Born in states other than Kansas in Violation of the Right to Interstate Travel ................................. 21 Conclusion .................................................................................................................................................... 25 Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 2 of 30 ii Table of Authorities Cases Saenz v. Roe, 526 U.S. 489 (1999) ....................................................................................................................... 9, 15, 21, 22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................................................................................................... 11 Whitesel v. Sengenberger, 222 F.3d 861 (10th Cir. 2000) .................................................................................................................... 11 Obergefell v. Hodges, 135 S.Ct. 2584 (2015) .................................................................................................................................. 13 Burdick v. Takushi, 504 U.S. 428 (1992) .................................................................................................................................... 13 Illinois Bd. Of Elections v. Socialist Workers Party, 440 U.S. 173, (1979)..................................................................................................................................... 14 Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) .................................................................................................................. 14 Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) .............................................................................................................. 14, 15, 16, 20, 21 Anderson v. Celebreeze, 460 U.S. 780 (1983) .............................................................................................................................. 14, 15 Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) ..................................................................................................................................... 14 Norman v. Reed, 502 U.S. 279 (1992) ............................................................................................................................ 14, 16, 17 Kobach v. U.S. Election Assistance Commission, 772 F.3d 1183 (10th Cir. 20014) .......................................................................................................... 16, 18 Harper v. Virginia Bd. Of Elections, 383 U.S. 663 (1966) ..................................................................................................................................... 16 Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013) ................................................................................................................................. 19 Slaughter-House Cases, 83 U.S. 36 (1872) .......................................................................................................................................... 22 Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 3 of 30 iii Shapiro v. Thompson, 394 U.S. 618 (1969) ..................................................................................................................................... 22 Constitutional Provisions U.S. Const. Amend. XIV § 1 ................................................................................................................ 13, 21 Statutes Kan. Stat. Ann. § 25-2309(l) ................................................................................................................. Passim Kan. Stat. Ann. § 25-2309(u) ................................................................................................................ 5 Kan. Stat. Ann. § 25-2309(n) ................................................................................................................ 5 Kan. Stat. Ann. § 25-2309(o) ................................................................................................................ 6 Kan. Stat. Ann. § 25-2309(b) ................................................................................................................ 6 Kan. Stat. Ann. § 25-2309(d) ................................................................................................................ 6 Kan. Stat. Ann. § 25-2311(a)(3) ........................................................................................................... 6 Kan. Stat. Ann. § 25-2435(a)(3) ........................................................................................................... 9, 12 Kan. Stat. Ann. § 25-2309(m)............................................................................................................... 19 Kan. Stat. Ann. § 25-2416 ..................................................................................................................... 19 Regulations Kan. Admin. Regs. § 7-23-14(b) .............................................................................................................. 6, 21 Kan. Admin. Regs. § 7-23-15 ............................................................................................................... Passim Rules of Civil Procedure Fed. R. Civ. P. 56(a) ............................................................................................................................... 10 Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 4 of 30 1 Introduction Defendant Kobach’s unlawful policies and practices prevented Plaintiff Bednasek and nearly thousands upon thousands of fellow Kansans from exercising their fundamental right to vote. Since 2013, Defendant Kobach has placed more than 36,000 would-be Kansas voters on a “suspense list,” rendering them not registered to vote. Of these individuals, approximately 22,000 either remain suspended or purged altogether from the registration system, solely because they did not submit documentary proof of citizenship (“DPOC”) and were not born in the State of Kansas. In short order then, Defendant Kobach denied approximately 22,000 otherwise eligible Kansans the right to vote. Of the people who escaped the suspense list with their constitutional voting rights intact, some 14,000 individuals, Defendant Kobach unconstitutionally discriminated against them on the basis of their state of birth. Many of these suspense-list escapee voters regained their franchise only because the Secretary of State’s Office unilaterally verified their U.S. citizenship by establishing they were born in Kansas.1 Defendant Kobach refuses, however, to extend this same state-initiated verification system to otherwise eligible voters born outside the state. These requirements upended the registration of voters in Kansas, such that Defendant Kobach’s actions blocked over 14% of all new registrants since 2013. As a result, Plaintiff Bednasek brings this action for declaratory and injunctive relief under the Fourteenth Amendment to the United States Constitution on behalf of himself and the tens of thousands of Kansas residents wrongfully disenfranchised by Defendant Kobach. Defendant Kobach relies upon two unconstitutional provisions in implementing his mass disenfranchisement scheme, which plaintiff respectfully asks this Court to enjoin. First, Defendant 1 Indeed, one of the Secretary's favorite tactics to avoid judicial consideration of his unlawful policies has been to obtain copies of attempted registrants' birth certificates from the Kansas Office of Vital Statistics within the Kansas Department of Health and Environment without the registrants' knowledge. In doing so, the Secretary has been motivated by a desire to moot the claims of people wishing to challenge the DPOC requirement. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 5 of 30 2 wrongfully deploys Kan. Stat. Ann. § 25-2309(l) (hereinafter the “documentary proof-of-citizenship law” or “DPOC law”), which unconstitutionally requires certain individuals who attempt to register to vote to submit documentary proof of United States citizenship. Second, Defendant erroneously uses Kan. Admin. Regs. § 7-23-15 (hereinafter the “90-day purge rule”), which cancels the voter registration applications of persons otherwise qualified to vote if they do not supply DPOC within 90 days. These two provisions unconstitutionally disenfranchised Plaintiff Bednasek and tens of thousands of other eligible Kansas residents who submitted valid and complete voter registrations. Turning first to Plaintiff Bednasek’s case. He is a United States Citizen, a Kansas resident, and a duly qualified elector for local, state and federal elections in Kansas. After moving to Kansas to attend the University of Kansas, Bednasek submitted a completed voter registration application to the Douglas County Clerk’s Office. Based upon the Defendant Kobach’s unconstitutional application of the DPOC Law, he placed Bednasek on the suspense list and told him that he must provide a copy of his birth certificate within 90 days or his voter registration application would be canceled. Because Bednasek was not born in Kansas, the Secretary of State’s Office would not verify his citizenship. On March 2, 2016, the Secretary of State’s Office cancelled his application. Defendant Kobach has subjected tens of thousands of other Kansans to this same bureaucratic maze and illegally denied them the franchise. Indeed, the DPOC law devastated voter registration in Kansas. Within months of the effective date, the law blocked more than 15,000 Kansan residents from registering to vote because they purportedly failed to provide documentary proof that they were United States citizens. Kansas officials placed their names on a “suspense” list of individuals who had submitted voter registration forms that the State deemed incomplete. By December 11, 2015, the state placed more than 35,000 voters on the suspense list due to the documentary proof-of-citizenship requirement. These suspended individuals constituted approximately 14% of all individuals who, as of that date, had attempted to register to vote since the Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 6 of 30 3 DPOC law went into effect on January 1, 2013. As of December 11, 2015, voters between the ages of 18 and 29 constituted more than 44% of the voters on the suspense list. Almost 54% of the voters on the suspense list were unaffiliated with any political party. In response to the high numbers of suspended voters, Defendant acted to reduce the numbers on the suspense list by 1) purging the registrants who remained suspended for longer than 90 days and 2) independently verifying citizenship documentation for individuals born in Kansas while declining to provide the same services for individuals born outside of Kansas. Both of these actions are unlawful. First, the DPOC severely burdens the fundamental right of all qualified citizens to vote by requiring additional documentation to prove citizenship. The DPOC created a severe burden on the right to vote, as demonstrated by the fact that the state denied more than 15,000 Kansans registration within months of the effective date of the law and more than 36,000 by the the beginning of 2016. The 90-day purge rule only exacerbates the problem by canceling these individuals’ registrations, forcing them to start anew every 90-days. These severe restrictions are not narrowly tailored to advance any compelling state interest and, therefore, violate the Fourteenth Amendment of the United States Constitution. Second, Defendant Kobach now coordinates with the Kansas Department of Health and Environment and Kansas Department of Revenue to check birth certificates on file and register suspended voters who were born in Kansas. Defendants do not verify vital records on file with agencies outside of Kansas and thus do not treat Kansas voters born outside the State on an equal basis as those born within the State. These selective registration efforts infringe upon the right to travel protected by the Fourteenth Amendment of the United States Constitution. They also make the applicability of the DPOC Law discriminatory by applying it only to a certain segment of applicants: Kansas residents who were not born in the State of Kansas. The selective enforcement Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 7 of 30 4 of the DPOC Law is not narrowly tailored to advance any compelling state interest and therefore violates the Fourteenth Amendment to the United States Constitution. In sum, Defendant Kobach’s actions violate the Fourteenth Amendment to the United States Constitution. Defendant Kobach blocked tens of thousands of eligible Kansan residents who applied to register to vote from exercising their franchise. Plaintiff Bednasek therefore respectfully asks the Court to declare that the documentary proof-of-citizenship law, Kan. Stat. Ann § 25-2309(l) and the 90-day purge rule, Kan. Admin. Regs. § 7-23-15, invalid and enjoin their respective continued enforcement. Plaintiff also respectfully asks that the Court order Defendant Kobach to verify vital records and documentary proof of citizenship on file with agencies outside of Kansas as Defendants do with the Kansas Department of Health and Environment and Kansas Department of Revenue. Defendant Kobach has represented that this last request for relief is impossible. If that is the Court’s finding as well, then Plaintiff respectfully request these laws be enjoined on that basis as well. Finally, Plaintiff also requests an award of all other relief that the Court deems just and proper. Background A. Kansas’s Documentary Proof-of-Citizenship Law Shortly after taking office, Defendant Secretary Kobach held a press conference on January 18, 2011, to announce plans for the “Secure and Fair Elections (SAFE) Act.”2 Among other things, the bill contained provisions that would become the DPOC law. It was formally introduced in the Kansas Legislature as House Bill No. 2067 (hereinafter “HB 2067”), on January 24, 2011. During legislative deliberations over the SAFE Act, Defendant Kobach’s office released a report in February 2011 that showed sixteen alleged instances of noncitizens registering to vote, and five alleged cases 2 See Press Release, Kris W. Kobach, Secretary of State, Kansas House of Representatives Passes the SAFE Act (Feb 24, 2011). http://www.kssos.org/other/news_releases/PR_2011/House_Votes_on_HB2067.pdf Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 8 of 30 5 of noncitizens voting between 1997 and 2010. None of these allegations of noncitizen registration or voting resulted in a criminal prosecution or a finding by a court of unlawful activity. There is no indication as to whether any of these incidents even led to the cancellation of an improper voter registration. While the Kansas House passed HB 2067 to take effect in 2012, the Senate Ethics and Elections Committee amended the bill to push back the effective date of the documentary proof-of- citizenship requirement by one year, to January 1, 2013. See Kan. Stat. Ann. § 25-2309(u). The Senate did so specifically to provide time for the Division of Vehicles (the “DMV”) to upgrade the technological systems in its offices, to enable them to copy citizenship documents submitted in connection with a driver’s license application, and to transmit those copies to elections officials for driver’s license applicants who seek to register to vote.3 After the amendment process, HB 2067 gained final passage in the Kansas Senate on March 23, 2011, and in the House on March 29, 2011.4 Governor Brownback signed the bill into law on April 18, 2011.5 B. The Requirements of the Documentary Proof-of-Citizenship Law The DPOC law is codified at Kan. Stat. Ann. § 25-2309(l). The DPOC law took effect on January 1, 2013, Kan. Stat. Ann. § 25-2309(u), and applies only to those who apply to register to vote for the first time after that date, Kan. Stat. Ann. § 25-2309(n). Under the DPOC law, a person applying to register to vote must provide documentary proof of citizenship either when filing a registration form in person, or by submitting a photocopy of proof of citizenship along with a completed registration application in the mail. Kan. Stat. Ann. § 25-2309(l). The only forms of documentary proof of citizenship that are acceptable under the DPOC law are: 3 Dion Lefler, Senate Panel Weakens, But Passes, Kobach Voter ID Plan, Kan. City Star (Mar. 17, 2011), http://www.kansascity.com/news/local/article298056/Senate-panel-weakens-but-passes-Kobach-voter-ID-plan.html 4 Kan. Legislature, HB 2067, http://www.kslegislature.org/li_2012/b2011_12/measures/hb2067/ 5 Id. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 9 of 30 6 1) a driver’s license or nondriver’s license issued by the Kansas DMV or by another state if the license indicates that the person has proven their citizenship; 2) a birth certificate; 3) a United States valid or expired passport; 4) United States naturalization documents; 5) documents provided by the United States government pursuant to the Immigration and Nationality Act of 1952 that show U.S. citizenship; 6) a Bureau of Indian Affairs card number, tribal treaty card number, or tribal enrollment number; 7) a consular report of birth abroad of an American citizen; 8) a certificate of citizenship issued by U.S. Citizenship and Immigration Services; 9) certification of report of birth by the United States Department of State; 10) an American Indian Card, with KIC classification, issued by the United States Department of Homeland Security; 11) a final adoption decree showing applicant’s name and U.S. birthplace; 12) a military service record showing U.S. birthplace; or 13) a U.S. hospital record showing the person to have been born in the United States. Kan. Stat. Ann. § 25-2309(l). The DPOC law does not allow voter registration in other states to fulfill the proof-of-citizenship requirement. Kan. Stat. Ann. § 25-2309(o). HB 2067 also included a requirement that voters present a valid photo ID at their polling location when they go to vote. Kan. Stat. Ann. § 25-2908(b). If a voter is unable or refuses to provide current and valid identification, the voter may vote a provisional ballot pursuant to K.S.A. 25-409. Kan. Stat. Ann. § 25-2908(d). If the voter is then able to provide a valid form of identification to the county election office in person or by mail or electronic means prior to the meeting of the county board of canvassers, the provisional ballot shall be counted. Id. Kansas has a voter registration deadline of twenty (20) days prior to any primary or general election. Kan. Stat. Ann. § 25-2311(a)(3). Applications to register to vote must be submitted prior to that date in order to be added to the registration books for that upcoming election. Individuals who submit registration applications but do not include documentary proof-of-citizenship have until close of business on the day before the election to submit such proof. Kan. Admin. Regs. § 7-23- 14(b). Unlike the Kansas voter ID requirement, an individual who has submitted a completed voter Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 10 of 30 7 registration form but has not provided documentary proof-of-citizenship prior to the day of the election has no chance of having a provisional vote counted. C. Immediate Impact on Voter Registration in Kansas Within months of the effective date of the DPOC law, reports surfaced that well over 10,000 Kansas voter registration applications were being held in suspense – meaning that their voter registration forms had been deemed incomplete – due to purported failure to prove citizenship.6 Defendant Secretary Kobach was unconcerned about this state of affairs; when asked about the thousands of voters on the suspense list during the summer of 2013, Defendant Kobach stated in the media, “I don’t think it’s a major problem.”7 As of December 11, 2015, more than 35,000 voters have at some point been placed on the suspense list due to the documentary proof-of-citizenship requirement. This number constitutes more than 14% of those who tried to register to vote since the DPOC law went into effect in January 2013. The individuals on the suspense list are not a random cross-section of voters in Kansas. They are disproportionately young and unaffiliated. As of December 11, 2015, voters between the ages of 18 and 29 made up approximately 15% of all registered voters in Kansas, but more than 44% of voters on the suspense list due to purported failure to provide documentary proof-of-citizenship. And unaffiliated voters, who are approximately 31% of registered voters in Kansas, comprise more than 53% of voters on the suspense list due to purported failure to provide documentary proof of citizenship. 6 See Brad Cooper, Would-be Voters Are Exasperated by Kansas’s New Registration Law, Kan. City Star (Sept. 2, 2013), http://www.kansascity.com/news/local/article326552/Would-be-voters-are-exasperated-by-Kansas%E2%80%99-new- registration-law.html 7 Brent D. Wistrom, 12,000 Kansas Voters Stillin Limbo Over Proof of Citizenship, Kan. City Star (July 16, 2013), http://www.kansascity.com/news/local/article323173/12000-Kansas-voters-still-in-limbo-over-proof-of- citizenship.html Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 11 of 30 8 D. Defendant Selectively Registers Voters Born within the State of Kansas In the wake of the confusion and embarrassment caused by the large number of Kansans on the suspense list, Defendant Kobach took steps to verify independently the citizenship of a fraction of suspended voters. But Defendant Kobach has done so on a discriminatory basis limiting efforts to verify citizenship primarily to registrants born in Kansas. Since 2014, Defendant Kobach has worked in combination with KDHE to check birth records against the ever-growing list of suspended Kansas registrants.8 Defendant Kobach provides information from individual voter registration applications, including name, gender, date of birth, and the last four digits of the person’s social security number, to KDHE, which then cross-references the information to see if there is a matching Kansas birth certificate on file that could be used to confirm the voter’s citizenship.9 While such actions may represent an attempt to mitigate the DPOC law’s sweeping adverse impact on voters, Defendant Kobach has applied these efforts in a manner that discriminates against citizens born or married outside of Kansas. The Secretary of State does not coordinate with vital records agencies located in other States in order to verify citizenship. In fact, Bryan Caskey, Director of Elections for the Secretary of State’s Office, stated that it is legally and fiscally impossible for them to do so. To access the Electronic Verification of Vital Events system promulgated by the National Association for Public Health Statistics and Information Systems (“EVVE”) data base, the state must collect the voter registrants state of birth and mother’s maiden name. This is data that the Secretary of State’s Office does not collect because it is not allowed under Kansas law.10 Because of this, citizens born and/or married in other States do not receive the 8 See Dion Lefler, Kobach: Birth-records scan helps 7,700 Kansas voters meet citizenship requirement, Kan. City Star (Jan. 22, 2014), http://www.kansascity.com/news/local/article337082/Kobach-Birth-records-scan-helps-7700-Kansas-voters-meet- citizenship-requirement.html 9 Caskey Depo., P 65:16-25; 66:2-6; 66:12-22) 10 Id. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 12 of 30 9 benefit of Defendant Kobach’s affirmative services to verify citizenship because neither KDHE or Defendant Kobach access out-of-state birth or marriage records. The Secretary of State’s independent actions to verify citizenship discriminates against Kansas residents born or married outside the State of Kansas. Such discrimination against those who have moved into Kansas from out of state violates the right to travel protected by the Fourteenth Amendment of the Constitution and recognized by the Supreme Court in Saenz v. Roe, 526 U.S. 489, 500 (1999). E. The Absence of Justification for the Documentary Proof-of-Citizenship Law There is no evidence of a substantial problem of noncitizen registration or voting in the State of Kansas. In 2011, at the time that the DPOC law was being considered in the legislature, Defendant Kobach’s office issued a report asserting that there was a total of sixteen potential noncitizen voter registrations and give votes allegedly cast by noncitizens in the fourteen-year period from 1997 through 2010; none of them resulted in a criminal prosecution, much less a finding by a court of unlawful activity. Between January 1, 2006, and March 23, 2016, 860,604 individuals registered to vote in Kansas. During that same time period, Defendant Kobach alleges that 25 noncitizens registered or attempted to register to vote in Kansas. Taking the total number of alleged cases of noncitizen registration or attempted registration at face value, the percentage of illegal, noncitizen registrations would account for 0.000029 percent of the total number individuals who registered to vote during that same time period. By contrast, approximately 36,000 individuals were placed on the suspense list for purported failure to provide documentary proof-of-citizenship between January 1, 2013, and March 23, 2016, alone. That is approximately 14.7 percent of the individuals who registered to vote over that same three year period. In 2015, the Kansas Legislature passed and the governor signed into law SB 34, a bill granting the Secretary of State criminal prosecutorial authority in elections-related cases. See K.S.A. § 25-2435(a)(3) (“Independent authority to prosecute any person who has committed any act that Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 13 of 30 10 constitutes a Kansas elections crime . . . shall be vested in . . . the Kansas secretary of state.”). Kansas is the only state in the United States that has extended this kind of prosecutorial authority to the Secretary of State.11 As of February 2016, Secretary Kobach has used his authority to bring a total of six criminal prosecutions, none of which is for noncitizen registration or voting.12 Finally, even if there were a problem of noncitizen registration or voting in Kansas, the DPOC law is entirely unnecessary to ferret out such illicit registrations. Kansas has ample other methods for verifying the citizenship status of voter registration applicants. These methods include (1) criminal prosecution in cases of perjury about citizenship status; (2) coordination with driver’s license bureaus; (3) comparison of responses from jury selection; (4) the Systematic Alien Verification for Entitlements (“SAVE”) database (a database listing citizenship status compiled by the United States Citizenship and Immigration Services Agency); and (5) verifying birth data via the Electronic Verification of Vital Events system promulgated by the National Association for Public Health Statistics and Information Systems. Standard of Review Plaintiff Bednasek moves for summary judgment pursuant to Rule 56. A party is entitled to summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary 11 See John Hanna, Kansas Unusual in Giving Kris Kobach Power to Prosecute, Topeka Capital-Journal (Oct. 18, 2015), http://cjonline.com/news/2015-10-18/kansas-unusual-giving-kris-kobach-power-prosecute 12 See Bryan Lowry, Kobach’s Voter Prosecutions Draw Scrutiny to Proof-of-Citizenship, Wichita Eagle (Oct. 18, 2015) (concerning the first three prosecutions announced), http://www.kansas.com/news/politics- government/article39670275.html; Jonathan Shorman, Kris Kobach Files New Round of Voter Fraud Cases in 3 Kansas Counties, Proposes Election Auditing, Topeka Capital-Journal (Jan. 25, 2016), http://cjonline.com/news/2016-01-25/kris- kobach-files-new-round-voter-fraud-cases-3-kansas-counties-proposes-election#gsc.tab=0. These prosecutions are against individuals alleged to have voted in multiple jurisdictions in the same election cycle; none involve noncitizen registration or voting. One of the cases has resulted in a guilty plea; the individual will pay a $500 fine and court costs. Edward M. Eveld, Former Olathe Man Pleads Guilty in Unlawful-Voting Case, Kan. City Star (Dec. 2, 2015), http://www.kansascity.com/news/government-politics/article47634575.html. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 14 of 30 11 judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party has met its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts showing there is a genuine issue for trial. Id. at 248; Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000). Statement of Undisputed Material Facts 1. Plaintiff Parker Bednasek is a United States Citizen born in the State of Oklahoma and is over the age of 18. (Deposition of Parker Bednasek, p. 11 l. 19-22 and 25). 2. Plaintiff Bednasek moved to Kansas to attend the University of Kansas in August 2014. He plans to complete his undergraduate studies at the University of Kansas in May, 2018. He was enrolled at the University of Kansas in February, 2016. (Bednasek Depo. p. 12 l. 3-9, p. 13 l. 18-21; p. 14 l. 10-14; p.18 l. 11-18; p. 44 l. 25 - p. 45 l-7). 3. Prior to moving to Kansas, Plaintiff Bednasek was a registered voter in Tarrant County, Texas. He cancelled his Texas voter registration on December 3, 2015, before he applied to register to vote in Kansas. (Bednasek Depo. p. 24 l. 3-9; p. 5-11). 4. Plaintiff Bednasek applied to register to vote in the State of Kansas on December 4, 2015, but the Secretary of State’s Office denied the application because Bednasek did not provide documentary proof-of-citizenship. Bednasek does not intend to provide documentary proof of citizenship because he does not agree with the law requiring it. (Bednasek Depo. p. 28 l. 12-14; p. 31 l. 8 - p. 32 l. 6; p. 38 l. 3-10) 5. Defendant Kobach’s Office placed Plaintiff Bednasek on the suspense list on December 4, 2015 and cancelled his voter registration application on March 4, 2016, pursuant to the 90-day purge rule. (Bednasek Affidavit, Ex. 9 to Bednasek Depo., para. 6). Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 15 of 30 12 6. Between January 1, 2006, and March 23, 2016, 860,604 individuals registered to vote in the State of Kansas. (Caskey Affidavit, Ex. 2 to Caskey Depo., para. 7). 7. Between January 1, 2013, and March 23, 2016, 244,699 individuals registered to vote in the State of Kansas. (Caskey Affidavit, Ex. 2 to Caskey Depo., para. 10). 8. Defendant Kobach’s Office placed more than 36,000 individuals in suspense since the DPOC law went into effect on January 1, 2013, for failure to provide documentary proof-of- citizenship. (Request for Production Answer No. 2, Kobach RFP Answer). As of October 2, 2015, the number of individuals whose records were in suspense was 38,085. (Id.). 7. Defendant Kobach’s Office works with the Kansas Department of Health and Environment (KDHE) and Kansas Department of Revenue (KDOR) to verify citizenship for individuals on the suspense list who were born in the State of Kansas. (Interrogatory Answer No. 11, Defendant Jamie Shew's Answers and Objections to Interrogatories, June 15, 2016.) 8. Defendant Kobach’s Office does not work with agencies in any other state to verify the United States citizenship of individuals on the suspense list who were not born in the State of Kansas, asserting it is impossible for it to do so. (Caskey Depo. P 65:16-25; 66:2-6; 66:12-22). 9. Defendant Kobach’s Office asserts that his office does not have the ability to work with agencies in other states to verify the citizenship of individuals on the suspense list who were not born in the State of Kansas. (Caskey Depo. P 65:16-25; 66:2-6; 66:12-22). 10. The Kansas legislature granted Defendant Kobach’s Office the authority to prosecute cases of election crimes within the state, effective in July, 2015. (K.S.A. § 25-2435(a)(3)). 11. As of the close of discovery, Defendant Kobach has filed no prosecution cases against a non-citizen for registering to vote, or actually voting, in the State of Kansas. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 16 of 30 13 12. Douglas County Clerk Jamie Shew’s Office notifies persons on the suspense list twice by post card, 60 days before cancellation and 14 days before cancellation, before removing their names from the suspense list. (Interrogatory Answer No. 1, Shew Interrogatory Answers). 13. Since January 1, 2013, 3,183 voter registration applicants have been placed on the suspense list in Douglas County, Kansas. Of those, 2.035 were eventually registered, leaving over 1,000 unregistered and removed from the list. (Interrogatory Answer No. 3, Shew Interrogatory Answers). 14. As of June 15, 2016, 812 voter registration applications had been cancelled in Douglas County since the implementation of KAR 7-23-15. Of those persons so cancelled, approximately 75 submitted new voter registration applications -- less than 10% of those cancelled. (Interrogatory Answer Nos. 5 and 6, Shew Interrogatory Answers). Argument The DPOC Law, With Its Barriers to the Franchise and Right to Interstate Travel, Fails Fourteenth Amendment Review. I. Strict Scrutiny Applies Because the DPOC Law Severely Restricts Citizens’ Voting and Interstate-Travel Rights. The Kansas documentary proof-of-citizenship law places a severe restriction on the right to vote which is protected by the First and Fourteenth Amendments, triggering strict scrutiny review. The Due Process Clause of the Fourteenth Amendment states that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV § 1. The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights by way of the incorporation doctrine. Obergefell v. Hodges, 135 S.Ct. 2584 2584, 2597, 192 L.Ed.2d 609 (2015). The right to vote is “of the most fundamental significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 432, 112 S.Ct. 2059, 119 L.Ed.2d 245 Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 17 of 30 14 (1992) (citing Illinois Bd. Of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979)). As such, the Fourteenth Amendment protects the right to vote. The courts review allegations of Fourteenth Amendment violations pursuant to differing levels of scrutiny. Kitchen v. Herbert, 755 F.3d 1193, 1217 (10th Cir. 2014). The Court applies the most demanding level of scrutiny, strict scrutiny, to fundamental rights. Id. Strict scrutiny review requires that the state regulation at hand be narrowly drawn to advance a state interest of compelling importance. Id at 1218. Although not every state regulation of the right to vote triggers strict scrutiny, See Crawford v. Marion County Elections Bd., the state laws at issue here do. 553 U.S. 181, 128 S. ct. 1610 (2008). The DPOC law does not fall within the small set of voting rights regulations that escape strict scrutiny review. When determining whether strict scrutiny applies to a voting regulation “a court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interest put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Id (citing Anderson v. Celebreeze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.ed.2d 711 (1983); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 213- 214, 107 S.Ct. 55, 547-48, 93 L.ed.2d 514 (1986)). Under this standard, the rigorousness of the scrutiny applied by the courts to a state election law depends upon the extent to which the challenged regulation burdens Frist and Fourteenth Amendment rights. Id. Those rights which are subjected to “severe” restrictions must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.ed.2d 711 (1992). The Kansas documentary proof-of-citizenship law places a severe restriction on the right to vote which is protected by the First and Fourteenth Amendments. It is not a reasonable, Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 18 of 30 15 nondiscriminatory restriction for which a standard short of strict scrutiny should be applied. See Anderson, 460 U.S. at 788, 103 S.Ct., at 1569-1570, n.9. Rather, as drafted, the DPOC law discriminates by date of application to register to vote, as it only applies to a certain segment of individuals applying to vote—ie., those who attempt to register after January 1, 2013. It does not apply to anyone who had registered prior to that date. Second, in application the DPOC law discriminates against the Fourteenth Amendment right to inter-state travel, Saez, 526 U.S. 500, as it only affects individuals who were not born in the State of Kansas. For those who were born within Kansas, the Secretary of State’s Office works with the Kansas Department of Health and Environment to verify the citizenship for Kansas born applicants. Those born outside the state of Kansas, such as Plaintiff Bednasek, are left to navigate the bureaucratic maze created by Defendant Kobach and have their voter registration application deleted after 90-days. Moreover, Individuals who apply to register to vote after January 1, 2013, must provide documentary proof-of-citizenship in order to be allowed to vote. This is above and beyond the normal standard of verifying citizenship by checking a box under the threats and pains of perjury. Individuals who submit their voter registration application without documentary proof-of-citizenship are placed on a suspense list. At this time, these individuals are segregated into two classifications: those born in the state of Kansas and those born outside the state of Kansas. Those born outside the state of Kansas have 90-days to provide their documentary proof-of-citizenship or their application will be canceled. Those born inside the state, however, have the opportunity to have their citizenship verified by the Secretary of State’s Office. Where there is a successful match with KDHE, those individuals are placed on the voter rolls and allowed to vote. In contrast to the voter ID law considered in Crawford and adopted in Kansas which places a burden on already registered voters casting votes, the documentary proof-of-citizenship law is a barrier to registration altogether. 553 U.S. at 199-200. Individuals in Kansas who have not had their Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 19 of 30 16 citizenship verified or provided documentary proof-of-citizenship prior to election day, cannot cast a provisional ballot with a chance of having it counted at the county canvass after the election. Kan. Admin. Regs. § 7-23-14(b). Thus, even if you ignore the discriminatory impact of the DPOC law, the mitigating factors which were believed to reduce the severity of the law challenged in Crawford are not present in this case. Additionally, unlike photo ID, most individuals do not carry around documentary proof-of-citizenship evidence or have easy access to such documents. For these reasons, the Court should apply strict scrutiny to the challenged DPOC law and 90-Day purge rule. The United States Supreme Court has also applied strict scrutiny to cases where the state’s restriction is “invidious” – irrelevant or unnecessary to the voter’s qualifications. Crawford, 553 U.S. at 189-190. The Tenth Circuit has concluded that a documentary proof-of-citizenship requirement is not “necessary to enforce [Kansas’s] voter qualifications.” Kobach v. U.S. Election Assistance Commission, 772 F.3d 1183, 1196-97 (10th Cir. 20014) cert. denied 135 S. Ct. 2891 (2015) (hereinafter the “EAC case”). Because documentary proof is not necessary to enforce the qualifications of voters, the state’s imposition of such a requirement is irrelevant to voter qualifications and thus an invidious restriction subject to strict scrutiny. The DPOC law fails strict scrutiny because it is not narrowly drawn to advance a state interest of compelling importance. II. Disenfranchising 22,000 Kansans In Order to Remedy 5 Cases of Illegal Voting Over 13 Years Constitutes the Epitome of a Non-Narrowly Tailored State Action It would be a farce to find Defendant Kobach’s mass disenfranchisement scheme, justified in order to prevent a future recurrence of five instances of illegal voting over 13 years, narrowly tailored state action to advance a compelling state interest. While no litmus test has been identified for measuring the severity of a burden that a state law imposes on an individual voter, Harper v. Virginia Bd. Of Elections demonstrates that a burden, however slight that burden may appear, must be justified by relevant and legitimate state interests “sufficiently weighty to justify the limitation.” Crawford, 553 U.S. at 191 (citing Norman, 502 U.S. at 288-289; 383 U.S. 663, 86 S.Ct. 1079, 16 Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 20 of 30 17 L.Ed.2d 169 (1966). As stated above, for those First and Fourteenth Amendment rights which are subjected to “severe” restrictions must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. at 289, 112 S.Ct. at 705 (1992). Defendant Kobach can offer no straight-faced evidence that disenfranchising 22,000 otherwise eligible Kansas voters constitutes a narrowly tailored regulation advancing a compelling state interest in protecting the integrity of elections. The numbers just don’t add up for Defendant Kobach. Between January 1, 2006, and March 23, 2016, 860,604 individuals registered to vote in Kansas. According to an affidavit submitted by Tabitha Lehman, over that same period twenty-five (25) noncitizens either registered to vote or attempted to register to vote in Sedgwick County. This represents 0.000029 percent of total registration over this time period. Since the DPOC law went into effect, 244,699 individuals registered to vote in Kansas. According to the same Lehman affidavit, fourteen (14) noncitizens attempted to register to vote. This represents 0.000057 percent of total registrations over that same period. Since the DPOC law went into effect, over 36,000 registrants have been suspended or purged entirely from Kansas’s voter lists due to the purported failure to provide proof-of- citizenship. That is 14.7 percent of all individuals who registered to vote during that period of time. While Defendant Kobach has argued that the burden of providing documentary proof-of- citizenship is minimal and the law is easy to comply with, the record demonstrates the opposite. It is uncontroverted that after the Kansas DPOC law went into effect, the number of individuals placed on the suspense list for failure to provided documentary proof-of-citizenship grew exponentially. Unlike photo-ID, individuals do not carry around documents which suffice to prove their citizenship. Birth Certificates are often lost or misplaced, can be difficult to obtain and the cost of replacement can be a not-insignificant amount of money. Obtaining a passport involves a lengthy application process that goes well above and beyond that of obtaining a photo-ID. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 21 of 30 18 While Defendant Kobach points to voter fraud and integrity of the election process as justification for the DPOC law, none of the 25 noncitizens he points to supports such a justification. None of the noncitizens in Ms. Lehman’s chart appeared to have registered or attempted to register to vote with any intent to commit voter fraud. They all appear to have registered or attempted to register under the mistaken belief that they were eligible to vote. Additionally, this extremely inconsequential number does not justify the blocking of more than 36,000 qualified Kansans from being able to vote. Especially in light of other less restrictive means available to ensure noncitizens do not register to vote. The Tenth Circuit has observed that there is no need for a documentary proof-of-citizenship requirement because there are “no fewer than five alternatives to requiring documentary evidence of citizenship that states can use to ensure that noncitizens do not register using the Federal Form.” EAC, 772 F.3d at 1197. The EAC issued an administrative determination in 2014 which carefully considered a number of things. First, the EAC reviewed Kansas’s alleged cases of voter fraud and observed that, even presuming that these allegations were accurate, a documentary proof-of-citizenship requirement is unnecessary because the evidence “at most suggests that 21 of 1,762330 registered voters, approximately 0.001 percent, were unlawfully registered noncitizens around the time [Kansas’s] new proof-of-citizenship requirement took effect . . . . [T]hese percentages are exceedingly small.” Second, the EAC reasoned that there are five alternative means for States to enforce citizenship requirements: (1) deterring fraud by prosecuting cases where noncitizens have noted; (2) cross-referencing the records of prospective registrants with the proof-of-citizenship documents retained by the DMVs; (3) examining prospective jurors’ representation of their citizenship when being considered for jury duty; (4) cross-referencing the federal SAVE database, which stores information regarding noncitizen residents in the United States; and (5) verifying birth data via the Electronic Verification of Vital Events system promulgated by the National Association for Public Health Statistics and Information Systems. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 22 of 30 19 Prior to the implementation of the DPOC law, Kansas used an attestation under the threat of perjury to verify citizenship. Under the National Voter Registration Act (NVRA), an Act which was intended to both increase the number of registered voters and protect the integrity of the electoral process, an attestation and signature under penalty of perjury is sufficient to verify citizenship. Additionally, multiple cases, most notably ITCA, has found that the requirement to provide documentary proof-of-citizenship was considered and rejected by Congress. Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013). For that reason, such a requirement is pre- empted on the Federal Form. Id, 133 S. Ct at 2260. Even with the DPOC law, Defendant Kobach admits that the State uses attestation and accepts such sworn statement as sufficient when a voter does not have documentary proof-of- citizenship available. This attestation is available under K.S.A. § 25-2309(m) but only after the individual informs herself of the statute and the process for convening the state election board for a hearing. A person wishing to utilize this procedure would then have to find alternative documentation of citizenship then contact the Secretary of State’s Office and obtain a hearing date and time with three of the highest Kansas state officials. The State of Kansas has taken a further step with regards to prosecution of voter fraud cases by given the power of prosecution of election crimes to the Secretary of State. K.S.A. § 25-2416. Since being authorized by the Kansas Legislature to prosecute voter fraud, Defendant Kobach has prosecuted certain individuals for “double voting.” Those cases would not have been impacted by the DPOC law and at the closing of discovery, Defendant Kobach had not prosecuted any noncitizens for registering to vote or voting in Kansas. Nevertheless, this lesser restrictive means has been implemented in Kansas. The Secretary of State’s Office does attempt to verify citizenship of individuals born in the State of Kansas with KDHE and on a limited basis with the Kansas Department of Revenue’s DMV Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 23 of 30 20 Offices. However, he only does this for individuals born in Kansas and has not, and states that it is legally impossible to access the EVVE database or verify citizenship for individuals not born in the State of Kansas because it would require a change in Kansas law. With regard to the operation within the State in verifying citizenship through the DMV offices, it seems clear that a lack of communication and training among DMV employees has caused this option to not work well. A lack of proper training of DMV workers may also be the root cause for the noncitizens who have mistakenly registered over the years. The other options discussed above are also clearly less restrictive option available to the states. However, Defendant Kobach has resisted those options in favor of the most restrictive DPOC law. III. The Rationale behind Crawford v. Marion County is distinguishable from the DPOC Law Defendant Kobach has represented that complying with the DPOC law is simple and easy and such statements appear to be in line with the rationale behind Crawford where the Court stated “the inconvenience of making a trip to the [D]MV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” 553 U.S. at 198. The burdens presented by the DPOC law, however, go well beyond the inconvenience of obtaining a photo-ID and presenting it while voting. First, the Photo-ID law applies at the time of voting, not the time of registration. Thus, it is not a barrier to registering to vote. It is a barrier to having your vote counted if you don’t present identification. The DPOC law is a complete barrier to even registering to vote unless documentary proof-of-citizenship is provided within 90 days of submitting the application to register to vote. Second, even if you show up at your voting location without an valid photo-ID, you can cast a provisional ballot and still have your vote counted if you present a valid photo-ID to the county elections office before the final canvass. Unlike the provisional ballot process and its curative Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 24 of 30 21 provisions that mitigated the harm in Crawford, no provision applies to the DPOC law. Under the Secretary of State’s administrative regulations, an individual must submit his or her documentary proof-of-citizenship documents by close of business the day prior to the election. Kan. Admin. Regs. § 7-23-14(b). A failure to do so prevents the voter from being allowed to vote. If a voter appears at his or her polling location, he or she may be allowed to cast a provisional ballot but there is no chance that the ballot will be counted because they are not allowed to cure the defect after the election and before the canvass. Third, documentary proof-of-citizenship documents are different in photo-IDs in that individuals do not typically carry around their citizenship documentation. Such documents are stored away and sometimes hard to find. They also may be lost or never have existed. Where an individual has lost his or her citizenship documentation, they may have to pay a not insignificant fee to replace it. Obtaining a passport is much more lengthy than obtaining a photo-ID and is an additional barrier to what was considered in Crawford. IV. The DPOC Law Discriminates Against Kansas Residents Born in states other than Kansas in Violation of the Right to Interstate Travel The Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment to the United States Constitution protect a fundamental right to travel. U.S. Const. Amend. 14, § 1. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Id. The United States Supreme Court recognizes that “for those travelers who elect to become permanent residents” of another state, the right to travel encompasses “the right to be treated like other Citizens in that State.” 526 U.S. 489, 500 (1999). The right of a newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same state is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. Id at 502-03. Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 25 of 30 22 This view has been widely accepted in Supreme Court jurisprudence. Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. Slaughter-House Cases, 83 U.S. 36, 80 (1872). Justice Bradley, in dissent, used even stronger language to make the same point: The states have not now, if they ever had, any power to restrict their citizenship to any classes of persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens. Id., at 112-113. In Shapiro, the U.S. Supreme Court reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective districts for less than one year immediately preceding their applications for assistance. 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed. 2d 600 (1969). The Court held that it a “classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause ‘unless shown to be necessary to promote a compelling governmental interest.’” Saenz, 526 at 499 (citing Shapiro, 394 at 634). The Secretary of State’s Office has a memorandum of understanding with the Kansas Department of Health & Environment where it, on a monthly basis, sends over everyone who has applied to register to vote and has not provided documentary proof-of-citizenship. Kobach’s Office then compare’s that list with everyone who has a Kansas birth certificate on file. For those individuals who were born in Kansas and have a birth certificate on file with KDHE, that information is sent to the county election office in the county they reside so that such individuals may be placed on the voter rolls. Bryan Caskey acknowledged that KDHE’s Office of Vital Statistics does not keep birth records on file for individuals not born in the state of Kansas and that the Kansas Secretary of State’s Office is unable to work with other states to verify the citizenship of Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 26 of 30 23 individuals born outside the state of Kansas because it is cost prohibitive and the law does not allow for such coordination. Thus, it is legally impossible for the Secretary of State’s Office to treat those born outside the state of Kansas the same as those born inside the state of Kansas. Plaintiff Bednasek was born in the state of Oklahoma and moved to Kansas in order to attend the University of Kansas. He is a current resident of the State of Kansas and applied to register to vote at the Douglas County Clerk’s Office. He did not submit documentary proof-of- citizenship with his registration. Defendant Kobach’s Office did not verify his citizenship and after 90-days, Plaintiff Bednasek’s voter registration application was canceled. This stands in stark contrast to how individuals born in the state of Kansas are treated. This Court need look no further than Plaintiff’s Cody Keener and Alder Cromwell who were dismissed from this action after Defendant Kobach verified their citizenship. Plaintiff Bednasek is a U.S. Citizen yet his citizenship is being ignored by the state of Kansas because, by no fault of his own, he was born in the state of Oklahoma. If he had been born in the state of Kansas, he would have had his citizenship verified and he would have been allowed to cast a vote in the 2016 elections. The discriminatory treatment of Plaintiff Bednasek, and those similarly situated, is not necessary to promote a compelling governmental interest. The interest being promoted here is the same as above: alleged voter fraud and voter confidence. Yet, the rationale from the state of Kansas as to why it discriminates against those born outside the state of Kansas is that it would cost them too much money and they would have to collect additional data on voters that they do not currently collect and that would require a change in law. First, if it is legally impossible to not discriminate against a certain class of people, namely those born outside the state of Kansas, then the DPOC law is clearly must fail. A law that discriminates on a class of people cannot be propped up with a claim that there is no way around it because current law prohibits us from acting any different. Second, the Secretary of State has proven that he knows how to lobby the Kansas Legislature to change the Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 27 of 30 24 law when he wants to. Giving him a pass based on this argument would reward him for hiding behind a process he has successfully navigated on multiple occasions until now. Third, the necessary change that the Secretary of State’s Office would have to ask the Kansas Legislature to make is not a whole-sale change in any of the current election laws. According to Bryan Caskey, the change that is required would be one of data collection. The state of Kansas currently does not collect state of birth or mother’s maiden name from individuals registering to vote. If they did collect such information, then they would be able to access the EVVE database to verify citizenship for those born outside the state of Kansas. This is a minor change in Kansas law which would allow for all residents of Kansas, not just those born here, to be treated equally and have the same access to the state’s voting process and be on equal footing when it comes to exercising their right to vote. Fourth, the Secretary of State’s Office appears to be hiding behind the cost of accessing such a database even if the law were to allow it. We don’t know how much access to such a database would cost because Defendant Kobach never put such information into evidence. There is also no evidence that the Secretary of State’s Office has made any such request to the Kansas Legislature for funding. It is hard to see how the cost of access to such a database is cost-prohibitive when there have been no inquiries as to whether nor not funding from the Legislature is available have been made. Not only is there no compelling governmental interest that makes the discrimination between individuals born in and outside the state of Kansas necessary, there is no rational relationship between the operation of the law and the excuses for such operation by the Secretary of State’s Office. Plaintiff Bednasek is entitled to be treated the same as individuals born in the state of Kansas and the fact that he was born in the state of Oklahoma should be of no consequence. That is, however, not the case and the sole reason Plaintiff Bednasek is not a registered voter in the State Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 28 of 30 25 of Kansas is that he was not born in the state of Kansas. That discrimination clearly violates his right to travel and permanently reside in the state of Kansas and be treated like other citizens of the state of Kansas. For those reasons, the law must fail. Conclusion For all of the foregoing reasons, Plaintiff Bednasek respectfully requests this Court enter summary judgment in favor of the Plaintiff and against the Defendant declaring that the documentary proof-of-citizenship law, Kan. Stat. Ann § 25-2309(l) and the 90-day purge rule, Kan. Admin. Regs. § 7-23-15, invalid and enjoin their respective continued enforcement. Plaintiff also respectfully asks that the Court order Defendant Kobach to verify vital records and documentary proof of citizenship on file with agencies outside of Kansas as Defendants do with the Kansas Department of Health and Environment and Kansas Department of Revenue. Defendant Kobach has represented that this last request for relief is impossible. If that is the Court’s finding as well, then Plaintiff respectfully request these laws be enjoined on that basis as well. Finally, Plaintiff also requests an award of all other relief that the Court deems just and proper including an award of Plaintiff’s attorneys’ fees. Dated this 5th day of December, 2016. Respectfully Submitted, DENTONS US LLP /S/ Mark P. Johnson_____ Mark P. Johnson #22289 Curtis E. Woods MO # 27065 Samantha J. Wenger #25322 Dentons US LLP 4520 Main Street Suite 1100 Kansas City, MO 64111 816/460-2400 816/531-7545 (fax) FAGAN EMERT & DAVIS, L.L.C. /s/ William R. Lawrence IV______________ William R. Lawrence, IV #26021 Paul T. Davis #18550 730 New Hampshire Street, Suite 210 Lawrence, KS 66044 (785) 331-0300 – Telephone (785) 331-0303 – Facsimile wlawrence@fed-firm.com Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 29 of 30 26 Mark.johnson@dentons.com Samantha.wenger@dentons.com Curtis.Woods@dentons.com CERTIFICATE OF SERVICE I hereby certify that on the 5th day of December, 2016, I electronically filed the above and foregoing document using the CM/ECF system, which automatically causes notice and a copy of this filing to be sent to all counsel of record. /s/William R. Lawrence IV______ William R. Lawrence, IV Attorney for Plaintiffs Case 2:15-cv-09300-JAR Document 141 Filed 12/05/16 Page 30 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS PARKER BEDNASEK ) ) Plaintiff, ) ) v. ) ) KRIS KOBACH, KANSAS SECRETARY ) Case No. 2: 15-CV-9300 OF STATE, ) Defendant. ) EXHIBIT INDEX FOR EXHIBITS ATTACHED TO PLAINTIFFS’ MOTION SUMMARY JUDGMENT Exhibit Description A. Excerpt Deposition of Parker Bednasek B. Bednasek Affidavit C. Bryan Caskey Affidavit D. Defendant Kobach Answer to Plaintiff’s RFP No. 2 E. Defendant Shew’s Answers to Plaintiff’s Interrogatory F. Exerpt Deposition of Bryan Caskey G. Tabitha Lehman Affidavit, Ex. 8 to Preliminary Injunction Hearing in Fish Case Respectfully submitted this 5th day of December, 2016. DENTONS US LLP /S/ Mark P. Johnson_____ Mark P. Johnson #22289 Curtis E. Woods MO # 27065 Samantha J. Wenger #25322 Dentons US LLP 4520 Main Street Suite 1100 Kansas City, MO 64111 Case 2:15-cv-09300-JAR Document 141-1 Filed 12/05/16 Page 1 of 2 816/460-2400 816/531-7545 (fax) Mark.johnson@dentons.com Samantha.wenger@dentons.com FAGAN EMERT & DAVIS, L.L.C. /s/ William R. Lawrence IV______________ William R. Lawrence, IV #26021 Paul T. Davis #18550 730 New Hampshire Street, Suite 210 Lawrence, KS 66044 (785) 331-0300 – Telephone (785) 331-0303 – Facsimile wlawrence@fed-firm.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on the 5th day of December, 2016, I electronically filed the above and foregoing document using the CM/ECF system, which automatically causes notice and a copy of this filing to be sent to all counsel of record. /s/William R. Lawrence IV______ William R. Lawrence IV Attorney for Plaintiffs Case 2:15-cv-09300-JAR Document 141-1 Filed 12/05/16 Page 2 of 2 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 1 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 2 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 3 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 4 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 5 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 6 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 7 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 8 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 9 of 10 Case 2:15-cv-09300-JAR Document 141-2 Filed 12/05/16 Page 10 of 10 Case 2:15-cv-09300-JAR Document 141-3 Filed 12/05/16 Page 1 of 3 Case 2:15-cv-09300-JAR Document 141-3 Filed 12/05/16 Page 2 of 3 Case 2:15-cv-09300-JAR Document 141-3 Filed 12/05/16 Page 3 of 3 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 1 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 2 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 3 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 4 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 5 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 6 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 7 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 8 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 9 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 10 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 11 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 12 of 13 Case 2:15-cv-09300-JAR Document 141-4 Filed 12/05/16 Page 13 of 13 Case 2:15-cv-09300-JAR Document 141-5 Filed 12/05/16 Page 1 of 5 Case 2:15-cv-09300-JAR Document 141-5 Filed 12/05/16 Page 2 of 5 Case 2:15-cv-09300-JAR Document 141-5 Filed 12/05/16 Page 3 of 5 Case 2:15-cv-09300-JAR Document 141-5 Filed 12/05/16 Page 4 of 5 Case 2:15-cv-09300-JAR Document 141-5 Filed 12/05/16 Page 5 of 5 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 1 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 2 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 3 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 4 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 5 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 6 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 7 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 8 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 9 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 10 of 11 Case 2:15-cv-09300-JAR Document 141-6 Filed 12/05/16 Page 11 of 11 Case 2:15-cv-09300-JAR Document 141-7 Filed 12/05/16 Page 1 of 3 Case 2:15-cv-09300-JAR Document 141-7 Filed 12/05/16 Page 2 of 3 Case 2:15-cv-09300-JAR Document 141-7 Filed 12/05/16 Page 3 of 3 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 1 of 9 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 2 of 9 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 3 of 9 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 4 of 9 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 5 of 9 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 6 of 9 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 7 of 9 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 8 of 9 Case 2:15-cv-09300-JAR Document 141-8 Filed 12/05/16 Page 9 of 9