ACLU moves to strike down Kobach’s voter citizenship law

The American Civil Liberties Union and Secretary of State Kris Kobach jockeyed for legal advantage Friday in a court case challenging Kobach’s implementation of the state’s voter proof-of-citizenship law.

Representing Kansas voters who can cast ballots in federal races, but not state and local elections, the ACLU filed a motion for summary judgment that would strike down Kobach’s two-tier voting system without a trial.

Nearly simultaneously, Kobach filed a motion that would allow him to immediately appeal a judge’s ruling that he overstepped his authority by dividing voters into two voting camps, those who registered using a state form and those who registered using a federal form.

The case is important because it could let people work around a state law – authored by Kobach – that requires prospective registrants to show documents proving their citizenship before they are granted voting privileges.

The proof-of-citizenship requirement is separate from the requirement that voters have to show photo ID when they cast a ballot.

While a driver’s license is sufficient for Election Day voter ID, the state’s voter-registration form requires a higher level of documentation. That can usually be met only with a birth certificate, passport, or special papers issued to foreign-born and tribal citizens.

The federal registration form accepts a sworn statement from the voter, signed under penalty of perjury, as proof of citizenship. At Kobach’s direction, only voters who can document proof of citizenship are allowed to vote in all federal, state and local elections.

Voters who register with the federal form without providing their citizenship papers are only allowed to vote in federal races for president and members of Congress.

The federal appeals court in Denver ruled last year that the state has to accept and use the federal form to register voters in federal elections, and the state can’t force a federal agency to incorporate Kansas rules into its form.

The Supreme Court declined to hear Kobach’s appeal of that ruling.

The ACLU’s motion for summary judgment argues that the system put in place is so unconstitutional that the case can be settled without a trial as a matter of law.

The ACLU argues Kobach’s dual-registration system is illegal on three fronts:

▪ It creates “an ad hoc dual system of registration and election administration that is wholly without a basis of legislative authority and contrary to existing state statutes.”

▪ Kobach has failed to promulgate and publish clear rules and regulations for administering dual elections.

▪ The current system grants different rights to different voters, violating the constitutional mandate of equal protection of the law and potentially compromising the secrecy of federal voters’ ballots.

Reached late Friday, Kobach said he had not seen the ACLU motion yet and would not comment on it.

The motion Kobach’s office filed Friday seeks to allow him to immediately appeal a ruling last week that dismissed his motion for summary judgment in the case. Kobach argues it would be more efficient to let the appeal go forward now, rather than go to the time and expense of a full trial and then appeal.

“If the court of appeals agrees with the defendants (Kobach and his elections deputy), state and judicial offices will be conserved because the case would immediately be dismissed,” the motion said.

Kobach argues that the ACLU’s named plaintiffs, Aaron Belenky and Scott Jones, don’t have standing to sue because they’ve been granted full voting privileges.

Although they filed on a federal form and didn’t provide the documents the state demands, Kobach’s office was able to find their proof of citizenship at the Department of Motor Vehicles and enroll them as voters.

Kobach’s brief said he plans to appeal whether a party to a lawsuit has standing if he or she is no longer suffering an injury, and whether actions taken by a defendant to provide the relief the plaintiff seeks can render a case moot.

In a ruling made public last week, Topeka District Court Judge Franklin Theis wrote that Kobach couldn’t get out of the lawsuit just because he had given unrequested assistance to Belenky and Jones.

Theis wrote that the plaintiffs had already suffered legal injury by being denied their right to vote in past elections and having to take the secretary of state to court to enforce their rights. He also wrote that if their case is dismissed, it could happen again, to them and to others.

This story was originally published September 4, 2015 at 9:18 PM with the headline "ACLU moves to strike down Kobach’s voter citizenship law."