Memo In Support Of Motion To Intervene 04095 Ariz Supporting Mot2Intervene

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

KRIS W. KOBACH, Kansas Secretary of

State;

Plaintiffs,

v.

THE UNITED STATES ELECTION

ASSISTANCE COMMISSION;

ALICE MILLER, in her capacity as the

Acting Executive Director & Chief Operating

LEAGUE OF WOMEN VOTERS OF THE

UNITED STATES, LEAGUE OF WOMEN

VOTERS OF ARIZONA, and LEAGUE OF

WOMEN VOTERS OF KANSAS

Proposed Defendant-

Intervenors.

Case No. 13-cv-4095-EFM-DJW

ii

I. BACKGROUND ............................................................................................................... 2

A. Origins of the Federal Form ................................................................................ 2

B. The Supreme Court’s Inter Tribal Council Decision ......................................... 4

C. Arizona and Kansas Renew Their Requests to EAC ......................................... 5

D. Applicants for Intervention .................................................................................. 6

II. ARGUMENT ................................................................................................................... 13

A. Applicants Should Be Granted Intervention as of Right ................................ 13

III. CONCLUSION ............................................................................................................... 22

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Cases

Anderson v. Celebrezze,

Ariz. v. Inter Tribal Council of Ariz., Inc.,

Ass’n of Cmty. Orgs. for Reform Now v. Miller,

Gonzalez v. Arizona,

Hershey v. ExxonMobil Oil Corp.,

In re Kaiser Steel Corp.,

Miller v. Silbermann,

Natural Res. Def. Council v. U.S. Nuclear Regulatory Comm’n,

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Utah Ass’n of Cntys v. Clinton,

WildEarth Guardians v. Nat’l Park Serv.,

Williams v. Rhodes,

Statutes

42 U.S.C. § 15321 ........................................................................................................................... 3

42 U.S.C. § 15328 ........................................................................................................................... 5

42 U.S.C. § 15329 ........................................................................................................................... 3

Other Authorities

Citizens without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship

Rules

Fed. R. Civ. P. 24(a) ............................................................................................................... 15, 16

Fed. R. Civ. P. 24(a)(2) ................................................................................................................. 17

Fed. R. Civ. P. 24(b)(1)............................................................................................................. 1, 21

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Regulations

Nat’l Voter Registration Act of 1993, 59 Fed. Reg. 11,211 (Mar. 10, 1994) ................................. 4

Nat’l Voter Registration Act of 1993, 59 Fed. Reg. 32,311 (June 23, 1994) ................................. 4

Nat’l Voter Registration Act, 58 Fed. Reg. 51,132 (Sept. 30, 1993) .............................................. 4

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The League of Women Voters of the United States, the League of Women Voters of

briefing and hearing on Plaintiffs’ motion for a preliminary injunction on December 13, 2013,

which Plaintiffs have moved the Court to convert into a trial on the merits and/or a motion for

summary judgment.

As shown below, the League meets the standards for intervention as of right as well as

for permissive intervention. The League is a nonprofit, community-based group, is one of the

longest-standing organizations to conduct voter registration drives in both Arizona and Kansas,

and has a vested interest in ensuring that citizens in these states can continue to vote. The

League is directly and adversely impacted by the documentary proof-of-citizenship voter

registration requirements enacted by Arizona and Kansas. Indeed, the Arizona League was a

plaintiff in Inter Tribal Council in order to protect its interests in enhancing access to voting, and

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traditionally disenfranchised communities. The League’s prospective members may find it

A. Origins of the Federal Form

This lawsuit arises out of Arizona’s and Kansas’s continuing campaign to amend the

uniform national mail-in voter registration form (“Federal Form”) prescribed by the National

Voter Registration Act of 1993 (“NVRA”) and implemented by the EAC to require applicants

for voter registration in those states to provide documentary proof of citizenship with their

applications.

Congress enacted the NVRA in 1993 in part to address what it perceived as improper

barriers to voter registration embedded in state law. As the statute itself acknowledges,

“discriminatory and unfair registration laws and procedures can have a direct and damaging

effect on voter participation in elections for Federal office and disproportionately harm voter

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One of the primary ways in which the NVRA was intended to combat problematic state

Reform Now v. Miller, 129 F.3d 833, 835 (6th Cir. 1997) (“In an attempt to reinforce the right of

qualified citizens to vote by reducing the restrictive nature of voter registration requirements,

Congress passed the [NVRA].”).

The Federal Form was also meant to benefit national organizations that registered voters

in multiple jurisdictions, such as the League, which would no longer have to contend with

varying and confusing state registration laws. See id. § 1973gg-4(b) (mandating that state

officials make the standardized mail registration form available to “governmental and private

entities, with particular emphasis on making them available for organized voter registration

programs”). Underlying these efforts to “streamline the registration process” was the

understanding that states could not unilaterally change the Federal Form. Rather, the

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mandates. See Nat’l Voter Registration Act of 1993, 59 Fed. Reg. 11,211 (Mar. 10, 1994); Nat’l

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action to advocate for public policies that comport with its mission and the public interest. The

currently possess qualifying proof-of-citizenship documents could face difficulty registering to

vote. In addition, partly in response to the new documentary proof-of-citizenship requirement,

the Kansas League is initiating a campaign, “Protect the Vote,” to educate voters about Kansas

voting requirements. League members have thus far contributed more than $6,000 toward this

effort.

The state Leagues have run voter registration drives since their founding, focusing on

communities with a history of lower participation in elections and people who are less likely to

have proof of citizenship, such as minorities, women, students, younger voters, the poor, and the

elderly. See Citizens without Proof at 2-3. The documentary proof-of-citizenship requirements

would thus injure the League’s constituents and targeted communities. As shown above, the

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In addition to voter registration drives, the state Leagues engage in a number of

the state Leagues partner with numerous community organizations—such as high schools and

universities, local businesses, faith-based groups, and civil rights advocates—to promote and

protect voting rights. On occasion, the state Leagues are asked by local leaders to monitor

polling booths on Election Day, and League volunteers often serve as poll workers.

Since the documentary proof-of-citizenship requirements were enacted by Arizona and

Kansas, the Arizona and Kansas Leagues have encountered and received numerous inquiries

from concerned citizens who lack the newly mandated proof-of-citizenship documents, do not

have documentation with their current name, do not understand how they can acquire these

documents, or are frustrated by the expensive and complicated procedures involved in obtaining

such documents required under Arizona and Kansas law. Because the proof of citizenship

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II. ARGUMENT

A. Applicants Should Be Granted Intervention as of Right

The Tenth Circuit “generally follows a liberal view in allowing intervention [as of right]

under Rule 24(a) [of the Federal Rules of Civil Procedure].” Elliot Indus. Ltd. P’ship v. BP Am.

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undertaken, and no dispositive orders have been entered. Granting intervention would not,

adjudication of any rights of the original parties. See id.

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prong is a “highly fact-specific” inquiry, Coalition, 100 F.3d at 841, “requir[ing] courts to

and enable people in traditionally disenfranchised communities to vote. That mission would be

severely compromised if Plaintiffs were to prevail. The requirements on voting registration that

Arizona and Kansas have enacted would substantially undermine the League’s efforts to

empower people in traditionally underrepresented communities to vote, since these restrictions

would have a disproportionate impact on such communities. For instance, as noted above, the

League concentrates its voter registration efforts at community events where people may not

have documentary proof and might not otherwise register to vote.

Moreover, having established one of the longest-running and largest nonpartisan voter

registration efforts in the country, the League has a substantial interest in registering voters and

otherwise promoting voter registration, since conducting voter registration drives is one of the

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that the League’s efforts to build citizen participation in the democratic process are legally

the Federal Form to include their documentary proof-of-citizenship requirements. The League

has also advised the EAC to adopt rules and regulations that would enable more uniform

procedures for such requests. The League thus has a strong interest in a robust EAC that acts in

the best interests of voters.

The Tenth Circuit’s decision in Coalition strongly supports granting Applicants’ motion

to intervene here. In Coalition, a county coalition was challenging the government’s decision to

protect the Mexican Spotted Owl under the Endangered Species Act. The prospective

intervenor, Dr. Silver, had photographed and studied the species in the wild and had petitioned

the government to add it to the endangered species list. The Tenth Circuit held that “Dr. Silver’s

involvement with the Owl in the wild and his persistent record of advocacy for its protection”

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registration in minority and low-income communities, as well as for all Americans. The

associate for the advancement of political beliefs, and the right of qualified voters, regardless of

their political persuasion, to cast their votes effectively . . . rank among our most precious

freedoms.” Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) (quoting Williams v. Rhodes, 393

U.S. 23, 30-31 (1968)).

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If the Federal Form were modified to require documentary proof of citizenship as

requirements. The League’s local affiliates have already been forced to shut down or

substantially scale back on voter registration drives, or else expend far more resources to engage

in them. In addition, the Leagues have had to expend substantial resources in educating voters

about the complicated and confusing new requirements, and will need to continue to do so.

Furthermore, based on the League’s long experience in this area, the League reasonably

believes that those who already face significant barriers to voting may well be deterred from

voting altogether, undermining years of work done by the League to promote civic participation.

For instance, many women do not have documentary proof-of-citizenship reflecting their current

name, due to marriage or other circumstances. Survey results from the Brennan Center suggest

that only 48% of voting-age women have ready access to birth certificates with their current

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before October 1, 1996 or if they were recently naturalized citizens, due to their license

have long supported and with which they have advocated for improvements. Moreover, as noted

above, the Arizona League has a special interest in this case as one of the plaintiffs from the

Inter Tribal Council case, because the outcome here could effectively extinguish its victory. In

short, the League’s substantial interest in this action, both in terms of preserving the progress it

has made in the past and clearing the way for the gains it strives to make in the future, would be

severely impaired if intervention were denied.

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In this case, while there may be some overlap between the interest of the government and

Glickman, 82 F.3d 106, 110 (5th Cir. 1996) (concluding that interests of government and

proposed intervenor “will not necessarily coincide, even though, at this point, they share

common ground” and intervenor has “more flexibility” in advocating its position).

The Tenth Circuit has also recognized that the government’s representation may be

inadequate “when the applicant for intervention has expertise the government may not have.”

Utah Ass’n, 255 F.3d at 1255. The League has extensive experience with discerning and

assessing on the impact of onerous voter registration requirements as a result of its efforts for

nearly 90 years to promote voting across the country, including among traditionally

disenfranchised communities. Moreover, because the League operates as a grassroots

organization and has a strong representation in Arizona and Kansas, it has a local perspective