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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KRIS W. KOBACH, et al. Plaintiffs, v. UNITED STATES ELECTION ASSISTANCE COMMISSION, et al., Defendants. DEFENDANTS’ MOTION TO LIMIT COURT’S REVIEW TO THE AGENCY RECORD, TO LIMIT THE FEBRUARY 11-12, 2014 HEARING TO ORAL ARGUMENT, AND TO HOLD A STATUS CONFERENCE, AND MEMORANDUM IN SUPPORT THEREOF Defendants United States Election Assistance Commission (“EAC”) and Alice Miller, Acting Executive Director of the EAC, respectfully move: (1) to limit the Court’s review of the EAC’s final agency action in this matter, ECF No. 129-1, to the administrative record, ECF Nos. 79, 80, 95, 82, 132; (2) to limit the previously noticed February 11-12, 2014, hearing, ECF No. 131, to oral argument; and (3) to hold a telephone status conference. 1 In support of their motion, Defendants state as follows: INTRODUCTION This case involves a straightforward challenge to agency action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”). Plaintiffs Arizona and Kansas (collectively, “Plaintiffs” or “States”) requested that the U.S. Election Assistance Commission (“EAC”) amend CIVIL ACTION NO. 5:13-CV-4095-EFM-DJW

Counsel for the Defendants have notified the other parties of Defendants’ intention to file this motion. Counsel for Plaintiffs indicated that they opposed cancellation of the evidentiary hearing. Counsel for the ITCA, Project Vote, and Valle del Sol groups of Defendant-Intervenors indicated that they join in the motion as to the relief requested, but reserve the right to take different positions on the specific issues that the Defendants raise. Counsel for the League of Women Voters group of Defendant-Intervenors indicated that they take no position on the motion.

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the National Mail Voter Registration Form (“Federal Form”) to require that registrants for federal elections in those states provide additional proof of their United States citizenship as a precondition to voter registration. The EAC, through its Acting Executive Director, originally opted to defer ruling on those requests until a quorum of EAC commissioners was established. But on December 13, the Court found that the EAC had unreasonably delayed acting on the States’ requests and “remand[ed] the matter to the EAC with instructions that it render a final agency action no later than January 17, 2014.” Order of Dec. 13, 2013, ECF No. 114, at 2. In accordance with the Court’s order, the agency issued a decision on January 17, 2014, rejecting the States’ requests. ECF No. 129-1. That decision is now subject to judicial review pursuant to well-settled APA principles and procedures. Specifically, the APA empowers the Court to examine the administrative record submitted by the EAC and determine whether the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Court cannot, consistent with controlling Supreme Court and Tenth Circuit authority, render a decision based on a “new record made initially in the reviewing court.”’ Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)). In light of this bedrock APA principle, Defendants respectfully request that the Court cancel the evidentiary hearing it has scheduled for February 11-12, 2014. Instead, the Court should limit its review to the administrative record, the arguments presented by the parties in their briefs due on January 31 and February 7, see Order of Jan. 22, 2014, ECF No. 130, and any oral argument the Court wishes to hear. At a minimum, prior to ordering an evidentiary hearing, the Court should require, first, that any party demonstrate in its brief supporting a petition for review of the final agency

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decision (which is due January 31, see ECF No. 130) that its attempt to supplement the agency’s record fits under one of the limited exceptions to APA record review, identifying the specific ways in which the record needs to be supplemented. If this Court finds, after reviewing the parties’ briefs, that there are legitimate reasons to consider evidence beyond the administrative record, it should at that point direct the agency to supplement the record as needed or, if appropriate, provide for a reasonable discovery period and an evidentiary hearing with respect to the limited scope of issues for which the Court determines that supplementation of the record is necessary. The current path that the Court has ordered—an evidentiary hearing to occur only three weeks after the Court’s January 22 Scheduling Order and only four days after the parties have completed their briefing—is both contrary to Supreme Court and Tenth Circuit precedent for APA cases and, in its timing, unfairly prejudicial to the Defendants. Defendants respectfully request that the Court reconsider its approach and adhere to customary and required procedures for reviewing agency action. 2 PROCEDURAL BACKGROUND The Court heard oral argument on Plaintiffs’ preliminary injunction motion on December 13, 2013. After concluding that the EAC had unreasonably delayed action on Plaintiffs’ requests within the meaning of the APA, Hearing Tr. 12/13/2013 at 76:6, the Court determined that “under [its] procedural rules, [it] need[ed] a final agency action,” id. at 140:19-20, and appeared to accept defense counsel’s representation “that even in the absence of any commissioners, the EAC can consider and act upon the States’ requests.” December 13, 2013 Order, ECF No. 114

Given the press of time, Defendants ask, in the alternative, that if the Court decides to proceed with a twoday evidentiary hearing starting on February 11, it schedule a telephone status conference to take place on or before February 3, 2014, to discuss the conduct of the hearing (e.g., the number of witnesses it will hear, the time allotted to each party for oral argument, etc.), the timeframe for disclosing witnesses and evidence, and the terms and conditions of any pre-hearing discovery.

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at 1-2. Consistent with well-settled principles of administrative law, the Court remanded the matter to the EAC with instructions to render a final agency decision. Id. On December 19, 2013, the EAC issued a Notice and Request for Public Comment on the states’ requests. 78 Fed. Reg. 77666 (Dec. 24, 2013). In addition to publishing that notice in the Federal Register and on the EAC’s website, the agency sent it directly to the parties to this case and to its list of NVRA stakeholders. See Memorandum Of Decision Concerning State Requests To Include Additional Proof-Of-Citizenship Instructions On The National Mail Voter Registration Form (Docket No. EAC-2013-0004), ECF No. 129-1 at 5. In response, the EAC received 423 public comments, including detailed comments from Plaintiffs and all DefendantIntervenors. Id. On January 17, 2014, after reviewing the 1,912-page record, including all of the public comments, as well as the governing law, the EAC issued a 46-page decision denying the States’ requests. Specifically, the agency “determined, in accordance with Section 9 of the [National Voter Registration Act] and EAC regulations and precedent, that additional proof of citizenship is not ‘necessary * * * to enable the appropriate State election official to assess the eligibility of the applicant,’ cf. 42 U.S.C. § 1973gg-7(b)(1), and will not be required by the Federal Form for registration for federal elections.” ECF No. 129-1 at 45. The EAC filed that final agency decision with the Court on January 17, 2014, id., and filed the supporting, certified administrative record on January 25, 2014, ECF Nos. 132 and 133. This filing supplemented the earlier administrative record filed on November 25 and December 4, 2013. ECF Nos. 79, 80, 82, and 95.

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ARGUMENT I. THE COURT’S REVIEW IS LIMITED TO THE ADMINISTRATIVE RECORD. A. This Proceeding is Governed by the APA’s Procedures for Judicial Review. Plaintiffs’ claims arise under the APA’s judicial review provisions, 5 U.S.C. §§ 701-706. ECF No. 1, Compl. ¶¶ 80-128. 3 Judicial review thereunder “is generally based on the full administrative record that was before * * * the decision maker[].” Bar MK Ranches, 994 F.2d at 739 (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971)). Thus, the “‘focal point for judicial review [under the APA] should be the administrative record already in existence, not some new record made initially in the reviewing court.”’ Bar MK Ranches, 994 F.2d at 739 (citing Camp v. Pitts, 411 U.S. 138, 142 (1973)); see also Citizens for Alternatives to Radioactive Dumping v. U.S. Department of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007) (hereinafter “CARD”) (same). The reviewing court must apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) (citation omitted). “The reviewing court is not generally empowered to conduct a de novo inquiry into the matter,” Sierra Club v. Hodel, 848 F.2d 1068, 1093 (10th Cir. 1988), overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992), and parties are
Counts I-IV of the Complaint, ECF No. 1, Compl. ¶¶ 80-114, specifically incorporate the APA. Although Count V of the Complaint purports to raise a separate constitutional claim under the Tenth Amendment, see id. ¶¶ 115-28, that claim is already subsumed in Count II of the Complaint, which asks the Court to set aside agency action found to be “contrary to constitutional right, power, privilege, or immunity.” See 5 U.S.C. § 706(2)(B). Additionally, the Court specifically indicated at oral argument (in response to the EAC counsel’s argument that “the case really has nothing to do with the Tenth Amendment”) that it did not find the Tenth Amendment as “particularly determining of” the issues before the Court. Hearing Tr. 12/13/2013 at 83:11-12. Additionally, for the reasons discussed in their November 21, 2013 and November 27, 2013 briefs, Defendants believe this case is ripe for a decision on the merits under the APA and that a preliminary injunction proceeding would not be proper at this juncture. See ECF No. 68 ¶ 1; ECF No. 92 at 32-42. The Court appeared to acknowledge this at the December 13 hearing. See Hearing Tr. 12/13/2013 at 143:3-5 (“[A]lthough [plaintiffs] filed for preliminary injunction, I’ve really considered this as more of a mandamus or administrative review case. . . .”).
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“not * * * ordinarily entitled to augment the agency’s record with either discovery or testimony presented in the district court.” Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009) (stating that in APA action, “[t]he entire case on review is a question of law, and the complaint, properly read, actually presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action”) (internal quotations omitted). The Tenth Circuit, in recognition of these governing principles, has instructed that “[r]eviews of agency action in the district courts must be processed as appeals.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994) (emphasis in original); see also Rempfer, 583 F.3d at 865 (district court sits as an appellate tribunal on a review of an agency’s action under the APA). The Tenth Circuit disapproves of district court procedures that “invite[] (even require) the reviewing court to rely on evidence outside the administrative record” and has “explicitly prohibit[ed] it.” Olenhouse, 42 F.3d at 1579-80; see also American Mining Congress v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985) (“[An] agency’s action must be reviewed on the basis articulated by the agency and on the evidence and proceedings before the agency at the time it acted. Aggressive use of extra-record materials * * * would run directly counter to the admonitions of the Supreme Court.”) (emphasis added); Sierra Club v. Hodel, 848 F.2d at 1093 (“The reviewing court is not generally empowered to conduct a de novo inquiry into the matter[.]”) (citing Florida Power & Light Co., 470 U.S. at 744); Heber Valley Milk Co. v. Butz, 503 F.2d 96, 97 (10th Cir. 1974) (“it is the duty of the trial court to examine the record as made before the administrative agency” in APA judicial review proceedings) (emphasis added). This Court’s own local rules comport with Olenhouse by stating that “the record on review [of an agency action] * * * is comprised of: (A) the order sought to be reviewed or enforced; (B) the findings or report on which it is based; and (C) the pleadings, evidence, and

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proceedings before the agency.” D. Kan. L.R. 83.7.1 (b)(1) (emphasis added). See also Reitz v. USDA, 08-4131-SAC, 2010 WL 786586 (D. Kan. Mar. 4, 2010) (Crow, J.) (same) (citing D. Kan. L.R. 83.7.1(b)(1)). “[O]nly in extremely limited circumstances, such as where the agency ignored relevant factors it should have considered[,] * * * considered factors left out of the formal record,” or where there is a “‘strong showing of bad faith or improper behavior”” should a court consider materials outside of the record. CARD, 485 F.3d at 1096 (quoting Citizens to Preserve Overton Park, 401 U.S. at 420) (denying request to supplement administrative record) (internal quotation marks omitted); see also American Mining Cong., 772 F.2d at 626 (“Thus, any exception to this general rule against the use of extra-record materials must be extremely limited.”). B. There Is No Basis for Going Beyond the Administrative Record in This Case. No party has invoked, much less demonstrated the applicability of, any of the limited exceptions to the principle of APA record review. (In fact, no party has yet petitioned the Court for review of the final agency decision.) If any party argues in its petition for review due January 31, 2014 that one of the exceptions applies, Defendants will respond in their filing due February 7, 2014. For now, Defendants simply note that none of the limited exceptions would appear to apply. During its review, the EAC cast a wide net by choosing to seek public comments on the States’ requests. The agency received 423 public comments reflecting a broad range of views, and it carefully considered those comments and any accompanying factual information. The EAC also analyzed the applicable law, including the NVRA and its legislative history, the Supreme Court’s decision in Arizona v. Inter Tribal Council of Arizona, Inc.,__ U.S. __, 133 S. Ct. 2247 (2013), and the agency’s own regulations, policies and practices.

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There is nothing to suggest that the EAC ignored relevant factors, considered factors left out of the record, or engaged in bad faith or improper behavior. It properly exercised its discretionary authority, as delegated by Congress and ordered by the Court, to decide the States’ requests. Assuming that the EAC’s decision is in fact challenged on January 31, 4 the Court must then determine whether the EAC’s decision was arbitrary, capricious, or contrary to law—and it must make that determination based on the EAC’s administrative record, not on some new record developed in the reviewing court. C. Inter Tribal Council Confirms that Ordinary APA Review Principles Apply In This Case. Any contention that this case mandates a different review process is foreclosed by the Supreme Court’s decision in Inter Tribal Council. In that case, the Court found “that no constitutional doubt [was] raised by” requiring states to “accept and use” the Federal Form because the states had the alternative remedy of asking the EAC to add the contested documentary proof of citizenship instructions and “challeng[ing] the EAC’s rejection of that request in a suit under the Administrative Procedure Act, see 5 U.S.C. §§ 701–706.” Inter Tribal Council, 133 S. Ct. at 2259 (emphasis added). If the EAC failed to act on the request, then the Court indicated that the state would “have the opportunity to establish in a reviewing court that a mere oath will not suffice to effectuate its citizenship requirement.” Id. at 2260 (citing 5 U.S.C. § 706(1)). Nothing in this passage suggests that the Court intended to upend the procedures for review under the APA established by long-settled precedent. Indeed, the Court’s citation to the APA following that passage strongly suggests otherwise.

While the Court retained jurisdiction over this case in anticipation of further proceedings, see Hearing Tr. 12/13/2013 at 141:2-5, it is important to note that no party has yet challenged the EAC’s final action, much less suggested that any supplementation of the record was necessary.

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At the December 13 oral argument, this Court contemplated a situation in which the EAC was unable to act due to a lack of a quorum of commissioners and suggested that the duty of the States to establish the necessity of the citizenship documentation requirement might then flow to a reviewing court. Hearing Tr. 12/13/2013 at 29:18-22. But “under normal situations,” the Court observed, the states “would have to establish that a mere oath would not suffice before the EAC.” Id. (emphasis added). As clarified later in the hearing, and as discussed in detail in the EAC’s Memorandum of Decision, the EAC staff was authorized to take final action on Plaintiffs’ requests, even in the absence of a quorum of commissioners, and it in fact did so on January 17, 2014, in accordance with this Court’s remand order. Id. at 140:15-22 (“I have to find that we don’t have a final agency action, because the agency has deferred decision. I thought they deferred decision because they had to. [EAC’s counsel] argues that they don’t. I’m reluctantly concluding that, under our procedural rules, we need a final agency action, and I’m going to remand this to the EAC with the instructions that they render a final agency action.”); ECF No. 114 (written remand order); ECF No. 129-1 at 14-20 (discussing the EAC’s ability to act on the requests in the absence of a quorum of commissioners). Therefore, this Court is in the “normal situation” of reviewing an administrative determination under the APA, based on the record developed before the agency. 5

Plaintiffs have never contended, either before this Court or before the EAC, that the agency lacked authority, in the absence of commissioners, to take action on their requests. Nor have Plaintiffs contended that any evidence is necessary, other than showing that their requests for modifications to the Federal Form’s state-specific instructions arise from the enactment of state laws that deem additional proof of United States citizenship to be necessary. See Hearing Tr. 12/13/2013 at 31:17-23 (“So our position is this. All we have to do, whether before the EAC or before the reviewing court . . . is establish . . . that under our laws it [additional proof of citizenship] has officially been deemed necessary to effectuate the proof of citizenship [qualification] and that an oath is not sufficient.”); EAC000564 (“Accordingly, the fact that the Kansas Legislature determined that concrete proof of citizenship is necessary to enforce Kansas’s citizenship requirement is the only showing Kansas must make to establish that a mere oath will not suffice to effectuate its citizenship requirement.”) Rather, Plaintiffs contend that (Cont’d…)

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Moreover, even were a party to challenge the agency’s decision on the grounds that it lacks the authority to act absent a quorum of commissioners, and the Court so concludes, this proceeding should still be limited to the record before the agency. Even under such circumstances, this Court would still lack authority under the APA and controlling precedent to supplement the record unless it can be demonstrated that one of the exceptions discussed above applies. It further seems unclear whether there are circumstances under which the Court can employ evidentiary procedures that may be unavailable to the EAC itself. II. AT MINIMUM, THE COURT SHOULD POSTPONE THE FEBRUARY 11-12 HEARING TO ALLOW MORE TIME FOR THE COURT TO CONSIDER THE PARTIES’ BRIEFS AND, IF NECESSARY, TO ALLOW DEFENDANTS A REASONABLE AMOUNT OF TIME TO CONDUCT DISCOVERY AND PREPARE FOR ANY REQUIRED EVIDENTIARY HEARING. Consistent with the above-stated principles, the scheduled hearing should focus solely on the parties’ legal arguments and the administrative record and not on any additional “evidence in support of the parties’ positions.” ECF No. 130 at 2. If, after considering the parties’ arguments and reviewing the agency record, the Court determines that the record is deficient, Defendants request that the Court order the EAC to supplement the record and identify how, in particular, the record needs to be supplemented. Absent the cancellation, or at least postponement, of the evidentiary hearing, Defendants will be severely prejudiced in their ability to prepare. This is especially true given that Plaintiffs have until January 31 to file their notice seeking review of the EAC decision. 6 That timetable

the EAC has a nondiscretionary duty to grant the requests, and that its failure to do so is contrary to law and remediable by the Court under the APA. Thus, even under Plaintiffs’ theory of the case, there would be no need for the Court to conduct an evidentiary hearing or to supplement the EAC’s extensive agency record, because the relevant question is essentially one of law, not of fact. As explained above, Defendants do not believe it is appropriate for the Court to consider any extra-record evidence. However, if the Court nevertheless intends to permit Plaintiffs to offer live witness testimony or documentary evidence at the February 11-12 hearing, Defendants request that the Court order Plaintiffs to disclose (Cont’d…)
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gives the Defendants virtually no time to prepare an adequate response. The resulting prejudice will be especially acute should the Court consider that proceeding to be the parties’ sole opportunity to adduce reliable evidence prior to the Court issuing a final adjudication on the merits. 7 Finally, if the Court proceeds with an evidentiary hearing, Defendants ask the Court to hold a telephone status conference to inform the parties how it expects to conduct it—i.e., limits on the number of witnesses, documentary proof and the like. CONCLUSION For the foregoing reasons, Defendants request the Court to limit its review to the administrative record, cancel the evidentiary hearing, and entertain oral argument only during a one-day hearing on February 11. Respectfully submitted this 27th day of January, 2014, BARRY R. GRISSOM United States Attorney District of Kansas JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division STUART F. DELERY Assistant Attorney General Civil Division

JON FLEENOR Assistant United States Attorney 500 State Avenue, Suite 360 Kansas City, Kansas 66101 Telephone: (913) 551-6531 Fax: (913) 551-6541 Email: Jon.Fleenor@usdoj.gov

the identity and full contact information for all such witnesses along with a summary of their proposed testimony (and identify any such documents) simultaneously with filing their “notice seeking review” of the EAC’s decision, or no later than Friday, January 31, 2014. Defendants would also preserve their right to take discovery of Plaintiffs. To the extent that the Court continues to be concerned about Plaintiffs’ purported need to have a decision by the end of February, see Hearing Tr. 12/13/2013 at 48:19-22, Defendants assert that Plaintiffs put themselves in this position by waiting over two months from the time they filed the complaint to the time they filed their preliminary injunction motion. Defendants should not be prejudiced because Plaintiffs apparently felt no urgency in seeking the extraordinary remedy of preliminary injunctive relief.
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s/ Bradley E. Heard____________ T. CHRISTIAN HERREN, JR. RICHARD A. DELLHEIM BRADLEY E. HEARD DAVID G. COOPER Attorneys, Voting Section Civil Rights Division U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. 7th Floor – NWB Washington, D.C. 20530 Telephone: (202) 305-4196 Fax: (202) 307-3961 E-mail: Bradley.Heard@usdoj.gov

s/ Felicia L. Chambers__________________ JOHN R. GRIFFITHS FELICIA L. CHAMBERS Attorneys, Federal Programs Branch Civil Division U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, N.W., Room 5323 Washington, D.C. 20530 Telephone: (202) 514-3259 Fax: (202) 616-8470 Email: Felicia.Chambers@usdoj.gov

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CERTIFICATE OF SERVICE This certifies that on the 27th day of January, 2014, the undersigned filed Defendants’ Motion to Limit Court’s Review to the Agency Record, to Limit the February 11-12, 2014 Hearing to Oral Argument, and for a Status Conference Response and supporting memorandum electronically using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record through the Court’s electronic filing system.

/s/ Felicia L. Chambers______________ FELICIA L. CHAMBERS U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W., Rm. 5323 Washington, D.C. 20530 Telephone: (202) 514-3259 Facsimile: (202) 616-8470 E-mail: Felicia.Chambers@usdoj.gov

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