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Kris Kobach laying groundwork for two-tier voting system in Kansas

  • The Wichita Eagle
  • Published Friday, Oct. 4, 2013, at 9:09 p.m.
  • Updated Tuesday, Dec. 31, 2013, at 8:22 a.m.

With court action over the state’s proof-of-citizenship voting law looming, Secretary of State Kris Kobach is laying groundwork for a system that would allow some voters to vote in all elections while others could only vote for Congress and presidential tickets.

Rep. Jim Ward, D-Wichita, an opponent of the proof-of-citizenship law, said he received confirmation from the Department of Legislative Research this week that Kobach is moving forward with the plan to limit voters who follow federal registration rules to voting only in federal elections.

Separately, a memo to all the state’s county election officials outlines procedures for identifying and tracking voters who use the federal form and creating a separate category for them in voting databases.

“Many counties probably have had very few federal forms submitted over the years,” said the memo from state Election Director Brad Bryant, dated July 31. “Regardless of the number, beginning now you must track which voter registration applicants in your county have applied using the federal form since January 1, 2013.

“This means you should take note when a federal form comes to your office and keep a list of the names of individuals who submit them … Whichever form a person uses, if an applicant does not submit a U.S. citizenship document, you must follow up and request one.”

Voters who fill out the state form and don’t submit the citizenship proof have their voting privileges suspended until they do. At present about 17,500 voters are “in suspense.”

Kobach, Bryant’s boss, confirmed he’s planning for elections with different ballots for different voters, depending on whether they register under federal or state rules. He said it’s “merely a contingency plan” in case he loses a lawsuit seeking to make federal officials adopt Kansas rules for voters in Kansas.

The plan creates three classes of registered voters, according to the Legislative Research report provided to Ward on Thursday:

• Voters using either the federal or Kansas form and providing state-required documents proving their citizenship would be able to vote in all federal, state and local elections.

• Voters who use the federal form but don’t provide citizenship documents will be allowed to vote only for candidates running for president, vice president and Congress.

• Registrants who file a Kansas form but don’t provide citizenship documents will be put in suspension and won’t be allowed to vote in any election.

Fallback plan

The citizenship requirement is separate from Kansas’ requirement that voters provide photo ID at the polls. While most people use their driver’s license for that, it’s generally not sufficient proof to register to vote in Kansas.

State law and state registration forms require voters to provide a document proving citizenship, generally a birth certificate or a passport. Some specialized identifications also suffice for voters in special circumstances, such as naturalized citizens, citizens born overseas, citizens who were adopted and members of federally recognized tribes.

The federal voting registration form does not require a document proving citizenship. Instead, it requires prospective voters to sign a sworn statement that they are citizens under penalty of perjury.

Kobach said the “bifurcated” registration system is a fallback position in case he loses a court challenge against the Election Assistance Commission, a federal agency created to streamline voting that sets rules and publishes the federal registration form.

Kobach and Arizona Secretary of State Ken Bennett have sued the EAC for refusing to add their states’ proof-of-citizenship requirement to the instruction sheets that accompany the federal form, which is not widely distributed in Kansas but can be downloaded and copied from the Internet.

“Our hope is that the court will issue an injunction in that suit requiring the EAC to comply with Kansas law,” Kobach said. “If they do, that will close the loophole” of using the federal form and not providing the Kansas-required proof-of-citizenship.

Kobach wrote the state voter-ID law and shepherded it through the Legislature in 2011, saying it was necessary to prevent fraudulent voting by immigrants. The requirement for documents proving citizenship took effect Jan. 1 of this year.

The challenge to Kansas law has grown since an Arizona proof-of-citizenship law similar to Kansas’ was struck down in June by the U.S. Supreme Court. The court ruled it conflicted with the federal Motor Voter Act, a law designed to make registration more consistent from state to state and require driver’s license bureaus to provide voter-registration forms.

Kobach’s legal analysis of the decision is that it applies to federal elections only.

“The federal government doesn’t have the authority to tell Kansas what to do in Kansas elections,” he said.

That, too, will probably have to be decided by a court.

The American Civil Liberties Union has notified Kobach that it intends to sue in mid-November if he doesn’t stop suspending voters for not filing citizenship papers. The ACLU contends that he’s defying the Supreme Court and has erected “unnecessary bureaucratic hurdles (that) have deprived thousands of Kansans of their right to register to vote.”

Federal form

While use of the federal voting form has been rare in Kansas, it may soon become more common.

After proof-of-citizenship took effect, sidewalk and door-to-door voting registration drives ground to a halt because of the impracticality of getting the needed documents to complete the process.

Now some advocates, including Ward, say they’ll switch to the federal form as a work-around.

“If you file the federal form, you can at least partially participate in elections,” said Ward, who added that he registers about 400 voters as he walks his precincts each election.

Kobach was critical of that, saying it would be odd for a candidate to register voters who might not be able to vote for him.

“If he does (use the federal form), he’ll be doing a great disservice to his voters because they potentially may not be registered for Kansas elections,” Kobach said. “If they’re U.S. citizens, they should have no problem proving their citizenship.”

Ward said it’s Kobach who’s doing voters a disservice by demanding documents that most people don’t have close at hand and that Congress and the Supreme Court says they don’t have to provide.

He said he once asked Kobach how to collect the documents in a registration drive and Kobach’s response was “carry a copy machine with you.”

“It was a snarky response, but I think it tells you his attitude toward the right to vote,” Ward said.

He said he thinks Kobach will lose in court and the federally registered voters will eventually be granted full Kansas voting rights.

‘Some resolution’

The Kansas County Clerks and Election Officials Association has yet to take a stand on Kobach’s instructions for separating out the voters who use federal forms, said Sharon Seibel, the county clerk of Ford County.

“Hopefully, there will be some resolution to all this” before next year’s statewide elections, Seibel said.

Kobach’s direction will be a topic of discussion when the clerk’s association meets Oct. 30 in Wichita.

Kobach appoints election commissioners for the state’s four most-populous counties: Sedgwick, Johnson, Shawnee and Wyandotte.

In the other 101 counties, elections are run by the county clerks. They’re directly elected by voters and are often the longest-serving, best known and most influential local officials in their county.

Sherman County Clerk Janet Rumpel, the immediate past president of the association, said she has asked the Secretary of State’s Office for clarification on whether she would have to prepare two sets of ballots for primary and general elections every two years on the chance somebody files a federal registration form – which she has never actually seen.

“It would be a nightmare for us,” she said.

Seibel declined to share an opinion on the plan for bifurcated voting, saying it would be irrelevant.

“I’m a county election official, I will abide by the law,” she said.

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

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