Fish v. Kobach (189 F. Supp. 3d 1107, 2016)

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED ' STATES DISTRICT JUDGE '

This lawsuit challenges the Kansas documentary proof of citizenship requirement as it applies to those who apply to register to vote in federal elections during the driver’s license application or renewal process. The individual plaintiffs filed their Complaint on February 18, 2016, on -behalf of themselves and others similarly situated, against Kansas Secretary of State Kris Kobach, and Kansas Secretary of Revenue Nick Jordan. The Complaint alleges that the Kansas documentary proof of citizenship requirement and a related regulation are preempted by the National Voter Registration Act of 1993, and violate 42 U.S.C. § 1983 because they are unconstitutional under the Elections Clause and Privileges and Immunities Clause of the United States. Constitution. Before the Court is Plaintiffs’ Motion for Preliminary Injunction, filed on February 25, 2016 (Doc. 19). Plaintiffs request a preliminary injunction barring Defendants from enforcing K.S.A. § 25-2309(Z), which requires voters to' provide proof of United States’ citizenship when they apply to register to vote at the same time they apply for or renew a driver’s license, and' K.A.R. § 7-23-15, which allows cancellation of voter registration applications that are incomplete for more than 90 days after application due to failure to prove United States’ citizenship, until the ease can' be determined on the merits.

The Court allowed the parties to conduct limited, expedited discovery, and heard evidence and argument on the motion on April 14, 2016. At-this time, the Court also considers Defendant Secretary of Revenue Nick Jordan’s Motion to Dismiss (Doc. 64) to the extent it asserts ■ lack of subject matter jurisdiction. These matters are fully briefed. The Court has considered the parties’ briefs, the evidence adduced at the hearing, and the parties’ oral - arguments, and is prepared to rule. As explained more fully below, Plaintiffs’ motion for preliminary injunction is granted in part and denied in part.

1. Background

In 1993, Congress passed the National Voter Registration Act (“NVRA”)] The NVRA has four stated purposes:

(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;

(2) to make it possible for Federal, State, and local governments, to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;

(3) to protect the integrity of the electoral process; and

(4) to ensure that accurate and current voter registration rolls are maintained.

The NVRA seeks to achieve these objectives by creating national registration requirements for federal elections through three methods: simultaneously with a driver’s license application (“motor-voter”), by mail using the- federal form approved by the Election Assistance Commission (“EAC”), or in person. This case deals with the first option only — applying to register simultaneously when applying for a driver’s license.

Section 5 of the NVRA requires that every application for a driver’s license, in-eluding license renewals, “shall serve as an application for .voter registration with, respect to elections for Federal office.” Subsection (c) of section 5 provides:

(1) Each State shall include a voter registration application form for elections for Federal office as part of an application for a State motor vehicle driver’s license.

(2) The voter registration application portion of an application for a State motor vehicle driver’s license—

(A) may not require any information that duplicates information required in the driver’s license portion of the form (other than a second signature or other information necessary under subpara-graph (Q);

(B) may require only the minimum amount of information necessary to—

(i) prevent duplicate voter registrations; and

(ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process;

(C) shall include a statement that—

(i) states each eligibility requirement (including citizenship);

(ii) contains an attestation that the applicant meets each such requirement; and

(iii) requires the signature of the applicant, under penalty of perjury;

(D) shall include, in print that is identical to that used in the attestation portion of the application—

(i) the information required in section 20607(a)(5)(A) and (B) of this title;

(ii) a statement that, if an applicant declines to register to vote, the fact that the applicant has declined to register will remain confidential and will be used only for voter registration purposes; and

(iii) a statement that if an applicant does register to vote, the office at which the applicant submits a voter registration application will remain confidential and will be used only for voter registration purposes; and

(E) shall be made available (as submitted by the applicant, or in machine readable or other format) to the appropriate State election official as provided by State law.

Section 8 of the NVRA provides for the administration of voter registration. Under this section, each State shall

(1) ensure that any eligible applicant is registered to vote in an election—

(A)in the case of registration with a motor vehicle application under section 20504 of this title, if the valid voter registration form of the applicant is submitted to the appropriate State motor vehicle authority not later than the lesser of 30 days, or the period provided by State law, before the date of the election.

Each State shall also:

(3) provide that the name of a registrant may not be removed from the official list of eligible voters except—

(A) at the request of the registrant;

(B) as provided by State law, by reason of criminal conviction or mental incapacity; or

(C)as provided under paragraph (4);

(4) conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of—

(A) the death of the registrant; or

(B) a change in the residence of the registrant, in accordance with subsections (b), (c), and (d).

The NVRA was passed after the House and Senate each passed voter registration bills and proceeded to conference committee. The Senate’s bill contained several Republican-proposed amendments, referred to as a “core” package of amendments that allowed the bill to pass the Senate. Another amendment to the Senate bill, which was not part of the core amendments, but was in the Senate bill that went to conference, was a rule of construction that had been proposed by Senator Simpson (“the Simpson Amendment”). That amendment provided “that nothing in this Act shall prevent a State from requiring presentation of documentation relating to citizenship of an applicant for voter registration.” At the time the amendment was debated in the Senate, before it went to conference, Senator Ford, who sponsored the legislation, stated that the amendment was redundant because the bill did not preclude States from requiring documentary proof of citizenship. But the conference decided to follow the House bill instead, which did not include this provision. The conference report explains:

It is not necessary or consistent with the purposes of this Act, Furthermore, there is concern that it could be interpreted by States to permit registration requirements that could effectively eliminate, or seriously interfere with, the mail registration program of the Act. It could also adversely affect the administration of the other registration programs as well. In addition, it creates confusion with regard to the relationship of this Act to the Voting Rights Act. Except for this provision, this Act has been carefully drafted to assure that it would not supersede, restrict or limit the application of the Voting Rights Act. These concerns lead the conferees to conclude that this section should be deleted.

When submitting the conference committee report on the Senate floor, Senator Ford discussed the amendment. After citing the same concerns raised in the report, he stated:

Mr. President, every State mandates that you must be a citizen of the United States to be eligible to vote. This bill requires that, on every application for registration, the requirements for eligibility must be clearly set forth, including citizenship. And every applicant signs a statement that they meet each and every requirement, and that statement is signed under penalty of perjury.

The NVRA was ultimately passed without the proposed rule of construction amendment.

In 2007, Kansas amended its driver’s license statute to require all applicants to provide documentary proof of lawful presence. As part of this requirement, the division of vehicles

shall require valid documentary evidence that the applicant: (A) Is a citizen or national of the United States; (B) is an alien lawfully admitted for permanent or temporary residence in the United States; (C) has conditional permanent resident status in the United States; (D) has an approved application for asylum in the United States or has entered into the United States in refugee status; (E) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status for entry into the United States; (F) has a pending application for asylum in the United States; (G) has a pending or approved application for temporary protected status in the United States; (H) has approved deferred action status; or (I) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence in the United States or conditional permanent resident status in the United States.

Under Kansas law, only United States citizens are eligible to register to vote. And legally qualified voters must register in order to be eligible to vote. The Secure and Fair Elections Act (“SAFE Act”) became law in 2011. It requires voter registration applicants to submit documentary proof of citizenship (“DPOC”) at the time they apply to register to vote:

(Z) The county election officer or secretary of state’s office shall accept any completed application for registration, but an applicant shall not be registered until the applicant has provided satisfactory evidence of United States citizenship. Evidence of United States citizenship as required in this section will be satisfied by presenting one of the documents listed in paragraphs (1) through (13) of subsection (l) in person at the time of filing the application for registration or by including a photocopy of one of the following documents with a mailed registration application. After a person has submitted satisfactory evidence of citizenship, the county election officer shall indicate this information in the person’s permanent voter file. Evidence of United States citizenship shall be satisfied by providing one of the following, or a legible photocopy of one of the following documents:

(1) The applicant’s driver’s license or nondriver’s identification card issued by the division of vehicles or the equivalent governmental agency of another state within the United States if the agency indicates on the applicant’s driver’s license or nondriver’s identification card that the person has provided satisfactory proof of United States citizenship;

(2) the applicant’s birth certificate that verifies United States citizenship to the satisfaction of the county election officer or secretary of state;

(3) pertinent pages of the applicant’s United States valid or expired passport identifying the applicant and the applicant’s passport number, or presentation to the county election officer of the applicant’s United States passport;

(4) the applicant’s United States naturalization documents or the number of the certificate of naturalization. If only the number of the certificate of naturalization is provided, the applicant shall not be included in the registration rolls until the number of the certificate of naturalization is verified with the United States bureau of citizenship and immigration services by the county election officer or the secretary of state, pursuant to 8 U.S.C. § 1373(c);

(5) other documents or methods of proof of United States citizenship issued by the federal government pursuant to the immigration and nationality act of 1952, and amendments thereto;

(6) the applicant’s bureau of Indian affairs card number, tribal treaty card number or tribal enrollment number;

(7) the applicant’s consular report of birth abroad of a citizen of the United States of America;

(8) the applicant’s certificate of citizenship issued by the United States citizenship and immigration services;

(9) the applicant’s certification of report of birth issued by the United States department of state;

(10) the applicant’s American Indian card, with KIC classification, issued by the United States department of homeland security;

(11) the applicant’s final adoption decree showing the applicant’s name and United States birthplace;

(12) the applicant’s official United States military record of service showing the applicant’s place of birth in the United States; or

(13) an extract from a United States hospital record of birth created at the time of the applicant’s birth indicating the applicant’s place of birth in the United States.

The DPOC requirement was made effective January 1, 2013. A person already registered to vote before January 1, 2013, is- not required to resubmit evidence of citizenship.

If an applicant is a United States citizen but unable to provide one of the thirteen forms of identification listed in subsection (l), the statute allows that applicant' to submit another form of citizenship documentation by directly contacting the Secretary of State’s Office. In these cases, the state election board shall give-the applicant an opportunity for a hearing before assessing the evidence of citizenship to determine whether it is satisfactory. The state election board is comprised of the Secretary of State, the Attorney General, and the Lieutenant Governor. Secretary Kobach represents that this hearing before the election board may be telephonic, that three people have so far availed themselves of this provision, and that all three were approved by the election board. Examples provided by Secretary Kobach of alternative forms of citizenship documentation under subsection (m) include an affidavit from a sibling stating the date and place of birth, school records, or even an applicant’s own affidavit.. Secretary Ko-bach stated:

[H]e can also make the allegation himself, too. He can file his own declaration .... I would be willing to bet that the State Election Board would take simply his own declaration as sufficient. The State Election Board has yet to tell anyone no. And that’s perfectly fine if a person is willing to make an attestation, a declaration to the State Election Board, “Here are my circumstances, here’s why I don’t have my document.”

The evidence submitted at the hearing on this matter shows that prior to the effective date of the SAFE Act, eleven noncitizens successfully registered to vote in Sedgwick County. Bryan Caskey, Assistant Secretary of State, Elections and ■Legislative Matters, avers in his declaration that his office has identified nineteen other cases of noncitizens registering to vote prior to 2013. Of these thirty nonciti-zens, the evidence shows that three actually voted, two in 2004 and one 2009. According to Mr. Caskey, the Seward County Clerk provided testimony before the Legislature when it deliberated over the SAFE Act that approximately fifty nonciti-zens were registered to vote in 1997, in the period preceding a county referendum on a proposed hog-farming operation According to Caskey, the Clerk testified that these noncitizens voted in the referendum. There is no other evidence about the details of this incident, nor any direct evidence from the Seward County Clerk. Since the effective date of the DPOC requirement, fourteen noncitizens have unsuccessfully attempted to register to vote in Sedgwick County.

Plaintiffs offered the expert testimony of Dr. Lorraine Minnite to controvert Secretary Kobach’s argument that there is a widespread problem of noncitizen voter fraud in Kansas. Dr. Minnite is an associate professor of Public Policy and Administration at Rutgers University who specializes in elections; she has extensively researched and studied incidents and effects of voter fraud in American elections. She has reviewed allegations of voter fraud nationally, and Secretary Kobach’s allegations of voter fraud in Kansas. She contends that there is no evidence of a persistent problem of noncitizens fraudulently voting in Kansas. With respect to the details of the Seward County incident, Dr. Minnite points to Secretary Kobach’s discussion of the incident before the United States House of Representatives Committee on Oversight and Government Reform on February 12, 2015. There, Secretary Kobach characterized this as “[t]he most notorious case of aliens voting in Kansas.” The county referendum would have prohibited large hog farming operations in Seward County. Investors in a proposed hog farming operation hoped to raise hogs in a Kansas plant and render them at a processing plant in Oklahoma.

More than 50 employees of the Guyman, Oklahoma, hog processing plant sent in voter registration applications in a single envelope addressed to the county clerk’s office in Seward County, Kansas. Many of the registration forms contained made-up addresses in Seward County. However, the clerk had no legal authority to reject the registration applications.

Secretary Kobach then told the House Subcommittee that these Oklahoma workers were bussed in to Seward County on Election Day to vote. “The county clerk strongly believed that the registrants were non-citizens.” He lamented that the county was powerless to disqualify the voters.

Mr. Caskey testified at the hearing, and submitted a lengthy declaration documenting the administration of motor-voter registration in Kansas. As part of his duties, Mr. Caskey administers the Kansas Election Voter Information System (“ELVIS”) database and works with the individual counties to manage voter registration. The ELVIS system is a statewide list of every registered voter, every voter registration applicant, and everyone who used to be a registered voter but was subsequently can-celled. All 105 county election offices are “plugged in” to the system. Mr. Caskey provides instruction to the counties for handling elections. He discussed in his declaration, during his deposition, and at the hearing the procedure for assessing citizenship eligibility for those who apply at the DMV. The Kansas DMV clerks are instructed to ask each driver’s license applicant, whether it is an initial application or a renewal, if that person wants to register to vote. If the applicant says yes, the DMV clerk is prompted to ask questions about the applicant’s eligibility to vote, including asking whether the person is a United States citizen.

Mr. Caskey describes the relationship between the Department of Revenue and the Secretary of State’s Office as follows:

The Secretary of State’s Office and the DMV have established an interagency practice whereby the DMV sends verification of documentary proof of citizenship to the relevant county election official. In instances where it is learned that the DMV has failed to forward such information to the county election official, the Secretary of State’s Office obtains the relevant documentation from the DMV and instructs the county election officer to complete the registration of the individual.

But the evidence at the hearing establishes that the DMV clerks do not request DPOC from driver’s license renewal applicants. They request proof of lawful presence for initial applicants only, which often constitutes proof of citizenship. When this documentation is provided by initial applicants, the DMV clerk makes an annotation in the DMV database about the type of documentation provided by the applicant. But the Department of Revenue has made a policy decision not to request DPOC from renewal applicants, claiming it lacks the administrative capacity to undertake that effort.

At the end of the motor voter application process, the applicants sign a digital form that includes the NVRA-required attestation clause that what they are signing is true and correct, and that they are a United States citizen. Once that is complete, the applicants are handed a receipt that apparently includes a statement about the DPOC requirement and that instructs the applicants that if they have not already provided proof of citizenship, they must do so before they will be registered. Mr. Kobach characterized this receipt at the hearing as an applicant’s “first notice.”

The DMV database information about each voter registration application is uploaded nightly in batch format into the state-wide ELVIS system, which then disseminates the information to the 105 county election offices based on the applicant’s address.. For each voter registration application, there is electronic data, and a separate certification from the DMV stating whether acceptable DPOC was provided to the DMV at the time of registration. Once the county election official opens the batch, the county begins creating individual records.

If an applicant has not provided DPOC, or if the application is otherwise missing required information, the record is designated as “in suspense” or “incomplete” in the ELVIS system until the applicant provides the remaining information. Secretary Kobach promulgated K.A.R. § 7-23-15 to become effective on October 2, 2015. The regulation provides that applications deemed “incomplete” are to be “cancelled” from the State’s list of applicants if the applicant does not produce DPOC within 90 days of application. When an application is cancelled due to lack of DPOC, that record is not removed from the ELVIS database; there remains a record of all cancelled applications.

The county election offices populate the ELVIS system with new registration records, and maintain records of the notices sent to applicants deemed incomplete for failure to provide DPOC or for some other reason. The first mailed notice is sent within one or two weeks of application. The counties are advised to send out a third notice after about thirty days, and a fourth notice before cancellation. Thus, the counties have been instructed by the Secretary of State’s Office to send three written notices and to make one telephone call to applicants on the incomplete list before cancelling their applications. Each written and oral communication is to be entered into the ELVIS database.

A person who receives notice of an incomplete voter registration application due to failure to provide DPOC can provide their DPOC in person at the county election office for inspection, by mailing a copy of the document to the county election officer or to the Secretary of State’s Office, or by faxing, emailing, and in some counties, texting a copy of the documents. In addition, the Secretary of State’s office checks approximately monthly with the Kansas Department of Vital Statistics (“KDHE”) to see if individuals missing DPOC were born in the State of Kansas, and will complete those registrations if so. Almost half of the voter registration applications on the suspense list have had citizenship confirmed through these monthly checks; many others submit their DPOC after receiving notice.

If information is provided to the Kansas Secretary of State’s Office suggesting that an initial applicant presented DPOC to the DMV at the time of application, but that information was not conveyed into the ELVIS system, Mr. Caskey will confirm whether or not the DMV has in its possession a proof of citizenship record for the applicant. Given the DMV policy not to request DPOC for renewal applicants, this confirmation process would never occur with renewal applicants. Also, Mr. Caskey avers that the Kansas Secretary of State’s Office contacts other States to verify that a birth certificate exists confirming citizenship, and contacts voters by telephone or in person to determine eligibility.

Many registered voters in Kansas have registered to vote at DMV offices — between January 1, 2006 and' March 23, 2016, 43.7% of Kansas voters registered at a DMV office. The individual Plaintiffs and the proposed class they represent are Kansas residents and citizens who are “motor-voter registrants”: that is, they submitted voter registration applications at DMV offices in Kansas. These Plaintiffs were not registered to vote because they failed to meet' the documentary pi’oof-of-citizenship requirement imposed under K.S.A. § 25 — 2309(¿). Some of these voters’ applications are considered “in suspense” in the ELVIS system, while others have been cancelled under K.A.R. § 7-23-15.

Soon after the original' complaint was filed, the originally-named plaintiffs moved for class certification. That motion is not yet fully briefed, and a hearing has been scheduled on that motion on June 16, 2016.

Plaintiff Steven Wayne Fish is a United States citizen who currently resides in Lawrence, Kansas. He first moved to Kansas as a young person, obtaining his first Kansas driver’s license in 1995. He has continuously possessed a Kansas driver’s license since then. On August 21, 2014, Mr. Fish went to the driver’s license office in Lawrence to renew his driver’s license. The DMV clerk asked him at that time if he wanted to register to vote. He had never registered before, but decided to register at this time. The clerk did not ask Mr. Fish for DPOC and did not tell Mr. Fish that Kansas law requires DPOC. Soon after applying to register, on August 27,2014, Fish received a postcard from the Douglas County, Kansas County Clerk, informing him that his name had not been entered onto the voter rolls and that he needed to submit DPOC in order to complete the registration process. Mr. Fish searched his records but could not find any documents that would be sufficient to prove his citizenship under § 25-2309(l). Mr. Fish was born on an Air Force Base in Chanute, Kansas thát was decommissioned and closed in 1993; at the time he received notice of his incomplete registration, he did not know how to obtain a copy of his birth certificate. Mr. Fish has a modest income and could not afford to obtain a copy of his birth certificate. He was unable to vote in the 2014 election. Mr. Fish’s original affidavit stated that his application was in suspense, but the ELVIS records appear to show that his application was cancelled. On May 11, 2016, Mr. Fish submitted a supplemental declaration attesting that he recently found his birth certificate in a safe in his stepfather’s house. Nonetheless, Fish will not’ be able to vote in the upcoming primary or general elections of 2016 unless he reapplies to register and submits this document.

Plaintiff Donna Bucci is a United States citizen who currently resides in Wichita, Kansas. She has lived in Kansas for about five years. On August 14, 2013, Ms. Bucci went to the driver’s license office in Wichita, Kansas to renew her driver’s license. The DMV clerk asked her at that time if she wanted to register to vote. Bucci wanted to register in order to vote in the next election cycle. The clerk did not ask Ms. Bucci for DPOC and did not tell Ms. Bucci that Kansas law requires DPOC. Ms. Bucci left the driver’s license office believing that she had successfully registered to vote. Ms. Bucci states in her declaration that she did not learn that she was not registered to vote until six or seven months later when she received a notice in the mail telling her that she needed to show proof of citizenship in order to be a registered voter. The ELVIS records show that Ms. Bucci was sent two notifications that proof of citizenship was required — the first on August 16, 2013, and a “final notice” on September 28, 2015. There is also a notation in the database from September 25, 2013: “Will get information to us on POC when she gets items unpacked.” Ms. Buc-ci. does not have any documents that would be sufficient to prove her citizenship under § 25-2309(Z). Obtaining a copy of her Maryland birth certificate would cost $24, and this would be a financial burden for her. Ms. Bucci’s application was cancelled on October 15, 2015 pursuant to K.A.R. § 7-23-15. Ms. Bucci will not be able to vote in the upcoming primary or general elections of 2016. And she stated that this experience discourages her from attempting to register to vote in the future.

Plaintiff William Strieker, III is a United States citizen who currently resides in Wichita, Kansas. Mr. Strieker was a Kansas resident from 2006-08, resided in Chicago from 2008-13, and moved back to Kansas in 2013. He previously voted in the 2010 and 2012 mid-term and Presidential elections. Mr. Strieker went to the DMV office in October 2014 to obtain a driver’s license and register to vote. He was told that he had insufficient documentation to obtain a driver’s license and was sent home to obtain his social security card. Mr. Strieker returned to the DMV with his out-of-state driver’s license, social security card, and utility bills to show proof of lawful presence. The DMV clerk asked him at that time if he wanted to register to vote, and he said yes. The clerk did not ask Mr. Strieker for DPOC and did not tell him that he lacked the necessary documentation to register to vote. Mr. Strieker left the driver’s license office believing that he had successfully registered to vote. On Election Day in November 2014, Mr. Strieker went to his polling place and provided his Kansas driver’s license to the polling place volunteer. The volunteer could not find Mr. Strieker’s name on the voting roll; he was given a provisional ballot. Several weeks after the election, Mr. Strieker received a notice in the mail telling him that he was not registered because he lacked sufficient proof of citizenship. The ELVIS database shows that Mr. Strieker was sent notices on October 21, 2014, December 5, 2014, and a final notice on September 25, 2015, and that he was called regarding his suspense status on February 27, 2015. Due to his schedule, he was unable to submit the necessary documentation to county election officials. His voter registration application was cancelled on November 6, 2015, pursuant to K.A.R. § 7-23-15.

Plaintiff Thomas Boynton is a United States citizen who currently resides in Wichita, Kansas. He first moved to Kansas in July 2014. In early August 2014, Mr. Boynton went to a driver’s license office in Wichita, Kansas to exchange a valid out-of-state driver’s license for a Kansas license, and to register to vote. The DMV clerk asked him at that time if he wanted to register to vote, and he said yes. Mr. Boynton brought several documents with him to the DMV office that day: his out-of-state license, social security card, original birth certificate, utility bill, bank statement, and house lease. He does not recall which of these documents the DMV clerk asked to see, but he provided the clerk with each document as she requested it. He left the DMV believing he was registered to vote. On Election Day in November 2014, Mr. Boynton went to his polling place to vote but the poll volunteer did not find him on the voter roll. The volunteer told Mr. Boynton that this was common and told him he could cast a provisional ballot instead that would be counted once his voter registration was validated. Mr. Boynton cast a provisional ballot and assumed it would be counted. In early 2015, Mr. Boynton received a notice from the Sedgwick County Board of Elections informing him that he needed to provide DPOC in order to register to vote.

Other than the cases of Mr. Strieker and Mr. Boynton, there is no evidence that provisional ballots have been offered to accommodate motor voter registrants that lack DPOC, And unless DPOC is provided at least one day before the election by applicants on the suspense list, they are ineligible to vote.

The ELVIS database shows no record of Mr, Boynton applying to register at a DMV office in August 2014. The database shows that Mr. Boynton tried to register in person at his polling station on November 4, 2014, Election Day. He was sent two written notices that proof of citizenship was required on December 5, 2014, and on September 28, 2015. There is also a record that he was called regarding his suspense status on February 27, 2015. His voter registration application was cancelled on November 5, 2015 pursuant to K.A.R. § 7-23-15. [redacted].

Plaintiff Douglas Hutchinson is a United States citizen who currently resides in Mission, Kansas. He has lived in Kansas since infancy. He first obtained a Kansas driver’s license in the mid-1980’s and has continuously possessed a Kansas driver’s license since then. Mr. Hutchinson first registered to vote in 1987, but stopped voting many years ago. About two years ago, he decided he wanted to vote again, Mr. Hutchinson went to the DMV office in Mission, Kansas in the spring of 2013 to renew his license and told the clerk he wished to register to vote. The DMV clerk did not require him to provide DPOC. In late 2014 or early 2015, he received a telephone call from a volunteer with the League of Women Voters advising him that his name was not registered to vote because he had not provided DPOC. He attests that he never received prior notice from any government office advising him that his registration was incomplete. Mr. Hutchinson obtained a passport, and in the summer of 2015 attempted to take a copy of his passport to the DMV office. The clerk at the DMV office told him that he had done all that was necessary to complete his voter registration. He received another call later from the League of Women Voters, advising him that his voter registration was still incomplete. He has not had time to present the necessary documentation to complete his application. The ELVIS database shows that notices were sent to Mr, Hutchinson on June 24, 2013, and on December 11,2015. It reflects that his application was cancelled pursuant to K.A.R. § 7-23-15.

Between January 1, 2013 and March 28, 2016, there were 244,699 voter registration applications completed in Kansas. According to Plaintiffs’ expert analysis of the ELVIS data, between January 1, 2013 and March 23, 2016, there were 12,717 motor voter registration applications cancelled under K.A.R, § 7-23-15 for failure to provide DPOC. As of. March 28, 2016, there are 5655 motor voter applications that are in “incomplete” status due to failure to provide DPOC.

Kansas’s voter participation rate in the November 2012 presidential election was 66.8%; in the 2014 midterm election it was 50.8%. Kansas was one of fourteen states that increased voter turnout from 2010 to 2014. The next statewide election is the primary election of August 2, 2016. Advanced voting for this election begins on July 13, 2016. This ballot will include federal, state, county, township, and precinct offices. The registration deadline for this election is twenty-one days prior to election day; however, DPOC may be provided by an applicant on the suspense list up to one day before the election, August 1, 2016.

Plaintiffs’ Amended Complaint alleges claims under: (1) NVRA § 5 because it preempts the Kansas DPOC law; (2) NVRA § 8 because Defendants fail to ensure that voter registration applicants who completed and submitted a valid voter registration form with their driver’s license application are registered to vote; (3) NVRA § 8 because the regulation allowing applicants to be cancelled in the ELVIS system removes otherwise eligible voters from the voting rolls; (4) NVRA § 10 for failure to coordinate the State’s responsibilities under the Act;' (5) 42 U.S.C. § 1983, based on violations of the Elections Clause in Article I, § 4, cl. 1; and (6) 42 U.S.C. § 1983, based on violations of the Privileges and Immunities Clauses. Plaintiffs seek a declaratory judgment that the DPOC law and K.AR. § 7-23-15 are invalid with respect to motor-voter registrants, and preempted by the NVRA. They also seek injunctive relief that: requires Defendants to register for federal elections Plaintiffs and all similarly situated motor voter registrants who are otherwise eligible to vote but have been either cancelled or held in suspense due to the DPOC law; enjoins Defendants from enforcing the DPOC law and K.A.R. § 7-23-15 with respect to motor, voter registrants who are otherwise eligible to vote in federal elections; and that orders Defendants to verify DPOC on file with other state agencies in the same manner as they work with the KDHE to confirm citizenship of suspended voters. Plaintiffs seek attorneys’ fees and costs.

In their motion for preliminary injunc-tive relief, Plaintiffs ask the Court to require the Secretary of State to identify and register all otherwise eligible voters on the incomplete and cancellation lists in ELVIS for federal elections, and to enjoin Defendants from enforcing K.S.A. § 25 — 2309(¿) and K.A.R. § 7-23-15, until the case can be determined on the merits.

II. Subject Matter Jurisdiction

Defendants each raise subject matter jurisdiction challenges in their responses to the motion for preliminary injunction. Secretary Jordan challenges subject matter jurisdiction based on: (1) lack of standing; and (2) Eleventh Amendment immunity. Secretary Kobach argues that Plaintiffs lack standing to raise the duplication of information component of the § 5 violation in Count I because no named plaintiff has alleged injury associated with that claim. Federal courts are courts of limited jurisdiction and, as such, must have a statutory or constitutional basis to exercise jurisdiction. A court lacking jurisdiction must dismiss the case, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking.- The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. “Thus, .plaintiff bears the burden of showing why the case should not be dismissed.” Mere conclusory allegations of jurisdiction are not enough.

A. Eleventh Amendment Immunity

Secretary Jordan first argues that the claims against him are barred under the doctrine of sovereign immunity. Under the Eleventh Amendment, States and State agencies are immune from private suits unless they consent to suit, or Congress validly abrogates the States’ immunity. A narrow exception to sovereign immunity has been carved out under the Ex parte Young doctrine, which holds that private litigants may seek prospective in-junctive relief against a state official for ongoing violations of federal law in federal court. The Supreme Court has explained that “[i]n determining whether the doctrine - of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Under a straightforward analysis, the Amended Complaint alleges ongoing violations of the NVKA and 42 U.S.C. § 1983 and ongoing constitutional violations. To the extent the Amended Complaint seeks prospective declaratory and injunctive relief barring enforcement of the ‘Kansas DPOC law and a related regulation promulgated by the Secretary of State, the Ex parte Young doctrine therefore applies under the straightforward analysis required by Supreme Court precedent.

Secretary Jordan argues that Ex parte Young does not apply to him because his agency does not enforce- the NVRA, citing cases where the exception did not apply to a defendant without the power to enforce the law in question. These cases are easily distinguishable. In Peterson v. Martinez, the Tenth Circuit explained that the State official “must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party,” and that “state officials must have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.” In Klein v. University of Kansas Medical Center, the plaintiff-employee sought reinstatement, but because the individual defendant lacked the power to provide him with that relief, the Ex parte Young doctrine did not overcome the Eleventh Amendment’s jurisdictional bar. Finally, in National Coalition for Students with Disabilities Education & Legal Defense Fund v. Taft, the Southern District of Ohio determined that because Ohio law delegated the power to enforce the NVRA to the Secretary of State, the Governor of Ohio had no connection to its enforcement.

The NVRA provision at issue in this case addresses motor voter registration only, requiring a simultaneous application process for registering to vote when applying for or renewing a driver’s license. Section 5 of the NVRA provides for transmittal of all voter registration applications accepted at “a State motor vehicle authority” “to the appropriate State election official.” The DMV is a division of the Department of Revenue, led by Secretary Jordan, which governs driver’s license administration in Kansas. The parties have submitted evidence that the Secretary of State’s Office and the DMV have established an interagency system for registering motor voters in Kansas in compliance with the NVRA. The Election Manual submitted with Plaintiffs’ response explicitly provides that state agencies other than county election officials play a role in collecting DPOC under the Kansas law. It provides that DMV workers will collect DPOC from motor voter applicants. And Mr. Caskey testified at length about the batches of information submitted by the DMV to the ELVIS database each day, which are used by county election officials to create voter registration records. Plaintiffs allege NVRA violations in part stemming from this interagency arrangement. Unlike in Peterson, there is evidence that the Kansas Department of Revenue has both a duty to enforce the motor voter provisions of the NVRA, and has demonstrated a willingness to exercise that duty.

B. Standing

Article III of the Constitution gives federal courts the power to exercise jurisdiction only over “Cases” and “Controversies.” As the Supreme Court has explained, “[i]n limiting the judicial power to ‘Cases’ and ‘Controversies,’ Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law. Except when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action.”

One of several doctrines reflecting Article Ill’s case-or-controversy limitation on the judicial power is the doctrine of standing. That doctrine requires fpderal courts, before considering the merits of an action, to “satisfy themselves that ‘the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [the plaintiffs] invocation of federal-court jurisdiction.’ ”

Plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing each element of standing “with the manner and degree of evidence required at the successive stages of the litigation.” Standing is evaluated based on the facts as they exist at the time the Complaint is filed. At the pleading stage, the Court ‘“presume[s] that general allegations embrace those specific facts that are necessary to support the claim,’ ” and “general factual allegations of injury resulting from the defendant’s conduct may suffice.’ ” Nonetheless, the Court is “not bound by eonclusory allegations, unwarranted inferences, or legal conclusions.”

The Supreme Court has found the “irreducible constitutional minimum of standing” to contain three elements:

First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result of the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

To establish standing for prospective in-junctive relief, “a plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future.”

1. Secretary Jordan

Secretary Jordan argues that Plaintiffs lack standing to challenge any action taken by the Department of Revenue in this case because their claims are not redressable by his agency. This argument is similar to his immunity argument — that his agency is not tasked with enforcing the NVRA so any relief sought by Plaintiffs must be directed instead to the Secretary of State’s office, which has exclusive authority to enforce the NVRA as the State’s chief election officer. It is true that there is no evidence that the DMV plays a role in determining voter eligibility after the applications leave the DMV database. But as already described, the DMV and Secretary of State’s Office are engaged in a cooperative effort to process motor voter registration applications. And § 5 of the NVRA specifically tasks the DMV with transmittal of voter registration applications to the chief election official for the State. As explained later in this opinion, the evidence demonstrates confusing enforcement efforts with respect to the DPOC law in Kansas, both at the time of application at the DMV, and after the records shift to the Secretary of State and county election officials. The evidence suggests that the DMV transmits DPOC for initial driver’s license applicants to the extent the documentation is submitted as proof of lawful presence required to obtain a driver’s license, but the DMV apparently has declined to request DPOC from driver’s license renewal applicants seeking to register to vote for the first time. Therefore, if the Court grants Plaintiffs’ requested injunctive relief prohibiting enforcement of the DPOC law to motor voter registration applications, it will certainly be redressable in part by the DMV; DMV clerks will no longer be required to transmit DPOC to the ELVIS system along with the nightly batches of motor voter registration applications, at least insofar as those applicants seek to register to vote for federal offices. To the extent those clerks are already requesting proof of lawful presence from initial applicants, that practice will not be affected by the requested injunction. There is no retrospective injunctive relief requested of the Department of Revenue. Accordingly, Plaintiffs have suffered an ongoing injury that is redressable by prospective injunc-tive relief directed at Secretary Jordan.

2. Section 5 Duplication Claim

Under § 5(c)(2)(A),' the voter registration portion of the simultaneous motor voter application “may not require any information that duplicates information required in the driver’s license portion of the form (other than á second signature or other information necessary under subpar-agraph (C)).” Plaintiffs’ duplication challenge to the Kansas DPOC law is two-fold: (1) two of the named Plaintiffs were required to submit DPOC- twicé — once at the DMV and again to a county election official; and (2) a Kansas statute explicitly authorizes requests for duplicative information. Secretary Kobach' argues that Plaintiffs lack standing to raise this claim because none of the named Plaintiffs provided DPOC at the time they applied to register at the DMV;

The Court agrees with Plaintiffs that they have standing to raise the duplication claim. Kansas law explicitly provides that it may require duplicate . information on each portion of the application, which Plaintiffs argue is in direct conflict with the NVRA provision prohibiting such. Because Plaintiffs claim that Kansas law requires every initial and renewal applicant to provide proof of lawful presence, which is the same for United States citizens as the DPOC required on the voter application, every motor voter applicant would have standing to raise the claim. Moreover, Plaintiffs allege that Mr. Boynton attempted to register to vote at the DMV, provided DPOC, was not registered and was required to resubmit DPOC in order to complete his voter application. While the Court recognizes that there is a question of fact regarding this Plaintiff — -[redacted] — the Court must evaluate standing at the time the Complaint is filed, and presumes as true Plaintiff Boynton’s allegations that he attempted to register to vote, that he provided a copy of his birth certificate to the DMV clerk, and that he was nonetheless not registered and required to resubmit DPOC in order to become registered after he applied. He has alleged injury in the form of disenfranchisement, which is a continuing injury that is redressable if Plaintiffs obtain the relief they seek in this case. Plaintiffs therefore have fulfilled their burden of establishing standing to challenge the DPOC law under § 5 of the NVRA under a duplicate information theory.

C. Notice to Secretary Jordan under the NVRA

The NVRA requires a person aggrieved by the- Act - to “provide written notice of the violation to the chief election official of the State involved.” If no corrective action is taken within 90 days of receipt, the-aggrieved person may file a civil action as to the violations specified in the notice. Here, Plaintiffs provided written notice on November 20, 2015, to Secretary Kobach. Plaintiffs copied Kansas Attorney General Derek Schmidt and Secretary Jordan .on that notice. Secretary Jordan complains that he was entitled to separate notice under the NVRA. The Court disagrees. The plain language of the statute requires notice only, to the. chief election official. The Secretary of State is the designated chief election official in the State of Kansas. Moreover, the purpose of the requirement is “to give the state the opportunity to remedy NVRA violations.” Here, the State of Kansas was placed on notice of the alleged NVRA violations. The notice was directed to the chief election official, and Secretary Jordan was provided with a copy of this notice. The notice was sufficient under the statute.

III. Preliminary Injunction Standard

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” The moving party must meet a heightened standard when requesting one of three types of disfavored injunctions:

The three types of disfavored injunctions are “(1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could -recover at the conclusion of a full trial on the merits.” When a preliminary injunction falls into one of these categories, it “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course.” A district court may not grant a preliminary injunction unless the moving party “make[s] a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.”

The parties dispute whether the requested preliminary injunction is a disfavored injunction, requiring application of the heightened standard. Defendants argue that the injunction would alter the status quo — enforcement of the SAFE Act and regulation — and that it would require both agencies to take specific action. Defendants also suggest that the requested injunction would provide all of the relief sought by Plaintiffs in their Amended Complaint. Plaintiffs disagree, arguing that they do not seek a disfavored injunction because they seek merely to preserve the status quo before the law went into effect, that the injunction would not require Defendants to act affirmatively, and that the relief sought in this case exceeds what is sought by the preliminary injunction because the First Amended Complaint seeks declaratory relief and a permanent injunction as to the law.

The Court need not resolve this dispute because, as described in this opinion, under the heightened standard, Plaintiffs have made a strong showing on both likelihood of success on the merits, and on the balance of harms as to their § 5 claim.

IV. Preliminary Injunction Analysis

A. Likelihood of Success on the Merits

1. Section 5 of the NVRA

Plaintiffs allege that the SAFE Act violates § 5 of the NVRA in two ways: (1) it demands more than the “minimum amount of information necessary” to assess an applicant’s citizenship eligibility; and (2) it duplicates the proof of lawful presence documentation required by the driver’s license portion of the application.

a. Minimum Amount of Information Necessary to Enable State Election Officials to Assess the Eligibility of the Applicant and to Administer Voter Registration

The word “minimum” is not defined in the NVRA. Plaintiffs urge that the minimum amount of information necessary to assess United States citizenship eligibility is defined by subsection (a)(2)(C), which requires that the registration application include an attestation, signed under penalty of perjury, that the applicant meets each eligibility requirement, including citizenship. Plaintiffs argue that the plain meaning of the statute, coupled with Congress’ failure to include the Simpson Amendment in the final bill, supports this interpretation. Plaintiffs further argue that the Supreme Court’s decision in Arizona v. InterTribal Council of Arizona, Inc. (ITCA), and the Tenth Circuit Court of Appeals’ decision in Kobach v. U.S. Election Assistance Commission, support their interpretation of the statute. Defendants argue that states are permitted under the NVRA to design their own application forms for motor voter registration; there is no “federal form” that requires approval by the EAC as there is with registration by mail. Defendants urge that State law informs the analysis of what is necessary under § 5. Second, Defendants contend that the Supreme Court in Young v. Fordice rejected the argument that the States cannot require more information than the sworn attestation. Finally, Defendants contest Plaintiffs’ interpretation of the ITCA and Kobach decisions, and challenge the significance of the legislative history cited by Plaintiffs.

The Court must begin its analysis with the plain language of the statute, reading “the words of the statute in their context and with a view to their place in the overall statutory scheme.” If the words in the statute are clear, the Court’s analysis ends and the plain meaning controls. If, instead, the Court finds that the words in the statute are ambiguous, the Court can look beyond the terms of the statute to determine legislative intent and statutory construction. “A statute is ambiguous if ‘it is capable of being understood by reasonably well-informed persons in two or more different senses.’ ”

Plaintiffs urge that the term “minimum” in § 5(c)(2)(B) has an ordinary meaning that is readily understood. The Court agrees. Black’s Law Dictionary defines “minimum” as: “Of, relating to, or constituting the smallest acceptable or possible quantity in a given case.” Similarly, Merriam Webster defines “minimum” as “the least quantity assignable, admissible, or possible.” Section 5 of the NVRA pertains to motor voter registration only. Section 6 pertains to registration by mail, which is the form of registration dealt with in ITCA and Kobach. Under § 6, the states may develop their own voter registration application that meets all of the criteria stated in § 9(b). Section 9(b) contains similar, but not identical, provisions for the contents of the state form for mail-in voter registration as it does for motor voter registration in § 5:

The mail voter registration form developed under subsection (a)(2) — (1) 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 ....

In contrast, the motor voter provision is that a state “may require only the minimum amount of information necessary to ... enable State election officials to assess the eligibility, of the applicant.” Plaintiffs argue that the, absence of “minimum amount of’ from § 9(b) is evidence that, of the three registration methods provided for in the NVRA, Congress intended for motor voter registration to involve the least possible barriers.

Secretary Kobaeh does not argue that the term “minimum” is susceptible to more than one meaning. Instead, he urges the Court to focus on the phrase “necessary to enable State election officials to assess the eligibility of the applicant” in § 5, and claims that State election officials may require any information they deem necessary to assess citizenship eligibility. While the “necessary” phrase is identical in §§ 5 and 9 of the NVRA, in both sections it is preceded by words that must be given some meaning; the word “minimum” appears in § 5, but not in § 9, which suggests that Congress intended for a stricter standard to apply in § 5. “It is a cardinal principle of statutory construction that if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” To read the “information necessary to enable State election officials to assess the eligibility of the applicant” phrase in § 5(c)(2)(B) as controlling would effectively read out of the statute the preceding qualifier: “only the minimum amount of.” The ordinary meaning of the term “minimum” is that the State may require only the least possible amount of information necessary to enable State election officials to assess whether the applicant is a United States Citizen.

The plain meaning of a statute should be given meaning unless it “will produce a result demonstrably at odds with the intentions of its drafters.” Secretary Kobaeh suggests that Plaintiffs’ reading of the statute would create an absurd result by allowing different standards to apply depending on the method of registration. He argues that Plaintiffs’ reading would create a “special path” to registration through motor voter registration that is easier than other forms of registration, and suggests that this would be contrary to Congress’ intent. But Defendants point the Court to no evidence that Congress intended the three forms of registration to be uniform; indeed, Congress made separate provisions for each of the three forms. The legislative history of the ISfVRA suggests that Congress intended to simplify the registration process for voting in federal elections, and to increase voter participation in federal elections by eliminating barriers to voting. Giving meaning to the word “minimum” in § 5, which does not appear in other provisions of the statute, is consistent with the statute’s stated purpose because it acts to remove barriers to voting and increase voter participation in federal elections.

Secretary Kobaeh argues that his interpretation of § 5, that the States have wide discreti