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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al.,
Plaintiffs,
v.
KRIS KOBACH, in his official capacity as
Secretary of State for the State of Kansas, et
al.,
Defendants.
___________________________________
CODY KEENER, et al.,
Plaintiffs,
v.
KRIS KOBACH, in his official capacity as
Secretary of State for the State of Kansas, et
al.,
___________________________________
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Case No. 16-2105-JAR-JPO
Case No. 15-9300-JAR-JPO
CASES CONSOLIDATED FOR
DISCOVERY
ANSWER AND DEFENSES OF DEFENDANT KRIS KOBACH,
KANSAS SECRETARY OF STATE
Defendant KRIS W. KOBACH, KANSAS SECRETARY OF STATE, hereby
responds to Plaintiffs’ Complaint, ECF No. 39, as follows:
RESPONSES TO SPECIFIC ALLEGATIONS IN THE COMPLAINT
Subject to and without waiving the foregoing affirmative defenses, Defendant
responds to the specific allegations of the Complaint as follows:
I.
INTRODUCTION
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1-10. Paragraphs 1-10 of the Complaint contain Plaintiffs’ characterization of their
action, legal arguments, or conclusions of law, to which no response is required. To the extent a
response is deemed required, Defendant denies the allegations in paragraphs 1-10.
11-19. Defendant lacks knowledge or information to form a belief to respond to the
allegations in Paragraphs 11-19 and therefore denies the same.
20.
The first sentence of paragraph 20 contains Plaintiffs’ characterizations of their
own allegations and of the NVRA and 52 U.S.C. § 20501. Thus, Defendant admits the existence
of the NVRA and 52 U.S.C. § 20501 and respectfully refers the Court to those laws for a true
and accurate statement of its contents. Defendant admits that League of Women Voters of
Kansas was an intervenor in Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183 (10th
Cir. 2014). The remainder of Paragraph 20 either contains Plaintiffs’ characterization of their
action, legal arguments, or conclusions of law, to which no response is required. To the extent
that a response is deemed required, Defendant denies the remaining allegations in paragraph 20.
21-22. Defendant lacks knowledge or information to form a belief to respond to the
allegations in Paragraph 21-22 and therefore denies the same.
23.
The allegations in the first and second sentences of paragraph 8 contain legal
arguments or conclusions of law, to which no response is required. To the extent that this Court
deems the allegations in the remainder of paragraph 23 require a response, Defendant lacks
knowledge or information to form a belief to respond to the allegations and therefore denies the
same.
24-25. Defendant admits that Secretary of State Kris Kobach is the Secretary of State of
Kansas and is the chief state election official for the State of Kansas. Defendant also admits that
Nick Jordan is the Kansas Secretary of Revenue. The remainder of paragraph 24-25 contains
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Plaintiffs’ characterization of their action, legal arguments, or conclusions of law, to which no
response is required. To the extent that this Court deems the allegations in the remainder of
paragraph 24-25 require a response, Defendant lacks knowledge or information to form a belief
to respond to the allegations and therefore denies the same.
26-29. The allegations in paragraphs 26-29 contain Plaintiffs’ characterization of their
action, legal arguments, or conclusions of law, to which no response is required. To the extent
that a response is deemed required, Defendant denies the allegations in paragraphs 26-29.
30-34. Paragraphs 30-34 contain Plaintiffs’ characterizations of 52 U.S.C. §§ 20501,
20503, 20504-20506. Defendant admits the existence of these statutes and respectfully refers the
Court to the statute for a true and accurate statement of its contents.
The remainder of
paragraphs 30-34 contain Plaintiffs’ characterization of their action, legal arguments, or
conclusions of law, to which no response is required. To the extent that a response is deemed
required, Defendant denies the allegations in paragraphs 30-34.
35.
The second sentence of paragraph 35 contains Plaintiffs’ characterizations of S.
Rep. No. 103-6 (1993) and H.R. Conf. Rep. No. 103-66 (1993). Defendant admits the existence
of these reports and respectfully refers the Court to the reports for a true and accurate statement
of their contents. The remainder of paragraphs 35 contain Plaintiffs’ characterization of their
action, legal arguments, or conclusions of law, to which no response is required. To the extent
that a response is deemed required, Defendant denies the allegations in paragraph 35.
36-40. Paragraphs 36-40 contain characterizations of K.S.A. §§ 25-2323, 2352 and 52
U.S.C. §§ 20507, 20509. Defendant admits the existence of these statutes and respectfully refers
the Court to the statutes for a true and accurate statement of their contents. The remainder of
paragraphs 36-40 contain Plaintiffs’ characterization of their action, legal arguments, or
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conclusions of law, to which no response is required. To the extent that a response is deemed
required, Defendant denies the allegations in paragraph 36-40.
41.
Paragraph 41 contains Plaintiffs’ characterization of their action, legal arguments,
or conclusions of law, to which no response is required. To the extent that a response is deemed
required, Defendant denies the allegations in paragraph 41.
42.
Defendant admits a press conference was held on January 18, 2011 regarding HB
2067. Defendant admits HB 2067 was formally introduced on January 24, 2011. The remainder
of paragraph 42 contains Plaintiffs’ characterization of their action, legal arguments, or
conclusions of law, to which no response is required. To the extent that a response is deemed
required, Defendant refers the Court to HB 2067 for its true and accurate statement of its content.
43.
Defendant admits that the Office released a spreadsheet entitled “Office of the
Kansas Secretary of State Known Reported Incidents of Election Crimes, 1997-2010 (February
9, 2011).
Defendant lacks knowledge or information as to the second and third sentences and
therefore denies the same.
44.
Defendant admits that the documentary proof-of-citizenship provisions of HB
2067 took effect January 1, 2013. Defendant also admits to the existence of Kan. Stat. Ann. §
25-2309(u). The remainder of paragraph 44 contains Plaintiffs’ characterization of their action,
legal arguments, or conclusions of law, to which no response is required. To the extent a
response is required, Defendant lacks knowledge or information to form a belief to respond to
the allegations and therefore denies the same.
45.
Paragraph 45 contains Plaintiffs’ characterization of their action, legal arguments,
or conclusions of law, to which no response is required. To the extent a response is required,
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Defendant lacks knowledge or information to form a belief to respond to the allegations and
therefore denies the same.
46.
Admitted.
47.
Defendant admits to the existence of K.S.A. § 25-2309(l), (n), and (u) and
respectfully refers the Court to those statutes for a true and accurate statement of their contents.
Defendant admits that K.S.A. § 25-2309(l) took effect on January 1, 2013. The remainder of
paragraph 47 contains Plaintiffs’ characterization of their action, legal arguments, or conclusions
of law, to which no response is required.
48.
Paragraph 48 contains Plaintiffs’ characterizations of K.S.A. § 25-2309(l), (t) and
K.A.R. § 7-23-15.
Defendant admits the existence of these statutes and regulation and
respectfully refers this Court to those statutes and regulation for a true and accurate statement of
their contents. The remainder of paragraph 42 contains Plaintiffs’ characterization of their
action, legal arguments, or conclusions of law, to which no response is required. To the extent a
response is required, Defendant denies the same.
49.
Paragraph 49 contains Plaintiffs’ characterization of K.S.A. § 25-2309(l) and (o).
Defendant respectfully refers this Court to those statutes for a true and accurate statement of their
contents.
50.
Paragraph 50 contains Plaintiffs’ characterization of their action, legal arguments,
or conclusions of law, to which no response is required. To the extent a response is required,
Defendant lacks knowledge or information to form a belief to respond to the allegations and
therefore denies the same.
51.
Defendant lacks knowledge or information to form a belief to respond to the
allegations in Paragraph 51 and therefore denies the same.
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52.
Denied.
53.
Defendant lacks knowledge or information to form a belief to respond to the
allegations in the first sentence of Paragraph 53 and therefore denies the same.
The third
sentence of paragraph 53 contains plaintiffs’ characterizations of K.S.A. §§ 25-2309(l) and 8240. Defendant admits the existence of these statutes and respectfully refers this Court to those
statutes for a true and correct statement of its contents. The remainder of Paragraph 53 contains
Plaintiffs’ characterization of their action, legal arguments, or conclusions of law, to which no
response is required. To the extent a response is required, Defendant lacks knowledge or
information to form a belief to respond to the allegations and therefore denies the same.
54.
The first sentence of paragraph 54 contains Plaintiffs’ characterization of their
action, legal arguments, or conclusions of law, to which no response is required. To the extent a
response is required, Defendant refers the Court to the relevant Kansas laws for a true and
correct statement of their contents. Defendant lacks knowledge or information to form a belief to
respond to the allegations and therefore denies the same.
55.
Defendant denies the first sentence of paragraph 55. Defendant lacks knowledge
or information to form a belief as to the second and third sentences of paragraph 55. The fourth
and fifth sentences contain Plaintiffs’ characterization of their action, legal arguments, or
conclusions of law, to which no response is required and therefore denies the same.
56-57. Defendant admits to the existence of K.S.A. § 25-2352(b)(1) and 52 U.S.C §
20504(c)(2) and refers the Court to that statute for a true and accurate statement of its contents.
The remainder of paragraphs 56-57 contain Plaintiffs’ characterization of their action, legal
arguments, or conclusions of law, to which no response is required and therefore denies the
same.
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58.
Paragraph 58 contains Plaintiffs’ characterization of their action, legal arguments,
or conclusions of law, to which no response is required and therefore denies the same.
59.
Defendant lacks knowledge or information to form a belief as to the allegations in
paragraph 59 and therefore denies the same.
60.
Denied.
61.
Defendant denies the first and second sentences of paragraph 61. Defendant lacks
knowledge or information to form a belief as to the remaining allegations in paragraph 61 and
therefore denies the same.
62.
Defendant admits that the number of voters on the suspense list has decreased.
Defendant denies the remainder of paragraph 62.
63.
Defendant admits that K.A.R. § 7-23-15 was proposed on June 25, 2015 by the
Office of the Secretary of State.
The remainder of paragraph 63 contains Plaintiffs’
characterization of K.A.R. 7-23-15 and Defendant respectfully refers the Court to that regulation
for a true and accurate statement of its contents.
64.
The first sentence contains Plaintiffs’ characterizations of K.A.R. § 7-23-15 to
which no response is required; Defendant admits to the existence of K.A.R. § 7-23-15 and admits
that it became effective on October 2, 2015. Defendant respectfully refers the court to the
regulation for a true and correct statement of its contents. Defendant denies the second sentence.
65.
Regarding the first and second sentences of paragraph 65, Defendant Kobach
admits that the Office of the Secretary of State received a letter from someone purporting to
represent Plaintiffs Fish, Ortiz, Bucci, Stricker, and Boynton and received a subsequent letter
from someone purporting to represent the Kansas League of Women Voters. The remainder of
the first two sentences of paragraph 65 contains Plaintiffs’ characterizations of those letters, and
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Defendant respectfully refers the Court to those letters for a true and correct statement of their
contents. Defendant Kobach admits that the two attachments appear to be copies of the letters
the office received. Defendant Kobach admits that he did not respond to either letter. Defendant
Kobach denies the remainder of paragraph 65.
66.
Defendant lacks knowledge or information to form a belief as to the accuracy of
the allegations contained in paragraph 66 and therefore denies the same.
67.
Defendant admits that the Office of the Secretary of State has undertaken steps to
obtain documentary proof of individuals who have incomplete voter registration applications.
Defendant denies the remainder of paragraph 67.
68.
Denied.
69.
Denied.
70.
Defendant denies the first two sentences of paragraph 70. Defendant admits there
are approximately 1.7 million registered voters in Kansas. Defendant denies the remainder of
paragraph 70.
71.
Defendant admits that Bryan Caskey sent a letter dated November 17, 2015
requesting a change to the state specific instructions for Kansas of the Federal Registration Form
to include an instruction related to documentary proof of citizenship. Defendant admits that such
a requirement is necessary to prevent noncitizens from registering to vote. Defendant admits that
the chart accompanying the letter identified three non-citizens were identified as having
registered to vote prior to 2011 at the DMV. Defendant also notes that Plaintiffs’ allegation
omits the additional nine aliens who were prevented from registering to vote at the DMV
because of the challenged proof of citizenship law. Defendant lacks knowledge or information
to form a belief as to the last sentence in paragraph 71 and therefore denies the same. Regarding
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footnote 24, Defendant admits that Brian Newby is the current Executive Director of the EAC
and former Elections Commissioner of Johnson County. Defendant also admits that Defendant
Kobach re-appointed Mr. Newby to be the Elections Commissioner of Johnson County after Mr.
Newby had previously been appointed to that same position by two previous Secretaries of State.
Defendant denies that any change to the instructions on the Federal Form was abrupt, unilateral
or unlawful. Defendant admits that
litigation is pending in the U.S. District Court for the
District of Columbia. The remainder of footnote 24 contains Plaintiffs characterizations of a
purported “statement” by Tom Hicks and of ongoing litigation to which Defendant respectfully
refers the Court to the documents cited in footnote 24 for a true and accurate statement of their
contents.
72.
Admitted.
73.
Denied.
74.
Paragraph 74 of the Amended Complaint contain Plaintiffs’ characterization of
their action, legal arguments, or conclusions of law, to which no response is required.
75.
Defendant admits that this is a civil action arising under the laws of the United
States and that 52 U.S.C § 20510 provides for jurisdiction for actions brought under the NVRA.
However, Defendant lacks sufficient knowledge or facts to admit or deny whether all other
requirements for jurisdiction, such as standing, have been met and therefore denies to that extent.
76.
Admitted.
77.
Admitted except that Defendant denies that any violations have taken place.
78.
Defendant incorporates herein the preceding paragraphs.
79.
Defendant admits as to the existence of the statutes cited in paragraph 79 and
refers the Court to those statutes for a true and accurate reflection of their contents. The
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remainder of paragraph 79 contains Plaintiffs’ characterization of their action, legal arguments,
or conclusions of law, to which no response is required. To the extent a response is deemed
required, Defendant denies.
80.
Denied, except to the extent that Defendant admits to the existence of the laws
cited in paragraph 80 and refers this Court to the text of those laws for a true and accurate
representation of their contents.
81.
Defendant incorporates herein the preceding paragraphs.
82.
Defendant admits as to the existence of the statutes cited in paragraph 79 and
refers the Court to those statutes for a true and accurate reflection of their contents. The
remainder of paragraph 82 contains Plaintiffs’ characterization of their action, legal arguments,
or conclusions of law, to which no response is required. To the extent a response is deemed
required, Defendant denies.
83.
Denied, except that Defendant admits to the existence of the statute cited in
paragraph 83 and refers this Court to that statute for a true and accurate reflection of its contents.
84.
Defendant incorporates herein the preceding paragraphs.
85.
Defendant admits as to the existence of the statute cited in paragraph 85 and refers
the Court to that statute for a true and accurate reflection of their contents. The remainder of
paragraph 85 contains Plaintiffs’ characterization of their action, legal arguments, or conclusions
of law, to which no response is required. To the extent a response is deemed required, Defendant
denies.
86.
Denied, except to the extent that Defendant admits to the existence of Kan.
Admin. Regs. § 7-23-15 and refers this Court to the text of that regulation for a true and accurate
statement of its contents.
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87.
Denied, except to the extent Defendant admits to the existence of the NVRA and
Kan. Admin. Regs. § 7-23-15 and refers this Court to the text of the NVRA and that regulation
for a true and correct statement of their contents.
88.
Defendant incorporates herein the preceding paragraphs.
89.
Defendant admits that he is the chief election officer of the State of Kansas.
Defendant also admits to the existence of 52 U.S.C. § 20509. The remainder of paragraph 89
contains Plaintiffs’ characterization of their action, legal arguments or conclusions of law, to
which no response is required. To the extent a response is deemed required, Defendant denies
the remaining allegations in paragraph 89 and refers this Court to 52 U.S.C. § 20509 for a true
and correct statement of its contents.
90.
Denied, except to the extent Defendant admits the existence of the NVRA and
refers this Court to the statute for a true and correct statement of its contents.
91.
Defendant incorporates herein the preceding paragraphs.
92.
Paragraph 92 contains Plaintiffs’ characterization of their action, legal arguments
or conclusions of law, to which no response is required. To the extent a response is deemed
required, Defendant admits to the existence of U.S. Const. Art. I, § 4, cl. 1 and respectfully refers
this Court to that Clause for a true and correct statement of its contents.
93.
Denied, except to the extent Defendant admits the existence of K.S.A. § 25-
2309(l) and the NVRA and respectfully refers this Court to those statutes for a true and accurate
statement of their contents.
94.
Denied, except to the extent that Defendant admits the existence of the NVRA
and 52 U.S.C. § 20504(c)(2) and refers the Court to those laws for a true and accurate statement
of their contents.
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95.
Defendant incorporates herein the preceding paragraphs.
96.
Paragraph 96 contains Plaintiffs’ characterization of their action, legal arguments
or conclusions of law, to which no response is required. To the extent a response is deemed
required, Defendant admits to the existence of Article IV and the Fourteenth Amendment of the
Constitution as well as Saenz. v. Roe and refers this Court to the Constitution and that Supreme
Court case for a true and correct statement of their contents.
97.
Defendant denies the first sentence of paragraph 97, except to the extent
Defendant admits the existence of the Kansas statute and the Privileges and Immunities Clauses
of the Constitution, and refers this Court to the respective provisions of each for a true and
accurate statement of their contents. Defendants deny the remainder of paragraph 97.
REQUEST FOR RELIEF
Defendant denies the Plaintiffs are entitled to any of their relief sought.
GENERAL DENIAL
Any and all allegations in the Complaint not specifically admitted, denied, or
otherwise responded to herein are hereby expressly denied.
AFFIRMATIVE DEFENSES
1.
The Complaint, in whole or in part, fails to state a claim upon which relief can be
granted.
2.
Some or all of the claims alleged in the Complaint may be barred by the doctrines
of ripeness or mootness, or by Plaintiffs’ lack of standing.
3.
Some or all of the claims alleged in the Complaint may be barred by the doctrine
of waiver.
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4.
This Court may lack subject-matter jurisdiction over some or all of the claims
alleged in the Complaint.
5.
This Court may lack personal jurisdiction over some or all of the claims alleged in
the Complaint.
6.
Some or all of the claims may be barred by sovereign immunity and the Eleventh
Amendment.
Respectfully submitted this 23rd day of
May, 2016.
s/ Garrett R. Roe
Garrett Roe, #26867
Kris. Kobach, #17280
OFFICE OF THE SECRETARY OF STATE
120 SW 10th Ave,
Topeka, KS 66612
Tel. (785) 296-4575
Fax. (785) 368-8032
Email: [email protected]
Email: [email protected]
Attorneys for Defendants
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on the 23rd day of May, 2016, I electronically
filed the above and foregoing document using the CM/ECF system, which automatically sends
notice and a copy of the filing to all counsel of record.
s/ GARRETT ROE
Garrett Roe, Bar No. 26867
Attorney for Defendants
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