Kobach v United States Election Assistance Commission

Kansa and Arizona sued to require Commission to include documentary proof of citizenship on the state registration portion of the federal voter registration forms. Commission’s executive director denied the request and Commission lacked a quorum to conduct business and thus never review that decision. The district court ordered commission to grant the state’s request. The panel reversed. It held it had jurisdiction over the case as Commission delegated authority over the forms to the director, the authorizing statute was silent as to delegation and thus delegation is presumptively allowed, the lack of a quorum did not negate earlier delegations of authority and the decision had real impacts by not including the desired provisions in the form in Kansas and Arizona. The panel held that under United States Supreme Court precedent, Commission has discretion to reject state requests unless the rejection would prohibit the state from enforcing its voter requirement and the state’s assertions are not sufficient to prove the prohibition. The panel held the district court erred in ruling otherwise. The panel reviewed the director’s decision for arbitrariness and held the record supported the rejection as Kansa and Arizona failed to prove inclusion of proof of citizenship as necessary given the five alternatives mention in the rejection decision and no evidence that noncitizens were actually registering. The panel finally held that the statue requiring use of the federal form did not create a preclearance regime nor do state requirements trump federal procedural rules. The case was remanded for the district court to vacate its order requiring Commission to grant the request