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

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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.

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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).

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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).