Former Republican Kansas Secretary of State Kris Kobach rewrote the rules for voting in Kansas. Laws he pushed for required voters to show citizenship papers to register and ID at the polls. He secured prosecutorial powers for his office.
Kobach’s term only ended a couple weeks ago, but some cornerstones of his legacy are already starting to crumble.
A federal court knocked down the state’s voter registration rule last summer. Interstate Crosscheck, a voter records system that Kobach said could help states maintain their voter rolls and spot double voting, is currently on hold and could be abandoned.
The new secretary of state wants to take the spotlight off the office. Republican Scott Schwab was sworn in on Jan. 14 and quickly backed one significant change.
Prosecutorial power on the outs
With Schwab’s blessing, the Kansas House Corrections Committee voted Wednesday to take away the secretary of state’s power to prosecute voting crimes.
The move would have local prosecutors and the attorney general’s office handle any such cases. Schwab, who is not a lawyer himself, noted the A.G.’s office now has a fraud division utilized by other state agencies.
“It’s becoming a clearinghouse of fraud, which is a lot more efficient government,” Schwab told the House Elections Committee in a briefing this past week.
When Kobach was pushing for the authority in 2014, he argued local officials needed the help pursuing voting crimes.
“There’s no statewide official who can go after this double voting that still occurs,” he said at the time.
Attorney General Derek Schmidt said his office is ready to take on the duties, although he doesn’t expect many cases.
Kobach filed barely more than a dozen criminal cases related to voter fraud since he got the power to do so in 2015.
The Corrections Committee’s chairman, Republican Rep. Russ Jennings, said it never made sense to grant the secretary of state prosecutorial authority because not every person to hold the office will be an attorney like Kobach.
“Why would you grant authority to a non-attorney to make prosecutorial decisions?" Jennings asked. "We should unring that bell and roll it back.”
Kobach didn’t speak or submit testimony during a hearing on the bill to remove prosecutorial powers. No one opposed the legislation at the meeting.
Registration requirements in suspense
Before prosecutorial power came into play, Kobach pitched strict voter ID and registration requirements as ways to prevent voter fraud. When lawmakers passed the Secure and Fair Elections Act in 2011 he argued it made elections safe from tampering and kept non-citizens from voting.
The legislation has been a lightning rod. Critics called the proof-of-citizenship requirement for registration onerous. They said requiring paperwork such as a birth certificate was blocking legitimate voters. The ACLU later sued.
A federal court, siding with the ACLU, knocked down the registration requirement last year, ruling that the law violates the National Voter Registration Act and the U.S. Constitution. That ruling was appealed, and the attorney general has taken over the defense.
“As long as it’s the law of the state of Kansas, I think it deserves a proper defense,” Schmidt said.
Democratic state Rep. Brett Parker plans to introduce a bill to repeal the SAFE Act, but he admits the issue doesn’t have the urgency it once did.
“The court, at least for the time being, has solved that problem for us,” Parker said in an interview.
The chairman of the House Elections Committee, Republican state Rep. Bill Sutton, also doesn’t expect much effort to repeal the law while the legal fight continues.
“We’re putting the cart before the horse if we try to change the law before we’ve even interpreted what the law is,” Sutton said in an interview.
Jumping ship from Crosscheck
Some of the voter fraud cases Kobach pursued with his prosecutorial power were instances of double voting identified through Crosscheck.
The system was set up by Kobach’s predecessor in 2005 as a way to compare voter rolls between states. An advocacy group that opposes Crosscheck says more than 20 states are still considered members, but more and more states are dropping out.
Illinois and Colorado announced just this month they are withdrawing over concerns about the security of voter information and the quality of the data.
A federal judge ruled Friday that a class-action lawsuit claiming Crosscheck violated voters’ privacy rights can move forward. The system has also been criticized for producing false matches.
“From the beginning, Crosscheck has been riddled with problems,” Colorado’s secretary of state, Jena Griswold, wrote in a letter notifying Schwab that her state was canceling its membership.
Griswold urged Schwab to shut down Crosscheck and join the Electronic Registration Information Center, an alternative system created in 2012 by a coalition of states that now includes 26 states and the District of Columbia.
To join ERIC, Schwab said the state would have to pay $50,000 plus an annual fee.
“The ERIC system is an elite system,” Schwab told the House Elections Committee. “You get what you pay for.”
It’s not clear yet if Kansas lawmakers will take any action on Crosscheck. They may not need to, if member states decide not to submit new data.
Schwab said he’s conferring with member states to see how to proceed. A lack of enthusiasm could mean the end of the system.
“It’s been politicized,” Schwab said of Crosscheck. “The intent of it was really, really good.”
Schwab is urging lawmakers to hold off on other major changes to state voting policy so local election officials can make sure all their staff are trained on Kansas’ current laws.
“Just breathe this year,” Schwab said. “See how we do in this fall [municipal] election.”
Stephen Koranda is Statehouse reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. Follow him on Twitter @kprkoranda.
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