"Whoa, Whoa, Whoa": 10th Circuit Not Quite Ready to Wade Into Dispute Between Kansas, Arizona and EAC

[Image courtesy of ca10.uscourts.gov]

Many (many!) years ago in law school, I took an appellate advocacy class where the final project was to argue a case based on a real-life dispute. For weeks, opposing counsel and I researched the issue (liability for a leaky oil tank) and on the big day, squared off attempting to persuade the “Virginia Supreme Court” of professors and students that our client should prevail.

Imagine our surprise, then, when the panel pointed out something we had missed: the case should never have been appealed because the facts below didn’t qualify for the Court’s appellate jurisdiction. [I would tell you more, but I was so embarrassed at the time that I stopped listening … though I think the professor pointed out that real-life counsel had missed it, too.]

That experience came flooding back yesterday when I read the account of the Tenth Circuit argument in Kobach v. EAC, the proof-of-citizenship case on appeal from the federal district court in Wichita. There, a three-judge panel seemed disinclined to reach the constitutional issue of whether the federal or state government can set voting qualifications and queried counsel on both sides about whether the case was properly before the court. The Wichita Eagle has more:

A federal appeals court on Monday expressed skepticism over Kansas Secretary of State Kris Kobach’s contention that a federal commission must make voters who register using a federal form provide proof-of-citizenship documents required under state law.

Kansas and Arizona are trying to force the federal government to add their requirements to federal voter registration forms mandated by the National Voter Registration Act, also known as the motor voter law.

Arguing the case before the 10th Circuit Court of Appeals, Kobach said the Election Assistance Commission is required to add the state-specific instructions to the federal form.

But Judge Jerome A. Holmes interrupted: “Oh whoa whoa whoa, there’s a big jump there.”

The issue that seemed to trouble the judges the most was that the EAC – lacking Commissioners via Congressional inaction – couldn’t have acted on the states’ request and shouldn’t have been ordered to do so by the lower court:

The judges pressed hard on the question of whether the staff of the commission, acting without a quorum of commissioners, even has the authority to make the decision on Kansas’ request in the first place.

Judge Carlos F. Lucero, who presided over the three-judge panel, grilled Bonnie Robin-Vergeer, the Justice Department lawyer representing the commission, on whether a commission without commissioners could render a final decision on what would be a major change for voters in Kansas and Arizona.

The EAC has no commissioners right now because a gridlocked Senate hasn’t acted to confirm any of President Obama’s nominees for it.

The decision against adding Kansas- and Arizona-specific requirements to the federal registration form was made by the agency’s acting executive director, Alice Miller, who was ordered to make a decision by U.S. District Judge Eric Melgren of Wichita, who heard the case at the trial level.

Lucero likened the commission staff making decisions on major matters without a commission to the old adage about the tail wagging the dog, adding that it appeared as if “even after the dog is dead, the tail can still keep wagging it.”

Holmes said he didn’t see where Melgren got the idea that he could order a federal agency to act when it didn’t have the members needed to act.

Both parties wanted to press ahead with the argument on the merits, but it doesn’t appear the appellate court is buying:

Judges seemed to entertain the idea of sending the case back to Melgren.

That would leave in place Kansas’ current two-tier voting system in place.

A ruling that the commission’s staff doesn’t have authority to decide Kansas’ request would basically take the case back to square one, where the state can’t get a definitive decision on its request until commissioners are appointed, Kobach said.

“It’s a catch-22: Here’s the process, but the process is impossible,” he said.

Several times during the oral arguments, judges questioned whether the decision rests with the courts or the political process.

One never knows how the final decision (expected by November) will come down, but at this point the 10th Circuit seems to be telling both sides that this matter can’t be resolved until the EAC makes a final decision – and a final decision can’t occur until the Senate confirms a sufficient number of Commissioners to give the agency a quorum.

Whether Congress is interested enough in the matter to take that action remains to be seen … but just like my “Virginia Supreme Court” twenty-plus years ago, the 10th Circuit doesn’t seem to want to do it for them.

Stay tuned …