Kobach’s voter prosecutions draw scrutiny to proof-of-citzenship requirement

Kansas’ proof-of-citizenship law would have done nothing to prevent the type of voter fraud Secretary of State Kris Kobach alleges three people committed in recent elections.

Kobach’s office announced three prosecutions last week of people he says double voted – casting ballots in more than one jurisdiction – after the Legislature and Gov. Sam Brownback granted him prosecutorial power earlier this year. Kobach is the only secretary of state in the nation with such authority.

The misdemeanor charges against a pair of Republican voters in Johnson County and a felony case against a Sherman County man, whom Kobach calls a serial double voter, come after several years of Kobach warning of the threat of voter fraud to Kansas elections and pushing for stricter voting laws.

Kobach’s critics have argued, with a strong dose of derision, that the fact that he has filed only three cases is proof that the threat of voter fraud has been overstated. But Kobach has said that he plans to file more cases over the next two months.

“If this is why we have been through six years of this to find three people … then it tells me that our secretary of state has been jousting at windmills for the past six years for his own political advantage,” said Rep. John Carmichael, D-Wichita, one of Kobach’s most outspoken opponents in the Legislature.

Kobach said that “there will never be enough prosecutions” to sway his critics about the need for stricter voting laws.

“If we prosecuted, you know, 30 cases this month they would still say that’s not enough voter fraud to worry about,” Kobach said. “They’re never going to be persuaded, nor am I going to try to persuade them.

“I think most people realize that one case of voter fraud is too many.”

But Kobach’s critics have also noted that the three people charged with voter fraud don’t exactly fit the image of a voter fraudster that conservative Republicans have conjured up in recent years.

These weren’t immigrants looking to vote despite their lack of citizenship. These were people with property in more than one state who allegedly cast votes in both states.

Djuan Wash, spokesman for Sunflower Community Action, a group that works to mobilize Latino and African-American voters, homed in on this point.

“Secretary of State Kris Kobach ran a xenophobic campaign, playing to people’s worst fears in believing that undocumented people are voting in elections,” Wash said in an e-mail. “These three cases of voter fraud represent the antithesis of what he ran on. The individuals listed aren’t undocumented immigrants.”

The prosecutions have renewed scrutiny over some of the other election law changes Kobach championed in the name of stopping voter fraud, such as the state’s proof-of-citizenship requirement for new voters, which was enacted in 2013.

Since the law went into effect, the state’s suspended voter list has ballooned to more than 37,000 people. The fact that none of the alleged crimes Kobach is prosecuting involve noncitizens has heightened criticism of the policy.

“Kobach has made extraordinary efforts to grant himself prosecutorial power for three prosecutions,” said Chapman Rackaway, a political scientist at Fort Hays State University. “Meanwhile, he has discarded more than 1,500 times his filed prosecutions in ‘suspense voters.’

“The disproportionality is worrisome in terms of how many people are being disenfranchised relative to the instances of prosecutable voter fraud in Kansas.”

The suspended voter list and controversy over a new rule, which culls prospective voters from the list if they fail to provide proof of citizenship after 90 days, inspired condemnation from presidential candidate Hillary Clinton’s campaign last week.

Kobach would not say whether he has found any cases of noncitizens voting before 2013 that he plans to prosecute, but he has touted the law’s effectiveness at preventing noncitizens from voting since it went into effect. He said there were multiple cases “in Sedgwick County alone of aliens who attempted to register but were successfully prevented from registering by our new law.”

Sandra Gritz with the Sedgwick County Election Office confirmed in an e-mail that there were at least 17 confirmed instances of noncitizens attempting to register in the county. But that number pales to the size of the county’s suspense list, which currently stands at 6,385 – with 5,591 people on the list for failing to provide proof of citizenship.

Gritz also said that the county has recently registered more than 2,000 people who were on the suspense list after confirming their birth records with the Bureau of Vital Statistics.

Double voting

The cases Kobach has pursued for prosecution center on allegations of double voting, something which the proof-of-citizenship requirement can’t stop.

“There are some election crimes that you can’t stop with photo ID or proof of citizenship,” Kobach said. “You can’t stop someone from double voting with a photo requirement. … The only way to effectively deter those crimes is by prosecuting.”

Kobach argued that the prosecutions would prevent people from casting multiple ballots in future elections.

“The message is undoubtedly getting out that we can catch a person who casts multiple ballots and we are serious about prosecuting,” Kobach said.

Rep. Steve Huebert, R-Valley Center, who supported granting Kobach the new power, said that “just having a few cases that are out in the news puts a little backdraft out there for people who think they can break the law and not have any consequences, give them pause.”

“It’s not so much that you have to prosecute every case, by prosecuting a few you’re just sending a message,” Huebert said, arguing that it would help ensure that elections follow the principle of “one man, one vote.”

Lincoln Wilson, the man charged in Sherman County, is a 64-year-old African-American man who lives part of the year in Kansas and the rest in Colorado. He is active in the Kansas Masonic Lodge and said he makes his living off real estate holdings in both states.

Wilson told The Eagle last week that he thought he was allowed to vote in each state and was puzzled by the prosecution. He’s charged with perjury on his voter form and unlawfully voting in the 2010, 2012 and 2014 elections.

Wilson seemed genuinely confused about the situation when contacted Tuesday night, explaining that he thought voting in Colorado had no impact on voting in Kansas.

Kobach wouldn’t discuss specific details of these case, but when asked about Wilson’s apparent confusion he said that “there were definitely some willful acts we believe the defendant committed.”

Attempts to reach the defendants in Johnson County, Steve and Betty Gaedtke, have proven unsuccessful.

The couple is accused of voting in both Arkansas and Kansas in 2010.

National publicity

Kobach’s efforts got substantial attention last week – a story in the New York Times and a guest spot on Fox News’ “The O’Reilly Factor” on Friday night – and have been at the center of a national debate over voting rights.

Clinton used the controversy surrounding Kobach as an opportunity to float the idea of “universal, automatic voter registration” – an idea Kobach condemned as a “federal takeover” that would result in “millions of aliens automatically getting onto the voter rolls.”

Rick Hasen, an election law expert who teaches at the University of California, Irvine School of Law, argued that cases of double voting “tend to happen because we have our election administration done state by state rather than nationally and so there’s a potential for people to vote in two states.”

Hasen said that voter fraud does happen, but it’s extremely rare, and he said when it does happen it’s usually not by noncitizens.

“There’s a group of people who I call the ‘fraudulent fraud squad’ who gin up all kinds of talk of voter fraud being an epidemic, but then when you get down to it you find that the kind of fraud that happens is not the kind of fraud that’s targeted by the laws that these people tend to support,” Hasen said. “And I put Kobach in that camp.”

Carmichael, an attorney, raised concern about the fact that Kobach is now in charge of both administering elections and prosecuting election crimes, arguing that it creates a conflict of interest.

Rep. Mark Kahrs, R-Wichita, who is also an attorney and backed the decision to give Kobach the power, said that some county attorneys “have bigger fish to fry,” which has left many of these election violations unprosecuted over time.

Giving the secretary of state the power to prosecute ensures that the law will be enforced, he argued.

“To me as a lawyer and as a legislator is just made sense,” Kahrs said. “The Secretary of State’s Office, they’re the subject matter experts on election law.”

Hasen said that many people who vote illegally do so unwittingly, and if Wilson genuinely did think that he was not breaking the law than a felony charge might not be appropriate.

“Kobach’s incentive of course is too make as much political hay as possible because he’s essentially a huckster trying to sell the public on a belief that voter fraud’s an epidemic when it’s a very rare problem,” he said.

This story was originally published October 18, 2015 at 11:27 AM with the headline "Kobach’s voter prosecutions draw scrutiny to proof-of-citzenship requirement."