A coalition is considering a lawsuit challenging the constitutionality of the state’s new voter photo identification law, but Secretary of State Kris Kobach is confident the law will hold up in court.
The need to pay for some underlying documents in order to obtain a free ID appears to be a key issue, although the Kansas Voter Coalition wouldn’t talk about specific legal strategies. More than a half-dozen groups, including the Kansas chapters of the League of Women Voters and American Civil Liberties Union, make up the coalition.
“We are considering a suit if there continues to be barriers to voting and requirement to have to pay for documents in order to vote,” said Ernestine Krehbiel, president of the Kansas League of Women Voters. “Paying to vote is a poll tax.”
But Kobach, the primary author of the law the Legislature passed last spring, said it was meticulously drafted so that it would be “bulletproof in court.”
“I’m very confident that if any group tries to bring a lawsuit they’ll be wasting a lot of time and money for their efforts,” he said.
Legal experts disagree on whether a 2008 U.S. Supreme Court decision can be interpreted as broadly as Kobach does in supporting his claims.
The Kansas coalition is consulting about the issue with the Brennan Center for Justice, a public policy and law institute at New York University.
“I wouldn’t put us in the starting blocks for litigating anything in Kansas,” said Keesha Gaskins, an attorney at the center. “It obviously remains on our radar.”
The voter ID law is particularly in the forefront in Wichita as the city approaches a Feb. 28 special election on the proposed Ambassador Hotel downtown. The law took effect Jan. 1, so the special election will be one of the first to require voters to show a photo ID at the polls.
15 states have ID law
Fifteen states have some form of voter ID law. Kansas is one of 10 that have a strict voter photo ID law; eight passed their laws in 2011.
At least three – South Carolina, Texas and Wisconsin – are involved in court action. South Carolina and Texas, which must receive federal clearance for any changes in their voting laws under the Voting Rights Act of 1965, have sued the U.S. Justice Department for blocking their voter photo ID laws.
The Wisconsin League of Women Voters and the ACLU have recently filed separate lawsuits challenging the Wisconsin law, citing a kind of poll tax – prohibited by the U.S. Constitution’s 24th amendment – on some voters who lack the documents to get an approved ID.
The Kansas coalition appears to be following similar thinking.
The state law requires voters to show a photo ID such as a driver’s license or passport. Although the law allows for a free photo voter ID, there can be charges for documents needed to get that ID, such as a marriage certificate or out-of-state birth certificate.
“This is very anti-woman,” Krehbiel said, noting that married women who don’t keep their maiden names would need to pay $15 to get a copy of their marriage license, if they don’t have one.
Although the law can waive the usual $15 fee for a Kansas birth certificate, a person born out of state would have to pay the going rate in that state to obtain one.
A person doesn’t need a birth certificate to get a photo ID, but it is the most common document of the 13 acceptable items to prove U.S. citizenship to get the ID. Proof of citizenship is also required for those registering to vote for the first time under a law that takes effect Jan. 1, 2013; Kobach is trying to get the Legislature to push the date up to June 15.
Kobach said the 2008 Supreme Court decision in Crawford vs. Marion County (Ind.) eliminates the possibility of charges for supporting documents being considered a poll tax.
“And Indiana’s law didn’t go as far as we did in providing a free birth certificate (for those born in Kansas),” he said, adding that provision was made “to ensure that we make it as easy as possible to comply with the law.”
The Indiana law does allow people without a photo ID to cast provisional ballots. They will have 10 days to go to the county election board and sign an affidavit that says they are who they say they are and they don’t have the money to pay for documentation to prove identification.
The Supreme Court ruling made note of that provision, saying it lessened the “severity” of the burden of providing a photo ID.
Kansas also allows for provisional ballots, but it still requires the voter to later show proof of ID to a county election official.
Regardless, Kobach said, the possible charges for some supporting documents for a Kansas ID can’t be considered a poll tax “because the same argument would have been true for Indiana.”
In the ruling, the Supreme Court affirmed a ruling by the Seventh Circuit Court of Appeals that “declined to judge the law by the strict standard set for poll taxes … finding the burden on voters offset by the benefit of reducing the risk of fraud.”
Dan Tokjai, an Ohio State University law professor who specializes in election law, said the Crawford ruling said only that Indiana law wasn’t unconstitutional on face value.
“It’s still possible for individual voters – people who are really poor or homeless – to challenge its application in certain circumstances,” Tokjai said. “It would be misleading to say without qualification that Crawford means all these are constitutional.
“That’s an important qualification, one that I’m sure Secretary of State Kobach’s office would prefer to glide over. But it’s an important one for people who actually pay attention to what the law says.
“The question of whether these laws are constitutional, as applied to individuals burdened by them, is very much alive.”
Real people’s stories
Gaskins, with the Brennan Center for Justice, said the possibility of charges for supporting documents “remains an open question.”
“You have the technical legal question: The cost of the underlying documentation is not a poll tax,” she said. “In terms of how we think about poll taxes as human beings, if it’s going to cost money for me to get to the polls, it’s a poll tax.”
She noted the Supreme Court didn’t consider specific circumstances, or people directly affected by having to pay for supporting documents.
So it’s not surprising that the Kansas coalition wants to make specific incidents part of any legal action it might take.
“It is important to provide real stories,” said Doug Bonney, chief counsel and legal director for the ACLU in Kansas and western Missouri.
“What we really need are some plaintiffs, like some elderly people who have been voting for years and years,” she said.
The ACLU did that in the lawsuit it filed in December in Wisconsin.
One of its plaintiffs is an 84-year-old woman who serves on her village board and has voted regularly since 1948. She has never had a birth certificate, the lawsuit says, because she was born in a house. The state has a record of her birth, which would allow her to have birth certificate made, but her maiden name is misspelled in those records.
She would have to pay $200 to get the spelling corrected, far more than the normal $20 fee for a birth certificate.
Lining up plaintiffs can be tricky, Gaskins said.
“You run into trouble because the minute you identify them, then you can get them help and it becomes moot,” she said.
An appeal process
Kobach said that if it’s clear a Kansan is U.S. citizen but has run into an unusual obstacle in trying to obtain a photo ID, his office will work to make it happen and common sense will prevail.
“If for whatever reason if they’re finding it difficult to get a photo ID because of costs, we’ll provide it for free,” he said. “We really bent over backward drafting the bill to accommodate every conceivable difficulty that someone might have.”
He noted the voter ID law contains an appeal process that would provide a solution to the Wisconsin woman’s problem without a charge.
“That person can simply petition the state election board to acknowledge their citizenship,” he said. “They could send in an affidavit from people who lived next door, a sister who was born in the same house. They can establish citizenship through affidavits.”
Meanwhile, an election with all the trappings associated with the photo ID requirement is coming up for Wichitans. Kobach said he will be in town on Feb. 28 to observe how it goes.
“It’ll be a good exercise,” he said.