At least 11 noncitizens successfully registered to vote in Sedgwick County before the state started requiring documented proof of citizenship three years ago, election Commissioner Tabitha Lehman testified in court on Wednesday.
In addition, 14 noncitizens attempted to register but were turned down after the requirement was put in place, she said.
Of the noncitizen registrants, three actually voted and one was prosecuted, she said.
Lehman said she had no knowledge that any of them were “purposely trying to defraud the system.”
Lawyers for the American Civil Liberties Union said the number, spread over more than 10 years, was negligible when compared to the approximately 18,000 voters statewide whose registration is in limbo because they didn’t provide citizenship proof.
Secretary of State Kris Kobach said he thinks the handful of noncitizen voters caught represents a small fraction of noncitizens registered to vote in Kansas.
Lehman was the only witness called in a court hearing into the lawfulness of Kobach’s two-tiered voting system, in which some Kansas voters are allowed to vote in federal elections but are barred from having their votes counted in state and local elections.
Kobach created the two-tier system after federal courts ruled that the state’s proof-of-citizenship requirement conflicts with the federal “motor-voter” act requiring that state driver’s license offices also offer voting registration.
Topeka District Judge Larry Hendricks issued a temporary injunction blocking the use of the two-tier system in the August primary, allowing federal and DMV registrants to vote on all the offices on the ballot.
Wednesday’s hearing was to consider whether Hendricks should make that injunction permanent.
Hendricks clarified to the Associated Press later Wednesday that his temporary ruling remains in effect for the November election, saying his earlier order stands until he issues a new decision.
Splitting the voting roll
The hearing was the latest in a series of court actions over the differences between state and federal voter registration laws and how they should apply in Kansas.
Both systems require that voters be U.S. citizens.
Federal law accepts a sworn affidavit of citizenship as proof to vote.
Kansas law requires the prospective voter to prove citizenship using documents, usually a birth certificate or passport.
The proof-of-citizenship requirement is separate from the requirement that voters provide photo ID to prove their identity at the polls, and it cannot be met with a state driver’s license.
Because the U.S. Constitution divides responsibility for elections between the federal and state governments, the federal court rulings have addressed only federal elections, for president and Congress.
In Topeka, the ACLU is arguing that applicable state law doesn’t allow Kobach to split the voting roll and that all voters, whether they register using the state or federal process, must be allowed to vote in elections at all levels.
A numbers game
Of the 11 noncitizen voters Lehman identified, 10 have since become citizens. Nine were identified when they filed to register to vote at their naturalization ceremony, according to a spreadsheet filed as part of Lehman’s testimony.
The noncitizens who attempted to register after the proof-of-citizenship requirement passed were a mix of naturalized citizens who were identified when they actually became citizens and those whose registration attempts were canceled after they couldn’t provide citizenship proof. Several withdrew their own applications.
Hendricks did not appear to be noticeably moved by Lehman’s testimony, saying, “I don’t see anyone in here (who continued to try to register) after they were informed they had made a mistake.”
For both sides, it’s a numbers game.
ACLU lawyer Sophia Lakin argued that thousands of voters are being treated as second-class citizens by the split rolls, even if they are ultimately allowed to vote.
Kobach’s system separates federal registrants into a group that is not included in the regular poll book, and those voters have to cast provisional ballots.
No one should be challenging those voters’ eligibility.
Sophia Lakin, American Civil Liberties Union lawyer
That “simply proves the point here (that despite the federal rulings) they’re not treated as registered voters,” she said. “No one should be challenging those voters’ eligibility.”
Lakin said that in the wake of Kobach’s federal setbacks, the two-tier system is an attempt at “salvaging the last shred” of the proof-of-citizenship requirement, which Kobach proposed and shepherded through the Legislature.
Kobach said later that if there were 25 proven cases of noncitizens registering in Sedgwick County, there are probably hundreds more in the county who haven’t been caught and thousands across the state.