League of Women Voters v. Brian Newby

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2016 Decided September 26, 2016

No. 16-5196

LEAGUE OF WOMEN VOTERS OF THE UNITED STATES, ET AL.,
APPELLANTS

v.

BRIAN D. NEWBY, IN HIS CAPACITY AS THE EXECUTIVE
DIRECTOR OF THE UNITED STATES ELECTION ASSISTANCE
COMMISSION, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00236)

Before: ROGERS, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS and
Senior Circuit Judge WILLIAMS.

Dissenting opinion by Senior Circuit Judge RANDOLPH.

ROGERS, Circuit Judge and WILLIAMS, Senior Circuit
Judge: In order to increase participation in federal elections, the
National Voter Registration Act requires states to register
eligible citizens who submit a complete and valid federal
 2

registration form. Although some states in recent years have
enacted voter-registration laws that require documentary proof
of U.S. citizenship, historically the federal form, which includes
a list of state-specific voter-registration instructions, has never
included such a requirement. That changed earlier this year,
when a member of the staff of the Election Assistance
Commission, which has the responsibility for prescribing the
contents of the form, approved requests by Alabama, Georgia,
and Kansas to add their proof-of-citizenship requirements to the
form. Two individuals and several voting-rights organizations
sought a preliminary injunction against this decision, which the
district court denied after finding a lack of irreparable harm.
This opinion provides the analysis underlying our expedited
judgment reversing the district court. League of Women Voters
of U.S. v. Newby, No. 16-5196, 2016 WL 4729502 (D.C. Cir.
Sept. 9, 2016) (“Judgment”).

I.

The Elections Clause of the United States Constitution
directs states to regulate the “Times, Places and Manner” of
congressional elections, but empowers Congress to preempt
those regulations. U.S. CONST. art. I, § 4, cl. 1; see also Arizona
v. Inter Tribal Council of Ariz., Inc. (“ITCA”), 133 S. Ct. 2247,
2253–54 (2013). In 1993, Congress, in an exercise of that
power, enacted the National Voter Registration Act (“the
NVRA”), Pub. L. No. 103-31, 107 Stat. 77 (codified as amended
at 52 U.S.C. §§ 20501 et seq.); see also ITCA, 133 S. Ct. at
2251. The NVRA requires states to permit voters to register for
federal elections (1) when applying for a driver’s license, (2) by
mail, and (3) in person. 52 U.S.C. § 20503(a)(1)–(3). This
appeal concerns only the second requirement — registration by
mail.
 3

The NVRA directs each state to “accept and use” a federally
prescribed national mail voter registration form, often called
“the Federal Form.” Id. § 20505(a)(1). Whatever methods of
voter registration a state uses for its own elections, it cannot
decline to register for federal elections an applicant who
completes and timely submits a valid Federal Form. See id.
§ 20507(a)(1)(B); ITCA, 133 S. Ct. at 2254–57. The NVRA at
once requires and restricts the inclusion of certain information
on the Federal Form. The form

may require only such identifying information
(including the signature of the applicant) and other
information (including data relating to previous
registration by the applicant), 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.

52 U.S.C. § 20508(b)(1) (emphasis added). It must, however,
“specif[y] each eligibility requirement (including citizenship)”
and require registrants to sign, under penalty of perjury, an
attestation that he or she meets each eligibility requirement. Id.
§ 20508(b)(2). In addition, the Federal Form must contain state-
specific voter-eligibility requirements. Id. § 20508(b)(4)(i); see
also id. § 20507(a)(5)(A). The Federal Form thus consists of
three parts: (1) a voter registration application; (2) instructions
for how to complete the application; and (3) state-specific
instructions. 11 C.F.R. § 9428.3(a). The state-specific
instructions must contain certain information for each state: “the
address where the application should be mailed and information
regarding the state’s specific voter eligibility and registration
requirements.” Id. § 9428.3(b); see also id. § 9428.4(b)(1).
 4

Although the NVRA was originally administered by the
Federal Election Commission, Congress, in the Help America
Vote Act of 2002, Pub. L. No. 107-252, § 802, 116 Stat. 1666,
1726, transferred to the newly created Election Assistance
Commission (“the Commission”) the power, “in consultation
with the chief election officers of the States,” to “develop” the
Federal Form and to promulgate regulations needed to carry out
that task. 52 U.S.C. § 20508(a)(1)–(2); see also id. § 21132.
The Commission is to be composed of four commissioners,
appointed for a term, two from each party, id. § 20923(a)(1),
(b)(2), and to act requires a vote of three Commissioners, id.
§ 20928. The Commission’s staff includes an executive
director, id. § 20924(a).

In recent years, several states, including Alabama, Georgia,
and Kansas, have enacted laws requiring that anybody who
wishes to register to vote must provide documentary proof of
United States citizenship. See Ala. Code § 31-13-28(c)–(l); Ga.
Code Ann. § 21-2-216(g); Kan. Stat. Ann. § 25-2309(l)–(t). Not
surprisingly, the enforcement of these proof-of-citizenship laws
proved contentious, and litigation ensued. In 2005, Arizona
requested that its state-specific instructions be changed by the
Commission to reflect its proof-of-citizenship requirement and
renewed its request in 2007 after it had been denied. In 2012,
Kansas made a similar request of the Commission regarding its
own proof-of-citizenship law. In 2013, the Supreme Court
resolved the Arizona litigation, holding in ITCA, 133 S. Ct.
2247, that the NVRA forbids a state from demanding that
registrants who submit a Federal Form provide information not
required by the form itself. Id. at 2260. The Court noted that
Arizona remained free to renew its request to alter the Federal
Form and, if necessary, challenge the Commission’s denial
under the Administrative Procedure Act (“APA”). Id. at 2259.
 5

The next day, Kansas renewed its request, and Arizona
followed suit the following day. Ultimately, the Commission’s
Acting Executive Director denied the requests and the Tenth
Circuit affirmed their denial. See Kobach v. U.S. Election
Assistance Comm’n, 772 F.3d 1183, 1188-99 (10th Cir. 2014).

In November 2015, the Commission hired Brian Newby as
its executive director. The day after Newby became executive
director, the Kansas Secretary of State’s office sent him a letter
again asking that the Commission add the proof-of-citizenship
requirement to the Federal Form’s Kansas-specific instructions.
Newby subsequently became aware of similar pending request
letters from Alabama and Georgia. On January 29, 2016,
Newby approved the modifications requested by all three states
(hereinafter, the “Alabama Decision,” the “Georgia Decision,”
the “Kansas Decision,” and collectively, the “Newby
Decisions”). On February 1, 2016, a new version of the state-
specific instructions for Alabama, Georgia, and Kansas went
into effect, listing the proof-of-citizenship requirement. As a
result, the Federal Form leads registrants in those three states to
believe that they cannot be registered for federal elections unless
they provide proof of citizenship. Cf. ITCA, 133 S. Ct. at
2259–60. The district court found on the record before it that
Alabama and Georgia were not, for the moment, enforcing the
proof-of-citizenship laws. League of Women Voters of U.S. v.
Newby, No. CV 16-236, 2016 WL 3636604, at *3 n.7 (D.D.C.
June 29, 2016) (“Mem. Op.”). These two states, however, gave
no assurance they would not enforce their proof-of-citizenship
laws. Permaloff Supp. Decl. 2 ¶ 3; Polythress Supp. Decl. 2 ¶
3.

Appellants are two individual Kansas residents (Mr. and
Mrs. Brown), and several voting-rights organizations operating
at the national level and at the state level in, variously, Alabama,
Georgia, and Kansas. On February 12, 2016, less than two
 6

weeks after the Newby Decisions, appellants filed suit pursuant
to the APA, 5 U.S.C. § 706(2)(A), seeking declaratory and
injunctive relief invalidating the Newby Decisions. On
February 17, appellants moved for a temporary restraining order
and preliminary injunction. Six days later, the district court
denied the temporary restraining order. Mem. Order, League of
Women Voters of U.S. v. Newby, No. CV 16-236 (D.D.C. Feb.
23, 2016). In its response to appellants’ motion for injunctive
relief, the Department of Justice declined to defend the Newby
Decisions, instead consenting to the preliminary injunction. The
district court therefore permitted intervention by Kansas
Secretary of State Kris Kobach and the Public Interest Legal
Foundation (“PILF”). Several months later, on June 29, after
hearing oral argument in early March, the district court denied
the preliminary injunction motion. See Mem. Op. at *8–*9.
This appeal followed, see 28 U.S.C. § 1292(a)(1), and this court
granted expedited review.

II.

A party seeking a preliminary injunction must make a “clear
showing that four factors, taken together, warrant relief: likely
success on the merits, likely irreparable harm in the absence of
preliminary relief, a balance of the equities in its favor, and
accord with the public interest.” Pursuing Am.’s Greatness v.
FEC (“PAG”), No. 15-5264, 2016 WL 4087943, at *3 (D.C. Cir.
Aug. 2, 2016) (internal quotation marks omitted); see also
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20–22 (2008).
This court reviews the district court’s legal conclusions as to
each of the four factors de novo, and its weighing of them for
abuse of discretion. See Davis v. Pension Benefit Guar. Corp.,
571 F.3d 1288, 1291 (D.C. Cir. 2009).

To the extent intervenors maintain that this court must
remand because the district court did not consider three of the
 7

four preliminary injunction factors or weigh all four factors, we
disagree. This court can independently grant an injunction after
considering the proper factors. See Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 305 (D.C. Cir. 2006).
Unlike in Chaplaincy, where remand allowed for further
development of the injunction factors, id., this court has a full
record, both in the district court and on appeal, the parties amply
and ably briefed and litigated all four factors of the preliminary
injunction test. And the parties did not posit — nor does this
court envision — the need for any additional information
concerning the equities and the public interest. Because the
record “compel[s] only one conclusion,” there is no reason to
remand to the district court. Araya v. J.P. Morgan Chase Bank,
N.A., 775 F.3d 409, 417 (D.C. Cir. 2014) (citing Edmondson &
Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260,
1266–67 (D.C. Cir. 1995)). Notably, this court granted
expedition precisely because if appellants prevailed, then there
would exist a hard deadline for meaningful injunctive relief. A
fundamental constitutional issue is at stake and time is of the
essence. The November 8 elections loom, and the registration
cutoff for using the federal registration form comes well before
that: 21 days before in Kansas; 30 days before in Georgia; and
15 days before in Alabama. See 52 U.S.C. § 20507(a)(1)(B).

A.
At the outset, intervenors ask this court to resolve two legal
questions that remain open. First, Kobach urges the court, in
light of the Supreme Court’s decision in Winter, 555 U.S. at 20-
24, to abandon the so-called “sliding-scale” approach to
weighing the four preliminary injunction factors, which
“allow[s] that a strong showing on one factor could make up for
a weaker showing on another.” Sherley v. Sebelius, 644 F.3d
388, 392 (D.C. Cir. 2011). This court, however, has not yet
needed to decide this issue. See, e.g., PAG, 2016 WL 4087943,
at *3 n.1; Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir.
 8

2014). Because appellants satisfy each of the four preliminary
injunction factors, this case presents no occasion for the court to
decide whether the “sliding scale” approach remains valid after
Winter.

Next, both intervenors contend that appellants face a higher
burden of persuasion because they seek a mandatory, as opposed
to prohibitory, injunction. In intervenors’ view, whether an
injunction in the APA context is mandatory or prohibitory —
and the extent of the movants’ burden — depends on an
essentially arbitrary criterion: whether the agency decision was
of a sort that could be given practical effect before plaintiffs
could get into court. But this court has rejected any distinction
between a mandatory and prohibitory injunction, observing that
“the ‘mandatory’ injunction has not yet been devised that could
not be stated in ‘prohibitory’ terms.” United States v. W. Elec.
Co., 46 F.3d 1198, 1206 (D.C. Cir. 1995) (internal citation
omitted).

B.
Because the district court denied the preliminary injunction
motion for want of irreparable harm, Mem. Op. at *8–*9, this
court will begin there. The party seeking a preliminary
injunction must make two showings to demonstrate irreparable
harm. First, the harm must be “certain and great,” “actual and
not theoretical,” and so “imminen[t] that there is a clear and
present need for equitable relief to prevent irreparable harm.”
Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (internal
quotation marks omitted). Second, the harm “must be beyond
remediation.” Id.

An organization is harmed if the “actions taken by [the
defendant] have ‘perceptibly impaired’ the [organization’s]
programs.” Fair Emp’t Council of Greater Wash., Inc. v. BMC
Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994) (quoting
 9

Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)); see
also Nat’l Treasury Emps. Union v. United States, 101 F.3d
1423, 1430 (D.C. Cir. 1996) (explaining that the initial question
is whether “a defendant’s conduct has made the organization’s
activities more difficult”). If so, the organization must then also
show that the defendant’s actions “directly conflict with the
organization’s mission.” Nat’l Treasury Emps. Union, 101 F.3d
at 1430. The second step is required to ensure that
organizations cannot engage in activities simply to create an
injury. Id. Appellants have met this standard.

Before the States enacted their proof-of-citizenship laws,
the Leagues registered voters using state registration forms.
They held registration drives both in formal venues, like
naturalization ceremonies, and a wide variety of informal ones,
like shopping malls, community festivals, and even bus stops.
But the Kansas proof-of-citizenship requirement substantially
limited the ability of the Kansas League to successfully register
voters because (1) often potential voters didn’t have citizenship
documents with them, (2) even if they did, the League didn’t
have equipment to copy those documents, and (3) some potential
voters balked at the idea of allowing the League’s volunteers to
copy their sensitive citizenship documents (and members of the
League echoed those concerns). Predictably, the number of
voters successfully registered at League drives plummeted. A
declaration of a former Kansas League president recounts that
registration numbers in Kansas fell by more than 85% in three
counties, nearly 70% in another, and two other counties
suspended all registration efforts. Furtado Decl. ¶¶ 19-26.
Although the Kansas law presented formidable obstacles to its
registration efforts, the Kansas League could still use the
Federal Form to register a voter regardless of whether the voter
had his or her citizenship documents handy. Use of the Federal
Form without proof of citizenship initially came at the cost of
having to register separately for state elections, but that cost
 10

disappeared when a Kansas state court ruled that Kansas law
required qualified Federal Form applicants to be registered for
all elections. Opinion & Order, Belenky v. Kobach, No.
2013CV1331 (Shawnee Cnty. Dist. Ct. Jan. 15, 2016). After
Belenky, the Kansas League planned to use the Federal Form
“much more frequently,” Furtado Decl. ¶ 30, but the Newby
Decisions removed that option by importing the State proof-of-
citizenship requirement into the Federal Form. The Kansas
League is now unable to register any voter who cannot produce
proof of citizenship.

As noted, it is unclear whether Alabama and Georgia are
currently enforcing their proof-of-citizenship laws. But that
does not mean that the Alabama and Georgia Leagues cannot
show a likely injury. Indeed, based on the experience of the
Kansas League, it seems almost certain that similar obstacles to
registration will spring up in Alabama and Georgia when those
States decide to enforce their laws. As a preliminary injunction
requires only a likelihood of irreparable injury, see Winter, 555
U.S. at 22, (2008), Damocles’s sword does not have to actually
fall on all appellants before the court will issue an injunction.

Because, as a result of the Newby Decisions, those new
obstacles unquestionably make it more difficult for the Leagues
to accomplish their primary mission of registering voters, they
provide injury for purposes both of standing and irreparable
harm. See Nat’l Treasury Emps. Union, 101 F.3d at 1430; see
also Fair Emp’t Council of Greater Wash., 28 F.3d at 1276.
And that harm is irreparable because after the registration
deadlines for the November election pass, “there can be no do
over and no redress.” League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224, 247 (4th Cir. 2014).

Intervenors’ counter arguments are unpersuasive. First,
intervenors assert that the Kansas League’s voter registration
 11

efforts are, in fact, carried out by its local affiliates and not the
League itself. Furtado refers to the local organizations under the
Kansas League as its “affiliates” and describes the state and
local groups as components of a single unit working in concert.
Furtado Decl. ¶¶ 7, 8. Moreover, according to the bylaws of the
national organization, the League of Women Voters of the
United States, local leagues are a unit of organization within the
larger group, rather than separate entities that operate
independently. See BYLAWS OF THE LEAGUE OF WOMEN
VOTERS OF THE UNITED STATES, Art. III, § 2, cl. A; Arts.
IV–VI; Art. IX, §§ 2–3, 5; Art. X, §§ 2–3, 5. In financial and
budgetary terms, the national, state, and local Leagues are
interdependent and inextricably linked. Id. Art. XIII, §§ 2–3.

Second, Kobach maintains that Furtado’s estimate of the
Kansas League’s expenditures is too speculative. That misses
the point. The Newby Decisions harm the Leagues because they
will likely impair their efforts to register voters. Cf. Nat’l
Council of La Raza v. Cegavske, 800 F.3d 1032, 1040–41 (9th
Cir. 2015). The League’s expenditures are merely a symptom
of that programmatic injury. Fair Emp’t Council of Greater
Wash., 28 F.3d at 1277; Furtado Decl. ¶¶ 37–39.

Third, Kobach maintains that Newby’s Kansas Decision
actually makes the Kansas League’s job easier. No longer, he
suggests, will it have to explain to the public the difference
between registering for state and federal elections. Instead, it
can simply tell Kansans that they must provide citizenship
documentation to register to vote in any type of election. As
discussed, registering voters in many respects has become and
will continue to be much harder for the Kansas League, not
easier, as a result of the Kansas Decision. The League properly
focuses on the difficulties posed to accomplishing its mission.
 12

C.
The Leagues have a substantial (perhaps overwhelming)
likelihood of success on the merits. Under section 9(b) of the
NVRA, 52 U.S.C. § 20508(b), the Federal Form requires
registrants to supply information as part of their application only
insofar as it 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)(1) (emphasis added); see also ITCA,
133 S. Ct at 2259 (section 9(b) “acts as both a ceiling and a floor
with respect to the contents of the Federal Form”). In a
contemporaneous internal memorandum, which this court may
consider, see Tourus Records, Inc. v. DEA, 259 F.3d 731, 738
(D.C. Cir. 2001), Executive Director Newby justified his
decisions by stating that “[s]tate-specific instructional changes
are ministerial, and, thus, routine.” Brian D. Newby,
Acceptance of State-Instructions to Federal Form for Alabama,
Georgia, and Kansas at 2 (Feb. 1, 2016). Far from considering
whether these amendments were “necessary” (as required by the
NVRA), he concluded that the “examples of need for these
changes are irrelevant to [his] analysis” because of “the role and
right[] of the states to set the framework for acceptance and
completion of the [Federal F]orm.” Id. at 4-5. Newby viewed
his role merely to “review the request[s] for clarity and
accuracy.” Id. at 2. Because Newby expressly found that the
criterion set by Congress — i.e., whether the amendments were
necessary to assess eligibility — was “irrelevant” to his analysis,
id. at 4, it is difficult to imagine a more clear violation of the
APA’s requirement that an agency “must examine the relevant
data and articulate a satisfactory explanation for its action
including a rational connection between the facts found and the
choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal
quotation marks omitted).
 13

In an attempt to salvage the Newby Decisions, intervenors
contend that the court should defer to Newby’s interpretation of
section 20508(b) because it is ambiguous. Specifically, they
maintain that the NVRA gives the states (not the Commission)
the authority to determine whether information is necessary
within the meaning of that provision. We disagree.

The relevant statutory text is straightforward. See Engine
Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246,
252 (2004). Section 20508(a)(2) provides that the Commission
“in consultation with the chief election officers of the States,
shall develop a mail voter registration application form for
elections for Federal office.” Section 20508(b)(1) provides that
this form “may require only such identifying information
(including the signature of the applicant) . . . 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.” That is, section
20508(a)(2) directs the Commission to create the Federal Form
and section 20508(b)(1) sets limits on the contents of that form.
It would be illogical for Congress to provide in section
20508(b)(1) that the consultant, rather than the developer, would
determine “necessity.” Section 20505(a)(2), in turn, provides
that states may “develop and use” their own voter registration
forms “[i]n addition to accepting and using” the Federal Form.
Id. § 20505(a)(2). If Congress intended to give the states the
power to decide what information the Federal Form contains,
then it would have had little reason to include this separate
permission for states to use their own forms. ITCA, 133 S. Ct.
at 2255–56. Similarly, permitting the states to dictate the
contents of the Federal Form would undermine the Federal
Form’s role as a mandatory “backstop” to state registration
forms. See 52 U.S.C. §§ 20505(a)(1), 20507(a)(1)(B); ITCA,
133 S. Ct. at 2255. A state could turn the Federal Form into
mere duplicative paperwork, a facsimile of the state registration
 14

form. See ITCA, 133 S. Ct. at 2255–56.

Our interpretation accords with Supreme Court precedent.
In ITCA, the Court made plain that the Commission, not the
states, determines necessity. Id. at 2258–60. In the Court’s
view, section 20508(b)(1) permitted states to “request that the
[Commission] alter the Federal Form,” which the Commission
could “reject[],” subject to judicial review under the APA. Id.
at 2259. To prevail in court, the requesting state would have to
“establish” that the information it wanted the Commission to
add to the Federal Form was “necessary.” Id. at 2260. Only
after the Commission (or a reviewing court) determines
necessity is the Commission “under a nondiscretionary duty to
include [a state proof-of-citizenship] requirement on the Federal
Form.” Id. The Court’s discussion did not envision a process
by which a state had the authority to direct the Commission to
act so long as its request conformed with state law. Nor would
that interpretation of section 20508(b)(1) have been consistent
with the rest of the opinion. The Court explained at some length
that the NVRA could not be read to contemplate a scheme
whereby a state could mandate inclusion in the Federal Form of
every one of its registration requirements. See id. at 2255–56 &
n.4. Finally, the interpretation advanced by intervenors is that
reflected in Justice Alito’s dissenting opinion, additional
evidence that the ITCA majority considered and rejected that
reading. See id. at 2274 (Alito, J., dissenting); cf. id. at 2270
(Thomas, J., dissenting). As the Tenth Circuit observed, “[t]his
is one of those instances in which the dissent clearly tells us
what the law is not.” Kobach, 772 F.3d at 1188.

The canon of constitutional avoidance does not compel or
support a different interpretation of the NVRA. The Elections
Clause directs states to regulate the time, place, and manner of
congressional elections, but gives Congress the power to
preempt state regulation. U.S. CONST. art. I, § 4, cl. 1. The
 15

Qualifications Clause and the Seventeenth Amendment, on the
other hand, bestow on the states exclusive authority to decide
the eligibility criteria for voters in federal elections. Id. art. I,
§ 2, cl. 1; id. amend. XVII. Thus, as ITCA recognized, it would
raise a serious constitutional question “if a federal statute
precluded a State from obtaining the information necessary to
enforce its voter qualifications.” 133 S. Ct. at 2258–59. But
such a scenario would not arise under our interpretation of
section 20508(b)(1) because that provision requires the
Commission to include information shown to be “necessary.”
Accordingly, the constitutional question dovetails with the
statutory one — if the proposed change to the Federal From is
“necessary” to enforce voter qualifications, then the NVRA and
probably the Constitution require its inclusion; if not, the NVRA
does not permit its inclusion and the Constitution is silent.

To the extent our dissenting colleague would conclude that
any error in the Newby Decisions is harmless error, Dis. Op. 3,
because the Constitution itself renders non-discretionary the
Commission’s duty to grant the states’s requested additions to
the statement of state qualifications in the Federal Form, he
posits a constitutional issue that is not presented by this court’s
September 9, 2016, judgment and relies, to boot, on the views of
the dissenting Justices in ITCA, 133 S. Ct. at 2262 (Thomas, J.);
id. at 2270 (Alito, J.). The issue is not presented here, for
reasons the Supreme Court explained in ITCA, 133 S. Ct. at
2259–60. As stated in this court’s judgment,

the Leagues seek only to enjoin the Commission
(or its agents) from giving effect to the January 29,
2016 decisions of Executor Director Newby.
Neither this preliminary injunction nor a final
judgment would forbid the Commission from
including a proof-of-citizenship requirement if it
determined that such a requirement was necessary
 16

to “effectuate [the States’] citizenship
requirement[s].” Arizona v. Inter Tribal Council of
Arizona, Inc., 133 S. Ct. 2247, 2260 (2013). Like
Arizona after ITCA, the States here remain free to
renew their “request[s] that the [Commission] alter
the Federal Form to include information the
State[s] deem[] necessary to determine eligibility.”
Id. If the Commission refuses those requests (or
fails to act timely), the States here (like Arizona)
will have the “opportunity to establish in a
reviewing court” that their proof-of-citizenship
requirements are necessary to enable them to
assess eligibility. Id.; see 52 U.S.C. §
20508(b)(1). Because they have yet to do so, our
review of agency action here presents no
Constitutional issue.

Judgment at *1.

Because Newby never made the made the necessity
finding required by section 20508(b)(1), assuming without
deciding whether he had authority to grant the requests,
appellants have shown that the Newby Decisions very likely
were not “based on a consideration of the relevant factors.”
State Farm, 463 U.S. at 43; see also FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009). The presence in the
record of evidence that intervenors argue could be read to
support a necessity finding, a question we do not reach, cannot
cure this deficiency. See SEC v. Chenery Corp., 332 U.S. 194,
196 (1947).

D.
Appellants have also demonstrated that the balance of the
equities tips in their favor because a preliminary injunction will
“not substantially injure other interested parties.” Chaplaincy of
 17

Full Gospel Churches, 454 F.3d at 297. Here, the court must
consider the equities with respect to four sets of parties: (1)
appellants, (2) PILF, (3) the three states affected by the Newby
Decisions, and (4) the federal appellees (Newby and the
Commission).

1. Harm to appellants and the public interest if a
preliminary injunction does not issue. First, appellants’
extremely high likelihood of success on the merits is a strong
indicator that a preliminary injunction would serve the public
interest. There is generally no public interest in the perpetuation
of unlawful agency action. PAG, 2016 WL 4087943, at *8;
Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). To the
contrary, there is a substantial public interest “in having
governmental agencies abide by the federal laws that govern
their existence and operations.” Washington v. Reno, 35 F.3d
1093, 1103 (6th Cir. 1994).

Second, the public interest further favors a preliminary
injunction because, absent an injunction, there is a substantial
risk that citizens will be disenfranchised in the present federal
election cycle. The public has a “strong interest in exercising
the fundamental political right to vote,” Purcell v. Gonzalez, 549
U.S. 1, 4 (2006) (internal quotation marks omitted), a right that
is “‘preservative of all rights,’” Dunn v. Blumstein, 405 U.S.
330, 336 (1972) (quoting Reynolds v. Sims, 377 U.S. 533, 562
(1964)), and “of the most fundamental significance under our
constitutional structure,” Ill. State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 184 (1979). As our sister circuits
have concluded, “[t]he public interest therefore favors
permitting as many qualified voters to vote as possible.” Obama
for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012); see also
League of Women Voters, 769 F.3d at 247. The Newby
Decisions, as discussed, make it substantially more difficult for
groups like the Leagues to register otherwise qualified voters.
 18

In that respect, the programmatic harm to the Leagues dovetails
with the public interest. In the case of Alabama and Georgia,
the mismatch between the Federal Form’s state-specific
requirements and the temporary non-enforcement practice in
those states is very likely to confuse the public. Confusion will
create a disincentive for citizens who would otherwise attempt
to register to vote. Cf. Purcell, 549 U.S. at 4–5. Meanwhile, in
Kansas, record evidence indicates that, absent an injunction, a
large number of eligible Federal Form registrants very likely
will not be registered to vote for failure to provide proof of
citizenship. Furtado Decl. ¶ 34. During oral argument Kobach
advised that approximately 17,000 registration applications were
being held on a suspension list. Oral Arg. Tape 45:20–46:49
(Sept. 8, 2016). It does not matter whether that is because they
lack access to the requisite documentary proof or simply
because the process of obtaining that proof is so onerous that
they give up. Krehbiel Decl. ¶¶ 6–9. The outcome is the same
— the abridgment of the right to vote.

Third, the programmatic harm to the Leagues and the
public interest align in another respect, too. Congress
emphasized the importance of the use of the Federal Form in
“organized voter registration programs” held by “private
entities,” 52 U.S.C. § 20505(b), as among the “procedures that
will increase the number of eligible citizens who register to vote
in elections for Federal office,” id. § 20501(b)(1). The
substantially diminished ability of the Leagues to use the
Federal Form in voter registration drives — including in
communities that generally have little access to voter
registration services — therefore runs contrary to what
Congress, in enacting the NVRA, declared to be the public
interest.

2. Harm to PILF and the states if a preliminary injunction
issues. On the other side of the ledger, to the extent the states
 19

and public interest may suffer some harm if the court enters an
injunction, those harms are insufficiently grave to overcome the
much more substantial countervailing harms.

First, the states — and the public — “indisputably ha[ve]
a compelling interest in preserving the integrity of [the] election
process.” Purcell, 549 U.S. at 4 (internal quotation marks
omitted). What is disputable is whether an injunction would
actually do much, if any, harm to that interest. An injunction
would undermine this interest if it permitted fraudulent
registration by non-citizens. But there is precious little record
evidence that it would do so. Kansas represented in its request
letter that between 2003 and 2015 eighteen non-citizens had
tried to or successfully registered to vote. Only one of them
attempted to use the Federal Form. When the requests of
Arizona and Kansas to add their proof-of-citizenship
requirements to the Federal Form were rejected in 2014, it
appeared that only a tiny fraction of one percent of registered
voters were non-citizens. Earlier this year, a federal district
court in Kansas found similarly little evidence of fraudulent
registration by non-citizens trying to register at the Department
of Motor Vehicles. See Fish v. Kobach, No. 16-2105, 2016 WL
2866195, at *29 (D. Kan. May 17, 2016). Additionally, the
Tenth Circuit observed that the states have other tools at their
disposal to ensure the integrity of elections, including
protections against voter fraud. See Kobach, 772 F.3d at 1197,
1199. This court need take no position now on what evidence
the Commission ought to require to show that documentary
proof of citizenship is “necessary” for purposes of section
20508(b)(1), but observes only that, on the evidence before this
court, the likely harm to election integrity appears minimal.
Kobach suggests that he does not need to provide any evidence
of harm to justify the state’s interest in election integrity, relying
on a case where the question was whether, as a matter of
constitutional law, a state interest in preventing voter fraud
 20

could justify a state’s voter identification law. See State
Appellee Intervenor Br. 58 (citing Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 191, 195–97 (2008) (Stevens, J.,
joined by Roberts, C.J. & Kennedy, J.)). That is immaterial to
the factual question presented here — the extent to which an
injunction would harm this valid state interest.

Second, there would be an administrative burden on
Kansas to the extent that an injunction would mean Kansas must
determine whether it had any outstanding Federal Form
applicants unaccompanied by documentary proof of citizenship.
See Mot. for TRO and Perm. Injunction at 2 (Feb. 17, 2016)
(calling for Newby and the Commission to “take all actions
necessary to restore the status quo ante”). The injunction would
constructively remove the information added by Newby from
versions of the Federal Form submitted prior to compliance with
this court’s September 9, 2016, judgment. Kansas therefore
could not, as a matter of federal law, decline to register for
federal elections individuals who submitted a valid and complete
Federal Form on or after appellants sought the injunction,
whether or not they provided documentary evidence that they
are U.S. citizens. See ITCA, 133 S. Ct. at 2260. Such a burden
appears contemplated by the NVRA when it authorized mail-in
registration using a Federal Form containing only “necessary”
information. Furthermore, Kansas had procedures in place prior
to the Newby Decisions that conform to what the requested
injunction would require. In sum, the burden is not so great that
it outweighs the strong public interest in ensuring that unlawful
agency decisionmaking does not strip citizens of the right to
vote. To the extent Kansas is purging suspended registration
applications after 90 days, any burden is of its own making
because it was aware of pending challenges in federal and state
courts. Because the district court was satisfied on the record
before it that Alabama and Georgia were not enforcing their
proof-of-citizenship laws, on the other hand, an injunction will
 21

not impose any appreciable administrative burden on those
states.

Third, it is a fair assumption that reverting the Federal
Form to its prior version could cause some confusion among
registrants. But there is confusion now, as the declarations
submitted by appellants show. An agency should not be allowed
to claim that the confusion resulting from its own improper
action weighs against an injunction against that action. The
harm to the public interest as a result of confusion from
reinstatement of the prior Federal Form is, in any event, far
outweighed by the countervailing harms that would flow from
the court’s refusal to enjoin the Newby Decisions.

Fourth, unlike the Leagues, PILF fails to state any
concrete harm flowing from the issuance of an injunction.
Federal appellees also do not claim any such harm — as
discussed, the Department of Justice has consented to the
preliminary injunction.

E.
Accordingly, on September 9, 2016, the judgment of this
court reversed the district court’s denial of appellants’ motion
for a preliminary injunction and enjoined the Commission and
anyone acting on its behalf from giving effect to the Newby
Decisions. Further, the court ordered that the Commission take
“all actions necessary to restore the status quo ante,” pending a
determination on the merits, including informing the three states
that Federal Form applications filed since January 29, 2016,
should be treated as if they did not contain the now-stricken
state-specific instructions. Kobach’s request that the court
remand without vacatur simply misunderstood the posture of the
instant case. See Allied-Signal, Inc. v. NRC, 988 F.2d 146,
150–51 (D.C. Cir. 1993). As appellants requested, the
preliminary injunction did not vacate the Newby Decisions but
 22

merely prohibits the Commission from giving them effect,
pending entry of the final judgment.
 RANDOLPH, Senior Circuit Judge, dissenting:

Far more is at stake here than matters of civil procedure and
administrative law.

Of utmost importance is that on the eve of a Presidential
election, and elections for federal office, a court has issued an
injunction forbidding Kansas, Georgia and Alabama from
enforcing their election laws, laws requiring those who seek to
register to vote to prove that they are citizens of this country.

That order is unconstitutional.

Under Article I, § 2, cl. 1, of the Constitution and the
Seventeenth Amendment, it is the States, and the States alone,
who have the authority and the power to determine the eligibility
of those who wish to vote in federal elections. There is no claim
in this case that the laws of these three States violate the
Fourteenth Amendment or any other constitutional provision.
And so neither the Congress nor the President nor any federal
commission and, most certainly, not two federal judges sitting
in Washington, D.C. (or even eight or nine) have the authority
to prevent Kansas, Georgia and Alabama from enforcing their
laws in the upcoming federal elections.

I would not have reached the constitutional issue the
majority’s order now poses. In my view the appeal should have
been disposed on the ground that the League of Women Voters
and their allies have not even come close to demonstrating the
type of harm entitling them to an order suspending these state
laws.

My reasons for disposing of this appeal on non-
constitutional grounds are, briefly stated, as follows.

First, put aside the only two individual plaintiffs who
claimed they were citizens but could not prove it. They have
 2

now registered to vote in federal elections. Their fundamental
right to vote is not at issue in this case. The only proper
plaintiffs before us are the League of Women Voters and the
other, similar organizations. What is their irreparable injury?
The States’ proof-of-citizenship laws, as reflected on the Federal
Form, do not prevent these plaintiffs from conducting voter
registration drives. The success of their efforts may be affected,
but the proof-of-citizenship requirement does not restrict their
ability to engage in political activity by encouraging others to
vote. To the extent these plaintiffs may have to spend more time
and money in their registration drives, that does not entitle them
to a preliminary injunction. “Mere injuries,” our court has held,
“in terms of money, time and energy necessarily expended in the
absence of a stay are not enough.” Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297-98 (D.C. Cir. 2006)
(quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
1985)).

As to plaintiffs’ probability of success on the merits, the
majority opinion holds that the federal Election Assistance
Commission’s Executive Director abused his discretion in
changing the Federal Form upon the States’ requests.

That holding raises the “serious constitutional” issue I
mentioned above, an issue the Supreme Court – in its words –
was “[h]appily” “spared” from having to decide in Arizona v.
Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247, 2258,
2259 (2013). The Supreme Court did not have to decide
whether the EAC was “under a nondiscretionary duty to include
Arizona’s” proof-of-citizenship requirement on the Federal
Form because Arizona had never requested the EAC to do so.
Id. at 2260.

Justice Thomas would have decided the constitutional issue
the Supreme Court majority managed to avoid and Justice Alito
 3

would have construed the governing statute to allow the States
to require any information they deemed necessary. Justice
Thomas determined that the “text and history” of
Article I, § 2, cl. 1, of the Constitution and the Seventeenth
Amendment “confirm that States have the exclusive authority to
set voter qualifications and to determine whether those
qualifications are satisfied.” 133 S. Ct. at 2265 (Thomas, J.,
dissenting). It follows that when a State requests updated
registration requirements to the Federal Form, “the federal
government does not have the constitutional authority to
withhold such approval.” Id. at 2270. The Supreme Court
majority did not express any disagreement with Justice
Thomas’s analysis. For the reasons Justice Thomas stated,
Justice Alito would have held that the National Voter
Registration Act must be read to allow the States to “decide for
themselves what information ‘is necessary . . . to assess the
eligibility of the applicant’ – both by designing their own forms
and by requiring that federal form applicants provide
supplemental information when appropriate. [42 U.S.C.]
§ 1973gg– 7(b)(1).” 133 S. Ct. at 2274-75 (Alito, J., dissenting).

Based on this constitutional analysis, the Executive Director
properly granted the requests of Kansas, Georgia and Alabama.
He did not inquire into the wisdom of the States’ laws, but
instead relied on the “simple fact” that “registration is not
complete without this information.” Because the EAC was
under a nondiscretionary, constitutional duty to grant the States’
requests, it is of no moment how well the Executive Director
explained his actions or whether he had the authority to act or
whether the Commission itself should have directed the changes
to the Federal Form. If those were errors, they were clearly
harmless under the Administrative Procedure Act, 5 U.S.C.
§ 706. See, e.g., Ozark Auto. Distributors, Inc. v. Nat'l Labor
Relations Bd., 779 F.3d 576, 582 (D.C. Cir. 2015).