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Election Law @ Moritz

Election Law @ Moritz



Kobach v. EAC

Case Information

Date Filed: August 21, 2013
State: National
Issue: Voter Registration
Current Court: U.S. Supreme Court (Case 14-1164 )


Issue 1:

Did the EAC's failure to modify the State-specific instructions on the Federal Form to include a voter citizenship qualification constitute an agency action unlawfully withheld or unreasonably delayed under the Administrative Procedures Act, 5 U.S.C. 706(1)?

Issue 2:

Did the EAC's failure to modify the Federal Form infringe upon State sovereignty under the Tenth Amendment of the U.S. Constitution?

Issue 3:

Did the EAC's failure to modify the Federal Form constitute an agency action that was arbitrary, capricious, an abuse of discretion, or otherwise made in violation of the Administrative Procedures Act, 5 U.S.C. 706(2)?

Issue 4:

Did the EAC's failure to modify the Federal Form constitute an agency action that was in excess of statutory jurisdiction, authority, limitation, or short of statutory right under the Administrative Procedures Act, 5 U.S.C. 706(2)?

Issue 5:

Did the EAC's failure to modify the Federal Form force the Plaintiff's to choose between two "unconstitutionally coercive" regulations violating the Tenth Amendment and the Seventeenth Amendment of the U.S. Constitution?


Complaint filed 8/21/13. Motion for preliminary injunction filed 10/23/13. Project Vote's motion to intervene filed 11/13/13. Inter-Tribal Council's motion to intervene filed 11/13/13. Valle Del Sol's motion to intervene filed 11/21/13. League of Women Voters' motion to intervene filed 11/21/13. EAC answer filed 11/25/13. Evidentiary Hearing set for 2/11/14 and 2/12/14. Order that EAC add language requested by Arizona and Kansas to the state-specific instructions on federal mail voter registration form filed 3/19/14. Defendant-Intervenors' Notice of Appeal filed 3/27/14. Defendant-Intervenors' Motion for Stay Pending Appeal filed 3/28/14.  Defendant's Notice of Appeal filed 4/8/14. Order Granting Motion to Consolidate Appeals filed 4/15/14. Plaintiffs' Opposition to Motion to Stay filed 4/18/14. Plaintiffs' Motion to Compel filed 4/18/14. Defendants' Opposition to Expedited Motion to Compel and Support of Motion to Stay filed 4/22/14. Order denying motion to stay case filed 5/7/14. Appellants' Motion for Expedited Consideration and Stay Pending Appeal filed 5/8/14. Order for Temporary Stay filed 5/8/14. Order granting Stay Pending Appeal and Expedited Review filed 5/19/14. Appellants' Brief filed 5/21/14. Appelles' Response Brief filed 6/30/14. Appellants' Reply Brief filed 7/28/14. 10th Circuit opinion issued 11/7/14. State's Petition for Rehearing filed 12/22/14. Order denying Petition for Rehearing filed 12/22/14. Mandate filed 1/6/15. Petition for Writ of Certiorari filed 3/21/15. Order Denying Writ of Certiorari filed 6/29/15.

District Court Documents

Court of Appeals Documents (Defendant-Intervenors and EAC Defendants Consolidated)

U.S. Supreme Court Documents



Edward B. Foley

The Constitution Needed a Judicial Assist

Edward B. Foley

“The majority contends that its counterintuitive reading of ‘the Legislature’ is necessary to advance the ‘animating principle’ of popular sovereignty.” With this sentence in his dissent (at page 14), Chief Justice Roberts gets to the heart of the debate in today’s 5-4 decision in the Arizona redistricting case.

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In the News

David  Stebenne

Can Kasich win all 88 Ohio counties?

Professor David Stebenne was quoted in an Ohio Watchdog article about the possibility of Governor John Kasich winning all 88 Ohio counties in his re-election bid.

“It’s really hard to do,” he said. “As popular as the governor is and as weak as his opponent is, I doubt he’ll carry all 88 (counties).”

Stebenne said Ohio has some unusual counties, which tend to be really Democratic or really Republican.

He said a good example was the election of 1956, when President Dwight Eisenhower carried 87 of 88 Ohio counties.

“He lost one of the Appalachian counties — a poor county where the residents tend to vote Democratic no matter what,” Stebenne said. “There was even some humorous discussion in the Oval Office about that one county.”

Glenn and Voinovich were “the two most popular candidates in modern history,” he added, “and they each only did it once. While Kasich is popular, he really doesn’t have the broad appeal that these two did.”

Stebenne said that both Voinovich and Kasich come from communities that tend to be more Democratic in voter registration, but that Kasich’s first race for governor was more divisive than the races for Voinovich.

“Voinovich had electoral success in Cleveland and as governor because he was able to persuade Democrats to vote Republican,” he said. “Glenn had national appeal across party lines.”

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Info & Analysis

Fifth Circuit Affirms that Texas Voter ID Law Violates Voting Rights Act

Today, a three-judge panel of the Fifth Circuit U.S. Court of Appeals issued its opinion in the Texas voter ID case of Veasey v. Abbott, affirming in part and reversing in part the District Court\'s decision. The Fifth Circuit disagreed that Texas\' voter ID law is a poll tax under the 14th and 24th Amendments. The Court also vacated the District Court\'s judgment that the law was passed with a racially discriminatory purpose, remanding the case for a determination using the proper legal standard and evidence. However, the Court agreed that the law violates Section 2 of the Voting Rights Act due to its discriminatory effect. The Fifth Circuit remanded the case for the District Court to determine the appropriate remedy.

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