Memo in Motion For Contempt

Case 2:16-cv-02105-JAR Document 424 Filed 01/08/18 Page 1 of 19
IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al., on behalf )

of themselves and all others similarly )
situated, )
)
Plaintiffs, )
) Case No. 16-2105-JAR-JPO
v. )
)
KRIS KOBACH, in his official capacity as )
Secretary of State for the State of Kansas, et )
al., )
)
Defendants. )
)
PLAINTIFFS’ MEMORANDUM OF LAW AND FACTS IN SUPPORT OF THEIR

MOTION TO ENFORCE COURT ORDERS AND FOR ORDER TO SHOW
CAUSE WHY DEFENDANT KOBACH SHOULD NOT BE HELD IN CONTEMPT
INTRODUCTION AND NATURE OF THE MATTER BEFORE THE COURT
Plaintiffs Steven Wayne Fish, Donna Bucci, Charles Stricker, Thomas J. Boynton,
Douglas Hutchinson, and the League of Women Voters Kansas (“LWVK,” and collectively with
Fish, Bucci, Stricker, Boynton, and Hutchinson, “Plaintiffs”) seek relief to address Defendant
Kris Kobach’s (“Defendant”) continuing and repeated refusal to comply with multiple orders of
this Court—in the form of an order to show cause why Defendant should not be held in contempt
or, in the alternative, an order to amend court order.
In its Preliminary Injunction Order (the “PI Order”), this Court “directed [Defendant
Kobach] to register for federal elections all otherwise eligible motor voter registration applicants
that have been cancelled or are in suspense due solely to their failure to provide DPOC.” Fish v.
Kobach, 189 F. Supp. 3d 1107, 1152 (D. Kan. 2016), aff'd, 840 F.3d 710 (10th Cir. 2016).
Recognizing that effectuation of this relief would require that Defendant provide accurate
1
information to voters, this Court subsequently ordered Defendant to “provid[e] [voters] with
consistent information about the law as it stands now, with the caveat that it would be subject to
further official notice” and to correct erroneous and misleading information given to voters when
they register to vote and/or that is publicized online. See Mem. and Order dated Oct. 14, 2016
(Doc. 241) (the “Public Notice Order”) at 4 (emphasis added).
Defendant, however, refuses to follow these orders. Specifically:
1. Defendant refuses to treat Plaintiffs—and other Kansans who registered to vote at
the Kansas Department of Motor Vehicles (“DMV”) in conformity with the PI Order—as
registered voters, by refusing to ensure that they receive a certificate of registration, which
contains important voter information such as a voter’s polling location. These certificates of
registration are sent to all other registered voters in Kansas after they have successfully
registered to vote, and thereby fall within the ambit of the “consistent information” that the
Public Notice Order required Defendant to provide to all voters in Kansas. See Public Notice
Order at 4.
2. Defendant refuses to correct erroneous information in his State of Kansas: County
Election Manual (“County Election Manual”) (relevant excerpts attached hereto as Exhibit A),
the online and official reference guide for local elections workers. The County Election Manual
incorrectly instructs local elections officials that “[a]ny” voter registration applicant—which
appears to include those covered by the PI Order—must submit documentary proof of citizenship
(“DPOC”) in order to become registered to vote. Ex. A County Election Manual at 12-13.
These violations could be cured easily. Defendant could simply: (1) instruct local
elections officials to treat covered voters like all other registered voters in the state by sending
them certificates of registration; and (2) add two to three sentences in the County Election
2
Manual explaining that, at this time, certain voter registration applicants are exempt from the
DPOC requirement.
Yet, despite numerous efforts by Plaintiffs over the past six months to obtain Defendant’s
compliance, Defendant has refused, and has stated that he will not take corrective action even if
final judgment is rendered against him after trial. See Ex. B December 7, 2017 Email from D.
Ho to S. Becker (“December 7, 2017 Ho Email”). Relief cannot wait until all appeals have been
exhausted. This year (2018) is a federal election year, and Kansans are applying to register to
vote every day. Plaintiffs are therefore left with no choice but to seek immediate relief from this
Court.
To the extent that the Court finds that such relief is not covered by the PI Order and the
Public Notice Order, Plaintiffs respectfully request that the Public Notice Order be amended to
state explicitly that Defendant must:
1. Instruct local elections officials to send certificates of registration to covered
voters; and
2. Update the County Election Manual immediately to make clear that, at this time,
covered voters are exempt from the DPOC requirement.
STATEMENT OF FACTS
I. THE OCTOBER 14, 2016 PUBLIC NOTICE ORDER
1. On September 23, 2016, Plaintiffs filed a Motion to Enforce Preliminary
Injunction; for Order to Show Cause Why Defendant Kobach Should Not be Held in Contempt;
and for Expedited Briefing and Hearing. See Doc. 221.
2. In response to Plaintiffs’ Motion to Enforce Preliminary Injunction; for Order to
Show Cause Why Defendant Kobach Should Not be Held in Contempt; and for Expedited
3
Briefing and Hearing, see Doc. 221, this Court on October 14, 2016 issued the Public Notice
Order. See Public Notice Order.
3. In the Public Notice Order, the Court explained that Defendant is responsible for
“providing [voters] with consistent information about the law as it stands now, with the caveat
that it would be subject to further official notice.” Id. at 4 (emphasis added).
4. The Public Notice Order also noted that the Court had “made clear” during an
October 5, 2016 telephone conference that Defendant “was responsible for correcting the
information on the State’s website to provide clear guidance to Kansas citizens seeking
registration information, and that the notices at the DMV given to new motor voter registrants
also must be modified.” Id. at 3.
5. The Public Notice Order further set forth the specific language that Defendant
was to employ on the KSOS website and on the DMV Receipts. Id. at 4-5.
II. THE JULY 19, 2017 BONNEY LETTER
6. On July 19, 2017, Plaintiffs’ counsel sent Defendant a letter asking Defendant to,
inter alia, “immediately remove” misleading language from the KSOS website instructing
motor-voter applicants covered by the PI Order that, “[f]or elections that take place after the
November 8, 2016 general elections, it is at this time unknown whether you will be registered to
vote…” Ex. C July 19, 2017 Letter from D. Bonney to K. Kobach (“Bonney Letter”). The
Bonney Letter explained that this language on the KSOS website violated the Public Notice
Order and should be removed.
7. On July 27, 2017, Defendant acknowledged receipt of the Bonney Letter, see Ex.
D July 27, 2017 Confirmation of Receipt Email from S. Becker. Defendant did not indicate that
he would take any of the steps that Plaintiffs’ counsel had requested. Id.
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8. More than one month later, on August 31, 2017, Plaintiffs’ counsel sent
Defendant a follow-up email regarding the same issues, to which Defendant never responded.
See Ex. E August 31, 2017 Follow-Up Email from D. Bonney.
III. THE NOVEMBER 10, 2017 HO LETTER
9. On November 10, 2017, Plaintiffs’ counsel sent another letter to Defendant to
provide another opportunity to comply with the PI Order and the Public Notice Order. Ex. F
November 10, 2017 Letter from D. Ho to G. Roe (“First Ho Letter”).
10. The First Ho Letter also informed Defendant of his failure to comply with this
Court’s orders in several respects. Id.
11. In addition to noting inaccuracies on the KSOS website identified in the August
Bonney Letter, the First Ho Letter noted that Defendant had failed to ensure that certificates of
registration are sent to motor-voter applicants who, pursuant to this Court’s PI Order, must be
registered to vote. See Fish, 189 F. Supp. 3d at 1152.
12. A certificate of registration is a notice document mailed to voters who
successfully register to vote in Kansas, and which contains information including the voter’s
voting precinct, party affiliation, polling location, and the voter’s districts for various offices,
including for the United States House of Representatives. See Ex. G Sample Certificate of
Registration.
13. The First Ho Letter noted that Defendant is under multiple court orders to register
certain voter registration applicants whose applications are complete but who do not provide
DPOC—namely, motor-voter applicants covered by this Court’s PI Order, see Fish, 189 F. Supp.
3d at 1152; and Federal Form applicants pursuant to a ruling by the U.S. Court of Appeals for the
D.C. Circuit, see League of Women Voters of the United States v. Newby, 838 F.3d 1, 14-15
5
(D.C. Cir. 2016). The letter therefore asked Defendant to “instruct all local elections authorities
to send certificates of registration to all voters registered pursuant to th[o]se court orders
immediately.” Ex. F First Ho Letter.
14. The First Ho Letter also explained that the County Election Manual provides
incorrect instructions to county elections officials, in contravention of the PI Order. The chapter
on voter registration in the County Election Manual incorrectly states that “[a]ny person” who
registers to vote for the first time in Kansas must provide DPOC:
Any person registering to vote in Kansas for the first time is

required to provide satisfactory evidence of United States
citizenship … Individuals registered in Kansas before January 1,
2013 are deemed to have submitted satisfactory evidence of
citizenship and are exempt from this requirement … Any office,
person or organization conducting voter registration must be made
aware of this citizenship verification requirement.
Ex. A County Election Manual at 12-13 (emphasis added); Ex. F First Ho Letter.
15. Despite noting that one class of voters is exempt from the DPOC requirement—
namely, those who registered before 2013—the County Election Manual omits the fact that,
under this Court’s PI Order and the D.C. Circuit’s ruling in Newby, motor-voter applicants and
Federal Form users do not need to provide DPOC in order to become registered. See Ex. A
County Election Manual at 12-13; see also Newby, 838 F.3d at 14-15.
16. The County Election Manual is publicly available on the KSOS website at
https://www.kssos.org/forms/elections/County%20Election%20Manual%20(Combined).pdf.
17. The First Ho Letter asked Defendant to “revise [the County Election Manual]
immediately.” Ex. F First Ho Letter.
IV. THE NOVEMBER 21, 2017 BECKER RESPONSE
18. On November 21, 2017, Defendant’s counsel responded to the First Ho Letter.
See Ex. H November 21, 2017 Letter from S. Becker to D. Ho (“Becker Response”).
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19. In the Becker Response, Defendant acknowledged that the language found on the
KSOS website was “poorly worded” and agreed to partially modify it. Id.
20. Defendant did not agree to instruct local elections authorities to send certificates
of registration to covered motor-voter applicants or to Federal Form users. See id. Defendant’s
counsel asserted that certificates of registration are unnecessary because “those who register to
vote using the federal form or the motor-voter form but do not provide DPOC receive the court-
ordered notices.” Id. Defendant offered no explanation as to why all other registered voters
receive these supposedly “unnecessary” notices, while covered voters do not. See id.
21. Defendant also did not agree to correct the County Election Manual to reflect
current law—i.e., that motor-applicants and Federal Form users do not have to provide DPOC to
become registered to vote. See id. Defendant’s counsel claimed that, although the County
Election Manual is publicly-available online, it is “for internal use in election administration”
and that it “is currently scheduled to be revised next year to incorporate any changes since its last
revision in 2014.” Id. Defendant’s counsel further contended that changes in election law are
communicated to (unnamed and unidentified) county officials in “real time email or telephonic
communications.” Id.
V. THE NOVEMBER 30, 2017 HO REPLY
22. On November 30, 2017, Plaintiffs’ counsel responded to the Becker Letter. See
Ex. I November 30, 2017 Letter from D. Ho to S. Becker (“Second Ho Letter”).
23. In the Second Ho Letter, Plaintiffs’ counsel reiterated the requests that were made
in the First Ho Letter by asking Defendant to:
• “Instruct local elections authorities to send certificates of registration to all
covered voters;” and
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• Update the publicly available County Election Manual “to reflect the current state
of the law.”
Id.
VI. THE DECEMBER 7, 2017 MEET-AND-CONFER
24. Defendant’s counsel and Plaintiffs’ counsel held a meet-and-confer on December
7, 2017 to discuss the issues raised in the Second Ho Letter.
25. During the meet-and-confer, Defendant’s counsel stated that Defendant would not
instruct local elections authorities to send certificates of registration to individuals who registered
to vote at the DMV or who registered to vote using the Federal Form, but who failed to provide
DPOC.
26. Defendant’s counsel claimed that these certificates are “unnecessary,” because
covered voters receive other notices that this Court has approved.
27. Defendant’s counsel also refused to make modifications to the County Election
Manual—which Defendant’s counsel described as a “reference” guide for all local election
workers that states what the law currently is.
28. Defendant’s counsel stated that the County Election Manual is scheduled to be
revised by June 2018.
29. Defendant’s counsel explained that even if this Court were to issue final judgment
against Defendant, KSOS would not modify the language in the County Elections Manual to
reflect such a judgment. To the contrary, Defendant’s counsel stated that KSOS would only
modify the language in SOF ¶14 if either:
• The Tenth Circuit upheld this Court’s final judgment against Defendant, and the
Supreme Court denied Defendant’s petition for certiorari; or
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• The Supreme Court ruled against Defendant on the merits.
See Ex. B December 7, 2017 Ho Email.
30. Following the meet-and-confer, Plaintiffs’ counsel and Defendant’s counsel
exchanged emails confirming that further discussion on these issues would not be productive.
See id.
VII. THE DECEMBER 11, 2017 BECKER LETTER
31. On December 11, 2017, Defendant’s counsel sent Plaintiffs’ counsel a letter. Ex.
J December 11, 2017 Letter from S. Becker to D. Ho (“Second Becker Letter”).
32. Reiterating her position from the meet-and-confer, Defendant’s counsel stated that
“covered individuals”—individuals who register to vote at the DMV but do not provide DPOC—
will not receive certificates of registration. Id.1
33. Defendant’s counsel also stated: “The [County Election Manual] will not be
changed until there is a final change in the law.” Id.
ARGUMENT
I. LEGAL STANDARD
This Court “has broad discretion to use its contempt powers to ensure adherence to its
orders.” Retiree, Inc. v. Anspach, No. 12-2079-JAR, 2014 WL 2986654, at *11 (D. Kan. July
2, 2014) (Robinson, J.), aff’d in part, rev'd in part on separate grounds, No. 15-3101, 2016 WL
4401578 (10th Cir. Aug. 17, 2016). “Civil contempt occurs when a party fails to comply with a
court order,” regardless of intent. Universal Motor Oils, Co. v. Amoco Oil Co., 743 F. Supp.
1484, 1487 (D. Kan. 1990). Specifically, in a motion for civil contempt, the movant bears the
1
The Second Becker Letter also confirmed—four months after Plaintiffs’ counsel first
asked—that Secretary Kobach had searched his personal Gmail account for documents
responsive to each of Plaintiffs’ requests. See Ex. J Second Becker Letter.
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initial burden of establishing by clear and convincing evidence that: “(1) a valid court order
existed, (2) [the opposing party] had knowledge of the order and (3) [the opposing party]
disobeyed the order.” Premium Nutritional Prods., Inc. v. Ducote, 571 F. Supp. 2d 1216, 1217
(D. Kan. 2008) (internal citations omitted). Once the movant has “made [a] prima facie case,”
the burden shifts to the defendant who “must prove plainly and unmistakably his inability to
comply with the order of the court.” Donovan v. Burgett Greenhouses, Inc., 759 F.2d 1483,
1486 (10th Cir. 1985) (internal quotation marks and alteration omitted). Further, this Court has
the discretion to award attorneys’ fees “incurred in bringing and prosecuting [a] contempt
motion.” Premium Nutritional Prods., Inc., 571 F. Supp 2d at 1220.
II. DEFENDANT HAS REPEATEDLY REFUSED TO COMPLY WITH THE

ORDERS OF THIS COURT AND IS THEREFORE IN CONTEMPT
There is no dispute that valid court orders—namely, the PI Order and the Public Notice
Order—exist in this case, and that Defendant is aware of those orders. See id. at 1217. As
explained below, Defendant has violated those orders in at least two respects, meriting an order
finding him in contempt.
A. Defendant Refuses to Provide Covered Voters with the Same Voter

Information Provided to Other Registrants in Kansas
First, Defendant refuses to instruct local elections authorities to send certificates of
registration to Plaintiffs and other voters who registered to vote through the motor-voter
registration process or using the Federal Form, unless such a registrant submitted DPOC. See
SOF ¶¶ 20, 25, 32.
This failure is a violation of both the PI Order and the Public Notice Order. In the PI
Order, this Court “directed [Defendant Kobach] to register for federal elections all otherwise
eligible motor voter registration applicants that have been cancelled or are in suspense due solely
to their failure to provide DPOC.” Fish, 189 F. Supp. 3d at 1152 (emphasis added). All other
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registered voters in Kansas receive certificates of registration, which confirm that a voter
registration applicant’s registration is officially complete, and contain important information for
voters, including their voting precinct, party affiliation, polling location, and districts for various
offices, including for the United States House of Representatives. SOF ¶ 12. And yet,
Defendant treats covered voters as second-class voters by depriving them of the same documents
and voting information that all other registered voters receive.
Moreover, in the Public Notice Order, this Court directed Defendant to “provid[e]
[voters] with consistent information about the law as it stands now.” Public Notice Order at 4
(emphasis added). The Public Notice Order also reiterated that it was not the first time that the
Court had “made clear” to Defendant that he “was responsible for … provid[ing] clear guidance
to Kansas citizens seeking registration information.” Id. at 3. But notwithstanding this Court’s
clear directive that all voters are to receive “consistent information,” Public Notice Order at 4,
Defendant continues to deprive covered voters of important information that all other Kansas
registrants receive—namely, the certificates of registration. See SOF ¶¶ 20, 25, 32.
During a meet-and-confer with Plaintiffs’ counsel, Defendant’s counsel claimed that
these certificates are “unnecessary” because covered voters receive other notices that this Court
has approved. SOF ¶ 26. This contention is inapposite. As this Court explained in the Public
Notice Order, “[i]t is not a matter of providing more instead of less information to voters. It is a
matter of providing them with consistent information.” Public Notice Order at 4 (emphasis
added). Defendant has chosen to disregard that directive, which itself was necessitated by
Defendant’s failure to comply with the PI Order. See SOF ¶ 2. Indeed, Defendant’s refusal to
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provide covered voters with the same information can only be understood as an effort to
undermine the effectiveness of the PI Order.2
This is contempt of court. Plaintiffs have no choice but to request that this Court issue an
order to enforce its prior orders, pursuant to which Defendant will be required to instruct local
elections authorities to send certificates of registration to all individuals who registered to vote
through the motor-voter registration process or with the Federal Form, regardless of whether
such registrants have submitted DPOC.
B. Defendant Incorrectly Instructs Local Elections Officials that “Any Person

Registering to Vote in Kansas” Must Provide DPOC
Second, Defendant has failed to correct the County Election Manual to ensure that county
elections officials receive instructions consistent with the PI Order. SOF ¶¶ 21, 27, 33. This
failure, much like Defendant’s refusal to send certificates of registration to covered voters, is a
violation of the Public Notice Order’s directive that Defendant is to “provid[e] [voters] with
consistent information about the law as it stands now.” Public Notice Order at 4 (emphasis
added). Further, the Public Notice Order also specifically stated that Defendant “[i]s responsible
for correcting the information on the State’s website to provide clear guidance to Kansas citizens
seeking registration information.” Id. at 3.
2
While it is true that the Public Notice Order did not explicitly address certificates of
registration, Defendant should not be permitted to ignore the Public Notice Order’s
directive that all voters are to receive “consistent information” simply because the Court
did not spell out in detail—as it did with respect to the language found on the KSOS
website and the DMV receipts, see SOF ¶ 5—that the certificates of registration fall
within the ambit of the “consistent information” that all voters are to receive. See Public
Notice Order at 4. To find otherwise would require the Court to address explicitly each
individual type of communication between KSOS and voters—a clearly untenable
proposition.
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Notwithstanding these clear directives, the chapter on voter registration in the County
Election Manual—which is available on the KSOS website, SOF ¶ 16—does not even
acknowledge the effect of the PI Order, let alone provide the local elections officials who rely
upon it for instructions on how to comply with the PI Order with accurate guidance. To the
contrary, it incorrectly states:
Any person registering to vote in Kansas for the first time is

required to provide satisfactory evidence of United States
citizenship … Individuals registered in Kansas before January 1,
2013 are deemed to have submitted satisfactory evidence of
citizenship and are exempt from this requirement … Any office,
person or organization conducting voter registration must be made
aware of this citizenship verification requirement.
See SOF ¶ 14 (emphasis added).3 Notably, despite clarifying that voters who applied to register
before 2013 are exempt from the DPOC requirement, the County Election Manual omits that
motor-voter applicants and Federal Form users are similarly exempt. SOF ¶ 15. The implication
of this text is therefore to instruct local elections workers that motor-voter applicants are in fact
currently subject to the DPOC requirement, and may not be registered unless they provide
DPOC—in direct contravention of this Court’s PI Order.
Both of Defendant’s justifications for failing to correct the County Election Manual are
unavailing. Defendant first states that the County Election Manual will not be updated because it
is intended only “for internal use in election administration.” See SOF ¶ 21. But that is
irrelevant; the County Election Manual is publicly available on the KSOS website, SOF ¶ 16,
meaning that members of the public can easily discover it and become confused by its voter
3
Likewise, the County Election Manual fails to inform the local elections officials who
rely upon it that individuals who register to vote using the Federal Form also do not need
to provide DPOC. See Newby, 838 F.3d at 14-15 (enjoining Elections Assistance
Commission from allowing Kansas to require Federal Form registrants to produce DPOC
as a condition of voter registration); see also SOF ¶ 15.
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registration instructions, which plainly contravene the PI Order. See SOF ¶ 14. Further, even if
the County Election Manual were truly only for “internal use,” see SOF ¶ 21, there is no
justification for memorializing incorrect information that contradicts the PI Order within the
definitive reference resource guide used by the local elections officials who must administer
voter registration in Kansas. See SOF ¶¶ 14, 21, 27, 33.
Defendant next claims that the County Election Manual does not need to be updated
because changes in election law are supposedly communicated to some unidentified county
officials in “real time email or telephonic communications.” See SOF ¶ 21. Even if it were true
that such communications are taking place—and Defendant has not offered any evidence of such
communications—such communications do not absolve Defendant from his obligation to
provide voters “with consistent information about the law as it stands now, with the caveat that
that it would be subject to further official notice.” Public Notice Order at 4. One-off verbal
communications with some unnamed county employees are insufficient to meet this burden and
to counteract incorrect written instructions contained in the “reference” guide upon which local
elections officials rely whenever they are faced with a question about applicable law. See SOF ¶
27. In the face of contrary written instructions, such verbal instructions do not ensure that all
local elections officials—and by extension Kansas citizens—receive “consistent information
about the law as it stands now” as required by the Public Notice Order. Public Notice Order at 4.
At best, it is extremely confusing to receive written instructions from KSOS that are
contradictory to verbal ones. At worst, covered Kansas citizens will be denied their right to
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register to vote by local elections workers who misunderstand the law thanks to Defendant’s
erroneous instructions.
Once again, this is contempt of court, and an order to enforce court orders from this Court
is needed to enforce the PI Order and the Public Notice Order. In particular, Defendant should
therefore be ordered to immediately update the County Election Manual to make clear that, at
present, certain classes of voter registration applicants are exempt from the DPOC requirement.
III. THIS COURT SHOULD ENTER RELIEF NOW RATHER THAN WAIT UNTIL
FINAL JUDGMENT IS ENTERED
These issues should be resolved now, rather than after final judgment. As is clear from
the above, Defendant is once again in willful and continuing violation of this Court’s orders.
This year is a federal election year, and Kansans are applying to register to vote every day.
Defendant’s ongoing defiance of the Court risks misinformation and disenfranchisement of these
voters. Trial is still approximately two months away in March, and final judgment will not
follow for some time thereafter. Every day that these violations go uncorrected is another day
closer to the August primary elections. There is no reason why the Public Notice Order and the
PI Order should not be fully enforced immediately, pending a determination of final judgment.
In any event, waiting until final judgment will not resolve these issues, as Defendant’s
counsel has made clear that Defendant will not change the County Election Manual even upon
entry of a final judgment from this Court. SOF ¶ 29. Defendant’s counsel instead specifically
stated that KSOS would not change the County Election Manual unless either: (i) the Tenth
Circuit rules against Defendant on the merits, and the Supreme Court denies a petition for
certiorari or (ii) the Supreme Court rules against Defendant on the merits. Id.
In other words, absent immediate intervention from the Court, Defendant has made clear
his intention to disregard this Court’s orders, potentially for several years to come. Given his
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intransigence, and the fact that Kansans are registering to vote in anticipation of the federal
elections to be held later this year, immediate relief is appropriate.
IV. IN THE ALTERNATIVE, THE COURT SHOULD AMEND THE PUBLIC

NOTICE ORDER
To the extent that the Court finds that the relief sought by Plaintiffs is not covered by the
PI Order and the Public Notice Order, we respectfully request that the Court amend its Public
Notice Order to explicitly direct Defendant to:
1. Instruct local elections officials to send covered voters certificates of registration;
and
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court judge Defendant
in civil contempt. Plaintiffs further request this Court to issue an order enforcing its previously
issued PI Order and Public Notice Order. Specifically, Plaintiffs request that such an order to
enforce court orders directs Defendant to:
1. Instruct local elections authorities to send certificates of registration to individuals
who registered to vote at the DMV or using the Federal Form, regardless of
whether such registrants have submitted DPOC; and
2. Correct the County Election Manual to make clear that individuals who apply to
register to vote through the DMV or using the Federal Form need not submit
DPOC.
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Further, because of the flagrant manner in which Defendant has violated multiple court
orders, Plaintiffs believe that an appropriate remedial sanction to impose upon Defendant is the
attorneys’ fees incurred in connection with the preparation of this motion.
In the alternative, Plaintiffs respectfully request the Court to modify its Public Notice
Order to explicitly direct Defendant to:
1. Instruct local elections officials to send covered voters certificates of registration;
and
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DATED this 8th day of January, 2018.
Respectfully submitted,
/s/ Stephen Douglas Bonney /s/ Dale E. Ho

STEPHEN DOUGLAS BONNEY (#12322) DALE E. HO*
American Civil Liberties Union of Kansas R. ORION DANJUMA*
6701 W 64th St., Suite 210 SOPHIA LIN LAKIN*
Overland Park, KS 66202 American Civil Liberties Union Foundation,
Phone: (913) 490-4100 125 Broad St.
Fax: (913) 490-4119 New York, NY 10004
dbonney@aclukansas.org Phone: (212) 549-2693
dale.ho@aclu.org
odanjuma@aclu.org
slakin@aclu.org
NEIL A. STEINER* ANGELA M. LIU*

REBECCA KAHAN WALDMAN* Dechert LLP
DAPHNE T. HA* 35 West Wacker Drive
Dechert LLP Suite 3400
1095 Avenue of the Americas Chicago, Illinois 60601-1608
New York, NY 10036 Phone: (312) 646 5816
T: (212) 698-3822 Fax: (312) 646 5858
F: (212) 698-3599 angela.liu@dechert.com
neil.steiner@dechert.com
rebecca.waldman@dechert.com
daphne.ha@dechert.com
Counsel for Plaintiffs
* admitted pro hac vice
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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the 8th day of January, 2018, I electronically filed
the foregoing document using the CM/ECF system, which automatically sends notice and a copy
of the filing to all counsel of record.
/s/ Stephen Douglas Bonney

STEPHEN DOUGLAS BONNEY (#12322)
Attorney for Plaintiffs

Case 2:16-cv-02105-JAR Document 424-1 Filed 01/08/18 Page 1 of 4

DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al., on behalf )

of themselves and all others similarly )
situated, )
)
Plaintiffs, )
v. )
)
Secretary of State for the State of Kansas, et )
al., )
)
Defendants. )
)
DECLARATION OF DALE E. HO IN SUPPORT OF PLAINTIFFS’

MEMORANDUM OF LAW AND FACTS IN SUPPORT OF THEIR
MOTION TO ENFORCE COURT ORDERS AND FOR ORDER TO SHOW
CAUSE WHY DEFENDANT KOBACH SHOULD NOT BE HELD IN CONTEMPT
I, Dale E. Ho, hereby declare under penalty of perjury that:
1. I am an attorney at law at the American Civil Liberties Union Foundation. I
have been admitted pro hac vice to the United States District Court for the District of Kansas
and am counsel of record for Plaintiffs. I have personal knowledge of the subject matter in this
Declaration, which I submit in support of Plaintiffs’ Memorandum of Law and Facts in Support
of their Motion to Enforce Court Orders and for Order to Show Cause Why Defendant Kobach
Should Not be Held in Contempt, filed concurrently herewith.
2. Attached hereto as Exhibit A is a true and correct copy of excerpts from the
State of Kansas: County Election Manual.
3. Attached hereto as Exhibit B is a true and correct copy of a December 7, 2017
Email from Dale Ho to Sue Becker.
1
4. Attached hereto as Exhibit C is a true and correct copy of a July 19, 2017 Letter
from Doug Bonney to Kris Kobach.
5. Attached hereto as Exhibit D is a true and correct copy of a July 27, 2017 email
from Sue Becker to Doug Bonney.
6. Attached hereto as Exhibit E is a true and correct copy of a August 31, 2017
email from Doug Bonney to Sue Becker.
7. Attached hereto as Exhibit F is a true and correct copy of a November 10, 2017
Letter from Dale Ho to Garrett Roe.
8. Attached hereto as Exhibit G is a true and correct copy of a sample certificate of
registration. The personal identifying information contained in the sample certificate of
registration has been redacted.
9. Attached hereto as Exhibit H is a true and correct copy of a November 21, 2017
Letter from Sue Becker to Dale Ho.
10. Attached hereto as Exhibit I is a true and correct copy of a November 30, 2017
Letter from Dale Ho to Sue Becker.
11. Attached hereto as Exhibit J is a true and correct copy of a December 11, 2017
Letter from Sue Becker to Dale Ho.
2
Executed this 8th day of January, 2018, in New York, New York.
/s/ Dale E. Ho
Dale E. Ho
American Civil Liberties Union Foundation,
125 Broad St.
New York, NY 10004
Phone: (212) 549-2693
dale.ho@aclu.org
3
I, the undersigned, hereby certify that on the 8th day of January, 2018, I electronically
filed this Declaration of Dale e. Ho in Support of Plaintiffs’ Memorandum of Law and Facts
in Support of their Motion to Enforce Court Orders and for Order to Show Cause Why
Defendant Kobach Should Not be Held in Contempt using the CM/ECF system, which
automatically sends notice and a copy of the filing to all counsel of record.


EXHIBIT A
County Election Manual

State of Kansas
Table of Contents
Chapter 1
Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Chapter 2
Voter Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Chapter 3
Preparing for an Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Chapter 4
Advance Voting / Federal Services Absentee Voting . . . . . . . . . . . 55
Chapter 5
Polling Place Management / Voting . . . . . . . . . . . . . . . . . . . . . . . . .71
Chapter 6
Canvassing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91
Chapter 7
Accessibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Chapter 8
Special Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .121
Chapter 2
Voter Registration
election, where they vote and upon what ballot. Because the
-
-
ciency.
A. Registration process
-
tion process in the county. Application forms are distributed by
-
and deletes them according to statutory procedures.
1. Sources of applications
Mail – Individual applicants or persons or groups conducting
In person – A person may deliver one or more applications to
from a recognized registration site or printed from an Internet site.
in the United States may forward completed applications to the ap-
Private drives – Any person or group wishing to conduct a regis-

tration drive may obtain a supply of forms, distribute them, and re-
11
Chapter 2: Voter Registration
by the National Voter Registration Act and corresponding state

laws to distribute applications, including:
the Division of Motor Vehicles driver’s license examina-
-
bilitation Services administering the following federal
programs:
o SNAP (Supplemental Nutrition Assistance Pro-
gram, formerly known as Food Stamps),
o TANF (Temporary Assistance for Needy Families,
formerly known as Aid to Families with Dependent
Children) programs, and
o Medicaid
The Kansas Department of Health and Environment ad-
ministering the federal WIC (Women, Infants and Chil-
dren) program.
agencies providing services to persons with disabilities, in-
cluding services provided in the home.
-
istration outposts in various public places, including retail stores,
banks, libraries, and schools. These are referred to as deputized
outposts because, according to the law, the persons operating such
terms and receive training and supplies from the county election of-
2. U.S. citizenship assessment

NOTE: This requirement is effective January 1, 2013.
12
required to provide satisfactory evidence of United States citi-

zenship. If a citizenship document is not provided at the time the
person submits his or her voter registration application, it may be
submitted at a later time. (See “Last-Minute Submission of Docu-
ments” below.)
CEOs should scan applicants’ citizenship documents and at-
tach them to applicants’ registration records in the voter registra-
tion database. They will also receive scanned images of documents
from the Division of Motor Vehicles for persons who apply for or
renew their driver’s licenses and register to vote simultaneously.
Individuals registered in Kansas before January 1, 2013 are
deemed to have submitted satisfactory evidence of citizenship and
are exempt from the requirement. [KSA 25-2309(n)]
Citizenship documents and third-party registration drives

-
-
ment (see below). After the effective date of this law, anyone dis-
tributing voter registration applications must inform applicants to
submit a copy of a valid citizenship document to the county elec-
-
plicant has not been previously registered to vote in Kansas.
Persons collecting applications for submission to the election
1. collect a photocopy of the document from the applicant
application,
2. scan or photograph the document and submit it electroni-
cally with the registration application, taking care to pro-
duce a legible image, or
3. inform the applicant that he/she must submit a copy of a val-
hand delivery or electronic delivery before election day.
13
Motor-voter as a source of documents

Many new registrations, changes of address and other updates
come from the Division of Motor Vehicles because of DMV’s
statutory duty to offer voter registration to all driver’s license
applicants or renewals. Almost all of DMV’s registrations and
updates are electronic, either through the electronic motor-voter
process. These programs were established by the Secretary of

State and DMV in a cooperative effort. Because of these pro-
grams, many of the citizenship documents submitted by voter
registration applicants will come from DMV through the Elec-
tion Voter Information System (ELVIS) Agency Central compo-
nent. Before 2010, DMV required all new applicants for driver’s
licenses to provide “proof of identity,” including evidence of
U.S. citizenship or lawful presence. In 2012, DMV will begin
requiring these same documents from all persons renewing their
-
er’s license system and part of the requirements of the federal
“Real ID” Act.
If driver’s license applicants choose to register to vote, the
scanned images of their citizenship documents, sometimes more
than one per person, will be transmitted to ELVIS as attachments
to their electronic records, the same as their digitized signatures
have for several years.
At present, these are the only citizenship documents from voter
registration agencies that will be transmitted to the county election
will come to the CEO as paper copies, which must be scanned and
attached to the voter’s record in ELVIS. However, it is anticipated
that some third-party registration drives and other sources will
transmit electronic copies. The Secretary of State has authorized
individuals to scan or photograph documents and transmit them to
the CEO electronically. These are acceptable as long as they are
legible and there is no doubt which voter registration applicant
14
they correspond to. (See “Citizenship Documents and Third-Party

Registration Drives” above.)
Many registrants will choose to apply in person or to mail, fax,
hand deliver or electronically deliver their citizenship documents
to the CEO.
3. Last-minute submission of documents

If an applicant does not provide a citizenship document with his
or her registration application, the CEO will enter the applicant’s
information into the voter registration database with a status of
The applicant may (1) mail or deliver their documentation to the

-
tion, or (2) submit their documentation electronically by midnight
the day before the election. “Electronically” means fax, email or
other electronic means approved by the Secretary of State. [KAR
7-23-14(b)]
In such cases, the CEO must (1) accept, assess and process
-
plicant’s name to the voter registration list, and (3) if practicable,
include the name on the poll book. If poll books have been printed,
send the name of the voter to the election board with instructions
to allow the voter to vote a regular ballot. If this is not practicable,
the voter shall be allowed to vote a provisional ballot. The ballot
should count if the citizenship document was received according
to the rules stated above.
If the applicant fails to provide a document before midnight on
the day before the next election, he or she must vote a provisional
ballot. In this situation, the provisional ballot does not count because
the person had not met all the requirements to be a registered voter.
4. One-time citizenship assessment

The requirement to provide evidence of one’s citizenship oc-
15
person has met this requirement and has been added to the voter
registration list, he/she is not required to provide evidence of citi-
zenship again. Moving from one place to another within Kansas
or modifying one’s registration records also does not require the
person to re-submit evidence of citizenship. [KSA 25-2309(p)]
If a voter’s registration is canceled and the person re-registers,
the person’s citizenship document shall be reassessed by the CEO
if the CEO has access to the document.
However, if a registrant was registered to vote before the effec-
tive date of the citizenship requirement (January 1, 2013) and his/
her registration is canceled, the person must submit a citizenship
document when re-registering to vote. [KAR 7-23-14(c) and (d)]
5. Valid citizenship documents

The following documents may be used as evidence of U.S. citi-
zenship for voter registration purposes.
by the Division of Vehicles (or the equivalent governmen-

tal agency of another state within the U.S.) if the agency
indicates on the applicant’s driver’s license or nondriver’s
proof of U.S. citizenship
a U.S. passport or pertinent pages of the applicant’s U.S.

valid or expired passport identifying the applicant and the
applicant’s passport number
-
naturalization is provided, the applicant shall not be included
the Secretary of State, pursuant to 8 U.S.C. § 1373(c))

other documents or methods of proof of U.S. citizenship
16
issued by the federal government pursuant to the Immigra-

tion and Nationality Act of 1952
a Bureau of Indian Affairs card number, tribal treaty card
number or tribal enrollment number
a consular report of birth abroad of a citizen of the U.S.
Citizenship and Immigration Services

-
ment of State
the U.S. Department of Homeland Security (NOTE: This

document applies only to a small Texas band of the Kicka-
poo tribe with slightly more than 50 members.)
U.S. birthplace
a U.S. military record of service showing applicant’s place
of birth in the U.S.
an extract from a U.S. hospital record of birth created at the
time of the applicant’s birth indicating the applicant’s place
of birth in the U.S.
[KSA 25-2309(l)]
NOTE: A voter registration record from another state is not
satisfactory evidence of U.S. citizenship in Kansas. [KSA 25-
2309(o)]
Statistics in the Kansas Department of Health and Environment

-
for voter registration purposes to anyone who:

is 17 years of age or older,
17
is not registered to vote in Kansas and wishes to be regis-

tered, and
swears under penalty of perjury that he/she does not pos-
sess any of the documents needed to prove U.S. citizenship.
into effect in January, 2012.

[KSA 65-2418(a)(3)]
– In February, 2012, the Of-
of Motor Vehicles for voting purposes.

KSA 8-1324 allows a person to obtain a free nondriver’s ID card
is 17 years or older,
produces evidence that he/she is registered to vote, and
of the valid ID documents listed in the law and intends to

use the free ID card for purposes of voting.
The Secretary of State and Division of Motor Vehicles jointly
NOTE: This form only serves to waive the fee normally

charged by DMV. It does not eliminate or relax the requirement
that a person provide “proof of identity” (including evidence of
18
U.S. citizenship and lawful presence in the U.S.) to obtain the ID

card. Because these individuals still must provide documentation
that they are citizens, if they do not possess any of the documents
-
tics will provide one under the terms outlined in Section a. above.
to satisfy the documentation requirement. Vital Statistics should

provide a copy of Form BCA for the applicant to take to the DMV.
See also Chapter 5, Section C on Polling Place Voting / Voting.
7. Assessing citizenship documents
name, date of birth, place of birth, and sex.

If the name is consistent with the name on voter registration
application, add the applicant’s name to the registration list.
If the or sex is not consistent with information provided
on the voter registration application,
1. ask the applicant for another government document con-
one of the thirteen documents listed in the SAFE Act), or

2.
State’s Form CDU), or
3. inform the applicant of his/her right to appeal to the state
election board.
If the date of birth on the citizenship document does not match
the voter registration application, inform the applicant of his/her
right to appeal to the state election board.
If the place of birth is indicated on citizenship document, this
may be used in assessing citizenship. If it is not indicated, this
shall not result in an unsatisfactory assessment of citizenship.
Documents submitted as evidence of citizenship may be ex-
pired documents. [KAR 7-23-14(a)]
19
8. Unsatisfactory citizenship documents

If a citizenship document submitted by a voter registration ap-
plicant is deemed unsatisfactory due to an inconsistency between
the citizenship document and the (1) name or (2) sex indicated
on the applicant’s voter registration application, the applicant may
State’s Form CDU is designed for this purpose.

The applicant must state the nature of the inconsistency, the
reason for it, and must swear under oath that, despite the incon-
document. In such cases, the CEO must assess the person’s eligi-
bility to vote without regard to the inconsistency in the citizenship
should result in the applicant being granted full registration status

unless it is denied for another reason. Nevertheless, the date of
birth on the citizenship document must match the date of birth on
the voter registration application. An inconsistency in the date of
birth may not be explained away or disregarded due to the appli-
9. Appeals to state election board

-
quirement because they do not possess any of the prescribed docu-
ments to prove their U.S. citizenship may appeal to the state elec-
tion board for consideration of their registration applications. The
Secretary of State’s Form RCD is designed for this purpose. CEOs
their appeals. [KSA 25-2309(m)]
by voter registration applicants to prove U.S. citizenship. [KSA

25-2309(r)]
20
NOTE
third-party registration drives. Individuals and groups conducting
registration drives must be cautioned that there is personal infor-
mation on many documents and they must exercise care in han-
dling the documents.
B. Processing voter registration applications
each voter registration application to assess whether the applicant
elector in Kansas. Each application must be reviewed for com-

pleteness and legibility.
After being entered into the statewide voter registration data-

base, new registrations are automatically batched and sent to the Di-
the federal Social Security Administration (SSA) database using the

applicants’ Social Security numbers. Voter registration records are
records or the records of the Social Security Administration.

NOTE: Before passage of the SAFE Act in 2011, the rules un-
der HAVA stated that any voter registration applicant whose record
to show ID when voting. Under SAFE, all voters must show photo
HAVA ID portion of the state law is no longer in effect. Under

SAFE, voter registration applicants will still provide either their
driver’s license numbers or the last four digits of their Social Se-
curity numbers on their applications (this is required by HAVA),
but the numbers will be used only to perform the HAVA-required
21
EXHIBIT B
From: Dale Ho <dho@aclu.org>

Sent: Thursday, December 7, 2017 9:55 PM
To: Becker, Sue [KSOS]
Cc: Jayaraman, Tharuni
Subject: Re: Fish v. Kobach: Meet and confer
Sue,
Thank you for the conversation today and for your follow-up email. My responses are below –
1. Website Notice
Thank you for therefore agreeing to replace the phrase “you are registered to vote subject to subsequent official notice” with “you
are registered to vote unless you receive official notice stating otherwise.”
Please let us know by Wednesday, December 13, 2017 whether this change has been made. If it has not been made by that
date, please let us know when it will be done.
Briefly, I note that we understand your view that this language is necessary because the Court has thus far issued a preliminary
injunction, and not a final order. I also note, however, that we do not agree that the preliminary nature of the relief is relevant to
the notice, and therefore believe that this additional language is unnecessary. In the event that the Court issues a final judgment
in our clients’ favor, we reserve the right to seek an order from the Court striking that language from all public notices to voters
covered by the court’s order (i.e., motor-voter applicants who do not provide documentary proof of citizenship, or “covered
voters”), so that these voters are informed in unequivocal terms that they are registered to vote.
2. Letters Mailed by Local Elections Authorities

Thank you for agreeing to instruct all local elections officials to modify the letters sent to covered voters, by replacing language
referencing the November 2016 general election, with language instructing voters that they “are registered to vote unless you
receive official notice stating otherwise.”
Please let us know by Wednesday, December 13, 2017 whether this instruction has been disseminated. If it has not been
disseminated by that date, please let us know when you intend to do so.
Again, I note that, in the event that the Court issues a final judgment in our clients’ favor, we reserve the right to seek an order
from the Court striking that language from all public notices to covered voters, so that these voters are informed in unequivocal
terms that they are registered to vote.
3. County Election Manual

We are disappointed to learn that KSOS will not be updating the publicly available County Election Manual – which you
explained is an official reference book for all local election workers in Kansas – to make clear that, under current law, voters who
apply to register to vote at the DMV or using the Federal Form need not provide documentary proof of citizenship in order to
become registered to vote.
We were further troubled to learn from you that, even if Final Judgment is rendered against Secretary Kobach, the Secretary of
State’s office will not update the relevant portion of the County Election Manual to reflect such a final judgment, and would only
do so unless the U.S. Supreme Court either (i) denies cert from a ruling by the Tenth Circuit against KSOS in this case; or (ii)
rules against KSOS on the merits. As you know, litigation on the merits up to and through the Supreme Court will likely take
years, meaning that incorrect information about voter registration requirements in Kansas will remain publicly available to
anyone, and will remain part of the official manual for elections officials, for years during the pendency of this case.
As we stated previously, our hope had been to resolve this issue without the court’s intervention. But given that we are entering
a federal election year, your firm refusal to update KSOS’s official elections manual for county officials to reflect the Court’s order
in this case (or even a final judgment from the Court after trial) appears to leave us with no choice but to seek relief from the
Court.
4. Certificates of Registration
1
We are disappointed to learn that KSOS will not be instructing local elections officials to send to covered voters certificates of
registration (sample copies of which you indicated you could locate on your own, and therefore do not need me to send to you).
As I noted during the call, these certificates of registration are different from the DMV receipts that all motor-voter registrants
receive, and from the mailed notices referenced above. As you know, certificates of registration contain important information
for voters, including their: voting precinct, party affiliation, polling location, and districts for various offices, including for the United
States House of Representatives.
We understand your position that the preliminary injunction requires only that KSOS permit covered voters to vote. As I noted,
we disagree – the preliminary injunction directs your office to “register” covered voters. There is no reasonable justification for
treating covered voters as second-class voters who do not received the same documents and voting information that all other
registered voters receive from the state. The only possible purpose (and result) of not giving covered voters the same voting
information that other registered voters receive is to undermine the effectiveness of the relief in this case.
As we stated previously, our hope had been to resolve this issue without the court’s intervention, but given your firm refusal to
treat covered voters as “registered” in accordance with the preliminary injunction, we appear to have no choice but to seek relief
from the Court.
5. Discovery Obligations
We understand that, notwithstanding our repeated requests for this information, you do not know whether Secretary Kobach
searched his Gmail account for documents responsive to all of Plaintiffs’ requests. Thank you for agreeing to speak with
Secretary Kobach about his procedures for searching his Gmail account and for agreeing to confirm to us in writing
today whether Secretary Kobach has in fact searched his Gmail account for documents responsive to all of Plaintiffs’ requests,
i.e., not just the Sixth Request for Production.
We further understand that, notwithstanding our repeated requests for this information, you do not know the search terms or
parameters that Secretary Kobach used when searching his Gmail account, or what steps, if any, he employed to prevent the
deletion of emails and documents responsive to our document requests. We look forward to receiving a description in writing
from you of his search parameters and any measures to prevent the deletion of responsive documents.
6. Incomplete Voter Registration List

We are disappointed to learn that you will not be providing a list of incomplete voters who are not covered by the Preliminary
Injunction.
Regards,
Dale Ho
Director, Voting Rights Project
American Civil Liberties Union
125 Broad St., 18th Floor
New York, NY 10004
(212) 549-2693
dale.ho@aclu.org
www.aclu.org
From: Becker, Sue [KSOS] <Sue.Becker@ks.gov>

Sent: Thursday, December 7, 2017 6:31:49 PM
To: Dale Ho
Subject: Fish v. Kobach: Meet and confer
Hi Dale,
2
Good to talk to you today. Although I hope to further memorialize our discussion within the next couple of days, I
wanted to get this out to you so that we can reach agreement on the website and DMV notice language.
Website notice-
How about replacing “you are registered to vote subject to subsequent official notice”
With: “you are registered to vote unless you receive official notice stating otherwise.”
DMV notice-
Replace “This means that you are registered and may vote in the November 8, 2016 General Election.”
With: “This means that you are registered to vote unless you receive official notice stating otherwise.”
Sue Becker | Senior Counsel, Admitted in Missouri, Not Admitted in Kansas
Kansas Secretary of State | 785-296-3483 P | 785-368-8032 F | www.sos.ks.gov

Memorial Hall, 1st Floor | 120 S.W. 10th Avenue | Topeka, KS 66612-1594
3
EXHIBIT C
From: Doug Bonney <dbonney@aclukansas.org>

Sent: Wednesday, July 19, 2017 1:21 PM
To: 'Kris.Kobach@ks.gov'
Cc: 'Dale Ho'; 'Orion Danjuma'; 'Sophia Lakin'; Steiner, Neil; Waldman, Rebecca; Liu, Angela
Subject: Compliance notice
Attachments: Letter to Secretary Kobach re Website & New Registrant Letters_2017.07.19.pdf
Dear Kris:
Please see the attached letter regarding compliance with court orders related to notices.
Doug Bonney
Chief Counsel & Legal Director
ACLU Foundation of Kansas
Direct: (913) 490-4102
“[L]iterature should not be suppressed merely because it offends the moral code of the censor.”
-- Justice William O. Douglas, Dissenting
Roth v. United States, 354 U.S. 476, 513 (1957)
1
EXHIBIT D
From: Becker, Sue [KSOS] <Sue.Becker@ks.gov>

Sent: Thursday, July 27, 2017 2:01 AM
To: Doug Bonney
Cc: Roe, Garrett [KSOS]
Subject: Fish v. Kobach: July 19 Letter
Mr. Bonney,
Thank you for your July 19 letter regarding your concerns on behalf of confused Kansas voter registrants. We are reviewing it
and will respond to your concerns as soon as possible.
Sue Becker | XXXXXXXXX

1
EXHIBIT E
From: Doug Bonney <dbonney@aclukansas.org>

Sent: Thursday, August 31, 2017 3:43 PM
To: Becker, Sue [KSOS]
Cc: Roe, Garrett [KSOS]; Dale Ho; Orion Danjuma; Sophia Lakin
Subject: RE: Fish v. Kobach: July 19 Letter
Sue,
It has now been nearly six weeks since I sent my letter dated July 19 to Secretary Kobach regarding the problems with website
and other notices currently in use in Kansas. You responded more than a month ago indicating that your office was “reviewing
it and will respond to [our] concerns as soon as possible.” I have not heard from you since July 27. At your very earliest
convenience, please provide me with a detailed response to the concerns raised in my letter dated July 19.
Doug Bonney
Direct: (913) 490-4102
From: Becker, Sue [KSOS] [mailto:Sue.Becker@ks.gov]

To: Doug Bonney <dbonney@aclukansas.org>
Cc: Roe, Garrett [KSOS] <Garrett.Roe@ks.gov>
Mr. Bonney,
Thank you for your July 19 letter regarding your concerns on behalf of confused Kansas voter registrants. We are reviewing it
and will respond to your concerns as soon as possible.

1
EXHIBIT F
November 10, 2017
VIA E-MAIL
Mr. Garrett Roe

Office of the Secretary of State
Memorial Hall, 1st Floor
120 SW 10th Avenue
Topeka, KS 6612-1594
Re: Fish v. Kobach: Outstanding Notice and Discovery Issues
Dear Garrett:
We write to follow-up regarding five issues that we hope to resolve without the Court’s
intervention. Specifically, Secretary Kobach has failed to:
(i) post notices that comply with Judge Robinson’s Memorandum and Order dated
October 14, 2016 (Doc. 241) (“Order”) (attached hereto as Exhibit 1);
(ii) modify letters mailed by local elections authorities in response to our requests for
modifications;
(iii) instruct local elections authorities to send certificates of registration to individuals

who registered to vote using the federal voter registration form or the motor-voter
registration process, regardless of whether such registrants have submitted
documentary proof of citizenship (“DPOC”);
(iv) comply with his obligations regarding the preservation and production of
documents; and
(v) provide a list of incomplete voter registrations responsive to the request of the
League of Women Voters of Kansas (“LWVK”).
Although we have previously asked for information regarding these issues, you have failed to
respond. If you do not provide us with the necessary information and/or take appropriate steps to
remedy the issues by November 20, 2017, we will seek intervention from the Court.
1
1. The language found on the State’s website violates the Order.
As you know, the Order set forth the language that the State is to use on its website, and
ordered the removal of certain language. 1 As we previously notified you, however, the language
found on the KSOS website directly contravenes this Order. See July 19, 2017 letter from Doug
Bonney (“Bonney Letter”) (attached hereto as Exhibit 2). Specifically, Item 3 on the page of the
KSOS website entitled “FAQ – Elections & Legislative” 2 includes a link to a separate document
(the “Website Notice”) (attached hereto as Exhibit 3), which contains language which violates
the Order.
As was brought to your attention in the Bonney Letter, the Website Notice violates the
Order in two respects.
First, the Order approved the following language
This notice covers persons who have applied to register to vote and have not yet
provided proof of citizenship. Due to recent court rulings, if you have applied to
register to vote at a Kansas Division of Motor Vehicles office or if you have
applied to register to vote using the “Federal Form” voter registration application
(as opposed to the standard ‘state form’) and have not yet provided proof of
citizenship, you are registered to vote for the November 8, 2016, general election.
Your name will appear on the poll book for your voting location and you will be
given a standard ballot. There is nothing further you need to provide subject only
to further official notice.
The Website Notice, however, includes additional language not provided for in the Order. It
states
This notice covers persons who have applied to register to vote and have not yet provided
proof of citizenship. Due to recent court rulings, if you have applied to register to vote at
a Kansas Division of Motor Vehicles office or if you have applied to register to vote
using the “Federal Form” voter registration application (as opposed to the standard ‘state
form’) and have not yet provided proof of citizenship, you are registered to vote subject
to subsequent official notice. Your name will appear on the poll book for your voting
location and you will be given a standard ballot. There is nothing further you need to
provide unless and until you receive further notice.
1
The Order reiterated that the Court had during an October 5, 2016 telephone conference “made clear that
Secretary Kobach was responsible for correcting the information on the State’s website to provide clear
guidance to Kansas citizens seeking registration information.”
2
See http://www.kssos.org/resources/resources_faq_elections.html (last visited November 10, 2017).
2
(emphasis added). Thus, you added the emphasized phrase “subject to subsequent official
notice” to the Court’s approved language. 3 This change will confuse new voters who have
registered to vote using the federal form or via the motor-voter process.
Second, the Order “directed” the Kansas Secretary of State (“KSOS”) “to remove the following
language from [] proposed notices:”
For elections that take place after the November 8, 2016, general election, it is at this time
unknown whether you will be registered to vote depending on subsequent court rulings and
should provide an acceptable form of proof of citizenship to your local county election office or
to the Secretary of State to ensure future registration. For a complete list of acceptable forms of
proof of citizenship, visit www.gotvoterid.com.
(emphasis original). The second paragraph of the Web Notice, however, states
In future elections, it is unknown whether you will be registered to vote depending on

subsequent court rulings and should provide an acceptable form of proof of citizenship to
your local county election office or to the Secretary of State to ensure future registration.”
(emphasis added). This language is confusing to voters, and is substantially the same as the
language that the Court specifically ordered Defendant Kobach to remove. It should be removed
immediately.
Although you acknowledged receipt of the Bonney Letter, you have failed to respond to
that letter and to related correspondence 4 and to take steps to remedy the issues with the website.
2. Secretary Kobach failed to modify the letters that are mailed by local elections
authorities.
As explained in the Bonney Letter, it appears that as recently as July, letters mailed to
newly-registered voters who had not provided DPOC contain a confusing reference to the
November 8, 2016 general election. This reference is confusing both because it refers to an
election that occurred one year ago, and because it directly contravenes two court rulings which
found that Kansas Law does not allow the KSOS to prevent federal form and motor-voter
registrants from voting in state and local elections. See, e.g., Brown v. Kobach, No. 2016-CV-
000550, slip op. at 17 (Shawnee Cty. D. Ct., Nov. 4, 2016) (“Defendant simply lacks the
3
In addition, you also changed the phrase from the court-approved “subject only to further official
notice” to “subject to subsequent official notice.”
4
On August 31, 2017, Doug sent your office a follow-up email, a copy of which is attached hereto as
Exhibit 4.
3
authority to create a two-tiered system of voter registration”). As such, we ask that you please
revise the language contained in these letters immediately. 5
3. Secretary Kobach failed to instruct local elections authorities to send certificates of

registration to all duly registered electors.
Marge Ahrens of the League of Women Voters of Kansas (“LWVK”) has learned that
local elections authorities have informed LWVK members that, pursuant to a state directive,
elections authorities will not send certificates of registration—which informs registered voters of
their voting precinct and place and districts of their election officials—to individuals who
registered to vote using the federal voter registration form or the motor-voter registration process
unless such registrant has submitted DPOC.
As you know, three courts have entered injunctive relief requiring the KSOS to enter
upon the voter registration rolls the names of all voters who have used the process required by
the NVRA to register to vote regardless of whether those registrants have provided DPOC. See
Fish v. Kobach, 189 F. Supp. 3d 1107, 1151-52 (D. Kan. 2016), aff’d, 840 F.3d 710 (10th Cir.
2016) (requiring Kansas elections officials to register motor-voter registrants regardless of
DPOC status); League of Women Voters of the United States v. Newby, 838 F.3d 1, 14-15 (D.C.
Cir. 2016) (enjoining Elections Assistance Commission from allowing Kansas to require federal
form registrants to produce DPOC as a condition of voter registration); Brown, No. 2016-CV-
000550, slip op. at 17 (enjoining Secretary Kobach’s regulation requiring local election
authorities to implement a dual registration system).
As a result of these court orders, eligible Kansans who have used the federal form or the
motor-voter process to register to vote are, as duly registered voters, entitled to receive the
certificate of registration sent to all other registered voters informing them of critical voting
information regardless of whether they have submitted DPOC. We ask that you instruct all local
elections authorities to send certificates of registration to all voters registered pursuant to these
court orders immediately.
4. Secretary Kobach failed to comply with his discovery obligations may have
prejudiced Plaintiffs.
In response to the transmittal of your final production of documents, which included

correspondence contained in Secretary Kobach’s Gmail account, I asked you to confirm that you
have searched Secretary Kobach’s Gmail account for documents responsive to all of Plaintiffs’
5
It also appears that the County Election Manual
(https://www.kssos.org/forms/elections/County%20Election%20Manual%20(Combined).pdf) has not
been updated and is therefore not in compliance with the Court’s rulings. As such, we ask that you also
revise it immediately.
4
requests and provide details regarding the steps that you have taken to ensure that all responsive
documents had been produced. 6
You did not acknowledge receipt of these requests, let alone respond to them. When we
attempted to gather relevant information during the deposition of Secretary Kobach, he was
unable to adequately respond. In particular, he testified that he could not provide a list of search
terms that he used when searching his Gmail account. 7
Secretary Kobach’s deposition testimony further suggests that he may have violated his
duty “to take reasonable steps” to preserve “electronically stored information that should have
been preserved in anticipation or conduct of litigation.” See Fed. R. Civ. P. 37(e). Specifically,
he testified that he “routinely” deletes emails from his Gmail account and that “size” – as
opposed to message content – is “usually” the criterion that he uses when deciding which
messages to delete. Incredibly – in light of the text of Plaintiffs’ Sixth Request for Production of
Documents (attached hereto as Exhibit 7) – Secretary Kobach also could not recall whether he
had searched for “NVRA” and “amendment” in the same search. 8
Your failure to respond to our requests coupled with Secretary Kobach’s deposition
testimony strongly suggest that he has failed to “fulfill [his] obligations under Fed. R. Civ. P. 34
to conduct a reasonable search for all responsive documents.” Fed. Trade Comm’n v. Affiliate
Strategies, Inc., No. 09-4104-JAR, 2011 WL 251449, at *3 (D. Kan. Jan. 26, 2011). Further,
given the centrality of the NVRA to the ongoing litigation, we believe that this possible, and
seemingly intentional, withholding of materials responsive to Plaintiffs’ Sixth Request for
Production of Documents has prejudiced Plaintiffs. See Fed. R. Civ. P. 37(e)(1). We therefore
ask that you immediately comply with the two requests contained in my email to you.
5. The Secretary failed to provide a list of incomplete voter registrations responsive to

the LWVK’s request.
In response to the LWVK’s request for a copy of the “suspense list,” KSOS has provided
a list of voter registration applicants labeled “KS incomplete,” which includes individuals who
are duly registered voters pursuant to Fish, 189 F. Supp. 3d at 1151-52, Newby, 838 F.3d at 14-
15, and Brown, No. 2016-CV-000550, slip op. at 17. The inclusion of these duly registered
voters on this publicly-available list of “incomplete” registrations is misleading, as it suggests
that these voters are not registered to vote. We ask that you provide the LWVK with an accurate
list of individuals whose registrations are in fact incomplete—i.e., excluding those individuals
registered pursuant to Fish, Newby, and Brown.
6
This exchange is attached hereto as Exhibit 5.
7
The relevant excerpts from Defendant Kobach’s August 3, 2017 deposition are attached hereto as
Exhibit 6.
8
He similarly could not recall whether he had deleted any e-mails “to or from the Trump transition team.”
5
***
We hope that we can resolve these issues without the Court’s intervention. However, if
you do not provide us with a substantive response to the issues identified in this letter by
November 20, 2017 we will be forced to raise them with the Court and seek whatever sanctions
are necessary and appropriate.
Sincerely,
Dale Ho
Attachments
cc: Kris Kobach
6
Exhibit 1
Case
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
STEVEN WAYNE FISH, ET AL.,
Plaintiffs,
v. Case No. 16-2105-JAR-JPO
KRIS KOBACH, SECRETARY OF STATE

FOR THE STATE OF KANSAS,
Defendant.
MEMORANDUM AND ORDER
On September 23, 2016, Plaintiffs filed a Motion to Enforce Preliminary Injunction; for
Order to Show Cause Why Defendant Kobach Should not be Held in Contempt; and for
Expedited Briefing and Hearing.1 The Court ordered Defendant Kobach to appear in person on
Friday, September 30, 2016, to show cause why he should not be held in contempt given the
allegations set forth in Plaintiffs’ motion that he is not in compliance with the Court’s May 17,
2016 Preliminary Injunction (Doc. 129). On September 29, 2016, the parties filed a Joint Status
Report setting forth an interim agreement on the matters raised in Plaintiffs’ motion. Part of this
agreement was that Defendant:
will instruct the county election officials to send out a new notice that
unequivocally advises covered voters that they “are deemed registered and
qualified to vote for the appropriate local, state, and federal elections for purposes
of the November 8, 2016 general election, subject only to further official notice.”
The parties will prepare a draft notice for this Court’s review, revision, and
approval. Upon approval by this Court, Defendant will direct county election
officials to send the approved notice to covered voters on or before October 12,
2016.2
1
Doc. 220.
2
Doc. 225 at 2 ¶ 1.
1
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The Court cancelled the show cause hearing, but ordered the parties to submit to the
Court a draft joint proposed notice to send to those Kansas voter registrants affected by the
Court’s preliminary injunction and a related state court matter, and scheduled a telephonic status
conference with the parties on the contents of the notice for October 5, 2016. On October 3,
2016, the parties submitted their proposed notices to the Court by e-mail. The following day, the
Court sent the parties by e-mail its revised notice. The Court discussed this notice with the
parties at the October 5 telephone conference, and reached agreement as to the following
language to be sent to those who had attempted to register to vote at the DMV or by mail and
previously may have been instructed to provide documentary proof of citizenship (“DPOC”):
DATE
Dear Kansas Voter Registration Applicant,
You are receiving this revised official notice because you have applied to register
to vote and you may have received an official notice(s) or other information
instructing you to complete your voter registration application by submitting an
acceptable form of proof of citizenship to this office. PLEASE DISREGARD
ANY PRIOR NOTICE OR INSTRUCTION YOU MAY HAVE RECEIVED
ABOUT YOUR VOTER REGISTRATION STATUS. THE
INFORMATION PROVIDED TO YOU IN THIS NOTICE SUPERSEDES
AND REPLACES ANY CONTRARY INFORMATION YOU MAY HAVE
RECEIVED FROM THIS OFFICE.
This revised notice is to inform you that, due to recent court rulings, YOU ARE
DEEMED FULLY REGISTERED AND ELIGIBLE TO VOTE FOR ALL
OFFICES – federal, state, and local. This means that you are registered and may
vote in the November 8, 2016 General Election. You do not need to provide
additional documents to complete your voter registration at this time. Your name
is included on the Kansas list of registered voters, and you will be given a
standard ballot to complete at your polling place, or you may request an advance
mail-in ballot, or you may vote in advance in person.
To find your correct polling location, please visit the Kansas Voter View website
at https://myvoteinfo.voteks.org, click on “Polling Place,” and input your address
into the required fields. Or, you may call this office to request polling place
information.
2
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You may contact this office at _________ (phone number), or the Kansas
Secretary of State’s office at 1-800-262-8683, with any questions.
Sincerely,
__________ County Election Office
The Court and Plaintiffs also expressed concern during this hearing about other notices
that had not been changed in accordance with the various court orders that now make clear that
motor voter registrants may vote in federal, state, and local elections without first providing
DPOC in the upcoming general election. Specifically, the Court made clear that Secretary
Kobach was responsible for correcting the information on the State’s website to provide clear
guidance to Kansas citizens seeking registration information, and that the notices at the DMV
given to new motor voter registrants also must be modified. The Court asked the parties to send
these revised notices to the Court by e-mail once completed.
On October 13, 2016, the parties filed a “Joint Status Report” regarding the status of
these notices. But this document is joint in name only. Although it appears that the parties
continue to agree on the notices to be mailed to covered past registrants, and to covered new
registrants, they disagree on three other notices: (1) the website notice letter; (2) the DMV
receipt; and (3) the gotvoterid.com website language. Each party sets forth its respective
positions on these three items in the joint status report. Although neither party has filed a
motion, it is apparent that they expect the Court to mediate this disagreement. Given the stakes
and the short timeframe before the Kansas registration deadline, the Court provides the following
guidance.
As to the website notice, the Court agrees with Plaintiffs that Secretary Kobach’s
insertion of language about what will happen after November 8, 2016 is outside the scope of
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what was discussed at last week’s phone conference, and could lead to voter confusion.
Secretary Kobach is directed to remove the following language from both proposed notices:
For elections that take place after the November 8, 2016, general election, it is at
this time unknown whether you will be registered to vote depending on
subsequent court rulings and should provide an acceptable form of proof of
citizenship to your local county election office or to the Secretary of State to
ensure future registration. For a complete list of acceptable forms of proof of
citizenship, visit www.gotvoterid.com.
Instead, the Court approves the notice as revised by Plaintiffs that reads as follows:
This notice covers persons who have applied to register to vote and have not yet
provided proof of citizenship. Due to recent court rulings, if you have applied to
register to vote at a Kansas Division of Motor Vehicles office or if you have
applied to register to vote using the “Federal Form” voter registration application
(as opposed to the standard ‘state form’) and have not yet provided proof of
citizenship, you are registered to vote for the November 8, 2016, general election.
Your name will appear on the poll book for your voting location and you will be
given a standard ballot. There is nothing further you need to provide subject only
to further official notice.
If you have questions concerning your eligibility or this notice you may contact
your local county election office or the Secretary of State’s office at (800) 262-
8683.3
As to the DMV receipt, the Court also agrees with Plaintiffs that the notice proposed by
Secretary Kobach is confusing. It is not a matter of providing more instead of less information to
voters. It is a matter of providing them with consistent information about the law as it stands
now, with the caveat that it would be subject to further official notice. Therefore, the Court
approves of the DMV receipt language as revised by Plaintiffs:
THANK YOU FOR APPLYING TO REGISTER TO VOTE. YOUR VOTER

REGISTRATION APPLICATION WILL BE SENT TO YOUR COUNTY
ELECTION OFFICE FOR PROCESSING.
YOU WILL BE DEEMED FULLY REGISTERED AND ELIGIBLE TO VOTE
FOR ALL OFFICES – FEDERAL, STATE, AND LOCAL—WHETHER OR
NOT YOU PROVIDED A DOCUMENT DEMONSTRATING UNITED
STATES CITIZENSHIP. YOU DO NOT NEED TO PROVIDE ADDITIONAL
3
Doc. 240, Ex. C at 2.
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DOCUMENTS TO COMPLETE YOUR VOTER REGISTRATION SUBJECT

ONLY TO FURTHER OFFICIAL NOTICE.
A NOTICE WILL BE MAILED TO YOU WHEN YOUR VOTER
REGISTRATION APPLICATION HAS BEEN PROCESSED. IF YOU HAVE
QUESTIONS ABOUT YOUR APPLICATION, PLEASE CALL YOUR
COUNTY ELECTION OFFICE OR THE KANSAS SECRETARY OF STATE
AT 1-800-262-8683.4
The gotvoterid.com website, and its various pages and links, is a closer question. First,
the Court agrees with Plaintiffs that the insertion of notice language on the main webpage under
the heading “If you’re a registered voter, bring one of these to the polls” is extremely confusing.5
Of course, this case does not concern the photo identification requirement at the time of voting.
Adding Secretary Kobach’s proposed language risks confusing voters by conflating what is and
is not required for registration, with what is and is not required to prove identification when
voting in person. The Court also agrees that instead, notice language should appear under
“Changes in Kansas Voting Law; Starting January 1, 2013.” Defendant shall move the notice
language from the photo identification section to the bottom of the main webpage.
Otherwise, the Court is satisfied with Secretary Kobach’s modifications to this website for
purposes of the upcoming election and will not require him to adopt Plaintiff’s further proposed
revisions.
IT IS SO ORDERED.
Dated: October 14, 2016

S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
4
Doc. 240, Ex. C at 3.
5
Doc. 240, Ex. A at 2.
5
Exhibit 2
Exhibit 3
RULES CONCERNING VOTER REGISTRATION APPLICATIONS SUBMITTED WITHOUT

PROOF OF CITIZENSHIP
This notice covers persons who have applied to register to vote and have not yet provided proof of
citizenship. Due to recent court rulings, if you have applied to register to vote at a Kansas Division of
Motor Vehicles office or if you have applied to register to vote using the “Federal Form” voter
registration application (as opposed to the standard ‘state form’) and have not yet provided proof of
citizenship, you are registered to vote subject to subsequent official notice. Your name will
appear on the poll book for your voting location and you will be given a standard ballot. There is nothing
further you need to provide unless and until you receive further notice.
In future elections, it is unknown whether you will be registered to vote depending on subsequent court
rulings and should provide an acceptable form of proof of citizenship to your local county election office
or to the Secretary of State to ensure future registration. For a complete list of acceptable forms of
proof of citizenship, visit
www.gotvoterid.com.
If you have questions concerning your eligibility or this notice you may contact your local county
election office or the Secretary of State’s office at (800) 262-8683.
Exhibit 4
From: Doug Bonney

Sent: Thursday, August 31, 2017 2:43 PM
To: 'Becker, Sue [KSOS]' <Sue.Becker@ks.gov>
Cc: Roe, Garrett [KSOS] <Garrett.Roe@ks.gov>; 'Dale Ho' <dho@aclu.org>; Orion Danjuma
<odanjuma@aclu.org>; Sophia Lakin <slakin@aclu.org>
Subject: RE: Fish v. Kobach: July 19 Letter
Sue,
It has now been nearly six weeks since I sent my letter dated July 19 to Secretary Kobach regarding the
problems with website and other notices currently in use in Kansas. You responded more than a month
ago indicating that your office was “reviewing it and will respond to [our] concerns as soon as
possible.” I have not heard from you since July 27. At your very earliest convenience, please provide me
with a detailed response to the concerns raised in my letter dated July 19.
Doug Bonney
Direct: (913) 490-4102
From: Becker, Sue [KSOS] [mailto:Sue.Becker@ks.gov]

To: Doug Bonney <dbonney@aclukansas.org>
Cc: Roe, Garrett [KSOS] <Garrett.Roe@ks.gov>
Mr. Bonney,
Thank you for your July 19 letter regarding your concerns on behalf of confused Kansas voter
registrants. We are reviewing it and will respond to your concerns as soon as possible.

Exhibit 5
Dale Ho
From: Dale Ho
Sent: Friday, July 07, 2017 10:07 PM
To: 'Roe, Garrett [KSOS]'
Cc: Steiner, Neil (neil.steiner@dechert.com); Doug Bonney (dbonney@aclukansas.org);
Orion Danjuma; Sophia Lakin
Subject: RE: Email for discovery
Garrett,

We have reviewed your most recent production of documents and agree that the email is unquestionably responsive to
Plaintiffs’ request. We note that it appears that Defendant Kobach used a gmail account for correspondence regarding
issues that are relevant in this litigation.

1. Please confirm that you have searched this gmail account for documents responsive to all of Plaintiffs’ requests.

2. Further, given that you have produced another, clearly responsive document well after the close of discovery,
we ask that you provide details regarding the steps that you have taken to ensure that all responsive documents
have been produced, including the search terms and other parameters that you have used to identify
documents.

Dale Ho
Director, Voting Rights Project
125 Broad St.
New York, NY 10004
■ 212.549.2693 ■ dale.ho@aclu.org
www.aclu.org

This message may contain information that is confidential or legally privileged. If you are not the intended recipient, please immediately advise the
sender by reply email that this message has been inadvertently transmitted to you and delete this email from your system.

From: Roe, Garrett [KSOS] [mailto:Garrett.Roe@ks.gov]
Sent: Friday, July 07, 2017 6:47 PM
To: Dale Ho
Subject: FW: Email for discovery

Dale,

In order to prepare for a possible deposition and to make sure discovery complete with respect to this request,
Secretary Kobach again reviewed his correspondence. In doing so, he discovered the attached e‐mail which he did not
find when originally responding to the Sixth RFP. Please note that it refers to the possibility that a draft of NVRA
amendment language might be sent in the future. However, Secretary Kobach has not sent the draft. Secretary Kobach
1
would be willing to discuss this e‐mail in written discovery, or in the event that the August 3rd deposition occurs, at that
deposition, whatever the Court so orders.

Garrett Roe
Deputy Assistant Secretary of State, Legal Services
785‐296‐8473

2
Exhibit 6
Page 1
1 KRIS KOBACH
2 IN THE UNITED STATES DISTRICT COURT
3 FOR THE DISTRICT OF KANSAS
4
5 STEVEN WAYNE FISH, RALPH )
ORTIZ, DONNA BUCCI, )
6 CHARLES STRICKER, THOMAS )
J. BOYNTON, DOUGLAS )
7 HUTCHINSON, AND THE )
LEAGUE OF WOMEN VOTERS )
8 OF KANSAS, ON BEHALF OF )
THEMSELVES AND ALL )
9 OTHERS SIMILARLY )
SITUATED, )
10 )
Plaintiffs, ) Case No. 2:16-cv-2105
11 )
vs. )
12 )
KRIS KOBACH, IN HIS )
13 OFFICIAL CAPACITY AS )
SECRETARY OF STATE FOR )
14 THE STATE OF KANSAS; AND )
NICK JORDAN, IN HIS )
15 OFFICIAL CAPACITY AS )
SECRETARY OF REVENUE FOR )
16 THE STATE OF KANSAS, )
)
17 Defendants. )
18
19 Kansas City, KS
20 DEPOSITION OF KRIS KOBACH
21 TAKEN ON BEHALF OF THE PLAINTIFFS
22 AUGUST 3, 2017
23
24 Reported By: Lauren N. Lawrence
25 Job No. 127945
TSG Reporting - Worldwide 877-702-9580

Page 32
1 KRIS KOBACH
2 preparation for a meeting with the President-elect.
3 Q. Okay. Did you draft this document,
4 Exhibit 1, before the oral argument in the
5 10th Circuit on the preliminary injunction?
6 A. You'll have to tell me the date of the oral
7 argument. I can't re- -- recall off the top of my
8 head.
9 Q. I believe it was in mid-August.
10 A. I -- I honestly don't know.
11 (Kobach Exhibit 4 was marked for
12 identification.)
13 Q. (By Mr. Ho) Okay. I'm going to show you a
14 document that's been marked as Kobach Exhibit 4. This
15 is an e-mail chain, and it includes an e-mail from you
16 to Gene Hamilton dated November 9, 2016; is that
17 correct?
18 A. Yes, that is correct.
19 Q. Who is Gene Hamilton?
20 A. At the time, Gene Hamilton was one of the
21 people on the presidential transition team --
22 President Trump's transition team.
23 Q. What was his role on President Trump's
24 transition team?
25 A. So I should be more specific. There were

Page 33
1 KRIS KOBACH
2 several transition teams. This was the transition
3 team having to do with the Department of Homeland
4 Security and the issue of immigration. He was on that
5 team. I was on that team, and he was kind of one of
6 the people who was organizing it, coordinating phone
7 calls, things like that.
8 Q. This e-mail is sent from your Gmail
9 account; correct?
10 A. Yes. That is correct.
11 Q. But you did not produce this document to
12 the Plaintiffs until after the motion to compel
13 briefing and order on that motion to compel; correct?
14 A. I think that is correct.
15 Q. Okay. Have you searched your Gmail account
16 for documents that may be responsive to Plaintiffs'
17 other discovery requests in this case?
18 MS. BECKER: Objection. That's
19 attorney-client work product and privileged. And --
20 yeah. And...
21 THE COURT: Objections are overruled.
22 A. Yes. I have searched my Gmail accounts --
23 or account. Singular.
24 Q. (By Mr. Ho) When did you search your Gmail
25 account for responsive documents?

Page 34
1 KRIS KOBACH
2 A. I searched it right after your initial
3 request for production of documents, and then I
4 searched it again whenever we produced this to you a
5 month or two ago.
6 Q. If you conducted a search of your Gmail
7 account for responsive documents right after our
8 request for production, why was this document not
9 identified or produced until months later?
10 MS. BECKER: Objection. That's attorney
11 work product, and his counsel helps with production.
12 THE COURT: Overruled.
13 A. The search criteria probably was the reason
14 it didn't pick up the first time around, and so I used
15 different search criteria evidently the second time
16 around.
17 Q. (By Mr. Ho) Do you have a list of the
18 search criteria that you used for the searches?
19 A. No, but I do -- I -- I can...
20 MS. BECKER: Go ahead.
21 A. I can -- I mean, I think I can shed some
22 light on it. The -- the first time around, I didn't
23 use the term NVRA because, on any given day, I
24 probably send anywhere from -- as many as ten e-mails
25 that contain the word "NVRA." It's -- it's implicit

Page 35
1 KRIS KOBACH
2 in just about everything the Secretary of State does.
3 So I tried using other terms because, otherwise, it
4 would have just pulled up my entire e-mail. You know,
5 all my messages almost. And so I tried using other
6 terms.
7 And the second time around, I think, what I
8 did is I thought, well, maybe I can use the -- the
9 broad term NVRA, which is going to pull in just about
10 every e-mail, but I can look at very specific time
11 periods, rather than looking at an -- I think you
12 asked for multiple years -- rather than looking at
13 multiple years, look at specific weeks. And so I
14 tried that the second time around just to make sure
15 that we had given everything we could to you that
16 was -- that is responsive to your request.
17 Q. (By Mr. Ho) Did you search for the terms
18 "NVRA" and "amendment" in the same search?
19 A. I believe I searched -- oh, in the same
20 search? I -- I can't recall if I searched it in the
21 same search or if I did two separate searches. I
22 don't -- I don't recall.
23 Q. Did you ever delete any e-mails to or from
24 the Trump transition team?
25 A. I don't know. I -- I -- I don't know. I

Page 36
1 KRIS KOBACH
2 do delete e-mails routinely because my Gmail account
3 gets -- it's so -- I have so many e-mails in it that
4 it sometimes hits the max, and it says you can't
5 receive messages unless you delete some messages. So
6 I -- I do delete messages. Longer ones.
7 Q. When you delete messages, what criteria do
8 you use for deleting messages?
9 A. Usually, size so that I can clear up more
10 space in the Gmail account.
11 Q. To your knowledge, have you ever deleted
12 any e-mails concerning amendments to the NVRA?
13 A. No. I -- I -- to my knowledge, I have not
14 deleted any e-mails concerning amendments to the NVRA.
15 Q. When Plaintiffs issued their request for
16 production of documents last year, seeking documents
17 concerning amendments to the NVRA, did you not recall
18 at that time this e-mail? The existence of this
19 e-mail?
20 A. I did not recall that.
21 Q. Have you ever sent any text messages about
22 amendments to the NVRA?
23 MS. BECKER: Objection. I -- outside of
24 the scope of this deposition.
25 THE COURT: Sustained.

Page 37
1 KRIS KOBACH
2 Q. (By Mr. Ho) All right. In this --
3 A. And -- and I want to be clear. I
4 don't reca- -- you -- you asked earlier do you
5 recall -- I just don't recall what the content was of
6 the e-mails that I may have deleted. It's just --
7 mainly, it's by size. So it -- it is conceivable, but
8 I -- I don't know.
9 Q. (By Mr. Ho) In your e-mail to
10 Mr. Hamilton, you write "Thanks. Cindy mentioned it
11 that we will also be putting together information on
12 legislation drafts for submission to Congress early in
13 the administration. I have already" -- "I have some
14 already started regarding amendments to the NVRA to
15 make clear that proof of citizenship requirements are
16 permitted," in parentheses, "based on my ongoing
17 litigation with the ACLU over this."
18 Did I read that right?
19 A. Yes.
20 Q. Okay. When you refer to amendments to the
21 NVRA, is that any -- a reference to Exhibit 1, the
22 draft NVRA amendments we discussed earlier?
23 A. Well, it's a -- as the text of this e-mail
24 says, it's -- it's -- it says I've already started.
25 And so if anything had ever been -- first of all,

Exhibit 7
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DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al., )

)
Plaintiffs, )
v. )
)
Secretary of State for the State of Kansas, )
)
Defendant. )
)
PLAINTIFFS’ SIXTH REQUEST FOR PRODUCTION OF DOCUMENTS

FROM DEFENDANT KRIS KOBACH
Please take notice that, pursuant to Rules 26 and 34 of the Federal Rules of Civil
Procedure, Plaintiffs Steven Wayne Fish, Donna Bucci, Charles Stricker, Thomas J. Boynton,
Douglas Hutchinson, and the League of Women Voters of Kansas (collectively, “Plaintiffs”), by
their undersigned counsel, request that Defendant Kris Kobach, in his official capacity as the
Secretary of State for the State of Kansas (“Defendant”), produce for inspection and copying at
the offices of Plaintiffs’ attorneys, 35 W. Wacker Drive, Suite 3400, Chicago, Illinois 60601,
within thirty (30) days, the documents requested below that are in Defendant’s possession,
custody or control, in accordance with the instructions and definitions set forth below.
INSTRUCTIONS
1. This request shall be deemed continuing so as to require further and
supplemental production by Defendant, his successors, and his or his successors’ agents,
representatives or employees in the event any of them obtains or discovers additional documents
between the time of initial production and the time of hearing or trial. All documents are to be
produced as they are kept in the usual course of business with any identifying labels, file
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markings or similar identifying features, or shall be organized and labeled to correspond to the
appropriate request herein.
2. If there are no documents responsive to any particular category, please state so in
writing.
3. If any documents or parts of documents called for by this document request are
withheld under a claim of privilege, please produce the non-privileged portions of such
documents and furnish a list identifying, for each document or portion thereof so withheld, its
author, all recipients including but not limited to those carbon copied, its subject matter, the
privilege claimed and the grounds therefore.
4. If any documents or parts of documents called for by this document request have
been lost, discarded or destroyed, identify such documents as completely as possible on a list,
including, without limitation, the following information: date of disposal, manner of disposal,
reason for disposal, person authorizing the disposal and person disposing of the document.
DEFINITIONS
1. “Communication” shall mean the transmittal of information (in the form of
facts, ideas, inquiries or otherwise).
2. “Document” shall be synonymous in meaning and equal in scope to the usage of
this term in Federal Rule of Civil Procedure 34(a), including, without limitation, electronic or
computerized data compilations or other electronically stored information. A draft or non-
identical copy is a separate document with the meaning of this term.
3. “NVRA” shall mean the National Voter Registration Act of 1993. 52 U.S.C. §§
20501−20511.
4. The connectives “and” and “or” shall be construed either disjunctively or
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conjunctively as necessary to bring within the scope of the discovery request all responses that
might otherwise be construed to be outside of its scope.
5. The use of the singular form of any word includes the plural and vice versa.
6. Except where otherwise specified, the time period for this request shall be
February 18, 2011 until the present.
DOCUMENTS REQUESTED
1. All documents and communications related to draft amendments to the NVRA,
including but not limited to any amendments related to the purported purposes of preventing,
deterring and/or identifying noncitizen registrations and/or attempted registrations, registration
fraud, and/or voter fraud.
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DATED this 22nd day of November, 2016.
Respectfully submitted,
/s/ Stephen Douglas Bonney DALE HO*

STEPHEN DOUGLAS BONNEY (#12322) R. ORION DANJUMA*
American Civil Liberties Union of Kansas SOPHIA LIN LAKIN*
6701 W 64th St., Suite 210 American Civil Liberties Union Foundation,
Overland Park, KS 66202 125 Broad St.
Phone: (913) 490-4100 New York, NY 10004
Fax: (913) 490-4119 Phone: (212) 549-2693
dbonney@aclukansas.org dale.ho@aclu.org
odanjuma@aclu.org
slakin@aclu.org
NEIL STEINER* ANGELA LIU*

REBECCA WALDMAN* Dechert LLP
ANNE GRUNER* 35 West Wacker Drive
Dechert LLP Suite 3400
1095 Avenue of the Americas Chicago, Illinois 60601-1608
New York, NY 10036 Phone: (312) 646 5816
T: (212) 698-3822 Fax: (312) 646 5858
F: (212) 698-3599 angela.liu@dechert.com
neil.steiner@dechert.com
rebecca.waldman@dechert.com
anne.gruner@dechert.com
* admitted pro hac vice
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I, Stephen Douglas Bonney, hereby certify that on the 22nd day of November, 2016, I
served a true and correct copy of Plaintiffs’ Sixth Request for the Production of Documents
by electronic mail on all counsel of record.


EXHIBIT G
Redacted
Redacted Redacted
EXHIBIT H
Kansas Secretary Of State

OFFICE OF SENIOR COUNSEL
120 S.W. 10th Avenue
Memorial Hall 1st Floor
Topeka, Kansas 66612
November 21, 2017

VIA EMAIL dale.ho@aclu.org
Dale Ho, Esq.
ACLU
125 Broad Street
New York, NY 10004
Dear Dale:
In response to your letter of November 10, I have reviewed the Court’s May 2016
preliminary injunction and its October 2016 order enforcing the injunction and address your
concerns below.
With regard to your first concern, we disagree that the language on the website is in
violation of the Court’s order. Unlike the past federal election, where registrants lacking DPOC
were deemed to be fully registered under the injunction, that may not be the case in future elections
since the next federal election will take place after the merits of the case are addressed by the
Court. Nonetheless, we agree that the second paragraph is poorly worded so we will just delete it.
We are not, however, waiving our right to add or modify the website’s language should other
issues or concerns arise, or in response to future rulings in this case. As for your concern with
word choice (“subject only to official notice” versus “subject to subsequent official notice”) they
mean the same thing. I do not believe that this warrants the Court’s time.
You also express concern about letters sent by the counties to newly registered voters. The
preliminary injunction is still in place; and we alerted the counties to it as soon as it was in effect,
well over a year ago. If there is a reference to the November 2016 election in a letter, please send
me a copy so I can see which county is using an outdated letter.
You also request that our state-wide manual on elections be revised “immediately.” The
manual is for internal use in election administration and is only revised to reflect legislative action
or permanent changes in state or federal voting law. It is currently scheduled to be revised next
year to incorporate any changes since its last revision in 2014. Temporary changes in law are not
included in the manual; rather, counties are informed of them in real time email or telephonic
communications to ensure that county clerks and election officials are kept current on any changes
in procedure. The notice regarding the injunction is included where voters go to register online
through the website.
785.296.3483 sue.becker@ks.gov www.kssos.org

Regarding issue number three in your letter, those who register to vote using the federal
form or motor-voter form but do not provide DPOC receive the court-ordered notices. The Court’s
order fully addressed what was to be sent to “covered past registrants” and “covered new
registrants,” and ordered that the agreed-to notices be sent. See Order, p. 3. Notices sent to
registrants who are not affected by the preliminary injunction and related state court matters are
outside the scope of the order so it is unclear to what you are referring. Telling me that someone
has learned that someone else was told something is not very helpful. If you think there is
inaccurate information being conveyed by a county, please send me the county election clerk’s
name, who they spoke to, when this was, and what they said. That way we can address it with the
county.
Issue number five, I believe, involves an open records request to the State made by the
Brennan Center on behalf of the League of Women Voters (LWV) back in May 2017. That was
not a discovery request in this case and you previously advised this office that the ACLU had no
involvement in making that request. Attached as Exhibit 1. If the requesters want additional
information or are unhappy with the data they received under the Kansas Open Records Act, please
have them contact me at kora@ks.gov.
Additionally, your letter states that the LWV requested “a list of incomplete voter
registrations,” yet on page 5 it states they requested a “suspense list.” I can tell you that although
the disk that was sent was hand-labeled “Kansas incomplete,” the requester received the suspense
list as of the date of the request. The suspense list contains all registrants whose applications are
categorized as incomplete for one reason or another, including lack of DPOC, lack of address or
signature, as well as those registered under the UOCAVA (Uniformed and Overseas Citizens
Absentee Voting Act). This does not mean that all of those listed are not allowed to vote. To the
contrary, under the preliminary injunction, registrants with an incomplete voter application due to
missing DPOC were allowed to vote in the last federal election. UOCAVA registrants are also
allowed to vote, yet they are listed as having incomplete applications due to federal absentee
procedures. As you know, publishing a suspense list that is further categorized would violate the
NVRA because it would disclose the names of citizens who registered at the DMV. Please also
note that obtaining public records through a KORA request is not synonymous with being served
discovery responses in litigation because public records are produced as-is without explanation.
In other words, your understanding of the use of terminology for litigation is different than how
public records, such as database fields, are actually utilized by election staff.
Last, with regard to discovery, it is unclear what you are requesting. The Court re-opened
discovery so that you could take the Secretary’s deposition, which you took on August 3. Your
letter states that Secretary Kobach was “unable to adequately respond” during the deposition, yet
the Secretary answered all of your questions with Judge O’Hara present. Any issues you had with
his responses should have been raised at that time. If one of his answers was unclear, you had the
opportunity to re-ask the question in a different way.
You also cite to your Sixth Request for Production as the basis for your allegation that he
failed to “comply with his discovery obligations” yet the request you cite simply asks for:

All documents and communications related to draft amendments to the NVRA,

including but not limited to any amendments related to the purported purposes of
preventing, deterring and/or identifying noncitizen registrations and/or attempted
registrations, registration fraud, and/or voter fraud.
We produced all documents relevant to this request, and then you asked him about the
documents in his deposition. He acknowledged that he searched his email and produced what he
had. The fact that he couldn’t recall his exact search terms is irrelevant. If you wanted him to use
specific search terms, you should have included those in your discovery request.
More importantly, however, is that Secretary Kobach testified that he did not delete any
emails that would have been covered by your RFP. See Deposition, pp. 33-37. Indeed, you
deposed the Secretary after you received all of his discovery responses and then questioned him
about the documents, as well as his search for responsive documents. The fact that he routinely
deletes email from his personal email account does not equate to a discovery violation when he
has testified under oath that he did not delete anything that would be responsive to your sixth RFP.
Discovery is now closed. Accusations made more than three months after you took his
deposition are unfounded and harassing in nature. Your suggestion that Secretary Kobach has
participated in a “seemingly intentional withholding of materials responsive” to your one
discovery request is baseless and without merit. If you think this needs the Court’s attention, I
welcome it and will request costs in responding to this.
Sincerely,
/s/ Sue Becker

Sue Becker
Senior Counsel
Admitted in Missouri
Not Admitted in Kansas

EXHIBIT I
November 30, 2017
VIA E-MAIL
Ms. Sue Becker
Office of the Secretary of State
Memorial Hall, 1st Floor
120 SW 10th Avenue
Topeka, KS 6612-1594
Re: Fish v. Kobach: Outstanding Notice and Discovery Issues
Dear Sue:
I write today to respond to your letter of November 21, 2017 and to schedule a meet and confer
regarding the issues raised in my letter of November 10, 2017. As I noted in my November 10,
2017 letter, we would prefer to resolve these issues without the Court’s intervention.
In my November 10, 2017 letter, I asked that Defendant Kobach:
1. Post notices that comply with Judge Robinson’s Memorandum and Order dated
October 14, 2016 (Doc. 241) (“Order”);
2. Modify letters mailed by local elections authorities in response to our requests for
modifications;
3. Revise the State of Kansas: County Election Manual (“County Election Manual”)
immediately to bring it in compliance with court rulings.
4. Instruct local elections authorities to send certificates of registration to individuals

who registered to vote using the federal voter registration form or the motor-voter
registration process, regardless of whether such registrants have submitted
documentary proof of citizenship (“DPOC”);
5. Comply with his obligations regarding the preservation and production of

documents; and
6. Provide a list of incomplete voter registrations responsive to the request of the

League of Women Voters of Kansas (“LWVK”).
1
I address each of these issues in turn below.
1. Post notices that comply with the Order.
Thank you for agreeing to remove the following paragraph from the Kansas Secretary of
State’s (“KSOS”) website:
In future elections, it is unknown whether you will be registered to vote

depending on subsequent court rulings and should provide an acceptable form of
proof of citizenship to your local county election office or to the Secretary of
State to ensure future registration.
We disagree, however, that the notice is now in compliance with the Order. The Order
specifically states that the notice should read:
if you have applied to register to vote using the “Federal Form” voter registration
application (as opposed to the standard ‘state form’) and have not yet provided
proof of citizenship, you are registered to vote…
The notice on your website, however, reads:
if you have applied to register to vote using the “Federal Form” voter registration
application (as opposed to the standard ‘state form’) and have not yet provided
proof of citizenship, you are registered to vote subject to subsequent official
notice.
Rather than confirming to these voters that they are in fact registered to vote, the
additional phrase you have added tells them that they are only registered “subject to
subsequent official notice.” This is confusing and may suggest to covered voters that they
are not in fact registered to vote at this time, and will only become registered if they
receive “subsequent official notice.”
We therefore reiterate our request that you delete this phrase from the notice. This
is a relatively simple matter that will clarify this information for voters, and we do not
understand your insistence on deviating from the plain terms of the Order.
2. Modify letters mailed by local elections authorities.
As we understand the facts, local elections officials—including in Sedgwick County and

Douglas County—are sending letters that contain references to the November 8, 2016
general election. As I explained in my November 10, 2017 letter, the reference to the
November 8, 2016 general election is confusing.
2
Your November 21, 2017 letter asks that we send you a copy of these letters, so that you
“can see which county is using an outdated letter.” I am glad that you agree that this
phrasing is “outdated.”
But, I am troubled that KSOS (claims to be) unaware as to whether local elections
officials are complying with the instructions outlined in the Court’s orders. Your
assertion of ignorance is particularly peculiar with respect to the Sedgwick County Clerk,
Tabitha Lehman, whom KSOS appointed and supervises.
In any event, as per your request, an example of such a letter sent by Sedgwick County is
attached hereto as Exhibit 8. Further, an example of such a letter sent by Douglas County
is attached hereto as Exhibit 9.
We ask that you direct all local elections authorities to immediately delete any
references to the November 2016 election in these letters. Again, this is a relatively
simple matter; deleting a phrase that you agree is “outdated” should not be controversial.
3. Revise the County Election Manual immediately to bring it in compliance with the
Court’s rulings.
As I noted in my November 10, 2017 letter, the County Election Manual is not in
compliance with multiple court rulings. In particular, the Court’s preliminary injunction
order dated May 17, 2016 (“PI Order”) (Doc. 129) directed Defendant Kobach to
“register to vote those applicants whose only infirmity was not having the opportunity to
produce DPOC contemporaneously with their driver’s license applications, or later
because of lack of consistent notice or reasonable opportunity to cure that infirmity.” PI
Order at 66 (emphasis added).
In contravention of this direction, the chapter on voter registration in County Election

Manual states:
Any person registering to vote in Kansas for the first time is required to
provide satisfactory evidence of United States citizenship … Individuals
registered in Kansas before January 1, 2013 are deemed to have submitted
satisfactory evidence of citizenship and are exempt from this requirement
… Any office, person or organization conducting voter registration must
be made aware of this citizenship verification requirement.
The County Election Manual is publicly available on KSOS’ website. As such, your
response that “the manual is intended for internal use in election administration” is
irrelevant—the Manual serves as a continuing notice of incorrect information. Further,
the facts that local elections officials are both (i) sending letters with incorrect
information and (ii) failing to send certificates of registration suggest that any attempts
that KSOS has made to “inform [counties] … in real time email or telephonic
3
communications to ensure that county clerks and election officials are kept current on any
changes in procedure” have apparently failed.
We therefore reiterate our request that you update the electronic County Election
Manual immediately to reflect the current state of the law. It should be a simple
matter to add 1-2 sentences similar to the website notice, explaining that individuals who
apply to register to vote using the “Federal Form” voter registration application (as
opposed to the standard “state form”) and have not yet provided DPOC, are registered
voters.
With respect to hard copies of the County Election Manual that are distributed to local
elections officials, your November 21, 2017 letter states that the County Election Manual
is “currently scheduled to be revised next year to incorporate any changes since its last
revision in 2014.” Please tell us precisely when the County Election Manual is
scheduled for revision, and whether current plans include revisions to conform the
County Election Manual with the Court’s orders in this case. Obviously, if final
judgment is not rendered before the manual is scheduled to be revised, then it should be
revised to conform to the existing rulings in this case.
4. Instruct local elections authorities to send certificates of registration covered voters,

regardless of whether such registrants have submitted DPOC.
As we understand the facts, many counties – including Riley County, Shawnee County,
and Douglas County – are not sending certificates of registration to covered voters (i.e.,
to those who have registered using the “Federal Form” or at the DMV, but who have not
provided DPOC).
Your November 21, 2017 letter suggests that you do not believe that covered voters are
entitled to receive such certificates. As I noted in my November 10, 2017 letter, however,
as a result of multiple court orders, these covered voters are duly registered voters. See,
e.g., Fish v. Kobach, 840 F.3d 710, 743 (10th Cir. 2016) (“the NVRA requires states to
register voters who provide a valid Federal Form) (emphasis added); see also PI Order
at 66 (“The injunction requires [KSOS] to register to vote those applicants whose only
infirmity was not having the opportunity to produce DPOC contemporaneously with their
driver’s license applications, or later because of lack of consistent notice or reasonable
opportunity to cure that infirmity”). And, as such, they are entitled to receive the
certificates of registration that are sent to other registered voters.
Your response letter of November 21, 2017 does not acknowledge that covered voters
should be receiving certificates of registration, and suggests that you are unaware
whether covered voters have been receiving certificates of registration.
We therefore: (1) ask you to please state whether KSOS has instructed local
elections officials to send certificates of registration to covered voters; and (2)
regardless of whether such instruction has been issued previously, request that you
4
instruct local elections authorities to send certificates of registration to all covered

voters.
5. Comply with obligations regarding the preservation and production of documents.
On July 7, 2017, Mr. Garrett Roe produced Defendant Kobach’s final production of
documents. In the transmittal email, Mr. Roe noted:
In order to prepare for a possible deposition and to make sure discovery

[is] complete with respect to this request, Secretary Kobach again
reviewed his correspondence. In doing so, he discovered the attached e-
mail which he did not find when originally responding to the Sixth RFP.
(emphasis added)
I responded to Mr. Roe’s email that same day, see Ex. 5 (attached to my November 10
letter). In light of the fact that Defendant Kobach was apparently “using his personal
[G]mail account for correspondence regarding issues that are relevant in this litigation,” I
requested:
(1) Confirmation that Defendant Kobach had searched his Gmail account for
documents responsive to all of Plaintiffs’ requests; and
(2) Defendant Kobach to provide details regarding the steps that he took to ensure
that all responsive documents had been produced, including the search terms and
other parameters that were used to identify documents.
Yet, as I noted in my November 10, 2017 letter, not only did Mr. Roe fail to respond, but
Defendant Kobach’s deposition testimony (attached hereto as Exhibit 10) also strongly
suggests that Defendant Kobach violated his duty “to take reasonable steps” to “preserve
electronically stored information that should have been preserved in the anticipation or
conduct of litigation.” See Fed. R. Civ. P. 37(e).
First, and contrary to your assertion in your November 21, 2017 letter, during his
deposition, Defendant Kobach did not “testif[y] under oath that that he did not delete
anything that would be responsive to [the] sixth RFP.” Instead, when asked if he had ever
deleted any emails from the Trump transition team, Defendant Kobach first testified that
he did not know. See Ex. 10 at 35:23 – 36:6. He then went on to say that “to [his]
knowledge, [he had] not deleted any emails concerning amendments to the NVRA.” Ex.
10 at 36:11-14 (emphasis added).
Second, Plaintiffs’ Amended Sixth Request for Production of Documents (see Email
from Orion Danjuma to Garrett Roe, dated Jan. 11, 2017, attached hereto as Exhibit 11)
asked for:
5
“[A]ll documents and communications regarding potential amendments or

changes to the National Voter Registration Act affecting how officials
may assess the eligibility of a voter registration applicant.”
Minimal compliance with this request requires searching for “NVRA” and “amendment”
in the same search. Yet, as I mentioned in my November 10, 2017 letter, Defendant
Kobach could not recall whether he had searched for “NVRA” and “amendment” in the
same search. See also Ex. 10 at 35:17-22.
In any event, his recollection about his email deletion practices does not amount to
“confirmat[ion]” that he searched his Gmail account for documents responsive to all of
plaintiffs’ document requests, or provide any details as to how responsive documents
were identified.
As such, your contention that “if you wanted [Defendant Kobach] to use specific search
terms, you should have included those in your discovery request” is unavailing.
Following that logic, appended to every discovery request, there would need to be the
statement: “Please include the terms of the request when searching for responsive
documents.”
We therefore again ask that you:
(1) Confirm that Defendant Kobach searched his Gmail account for
documents responsive to all of Plaintiffs’ requests.
(2) Provide details regarding the steps that Defendant Kobach took to ensure
that all responsive documents had been produced, including the search terms
and other parameters that were used to identify documents.
A request that you confirm that you have searched a particular email account for
documents responsive to “all of Plaintiffs’ requests” is not, as you put it, “unfounded and
harassing.” It is a simple request that you confirm your client’s compliance with his
discovery obligations. If he has in fact done so, confirming this fact should be a simple
matter, rather than something that provokes an angry threat that you will “request costs.”
6. Provide a list of incomplete voter registrations responsive to the request of the LWVK
Your response regarding this request does not address our concerns. As noted, the
LWVK’s request for a list of suspended voters included covered voters—i.e., those who
are, pursuant to various court orders, duly registered, and not “suspended” at all. We
therefore ask that you not improperly designate these duly-registered voters as
“suspended.”
6
A simple way to resolve this matter would be to provide us with a list of voters who
are in fact properly designated as suspended (i.e., a list that does not include covered
voters). We therefore request that you do so.
***
In light of the above, we would like to discuss these requests with you further during a meet and
confer. As I noted in my November 10, 2017 letter, our hope is to resolve these issues without
the Court’s intervention.
As such, we would like to schedule a meet and confer with you on Tuesday, December 6, 2017
at 2:00 pm ET. If that time does not work for you, please suggest an alternate time.
Sincerely,
Dale Ho
Attachments
cc: Kris Kobach

Garrett Roe
7
Exhibit 8
Exhibit 9
JAMIE SHEW
DOUGLAS COUNTY CLERK
1100 Massachusetts
Lawrence, KS 66044
Marni Penrod-Chief Deputy Clerk
Heather Dill-Deputy Clerk Elections
[DATE]
Dear Kansas Voter Registration Applicant,
You are receiving this official notice because you have applied to register to vote and have not
yet submitted an acceptable form of proof of citizenship to this office. This notice is to inform
you that due to recent court rulings, YOU ARE DEEMED FULLY REGISTERED AND
ELIGIBLE TO VOTE FOR ALL OFFICES – federal, state, and local. This means that you
are registered and may vote in the November 8, 2016, General Election. You do not need to
provide additional documents to complete your voter registration at this time. Your name is
included on the Kansas list of registered voters, and you will be given a standard ballot to
complete at your polling place, or you may request an advance ballot by mail, or you may vote
an advance ballot in person.
To find your correct polling location, please visit the Kansas Voter View website at
https://myvoteinfo.voteks.org, click on “Polling Place,” and input your address into the required
fields. Or, you may call this office to request polling place information.
You may contact this office at 785-832-5267, or the Kansas Secretary of State’s office at 1-800-
262-8683, with any questions.
Sincerely,
Heather Dill
Phone: 785-832-5267 www.douglascountyelections.com Fax: 785-832-5192

Exhibit 10
Page 33
1 KRIS KOBACH
2 several transition teams. This was the transition
3 team having to do with the Department of Homeland
4 Security and the issue of immigration. He was on that
5 team. I was on that team, and he was kind of one of
6 the people who was organizing it, coordinating phone
7 calls, things like that.
8 Q. This e-mail is sent from your Gmail
9 account; correct?
10 A. Yes. That is correct.
11 Q. But you did not produce this document to
12 the Plaintiffs until after the motion to compel
13 briefing and order on that motion to compel; correct?
14 A. I think that is correct.
15 Q. Okay. Have you searched your Gmail account
16 for documents that may be responsive to Plaintiffs'
17 other discovery requests in this case?
18 MS. BECKER: Objection. That's
19 attorney-client work product and privileged. And --
20 yeah. And...
21 THE COURT: Objections are overruled.
22 A. Yes. I have searched my Gmail accounts --
23 or account. Singular.
24 Q. (By Mr. Ho) When did you search your Gmail
25 account for responsive documents?

Page 34
1 KRIS KOBACH
2 A. I searched it right after your initial
3 request for production of documents, and then I
4 searched it again whenever we produced this to you a
5 month or two ago.
6 Q. If you conducted a search of your Gmail
7 account for responsive documents right after our
8 request for production, why was this document not
9 identified or produced until months later?
10 MS. BECKER: Objection. That's attorney
11 work product, and his counsel helps with production.
12 THE COURT: Overruled.
13 A. The search criteria probably was the reason
14 it didn't pick up the first time around, and so I used
15 different search criteria evidently the second time
16 around.
17 Q. (By Mr. Ho) Do you have a list of the
18 search criteria that you used for the searches?
19 A. No, but I do -- I -- I can...
20 MS. BECKER: Go ahead.
21 A. I can -- I mean, I think I can shed some
22 light on it. The -- the first time around, I didn't
23 use the term NVRA because, on any given day, I
24 probably send anywhere from -- as many as ten e-mails
25 that contain the word "NVRA." It's -- it's implicit

Page 35
1 KRIS KOBACH
2 in just about everything the Secretary of State does.
3 So I tried using other terms because, otherwise, it
4 would have just pulled up my entire e-mail. You know,
5 all my messages almost. And so I tried using other
6 terms.
7 And the second time around, I think, what I
8 did is I thought, well, maybe I can use the -- the
9 broad term NVRA, which is going to pull in just about
10 every e-mail, but I can look at very specific time
11 periods, rather than looking at an -- I think you
12 asked for multiple years -- rather than looking at
13 multiple years, look at specific weeks. And so I
14 tried that the second time around just to make sure
15 that we had given everything we could to you that
16 was -- that is responsive to your request.
17 Q. (By Mr. Ho) Did you search for the terms
18 "NVRA" and "amendment" in the same search?
19 A. I believe I searched -- oh, in the same
20 search? I -- I can't recall if I searched it in the
21 same search or if I did two separate searches. I
22 don't -- I don't recall.
23 Q. Did you ever delete any e-mails to or from
24 the Trump transition team?
25 A. I don't know. I -- I -- I don't know. I

Page 36
1 KRIS KOBACH
2 do delete e-mails routinely because my Gmail account
3 gets -- it's so -- I have so many e-mails in it that
4 it sometimes hits the max, and it says you can't
5 receive messages unless you delete some messages. So
6 I -- I do delete messages. Longer ones.
7 Q. When you delete messages, what criteria do
8 you use for deleting messages?
9 A. Usually, size so that I can clear up more
10 space in the Gmail account.
11 Q. To your knowledge, have you ever deleted
12 any e-mails concerning amendments to the NVRA?
13 A. No. I -- I -- to my knowledge, I have not
14 deleted any e-mails concerning amendments to the NVRA.
15 Q. When Plaintiffs issued their request for
16 production of documents last year, seeking documents
17 concerning amendments to the NVRA, did you not recall
18 at that time this e-mail? The existence of this
19 e-mail?
20 A. I did not recall that.
21 Q. Have you ever sent any text messages about
22 amendments to the NVRA?
23 MS. BECKER: Objection. I -- outside of
24 the scope of this deposition.
25 THE COURT: Sustained.

Page 37
1 KRIS KOBACH
2 Q. (By Mr. Ho) All right. In this --
3 A. And -- and I want to be clear. I
4 don't reca- -- you -- you asked earlier do you
5 recall -- I just don't recall what the content was of
6 the e-mails that I may have deleted. It's just --
7 mainly, it's by size. So it -- it is conceivable, but
8 I -- I don't know.
9 Q. (By Mr. Ho) In your e-mail to
10 Mr. Hamilton, you write "Thanks. Cindy mentioned it
11 that we will also be putting together information on
12 legislation drafts for submission to Congress early in
13 the administration. I have already" -- "I have some
14 already started regarding amendments to the NVRA to
15 make clear that proof of citizenship requirements are
16 permitted," in parentheses, "based on my ongoing
17 litigation with the ACLU over this."
18 Did I read that right?
19 A. Yes.
20 Q. Okay. When you refer to amendments to the
21 NVRA, is that any -- a reference to Exhibit 1, the
22 draft NVRA amendments we discussed earlier?
23 A. Well, it's a -- as the text of this e-mail
24 says, it's -- it's -- it says I've already started.
25 And so if anything had ever been -- first of all,

Exhibit 11
From: Orion Danjuma

To: Roe, Garrett [KSOS]
Cc: Sophia Lakin; Liu, Angela
Subject: Re: Fish, et al. v. Kobach, et al., Case No. 2:16-cv-02105 (D.Kan.)
Date: Wednesday, January 11, 2017 5:55:45 PM
Attachments: image001.png
Garrett:
I am writing to follow-up on our meet and confer regarding RFP #6 Friday evening, January 6, 2017.
We had a detailed discussion regarding Plaintiffs’ view of why the documents are relevant and why
the privileges invoked by the Secretary do not apply. Plaintiffs agreed to restate the RFP in a manner
that may help us come to agreement.
We request “all documents and communications regarding potential amendments or changes to the
National Voter Registration Act affecting how officials may assess the eligibility of a voter registration
applicant.” For example, a document that references possible “amendments to the National Voter
Registration Act permitting states to adopt documentary proof of citizenship requirements” would
be responsive. We do not need you to produce documents regarding exclusively administrative
amendments to the NVRA that are in no way connected to assessment of voter eligibility. However,
we want to clarify that a document is responsive whether or not it is connected with an actual draft
NVRA amendment. Documents that simply discuss the option or possibility of amending the NVRA
should be produced.
We also discussed at the meet and confer a photographed document held by the Secretary that has
been widely reported in the press (see e.g., http://cjonline.com/news/2016-11-21/kobach-took-
plan-department-homeland-security-trump-meeting). Your proposal that you produce only the
portions of the document related to the National Voter Registration Act would be acceptable to us.
In light of the clarifying information in this email, please let us know as soon as possible, and in any
event no later than close of business January 13, 2017, if you plan to produce documents responsive
to RFP #6.
Thank you,
R. Orion Danjuma
Staff Attorney
125 Broad St., New York, NY 10004
¦ 212.549.2563
¦ odanjuma@aclu.org
www.aclu.org
This message may contain information that is confidential or legally privileged. If you are not the intended recipient, please
immediately advise the sender by reply email that this message has been inadvertently transmitted to you and delete this
email from your system.
From: Liu, Angela [mailto:Angela.Liu@dechert.com]

Sent: Monday, January 09, 2017 6:20 PM
To: Roe, Garrett [KSOS]
Cc: Orion Danjuma; Sophia Lakin
Subject: Fish v. Kobach: Ltr. re Discovery
Hi Garrett,
Please see attached.
Thanks,
Angela
Angela Liu
Dechert LLP
+1 312 646 5816 Direct
angela.liu@dechert.com
dechert.com
This e-mail is from Dechert LLP, a law firm, and may contain information that is confidential
or privileged. If you are not the intended recipient, do not read, copy or distribute the e-mail or
any attachments. Instead, please notify the sender and delete the e-mail and any attachments.
Thank you.
EXHIBIT J

Memo in Motion For Contempt

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Memo in Motion For Contempt

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Case 2:16-cv-02105-JAR Document 424 Filed 01/08/18 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE

STEVEN WAYNE FISH, et al., on behalf )

PLAINTIFFS’ MEMORANDUM OF LAW AND FACTS IN SUPPORT OF THEIR

INTRODUCTION AND NATURE OF THE MATTER BEFORE THE COURT

or, in the alternative, an order to amend court order.

(Doc. 241) (the “Public Notice Order”) at 4 (emphasis added).

Defendant, however, refuses to follow these orders. Specifically:

1. Defendant refuses to treat Plaintiffs—and other Kansans who registered to vote at

2. Defendant refuses to correct erroneous information in his State of Kansas: County

state explicitly that Defendant must:

1. Instruct local elections officials to send certificates of registration to covered

covered voters are exempt from the DPOC requirement.

I. THE OCTOBER 14, 2016 PUBLIC NOTICE ORDER

1. On September 23, 2016, Plaintiffs filed a Motion to Enforce Preliminary

and for Expedited Briefing and Hearing. See Doc. 221.

2. In response to Plaintiffs’ Motion to Enforce Preliminary Injunction; for Order to

Order. See Public Notice Order.

that it would be subject to further official notice.” Id. at 4 (emphasis added).

also must be modified.” Id. at 3.

II. THE JULY 19, 2017 BONNEY LETTER

Order and should be removed.

See Ex. E August 31, 2017 Follow-Up Email from D. Bonney.

III. THE NOVEMBER 10, 2017 HO LETTER

9. On November 10, 2017, Plaintiffs’ counsel sent another letter to Defendant to

November 10, 2017 Letter from D. Ho to G. Roe (“First Ho Letter”).

Court’s orders in several respects. Id.

registered to vote. See Fish, 189 F. Supp. 3d at 1152.

12. A certificate of registration is a notice document mailed to voters who

immediately.” Ex. F First Ho Letter.

Any person registering to vote in Kansas for the first time is

immediately.” Ex. F First Ho Letter.

IV. THE NOVEMBER 21, 2017 BECKER RESPONSE

Election Manual is publicly-available online, it is “for internal use in election administration”

V. THE NOVEMBER 30, 2017 HO REPLY

Ex. I November 30, 2017 Letter from D. Ho to S. Becker (“Second Ho Letter”).

in the First Ho Letter by asking Defendant to:

• “Instruct local elections authorities to send certificates of registration to all

covered voters;” and

VI. THE DECEMBER 7, 2017 MEET-AND-CONFER

24. Defendant’s counsel and Plaintiffs’ counsel held a meet-and-confer on December

7, 2017 to discuss the issues raised in the Second Ho Letter.

workers that states what the law currently is.

revised by June 2018.

modify the language in SOF ¶14 if either:

Supreme Court denied Defendant’s petition for certiorari; or

• The Supreme Court ruled against Defendant on the merits.

See Ex. B December 7, 2017 Ho Email.

30. Following the meet-and-confer, Plaintiffs’ counsel and Defendant’s counsel

VII. THE DECEMBER 11, 2017 BECKER LETTER

J December 11, 2017 Letter from S. Becker to D. Ho (“Second Becker Letter”).

will not receive certificates of registration. Id.1

changed until there is a final change in the law.” Id.

motion.” Premium Nutritional Prods., Inc., 571 F. Supp 2d at 1220.

II. DEFENDANT HAS REPEATEDLY REFUSED TO COMPLY WITH THE

finding him in contempt.

A. Defendant Refuses to Provide Covered Voters with the Same Voter

First, Defendant refuses to instruct local elections authorities to send certificates of

SOF ¶¶ 20, 25, 32.

and voting information that all other registered voters receive.

During a meet-and-confer with Plaintiffs’ counsel, Defendant’s counsel claimed that

undermine the effectiveness of the PI Order.2

such registrants have submitted DPOC.