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Kobach thinks Kansas voting law unaffected by Supreme Court ruling

  • The Wichita Eagle
  • Published Monday, June 17, 2013, at 4:45 p.m.
  • Updated Tuesday, August 27, 2013, at 9:38 a.m.

Kansas Secretary of State Kris Kobach said Monday that he intends to continue enforcing a state law that requires new voters to provide proof of citizenship, even though the United States Supreme Court struck down Arizona’s proof-of-citizenship law.

Kobach said the Kansas Secure and Fair Elections (SAFE) Act is different enough from Arizona law that he does not think that the Supreme Court ruling affects its constitutionality.

The Supreme Court struck down Arizona’s law in a 7-2 ruling, saying it conflicts with provisions of the National Voter Registration Act passed by Congress in 1993. That federal law is widely known as the “Motor Voter” act because it requires states to offer voting registration in conjunction with issuing drivers licenses.

Most of the justices joined an opinion by Justice Antonin Scalia, who said Arizona’s requirement violated a section of the federal law that requires states to “accept and use” a standard federal form for voter registration.

That form only requires prospective voters to swear under penalty of perjury that they are a U.S. citizen. It does not require them to produce citizenship documents as the Arizona and Kansas laws do.

While Kobach wrote the Kansas statute on voter ID – and has advised and represented Arizona on its immigration law – he said he had no role in drafting Arizona’s voter ID requirements, which were established by a ballot initiative in 2004.

He said when he wrote the SAFE Act for Kansas, which he introduced in January 2011, he was aware that an appeals court had already ruled against Arizona and took an approach that he thinks would withstand a similar challenge.

While Arizona law requires that voter registrars reject federal forms that aren’t accompanied by proof of citizenship, Kansas law requires election officials to accept the form and add the voter to the registration roll, Kobach said. The registration is then put “in suspense” until the voter provides citizenship proof, such as a birth certificate or passport, he said.

Although the voter cannot actually vote until providing the proof, Kobach said he thinks the acceptance of the form answers the Supreme Court’s objection to the Arizona law.

“Our statute specifically says the county official will accept any federal registration form and use it, too,” he said. “We don’t reject forms like Arizona did.”

Part of Scalia’s opinion appeared to address that issue and discussed at length the meaning of the terms “accept” and “use.”

Scalia wrote that it is arguable that the act of receiving the form constitutes accepting it, in much the same way a store might accept credit cards but require ID to complete a purchase.

But Scalia also wrote: “Words that can have more than one meaning are given content, however, by their surroundings. And reading ‘accept’ merely to denote willing receipt seems out of place in the context of an official mandate to accept and use something for a given purpose. The implication of such a mandate is that its object is to be accepted as sufficient for the requirement it is meant to satisfy.”

Kobach said in the coming months, the ruling will be parsed by legal scholars to determine exactly what it means. For now, he said he plans to continue the process of fine-tuning regulations and continuing implementation of the Kansas requirement for citizenship proof, which officially took effect Jan. 1.

Kobach, who has worked as a professor of constitutional law, said Supreme Court rulings can themselves be ambiguous and that advocates for both sides in the proof-of-citizenship battle will scour the ruling for sentences supporting their positions.

“We’ll obviously continue to watch the situation closely,” he said.

Reach Dion Lefler at 316-268-6527 or dlefler@wichitaeagle.com.

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