As the state Legislature prepares for a special session to rewrite an unconstitutional criminal-sentencing law, Wichita Democrats are planning to reopen the debate over a voter proof-of-citizenship law they maintain is equally unconstitutional.
Secretary of State Kris Kobach, who wrote the law requiring new voters to provide citizenship documents, said he thinks it would withstand court scrutiny, unlike an Arizona law that recently was overturned by the Supreme Court.
And even if it didn’t, Kansas could create two classes of voters: those who provide the proof required by state law and could vote in all elections and those who don’t and who would be limited to voting only in congressional and presidential elections, Kobach said.
At Gov. Sam Brownback’s direction, lawmakers will gather Sept. 3 in Topeka to rewrite the state’s Hard 50 sentencing law because the U.S. Supreme Court last month invalidated a similar Virginia law.
Now, Rep. Jim Ward and Sen. Oletha Faust-Goudeau, both D-Wichita, say the same logic should apply to a Kansas law mandating that prospective voters provide documents proving their citizenship, because the Supreme Court also struck down a similar Arizona law, saying that it conflicted with the federal “motor voter” law.
Since the law went into effect at the beginning of the year, between 12,000 and 13,000 new Kansas voter registrants have had their voting privileges suspended because they didn’t provide birth certificates, passports or other citizenship documents when they registered.
“If the scope of the special session is addressing unconstitutional laws, perhaps we want to look at that voter-suppression bill that has left 12,000 people unable to complete their registration that the U.S. Supreme Court has determined in that Arizona case is unconstitutional,” Ward said.
“If we’re being proactive to make sure that really bad criminals stay in jail, we should be equally proactive to protect voter rights for at least 12,000 Kansans.”
Kobach said the comparison of the Hard 50 law to the voter registration law is misplaced.
He said the Arizona law required voter registrars to reject applications that didn’t come with proof of citizenship. Under Kansas law, clerks accept the form but suspend the registrant’s voting privileges until he or she provides the proper documentation.
Ward scoffed at that analysis, saying that Kobach is “drawing a distinction without a difference.”
“The bottom line is you don’t get to vote,” he said.
Kobach suggested that the legislators who think Kansas’ law is unconstitutional read the Supreme Court opinion in the Arizona case.
“All it said was if a voter used a federal (registration) form, that should be sufficient to register and vote for federal elections only,” Kobach said.
The federal form, available on the Internet, is seldom used in Kansas. Almost all voters here register on a state form, which is the only type provided in motor-vehicle offices, Kobach said.
Historically, the state has accepted the federal form as registration for federal, state and local elections. Voters who use it have to sign sworn statements that they are citizens, but it doesn’t request any documented proof.
Kobach said a state would be within its rights to accept the federal form only for federal elections and require a different registration form, with a higher standard of citizenship proof, to vote in races for state and local offices.
“That is a realistic option for a state to take,” Kobach said. “We’re assessing that currently in our office whether Kansas will do that.”
Both Ward and Faust-Goudeau said they are poised to try to attach an amendment to scrap the proof-of-citizenship law as the Hard 50 cleanup bill passes through their chambers of the Legislature.
It is most likely that Faust-Goudeau would be the one to offer that amendment because conservative Republicans in control of the Statehouse have recently been starting bills on the Senate side, where they have a stronger hold on the majority. Bills that pass the Senate then go to the House for a yes-no vote without the opportunity for amendments.
“I think it’s a great opportunity to revisit this (proof-of-citizenship) issue,” Faust-Goudeau said. “It might get shot down, but I think it’s worth a shot.”
Senate Majority Leader Anthony Hensley, D-Topeka, said he sent Attorney General Derek Schmidt a letter asking for a legal opinion on the constitutionality of the proof-of-citizenship law about six weeks ago and has gotten no response.
At the same time, though, he has been campaigning to try to keep the special session focused on the Hard 50 cleanup bill.
He criticized Republican plans to also hold Senate confirmation votes on several Brownback nominees for judgeships and other offices without the lengthy vetting that such nominations might get in a regular session.
“If there are other issues introduced by the other side, I think it’s appropriate what Jim and Oletha have been saying” about raising the voter registration issue, he said.
Kobach said if the Democrats do bring up the proof-of-citizenship law, they’re virtually assured to lose.
“It passed with overwhelming support” the first time through the Legislature and is still highly popular with the state’s voters, he said.