Ever since the Kansas Secure and Fair Elections Act went into effect in 2013, there has been a seemingly endless string of legal battles over its legitimacy. The controversial law requires people to provide proof of citizenship when registering to vote. It was authored by Secretary of State Kris Kobach, who believes the law protects Kansas from fraudulent voting.
Here, a look into the wonderful world of state and federal lawsuits to find out how the SAFE Act may affect upcoming elections in Kansas.
In the beginning
Back in 2014, Kris Kobach stood on the steps of the federal courthouse in downtown Wichita after a long day of court proceedings.
“This case is about Kansas’ right as a sovereign state to enforce our voter qualifications—specifically that voters must be U.S. citizens," he said.
Kobach was suing the U.S. Election Assistance Commission because the agency refused to add proof-of-citizenship requirements to federal voter registration forms distributed within the state. He said the discrepancy created a loophole, and that undocumented immigrants could elude state law and potentially cast ballots.
“There are so many close elections," Kobach said. "If you just have a handful of aliens who have voted in that election, that could swing the result and steal the election.”
Since those court proceedings took place, the rules for voter registration in Kansas have resembled a game of ping-pong, with each side alternately scoring and losing points. The federal judge presiding over the 2014 case ruled in favor of Kobach, and ordered the EAC to change the federal voter registration forms--not only in Kansas, but also in Arizona, where similar proof-of-citizenship laws exist.
However, an appeals court blocked that ruling, stating that the EAC is not required to simply rubber stamp any and all requests from individual states. Kobach attempted to appeal to the U.S. Supreme Court, but was denied.
Point, SAFE Act opponents.
Kobach then decided that if Kansans are able register to vote using a federal form and not provide a birth certificate or passport, he would only count their votes in federal races, not state or local ones.
Challenging the two-tiered system
The move created what’s called a two-tiered voting system, and it was used in the 2014 elections. But two voters, along with lawyers for the ACLU, eventually challenged the legality of the system and filed a lawsuit in a Shawnee County court. A ruling was handed down in January of this year:
The court found these actions taken by the defendants to limit and compromise the voting rights of the two Plaintiffs because of their personal election to register by way of the federal form were wholly ad hoc and ultra vires and without the authority of Kansas statue and were clearly beyond the scope of any existing regulatory authority, if any, that had been exercised to such end by the Secretary of State.
The 30-page ruling essentially said that the Secretary of State doesn’t have the authority to establish a two-tiered voting system, and that these two individuals shouldn’t have been punished for using the federal form.
Point, SAFE Act opponents.
However, the court decision didn’t do away with the two-tiered system in Kansas. Dale Ho, director of the ACLU’s Voting Rights Project and whose organization worked on the case, explains that's because the court's ruling was just a statement of law.
"It didn’t actually direct the secretary [of state] to do anything, and that’s because while the lawsuit was pending, our clients in that case became registered to vote themselves," Ho says. "So, there wasn’t really anything that the state court needed to order at that time.”
The entire suspended voters list in Kansas wasn’t challenging Kobach and the two-tiered voting system-- it was only those two individuals, and they eventually became registered to vote. So the thousands of other suspended voters weren’t really impacted by the ruling.
“For people who’ve tried to register to vote over the last three years in Kansas, it’s been a significant problem," Ho says. "Somewhere around 13 percent of everyone who’s tried to register to vote since that time has ended up caught in this suspense list.”
"You can't be half-registered"
It was around this time that a newly appointed executive director of the Election Assistance Commission, Brian Newby, who previously worked under Kobach as the Johnson County Election Commissioner, unilaterally added proof of citizenship mandates for the federal forms in Kansas., Alabama and Georgia. So with both federal and state forms requiring the same thing, the issue of a two-tiered system was cleared up.
Kobach also began purging the suspended voters list. If potential voters didn’t complete their registration within ninety days, their names were removed and they had to start the process over again.
That meant it was impossible to register to vote in Kansas without proof of citizenship. And it was a big point for Kobach.
But then came a federal court ruling in May of this year that said forcing people to provide birth certificates or passports while registering to vote at motor vehicle offices is a violation of the federal "Motor Voter" law. Roughly 55 percent of voters in Kansas registered at the DMV; the federal judge ordered Kobach to register more than 17,000 people who had been stuck on the suspended voters list.
That’s a big point for SAFE Act opponents.
Kobach has since complied, but is only allowing these individuals to cast ballots in federal elections, not state or local ones--essentially bringing back the two-tiered system for these roughly 17,000 people. The ACLU is now suing Kobach, hoping to use the previous Shawnee Court ruling as legal precedent.
“A voter is either registered or not," Ho says. "You can’t be half-registered and only be permitted to vote for some offices, but not others.”
The ACLU lawsuit filed last week seeks to dismantle this dual voting system. The organization would like to see those 17,000 suspended voters cast ballots in state and local races--not just federal ones--without having to provide proof of their citizenship. A court date has been set for July 29—just a few days before the Kansas primary election.
What it means for the primary
So, for now, this game of ping-pong is suspended. Meanwhile, local election officials have no choice but to prepare as best they can. Sedgwick County Election Commissioner Tabitha Lehman says it’s been difficult to keep up with all the changes.
“Some things we’ve gotten a little bit of a warning because we can see the court cases as they’re going on," she says. "We’re used to rolling with the punches, but in this case, sometimes it just feels like the punches just keep right on coming.”
Election offices have been instructed to identify the suspended voters in their county who registered to vote at a motor vehicle office. When these individuals head to the polls, they’ll vote provisionally.
“We currently have over 4,400 who are in that status," Lehman says. "They will get the normal ballot, but then we are required to count only the federal races.”
Lehman says those 4,400 people in Sedgwick County still have time to provide their proof of citizenship in order to vote normally. As for the provisional method, it’s a lengthy process. Voters that are suspended for any reason will receive a paper ballot that is marked as provisional. Those ballots will be set aside and not counted on election night. They’ll be processed over the following week, and each and every one will have to be approved, or thrown out, by the members of the Sedgwick County Commission.
Lehman says the impact of holding onto ballots for a week after Election Day is unknown.
“It’s going to be fluid. So saying right now how much of an impact it will have, I just don’t know. I can’t even speculate, because it’s not a known factor yet," she says.
All of these decisions don’t take into account the thousands of other suspended voters who didn’t register at a motor vehicle office, but rather through the mail or with the county. Their paperwork is still considered incomplete after failing to provide proof of citizenship, and many of them have been purged from the voter rolls and won't be able to vote on Aug. 2.
So, as of now, that’s how the primary elections in Kansas will work. And, barring another court ruling, that’s how they’ll work in November, too.
Follow Sean Sandefur on Twitter @SeanSandefur.
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